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SECOND
SECTION
CASE OF ŞAHİN KARAKOÇ v. TURKEY
(Application
no. 19462/04)
JUDGMENT
STRASBOURG
29
April 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 Şahin Karakoç v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Antonella
Mularoni,
President,
Ireneu
Cabral Barreto,
Rıza
Türmen,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
judges,
and Sally Dollé, Section
Registrar,
Having
deliberated in private on 1 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 19462/04) 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 Şahin
Karakoç (“the applicant”), on 16 April 2004.
- The
applicant was represented by Mr M.A. Kırdök, Ms M. Kırdök
and Ms M. Hanbayat, lawyers practising in İstanbul.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
23 January 2007 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in İstanbul.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- On
5 July 1993 Başbağlar village in Erzincan was raided by
terrorists. They burned numerous houses and killed 33 villagers. The
applicant, who was living in the neighbouring village, was suspected
of having participated in the so-called “Başbağlar
Massacre”.
- The
applicant and twenty other individuals were charged under Article 125
of the Criminal Code.
- On
24 January 1996 the applicant was arrested and remanded in custody.
On 18 February 1997 the İzmir State Security Court ordered his
release pending trial.
- On
23 October 1997 the applicant was acquitted.
- On
12 February 1999 the applicant lodged a complaint under Law no. 466
with the Bakırköy Assize Court against the Treasury,
requesting 1,000,000,000 Turkish
liras (TRL) in respect of pecuniary damage and TRL 4,000,000,000
for non-pecuniary damage by way of compensation for unjustified
detention between 24 January 1996 and 18 February 1997.
- The
Bakırköy Assize Court appointed one of its members as judge
rapporteur (naip hakim) to investigate the case and draft a
report. The applicant was heard by the judge rapporteur on 8 June and
12 October 2000. He stated that he did not have a regular job at the
time but was unofficially working for a dairy merchant six months a
year, collecting cheese from local farmers, and in return was paid
TRL 100,000,000
per month.
- On
6 November 2001 the Bakırköy Assize Court found that the
applicant's unjustified detention on remand for 384 days qualified
for compensation. In its judgment, the court took note of all the
complaints set out by the applicant's lawyer, as well as the content
of the judge rapporteur's report and the written submissions of the
public prosecutor. The court further referred to the minimum wage at
the time and the expert report which had estimated the applicant's
income loss to be TRL 168,114,000.
The court concluded in line with the expert report and awarded the
applicant TRL 168,114,000 for pecuniary damage. Considering the
applicant's economic and social position, the seriousness of the
charges brought against him and the time that he had spent in
detention as well as the intensity of his emotional suffering, the
court additionally awarded the applicant TRL 1,000,000,000
for non-pecuniary damage.
- The
applicant's lawyer appealed and claimed that the amount of
compensation for non-pecuniary damage was insufficient reparation for
the wrongful detention of the applicant and the subsequent suffering
that he had endured. He further maintained that, considering the
length of the proceedings, the compensation for pecuniary damage
awarded by the court was not sufficient either. He also complained
about the lack of interest on the compensation.
- On
4 March 2002 the Court of Cassation quashed the decision on the
ground that the defendant had not been notified of the applicant's
claim and had not been invited to submit replies.
- The
case was resumed before the Bakırköy Assize Court. On
18 September 2002 the judge rapporteur heard the applicant who
repeated his previous statements and was paid TRL 100,000,000 per
month. A new expert report estimated the applicant's income loss, on
the basis of the net minimum wages
in force at the time, to be TRL 113,266,974.
- On
21 October 2002 the Bakırköy Assize Court awarded the
applicant TRL 113,266,974 for pecuniary damage and TRL 2,000,000,000
for non-pecuniary damage. The court refused the applicant's claim for
interest which was not covered by Law no. 466.
- On
14 January 2003 the applicant appealed.
- The
written opinion of the Public Prosecutor was submitted to the Court
of Cassation and notified to the applicant.
- On
21 October 2003 the Court of Cassation upheld the decision of the
Bakırköy Assize Court, with a minor amendment regarding the
costs and expenses.
- On
5 October 2004 the applicant was paid TRL 2,113,266,974
plus TRL 1,233,300,000
in statutory interest, applied with effect from 21 October 2002.
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. He further alleged
under the same provision that he had not been afforded a public
hearing and had not been notified of the public prosecutor's written
opinion, which had denied him the right to a fair hearing.
- The
relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government claimed that the application had been lodged by the
applicant on 23 April 2004, six months and two days after the final
decision of the Court of Cassation. The Government concluded that the
application should be declared inadmissible for failure to comply
with the six-month rule contained in Article 35 § 1 of the
Convention.
- However,
the Court observes that the date mentioned by the Government is in
fact the date of registration of the application by the Registry of
the Court, whereas the date stamped on the envelope which contained
the application forms indicates that it was mailed on 16 April
2004. Consequently, the Court finds that the applicant lodged his
application within the six-month time-limit (see Yıldız
and Taş v. Turkey (no. 4), no. 3847/02, § 22,
19 December 2006).
- The
Court adds that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Allegation concerning the length of proceedings
- The
applicant complained of excessive length in the civil proceedings, in
breach of the Convention.
- The
Government rejected that claim.
- The
period to be taken into consideration began on 12 February 1999 and
ended on 21 October 2003. It thus lasted some four years and eight
months for two levels of jurisdiction which produced four judgments.
- The
Court will examine the reasonableness of that period in the light of
the circumstances of the case and with reference to the criteria
established by its case-law, particularly the complexity of the case,
the conduct of the applicant and of the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII, and Humen v. Poland [GC], no. 26614/95, §
60, 15 October 1999).
- As
regards the nature of the case, the Court observes that, given that
the determination of the claim required expert evidence, it was of a
certain complexity.
- As
regards the conduct of the judicial authorities, the Court observes
that during the period under consideration the case was examined at
two levels of jurisdiction and a total of four judgments were
delivered. The first-instance court based its judgment on two expert
reports and the statements of the applicant who was heard on three
occasions. The court examined the case file regularly and no
inordinate delay in the proceedings occurred in the proceedings.
Consequently, the Court considers that the authorities displayed due
diligence in handling the applicant's case.
- In view of the foregoing and having regard to the
overall length of the proceedings, the Court finds that there has
been no violation of Article 6 § 1 of the Convention
as regards the complaint concerning the length of proceedings.
2. Allegation concerning the lack of a hearing
- According
to the applicant, his case required a mandatory oral hearing within
the context of adversarial proceedings. He added that the three times
he had been heard by the judge rapporteur were for the purposes of
collecting information. The absence of the public prosecutor and the
defendant had denied him the opportunity to challenge their opinion,
in breach of Article 6 § 1.
- The
Government stated that Law no. 466 was intended to provide a speedy
means of dealing with compensation claims. Although dispensing with
hearings was the rule for such cases, there were exceptions, such as
that of the applicant who had been heard by the court and given the
opportunity to explain himself on 8 June and 12 October 2000 and
10 September 2002.
- The
Court reiterates that it is a fundamental principle enshrined in
Article 6 § 1 that court hearings should be held in public. The
public character of proceedings before the judicial bodies referred
to in Article 6 § 1 protects litigants against the
administration of justice in secret with no public scrutiny; it is
also one of the means whereby confidence in the courts, superior and
inferior, can be maintained. By rendering the administration of
justice visible, publicity contributes to the achievement of the aim
of Article 6 § 1, namely a fair hearing, the guarantee of
which is one of the fundamental principles of any democratic society,
within the meaning of the Convention (see Pretto and Others v.
Italy, judgment of 8 December 1983, Series A no. 71,
pp.11-12, § 21).
- That
said, the obligation to hold a hearing is not absolute (see Håkansson
and Sturesson v. Sweden, judgment of 21 February 1990, Series A
no. 171-A, § 66). There may be proceedings in which an oral
hearing may not be required: for example where there are no issues of
credibility or contested facts which necessitate a hearing and the
courts may fairly and reasonably decide the case on the basis of the
parties' submissions and other written materials (see, for example,
Döry v. Sweden, no. 28394/95, § 37, 12
November 2002; Pursiheimo v. Finland (dec.), no. 57795/00,
25 November 2003; Lundevall v. Sweden, no. 38629/97,
§ 39, 12 November 2002; and Salomonsson v. Sweden,
no. 38978/97, § 39, 12 November 2002). Furthermore,
the fact that no members of the public were present at the hearing
does not automatically render it not public (see Galstyan v.
Armenia, no. 26986/03, § 81, 15 November 2007).
- The
Court reiterates that in the Göç v Turkey judgment
a similar situation to the present case was examined (see Göç
v. Turkey [GC], no. 36590/97, § 55, ECHR 2002 V).
In considering whether there were any exceptional circumstances which
justified dispensing with an oral hearing on the applicant's
compensation claim, the Court held that the applicant should have
been afforded an opportunity to explain orally to the first-instance
court the moral damage which his detention entailed for him in terms
of distress and anxiety. According to the Court the administration of
justice and the accountability of the State would have been better
served by affording the applicant the right to explain his personal
situation at a hearing before the domestic court, subject to public
scrutiny. The Court concluded that the above factor outweighed the
considerations of speed and efficiency on which, according to the
Government, Law no. 466 was based.
- In
the instant case it is not disputed between the parties that the
applicant was afforded the right to explain his personal situation
orally. The Court observes that the Bakırköy Assize Court
held in its judgment that the applicant had been heard by the judge
rapporteur within the context of a decision delivered by the Court of
Cassation on 13 May 1999, which held that claimants in cases of
compensation for unjustified detention must be heard in person for a
better assessment of their personal and social situation at the time
of the events. The Court notes that the applicant was indeed heard by
the judge rapporteur three times, twice before the Court of Cassation
quashed the judgment and once thereafter.
- The
Court, however, observes that on each occasion the applicant was
heard by the judge rapporteur alone, in the absence of the other two
judges, the public prosecutor and the defendant party.
- Consequently,
the Court concludes that the circumstances in which the applicant was
heard in the instant case did not afford him the right “to
explain his personal situation in a hearing before the domestic court
subject to public scrutiny” as held in the Court's Göç
judgment, cited above.
- Accordingly,
the Court finds that there has been a violation of Article 6 §
1 of the Convention in respect of the applicant's complaints
concerning the lack of a hearing.
3. Allegation concerning the non-communication of the
written opinion of the public prosecutor at the Court of Cassation
- The
applicant maintained that the public prosecutor's written opinion
concerning the first judgment of the Bakırköy Assize Court
had not been served on him; a situation which had denied him the
opportunity to reply and thus infringed his right to a fair hearing.
- The
Government contested that argument, submitting that the case had been
reviewed afresh after the Court of Cassation quashed the Bakırköy
Assize Court's first judgment. Subsequently the public prosecutor's
written opinion concerning the new judgment of the former court had
been notified to the applicant. The Government asserted therefore
that the applicant had been given the opportunity to reply thereto.
- The
Court notes that it has examined similar grievances in the past and
has found a violation of Article 6 § 1 of the Convention (see,
in particular, Göç, cited above, §§
55 58; Sağir v. Turkey, no. 37562/02, §§ 25 27,
19 October 2006; and Ayçoban and Others v. Turkey,
nos. 42208/02, 43491/02 and 43495/02, §§ 26 28,
22 December 2005). However the instant case differs from the cases
mentioned above for the following reasons.
- The
Court notes that, although the applicant was not notified of the
public prosecutor's written opinion concerning the former judgment of
the Bakırköy Assize Court, this judgment was subsequently
quashed by the Court of Cassation on 4 March 2002. Subsequently the
applicant was re-heard by the new judge rapporteur and a new expert
report was submitted. The applicant's claims were examined afresh by
the Bakırköy Assize Court, which made a reassessment of the
case and awarded in its later judgment a different amount of
compensation. A new written opinion was prepared by the public
prosecutor, the content of which was solely based on the Bakırköy
Assize Court's latter judgment.
- The
Court notes that, unlike the facts of the case in the Göç
judgment, the applicant was notified of and given the opportunity
to reply to this second written opinion of the public prosecutor
(see, mutatis mutandis, Yaşar v. Turkey (dec.),
no. 46412/99, 31 March 2005; Tarlan v. Turkey (dec.), no.
31096/02, 30 March 2006; and Pakkan v. Turkey, no. 13017/02,
§§ 33 34, 31 October 2006).
- In
the light of the foregoing, the Court finds that the applicant's
complaint concerning the non-communication of the public prosecutor's
written opinion regarding the Bakırköy Assize Court's
initial judgment does not disclose a violation of the Article 6 §
1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that the
compensation amount awarded by the Bakırköy Assize Court
was insufficient; therefore Law no. 466 did not provide him with an
effective remedy for his unjustified detention.
- It
is the Court's general practice to examine similar complaints under
Article 5 § 5 of the Convention, being the lex specialis
in the matter (Whitfield and Others v. the United Kingdom,
nos. 46387/99, 48906/99, 57410/00 and 57419/00, § 51, 12 April
2005), which provision reads as follows:
Article 5 § 5
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
- The
Court recalls that, under this provision, the right to compensation
for any material or moral damage sustained as a result of a detention
is conditional on a breach being found of one of the paragraphs of
Article 5, either by a domestic court or by the Convention
institutions (see Wassink v. the Netherlands, judgment of 27
September 1990, Series A no. 185-A, p. 14, § 38; and,
mutatis mutandis, Talat Tepe v. Turkey,
no. 31247/96, § 79, 21 December 2004 ).
- The
Court notes in the instant case that the Turkish authorities did not
hold that the applicant's pre-trial detention had been unlawful or
otherwise in contravention of the first four paragraphs of Article 5.
The court observes that the “unjustified detention”
acknowledged by the domestic authorities in the applicant's case
differs in substance from “unlawful detention or arrest”
under Article 5 §§ 1 to 4 (mutadis mutandis,
N.C. v. Italy [GC], no. 24952/94, § 57,
ECHR 2002 X).
In
the instant case the applicant was kept lawfully in detention on
remand until his acquittal, which had no effect on the legality
question (see, among others, Van der Leer v. the Netherlands,
judgment of 21 February 1990, Series A no. 170 A, §
24). In other words the national courts' finding that the applicant's
detention was not justified as a result of his acquittal does not
amount - even in substance - to a finding that Article 5 §§
1-4 had been breached.
- In
the light of the above and considering, in particular, the fact that
the applicant's complaint before the Court only concerned the
insufficiency of the compensation he received under Law no. 466, but
not the legality of his detention on remand (a contrario, N.C.
v. Italy, cited above, § 50), the Court considers that
Article 5 § 5 of the Convention is not applicable. It therefore
follows that this complaint, seen as a whole and requalified, is
anyway manifestly ill-founded and must be rejected pursuant to
Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicant asserted that he had been unable to work due to the
unjustified detention in 1996 whereas the Bakırköy Assize
Court had delivered its judgment in 2002 and refused to apply
interest from 1996. The applicant added that the authorities had
delayed the payment of the compensation awarded by the Bakırköy
Assize Court, which had also caused him to suffer financial loss. He
relied on Article 1 of Protocol No. 1, which reads, in relevant
part, as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.”
Admissibility
- The
Government firstly claimed the applicant could no longer be
considered a victim, as the judgment debt had been paid along with
statutory interest. The Government added that the applicant had
failed to exhaust domestic remedies by not initiating enforcement
proceedings.
- The Court observes that it is not required to decide
whether or not the applicant could be considered a victim or to have
exhausted domestic remedies, as the application is inadmissible for
the reasons stated below.
- The Court
reiterates that in order for the applicant to have a "possession"
for the purposes of Article 1 of Protocol No. 1 the judicial decision
must become final and enforceable (see Angelov v. Bulgaria,
no. 44076/98, § 34, 22 April 2004).
In the present case the judgment of the first-instance court
became final on 21 October 2003. The Court finds that the applicant
has not shown that he had a sufficiently established and enforceable
claim before that date. He therefore cannot argue that he had a
“possession” within the meaning of Article 1 of Protocol
No. 1 with regard to his complaint.
- It
follows that the applicant's complaint under Article 1 of Protocol
No. 1 regarding the lack of interest on the pecuniary damage for
the period between 1996 and 2002 is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 §
4.
- As
for the applicant's complaint concerning the authorities' delay in
paying the compensation awarded by the judiciary, the Court
reiterates that abnormally lengthy delays in the payment of
compensation lead to increased financial loss for the person and to
uncertainty, especially when the monetary depreciation which occurs
in certain States is taken into account (see Akkuş v. Turkey,
judgment of 9 July 1997, Reports of Judgments and Decisions
1997 IV, § 29).
- The
Court notes that, in the present case, the greater part of the
compensation awarded, together with interest at the rate of 55% per
annum from 21 October 2002, 30% per annum from 1 April
2003 and 15% per annum from 1 January 2004, was paid to the
applicant on 5 October 2004, that is to say approximately one year
after the judgment of the Court of Cassation.
- The
Court observes that according to the calculation method adopted in
the judgment of Akkuş v. Turkey case (cited above, §
35) on the date of the finalisation of the first-instance court's
judgment or within a reasonable period thereafter, the applicant
should have received TRL 3,244,745,333. On the date of payment,
the amount of full compensation should have been TRL 3,468,264,666.
The applicant received TRL 3,396,566,974, which is 97.93% of the full
compensation.
- In
the light of the Court's findings in the case of Arabacı v.
Turkey ((dec.), no. 65714/01, 7 March 2002), the Court considers
that such a minor difference (less than 5%) between the
above-mentioned amounts can be considered to have resulted from the
methods of calculation used by the Court and the national
authorities. In these circumstances, the Court is of the opinion that
the total amount of money paid to the applicant was satisfactory even
if, apparently, it did not constitute full compensation.
- Consequently,
the applicant cannot be regarded as having endured a considerable
loss due to the interest rates applied and the deferral of payment.
- The
Court concludes that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
IV. 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 5,788 new Turkish liras (YTL) (approximately EUR
3,385) in respect of pecuniary damage and EUR 30,000 for
non-pecuniary damage.
- The
Government submitted that the amounts claimed were excessive and
would 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.
The Court further considers that, in the present case, the finding of
a violation constitutes in itself sufficient compensation for any
non-pecuniary damage suffered by the applicant (see Mesut
Yurtsever v. Turkey, no. 42086/02, § 23, 19 July
2007.
B. Costs and expenses
- Referring
to a contract signed with the applicant, the applicant's
representative claimed YTL 7,800 (approximately EUR 4,560) for
39 hours' legal work, spent for the preparation and presentation
of the instant case before the Court. The applicant further
claimed YTL 270 (approximately EUR 158) for the costs and
expenses incurred before the Court.
- The
Government contended that the applicant's claim was excessive and
unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to 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 for costs and expenses.
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 complaints concerning Article 6
§ 1 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the complaint
concerning the length of proceedings;
3. Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the complaint
concerning the non-communication of the written opinion of the public
prosecutor;
4. Holds that there has been a violation of Article
6 § 1 of the Convention as regards the complaint concerning the
lack of a hearing;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- 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 1,000 (one thousand
euros) in respect of costs and expenses, plus any tax that may be
chargeable to the applicant, which sums are to be converted into New
Turkish liras at the rate applicable 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 amount 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 29 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Antonella
Mularoni
Registrar President
