[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF FEDAİ ŞAHİN v. TURKEY
(Application
no. 21773/02)
JUDGMENT
STRASBOURG
21 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 Fedai Şahin 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,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21773/02) 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 Fedai Şahin
(“the applicant”), on 7 July 2000.
- The
applicant was represented by Mrs G. Altay, a lawyer practising in
Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
10 September 2007 the
President of the Second Section decided to give notice of the
application to the Government. It was 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 1968 and lives in Turkey.
- On
6 November 1992 the applicant was taken into custody within the
context of a police operation carried out against an illegal
organisation, namely the TKP/ML – TIKKO (the Turkish
Communist Party-Marxist Leninist - Turkish Workers and Peasants'
Liberation Army). On 17 November 1992 the applicant was
placed in detention on remand.
- By
an indictment dated 10 February 1993 the public prosecutor initiated
criminal proceedings against the applicant before the Istanbul State
Security Court, accusing him, inter alia, of membership of an
illegal armed organisation and of involvement in activities which
aimed at undermining the constitutional order of the State. The
prosecution sought the death penalty under Article 146 § 1 of
the Criminal Code.
- On
18 June 1999 the Constitution was amended and the military judge
sitting on the bench of the Istanbul State Security Court was
replaced by a civilian judge.
- On
12 June 2000 the applicant was convicted as charged by the Istanbul
State Security Court and sentenced to death.
- On
15 May 2001 the Court of Cassation quashed the applicant's conviction
for procedural reasons. The case was remitted to the Istanbul State
Security Court for further examination.
- On
18 July 2001 the Istanbul State Security Court ordered the
applicant's release pending trial.
- On
7 May 2004 State Security Courts were abolished following a
constitutional amendment and the applicant's case was transmitted to
the Istanbul Assize Court.
- On
31 January 2005 the Istanbul Assize Court found the applicant guilty
and sentenced him to life imprisonment, pursuant to Article 146 §
1 of the Criminal Code.
- On
20 March 2006 the Court of Cassation quashed the Istanbul Assize
Court's judgment for having erred in its assessment of the facts. The
case was remitted to the Istanbul Assize Court for re-trial.
- Between
12 May 2006 and 30 May 2007 the Istanbul Assize Court held six
hearings and dealt with procedural issues, such as the delivery of
arrest warrants, the appointment of advocates for some of the accused
and the extension of time-limits for defence submissions, etc.
- On
21 May 2008 the Istanbul Assize Court delivered its judgment in
respect of the applicant and thirteen other co-accused who stood
trial for actively participating in the illegal activities of the
TKP/ML – TIKKO with a view to undermining the constitutional
order of the State. Having established that the applicant had been
involved in armed attacks, the killing of several individuals and
robberies, the court found the applicant guilty of the alleged
offence and sentenced him to life imprisonment, pursuant to Article
146 § 1 of the Criminal Code. The applicant appealed.
- The
proceedings are currently 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 of
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 submitted that the proceedings in question were complex
due to the large number of co-accused, and that delays had been
caused by the applicant's conduct together with that of his
co-accused.
- The
period to be taken into consideration began on 6 November 1992 and
has not yet ended. It has thus lasted over 15 years and nine months
(to be updated) for two levels of jurisdiction.
A. Admissibility
- 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
- 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,
as well as 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 notes at the outset that it has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar
to the one in the present case (see Pélissier and Sassi,
cited above).
- The
Court further observes that there were substantial delays both at
first instance and in the appeal proceedings. It can accept that the
case, mounted against a large number of defendants, was complex.
However, it cannot but note that the proceedings have already lasted
almost sixteen years to date. The length of this period is excessive
and cannot be justified by the complexity of the case alone. In the
Court's opinion, the length of the proceedings against the applicant
can only be explained by the failure of the domestic courts to deal
with the case diligently.
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had been tried by a court which did not meet the requirements of
independence and impartiality on account of the presence of a
military judge on the bench. Finally, without invoking any Article of
the Convention, the applicant complained he risked being sentenced to
the death penalty.
A. Alleged unfairness of the proceedings before the
Istanbul State Security Court
- As
regards the applicant's complaint concerning the independence and
impartiality of the Istanbul State Security Court, the Court
considers that this complaint is premature since the criminal
proceedings against the applicant are still pending before the Court
of Cassation (see paragraph 16 above). In any event, it notes that
when the trial of the applicant commenced before the Istanbul State
Security Court, its composition indeed included a military judge.
However, in the course of the criminal proceedings, in June 1999
the Constitution was amended and the military judges sitting on the
bench of the state security courts were replaced by civilian judges.
Following the decision of the Court of Cassation on 15 May 2001, the
applicant's trial resumed before the Istanbul State Security Court
which was composed of three civilian judges who carried out a full
re-examination of the facts of the case and a re-assessment of the
evidence and law presented to it. Consequently, State Security Courts
were abolished following a further constitutional amendment and from
7 May 2004 onwards the applicant was tried afresh by the Istanbul
Assize Court.
- This being so, and having regard to the case-law of
the Court on this matter (see Yaşar v. Turkey
(dec.), no. 46412/99, 31 March 2005, and Tarlan v. Turkey
(dec.), no. 31096/02, 30 March 2006) the Court finds that, in the
particular circumstances of the case, the removal of the military
judge from the bench of the Istanbul State Security Court in the
course of the proceedings and the applicant's subsequent trial by the
Istanbul Assize Court disposed of his reasonably held concern about
the trial court's independence and impartiality (see, among others,
Osman v. Turkey, no. 4415/02, § 17, 19
December 2006). Nevertheless, as noted above, the criminal
proceedings against the applicant are still pending and the applicant
has still the possibility of raising his concerns before the domestic
courts.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Alleged risk of death penalty
- As
to the applicant's complaint concerning the death penalty, the Court
observes that since October 1984 the Turkish Grand National Assembly
(TGNA) has not rendered any decision authorising the enforcement of a
death penalty. Finally, on 9 August 2002 the TGNA abolished the death
penalty. Accordingly, in the circumstances of the case, the Court
considers that the risk of enforcement of the death penalty against
the applicant was illusory and that therefore he cannot be considered
to have suffered ever-present and mounting anguish at the prospect of
being executed, exposing him to treatment going beyond the threshold
set by Article 3 of the Convention (see Abdülmenaf Osman v.
Turkey (dec.), no. 4415/02, 6 October 2005; Sertkaya v.
Turkey (dec.), no. 77113/01, 11 December 2003).
- It
follows that this part of the application is also manifestly
ill-founded, and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
III. 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 20,000 euros (EUR) in respect of pecuniary damage
and EUR 20,000 for non-pecuniary damage.
- The
Government submitted that no award should be made under this head.
They asserted, alternatively, that any award to be made by the Court
should not lead to unjust enrichment.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have sustained some
non pecuniary damage. Ruling on an equitable basis, it awards
him EUR 13,000 under that head.
B. Costs and expenses
- The
applicant also claimed 10,500 New Turkish Liras (approximately EUR
6,000) for the costs and expenses incurred before the Court.
- The
Government contended that the applicant's claim was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 above criteria
and the applicant's failure to substantiate his claim, the Court
makes no award 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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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, EUR 13,000
(thirteen thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into New Turkish
liras at the date of settlement;
(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 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
