SECOND SECTION

CASE OF HANBAYAT v. TURKEY

(Application no. 18378/02)

JUDGMENT

STRASBOURG

17 July 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Hanbayat v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Mrs	 President,
	Mr	
	Mr	
	Mr	
	Mr	
	Mrs	
	Mrs	 judges,
and Mrs  , Section Registrar,
Having deliberated in private on 26 June 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 18378/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Aydın Hanbayat (“the applicant”), on 22 January 2002.
2.  By a letter dated 1 March 2006, the Registry was informed of the death of the applicant on 18 June 2005 and the applicant’s mother, Mrs Fatma Hanbayat, declared her intention to pursue the application.
3.  The applicant’s mother was represented by Mr and Mrs Kırdök, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 
4.  On 15 September 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1962.
6.  On 9 October 1994 the applicant was arrested by police officers from the Anti-Terror branch of the Istanbul Security Directorate in the course of a police operation carried out against the illegal organisation the TKP/ML-TIKKO (the Turkish Communist Party/Marxist Leninist - Turkish Workers and Peasants’ Liberation Army).
7.  On 21 October 1994 the applicant was brought before a single judge at the Istanbul State Security Court, who ordered his detention on remand.
8.  On 15 November 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and ten other persons. The public prosecutor charged the applicant with membership of an illegal organisation under Article 168 § 1 of the Criminal Code.
9.  On 1 February 1995 the Istanbul State Security Court held the first hearing on the merits of the case (no. 1994/183).
10.  On 13 October 1997 the public prosecutor at the Istanbul State Security Court filed a further bill of indictment against the applicant, accusing him of attempting to undermine the constitutional order, contrary to Article 146 of the Criminal Code.
11.  Between 1 February 1995 and 27 August 1999, the Istanbul State Security Court held 28 hearings in the case. Throughout these hearings, the applicant and his representative requested that the applicant be released pending trial. They contended that the length of the applicant’s detention on remand was excessive and that he suffered from health problems. The court dismissed the requests on each occasion, holding that the applicant’s detention pending trial should continue having regard to the nature of the offence with which he was charged, the state of the evidence and the date of the remand decision.
12.  On 27 August 1999 the Istanbul State Security Court decided to disjoin the proceedings against the applicant from case no. 1994/183 and to join them to a case brought against him in 1997 (no. 1997/359).
13.  On 8 August 2001, at the end of the 21st hearing, the Istanbul State Security Court ordered the applicant’s release pending trial, having regard to the content of the case file, the state of the evidence and the date of the remand decision.
14.  Between 1997 and 2004, the Istanbul State Security Court postponed the hearings in case no. 1997/359 as it had not received from German authorities an investigation file concerning a homicide allegedly committed by the applicant in Germany.
15.  By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Subsequently, the Istanbul Assize Court acquired jurisdiction over the case.
16.  On 23 February 2005 the Istanbul Assize Court acquitted the applicant of the charge under Article 146 of the Criminal Code, but convicted him of membership of an illegal organisation under Article 168 § 2 of the Criminal Code. It sentenced the applicant to twelve years and six months’ imprisonment.
17.  On an unspecified date, the applicant appealed.  While the proceedings were pending before the Court of Cassation, on 18 June 2005 the applicant died.
18.  Subsequently, on 19 October 2005 the Istanbul Assize Court decided to discontinue the proceedings.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION

19.  The Government submitted that the case should be struck out of the Court’s list of cases on the ground that the applicant’s mother was not affected by the alleged violations, and thus could not claim to be a victim within the meaning of Article 34 of the Convention.
20.  The Court notes that the applicant died on 18 June 2005. On 1 March 2006 his mother expressed her wish to continue the application. The Court reiterates that in a number of cases in which an applicant died in the course of the proceedings, it has taken account the statements of the applicant’s heirs or of close family members expressing their wish to pursue the case before the Court (see, among many others, Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI, Latif Fuat Öztürk v. Turkey, no. 54673/00, § 27, 2 February 2006, and Mutlu v. Turkey, no. 8006/02, §§ 13-14, 10 October 2006).
21. In view of the above, the Court holds that the applicant’s mother has standing to continue the present proceedings in the applicant’s stead. Consequently, the Government’s objection that the case should be struck out is dismissed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
22.  The applicant complained that his detention on remand exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention, which in so far as relevant reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
23.  The Government contested that argument.
A.  Admissibility
24.  The Government asked the Court to dismiss the application for failure to exhaust domestic remedies, pursuant to Article 35 § 1 of the Convention. In this regard, they maintained that the applicant could have sought compensation pursuant to Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained.
25.  The Court recalls that it has in the past already examined and rejected similar objections of the Government (see Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319‑A, § 44, and Ahmet Mete v. Turkey, no. 77649/01, § 21, 25 April 2006). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. As a result, it rejects the Government’s preliminary objection.
26.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
27.  The Court notes that, in the instant case, the period to be taken into consideration began on 9 October 1994 with the applicant’s arrest and ended on 8 August 2001, when the applicant was released pending trial. It thus lasted approximately 6 years and 10 months. During this period, the domestic courts prolonged the applicant’s detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence, the state of evidence and the duration of detention”.
28.  The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issues to those in the present application (see, for example, Atıcı v. Turkey, no. 19735/02, 10 May 2007; Solmaz, cited above; Dereci v. Turkey, no. 77845/01, 24 May 2005; Taciroğlu v. Turkey, no. 25324/02, 2 February 2006).
29.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, it considers that in the instant case the length of the applicant’s pre-trial detention was excessive and contravened Article 5 § 3 of the Convention.
30.  There has accordingly been a violation of this provision.

III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31.  The applicant complained of a breach of the reasonable time requirement of Article 6 § 1 of the Convention, which provides as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
32.  The Government contested that allegation.
33.  The Court notes that the period to be taken into consideration began on 9 October 1994 when the applicant was taken into police custody and ended on 19 October 2005 with the decision of the Istanbul Assize Court. They thus lasted over eleven years for two levels of jurisdiction.
A.  Admissibility
34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
35.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)
36.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Pélissier and Sassi, cited above).
37.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
38.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
39.  The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.
40.  The Government contested the claim.
41.  Ruling on an equitable basis, the Court awards the applicant’s heir, Mrs Fatma Hanbayat, EUR 12,000 under this head.
B.  Costs and expenses
42.  The applicant also claimed 5,500 New Turkish liras (YTL) –approximately EUR 3,000 – for legal fees and YTL 300 – approximately EUR 168 – for costs and expenses.
43.  The Government contested these claims.
44.  Making its own estimate based on the information available, the Court considers it equitable to award the applicant’s heir, Mrs Fatma Hanbayat, EUR 1,500 for the costs and expenses incurred before the Court.
C.  Default interest
45.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds 
(a)  that the respondent State is to pay the applicant’s heir, Mrs Fatma Hanbayat, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable:
(i)  EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage;
(ii)  EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the claim for just satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	S. 		Registrar	President