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SECOND
SECTION
CASE OF KANBUR v. TURKEY
(Application
no. 9984/03)
JUDGMENT
STRASBOURG
14
October 2008
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 Kanbur v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
Antonella Mularoni,
Dragoljub
Popović, substitute judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9984/03) 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 Yaşar
Kanbur (“the applicant”), on 4 February 2003.
- The
applicant was represented by Mr Ö. Kavili, a lawyer practising
in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
14 February 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Istanbul.
- On
30 October 2001 the Court found that there had been a violation of
Article 6 § 1 of the Convention, following an application lodged
by the applicant on 21 July 1995 (Kanbur v. Turkey, no.
28291/95) concerning the length of criminal proceedings brought
against him for his membership of Dev-Yol (Revolutionary Way). By
then the proceedings had lasted for over nineteen years. The Court
awarded the applicant 100,000 French francs (approximately 15,000
euros) in compensation.
- At
the time of the Court’s judgment, the criminal proceedings
against the applicant were still pending before the Ankara Assize
Court.
- The
facts of the case thereafter, as submitted by the applicant, may be
summarised as follows.
- On
14 May 2002 the applicant attended a hearing before the Ankara Assize
Court, gave a statement and submitted the Court’s judgment of
30 October 2001 in order to ensure that his case would be heard
within a reasonable time.
- On
16 July 2002 the Assize Court sentenced the applicant to death, and
then commuted his sentence to life imprisonment. The judgment was
subject to appeal.
- In
the meantime in October 2001, Article 38 of the Constitution was
amended so that the death penalty could no longer be ordered or
implemented other than in time of war or of imminent threat of war,
or for acts of terrorism. Subsequently, by Law no. 4771, which was
published on 9 August 2002, the Turkish Grand National Assembly
resolved, inter alia, to abolish the death penalty in
peacetime.
- On
28 May 2004 the Court of Cassation quashed the judgment of the
first-instance court on the ground that the death penalty had been
abolished during the course of the proceedings.
- On
23 December 2004 the Ankara Assize Court resumed the trial. On that
day it ordered, in absentia, the provisional detention of the
applicant in order to secure a statement from him.
- On
27 December 2004 the Ankara Assize Court heard a statement from the
applicant as regards the state of the case and revoked the detention
order as having served its purpose. Subsequently, the Ankara Assize
Court held thirteen more hearings.
- On
3 October 2006, at its fourteenth hearing, the Ankara Assize Court
delivered its judgment and sentenced the applicant to life
imprisonment pursuant to Article 146 of the Criminal Code.
- According
to the information made available to the Court by the parties to
date, the case is apparently still pending before the Court of
Cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 30 October 2001,
following the Court’s judgment in case no. 28291/95, and has
not yet ended. It has thus lasted for more than six years and ten
months for two levels of jurisdiction.
A. Admissibility
- The
Court notes that the 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
- 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,
and 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).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to that of the present
case (see Pélissier and Sassi, cited above).
- 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 finds 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 19,500 euros (EUR) in respect of pecuniary damage
and EUR 39,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
some non-pecuniary damage. Ruling on an equitable basis, it awards
award him EUR 3,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 35,128 for the costs and expenses and the
legal fees incurred before the Court. In respect of his request, the
applicant submitted a lawyer’s fee agreement and a detailed
schedule of costs.
-
The Government contested the claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
finds it reasonable to award the sum of EUR 1,000 under this head.
C. Default interest
- 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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a)
that the respondent State is to pay the applicant, 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:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
