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THIRD
SECTION
CASE OF VOLKAN ŞAHİN v. TURKEY
(Application
no. 34400/02)
JUDGMENT
STRASBOURG
20 May
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 Volkan Şahin v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall, President,
Rıza
Türmen,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Ineta Ziemele,
Luis López
Guerra,
Ann Power, judges,
and Stanley Naismith,
Deputy Section
Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34400/02) 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, Volkan Şahin (“the applicant”),
on 6 August 2002.
- The
applicant was represented by Mr Ayhan Akyiğit, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
6 May 2004 the Court
declared the application partly inadmissible and decided to
communicate to the Government the complaints concerning the length of
the proceedings and the lack of remedies in that respect, as well as
the complaint concerning non-communication to the applicant of the
submissions of the principal public prosecutor. On 8 September 2006
it decided to rule on the admissibility and merits of the application
at the same time, pursuant to Article 29 § 3 of the Convention.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Antalya.
- On
23 March 1993 a certain H.I. lodged a criminal complaint with the
Marmaris public prosecutor against the applicant and a certain S.K.,
accusing them of forging a bond. The prosecutor initiated an
investigation and questioned the applicant on 17 May 1993.
- Once
the preliminary investigation was completed and the necessary
evidence was obtained, a prosecutor in Ankara filed an indictment
with the Ankara Assize Court (hereinafter “the trial court”)
on 21 April 1995 and requested that the applicant and S.K. be
punished in accordance with Article 342 § 1 of the Criminal
Code for the offence of forgery.
- Thirteen
hearings were held by the trial court between 1 May 1995 and 12
September 1997 in the absence of the applicant. At each of these
hearings the trial court noted the authorities' failure to locate the
applicant's address. According to the applicant, the reason for his
absence from those hearings was that he had not been informed about
the trial. On 13 May 1996 the applicant's co-accused S.K. was
acquitted for lack of sufficient evidence. The trial court decided to
continue the proceedings against the applicant.
- A
lawyer representing the applicant attended the 14th hearing on
21 November 1997 but, as the applicant was unable to pay his
fees, the lawyer discontinued representing him. On 26 March 1998 the
authorities were able to find the applicant and question him. In the
course of the questioning the applicant denied the accusations
against him. He attended the 18th hearing, held on 28 May 1998.
- During
the 19th hearing, held on 22 June 1998, the trial court acquitted the
applicant for lack of sufficient evidence. On 16 September 1998 the
public prosecutor appealed against the acquittal. On 11 November 1999
the Court of Cassation quashed the decision and referred the case to
the trial court for a new trial.
- On
11 April 2000, during its first hearing in the new trial, the trial
court convicted the applicant as charged and sentenced him to one
year and eight months' imprisonment. The applicant appealed.
- On
22 October 2001 the Principal Public Prosecutor at the Court of
Cassation submitted his written observations to the Court of
Cassation. These observations were not communicated to the applicant.
On 13 February 2002, after having held a hearing, the Court of
Cassation upheld the trial court's decision.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
1. Complaint concerning the length of the criminal
proceedings
- 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
Court considers that the period to be taken into consideration began
on 17 May 1993 when the applicant was questioned by the prosecutor,
and ended on 13 February 2002 when the Court of Cassation upheld his
conviction. It thus lasted almost eight years and nine months for two
levels of jurisdiction.
A. Admissibility
- The
Government argued that the applicant did not exhaust the domestic
remedies as he failed to raise his complaint before the national
courts.
- The
applicant did not deal specifically with this issue other than to
dispute, in general terms, the arguments of the Government.
17. The Court
observes that in previous cases it has already examined and rejected
similar objections of the Government as regards the alleged failure
to exhaust domestic remedies (see, in particular,
Karakullukçu v. Turkey,
no. 49275/99, §§ 27-28, 22 November 2005). The Court finds
no particular circumstances in the instant case which would require
it to depart from its findings in the above-mentioned case. It
therefore rejects the Government's objection under this head.
- 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
Government argued that the applicant had contributed to the delay by
failing to attend a large number of hearings. The authorities had
done everything possible to ensure the applicant's attendance at
those hearings.
- The
applicant maintained that the prosecutor's indictment of 21 April
1995 had not been communicated to him and, as such, he was not aware
of the criminal proceedings against him.
- 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 does not consider the subject matter of the case to be complex.
However, the applicant's absence from the hearings held between 1 May
1995 and 21 November 1997 – that is, a period of over two and a
half years – undoubtedly contributed to the total length of the
proceedings.
- According
to the Government, the reason for the applicant's failure to attend
the hearings had been his intention to remain at large until the
statute of limitations for the offence was reached. The applicant had
thus hoped to avoid being prosecuted. According to the applicant, on
the other hand, the reason had been the failure of the authorities to
inform him about the trial.
- The
Court does not deem it important to examine the accuracy of the
parties' submissions on this matter since it considers that the
applicant, who claims to have been unaware of the trial for the
period referred to above (see paragraph 22 above), cannot claim to
have been affected by the proceedings against him for that period. It
therefore disregards this period from its examination of the total
length of the criminal proceedings.
- As
regards the conduct of the authorities, the Court observes that the
Government did not offer any explanation as to why it had taken the
prosecutor, who questioned the applicant on 17 May 1993 (see
paragraph 5 above), almost two years to prepare and file his
indictment (see paragraph 6 above).
- Similarly,
no explanation was put forward by the Government for the time taken
by the Court of Cassation to examine the appeals. In this connection
the Court notes that it took the Court of Cassation almost one year
and two months to decide the appeal lodged by the prosecutor against
the applicant's acquittal (see paragraph 9 above). Furthermore, the
appeal lodged by the applicant against his conviction was not decided
by the Court of Cassation for a period of almost two years (see
paragraphs 10-11 above).
- In
light of the foregoing, and 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.
2. Complaint concerning the non-communication of the
prosecutor's observations
- The
applicant complained that the written opinion of the Principal Public
Prosecutor at the Court of Cassation had not been served on him, thus
depriving him of the opportunity to put forward his
counter-arguments. He relied on Article 6 § 3 (b) of the
Convention.
- The
Court considers that this complaint should be examined from the
standpoint of Article 6 § 1, which in so far as relevant
provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
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
Government argued, in particular, that the applicant's
representative, who attended the hearing before the Court of
Cassation, could have examined the Principal Public Prosecutor's
observations before the hearing and could have challenged them.
- The
applicant maintained his allegations.
- The Court notes that it has already examined the same
grievance in the past and has found a violation of Article 6 § 1
of the Convention (see, in particular, Göç v. Turkey,
[GC], no. 36590/97, § 55, ECHR 2002-V; Sağır v.
Turkey, no. 37562/02, § 26, 19 October 2006; and
Ayçoban and Others v. Turkey, nos. 42208/02,
43491/02 and 43495/02, 22 December 2005).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained about the lack of a remedy by which he
could have challenged the excessive length of the proceedings. He
relied on Article 13 of the Convention which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the complaint concerning
the reasonable time requirement examined above and must therefore
likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI).
- The
Court observes that the Turkish legal system does not provide any
remedies to accelerate proceedings or to provide litigants with
adequate redress for delays that have already occurred. As such, the
applicant in the present case did not have any rights to compel any
authority to exercise its supervisory jurisdiction over the trial
court to expedite the proceedings (see Tendik and Others v.
Turkey, no. 23188/02, §§ 34-39, 22 December 2005,
and the cases cited therein).
- There has accordingly been a breach of Article 13.
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 150,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage.
- The
Government contested the applicant's claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 3,500 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 81 US dollars and 139,977,266 Turkish liras
for the costs and expenses incurred before the domestic courts and
EUR 2,600 for those incurred before the Court. At the time of the
submission of his claims, the sums requested by the applicant in
respect of his costs and expenses incurred before the domestic courts
amounted to approximately EUR 137.
- The
Government contested those claims.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 covering costs
under all heads.
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 on account of the length of the criminal
proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-communication of
the public prosecutor's written opinion to the applicant;
- Holds that there has been a violation of Article
13 of the Convention on account of the lack of a remedy in respect of
the length of the criminal proceedings;
- 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 3,500 (three thousand five hundred 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 20 May 2008, pursuant to Rule 77
§§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
