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SECOND
SECTION
CASE OF BALABAN v. TURKEY
(Application
no. 4236/03)
JUDGMENT
STRASBOURG
24
June 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 Balaban v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Antonella
Mularoni,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
and
Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 3 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4236/03) 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 Ramazan Balaban
(“the applicant”), on 8 November 2002.
- The
applicant was represented by Mrs N. Bener, a lawyer practising in
Bursa. The Turkish Government (“the Government”) were
represented by their Agent for the purposes of the proceedings before
the Court.
- On
5 June 2007 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the length of the
criminal proceedings brought against the applicant, the
non-communication of the principal public prosecutor's observations
before the Court of Cassation, the lack of a public hearing in the
determination of his compensation claim and the alleged damage he
suffered as a result of the domestic court's failure to order payment
of interest 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
- The
applicant was born in 1950 and lives in Bursa.
A. The criminal proceedings against the applicant
- On
17 October 1996 the applicant was taken into police custody on
suspicion of complicity in an armed robbery and homicide in Bursa.
- On
27 October 1996 he was detained on remand.
- On
4 November 1996 the Bursa public prosecutor filed a bill of
indictment with the Bursa Assize Court, charging the applicant and
three others with the murder of M.T. and armed robbery.
- On
21 November 1997 the Bursa Assize Court acquitted the applicant and
two of his co-accused. The fourth accused, A.Ş., was convicted.
The first-instance court ordered the applicant's release from prison.
- The
Bursa public prosecutor, M.T.'s father, who had joined the
proceedings before the Bursa Assize Court, and A.Ş. appealed.
- On
an unspecified date the principal public prosecutor at the Court of
Cassation submitted his written opinion (tebliğname) on
the merits of the appeal. This opinion was not served on the
applicant.
- On
28 April 1998 the Court of Cassation quashed the judgment of
21 November 1997, holding that the first-instance court had
failed to collect certain relevant evidence. The case was remitted to
the Bursa Assize Court.
- On
29 June 2001 the Bursa Assize Court once again acquitted the
applicant and two of his co-accused after gathering the evidence
mentioned in the Court of Cassation's decision. In its judgment, it
held that there was insufficient evidence to conclude that the
applicant had committed the offences in question.
- The
Bursa public prosecutor, M.T.'s father and A.Ş. again appealed.
On an unspecified date the principal public prosecutor at the Court
of Cassation submitted his written opinion (tebliğname) on
the merits of the appeal. This opinion was not served on the
applicant.
- On
19 March 2002 the Court of Cassation upheld the judgment of 29 June
2001. This decision was recorded in the records held by the Registry
of the Bursa Assize Court on 17 April 2002.
B. The compensation proceedings
- On
6 August 2002 the applicant brought an action in the Bursa Assize
Court for compensation under Law no. 466 for his detention
between 17 October 1996 and 2 November 1997.
- On
20 August 2002 the court held a hearing and appointed one of its
members as judge rapporteur to investigate the case and draft a
report. There is no indication that the applicant and/or his legal
representative were duly notified of this hearing. The rapporteur
held investigatory sittings between 30 September 2002 and 23 December
2002. There is no indication that the applicant and/or his legal
representative were summoned to be heard by the rapporteur during
this time.
- On
24 December 2002 the Bursa Assize Court held a hearing and, relying
on the expert report and the documents contained in the case file,
awarded the applicant 195,680,000 (TRL) (approximately EUR 116) for
pecuniary damage and TRL 3,000,000,000 (approximately EUR 1,791)
for non-pecuniary damage. In determining the award of pecuniary
damage, the court referred to the minimum wage at the time and the
applicant's loss of income during his incarceration. With respect to
non-pecuniary damage, it took into account the applicant's
socio-economic position, the seriousness of the charges brought
against him, the time he had spent in detention and the intensity of
his emotional suffering. It further awarded the applicant an amount
for costs and expenses incurred before the criminal court. However,
it dismissed his request for interest running from the date of his
release, holding that interest could not be awarded in cases brought
under Law no. 466. There is no indication that the applicant
and/or his legal representative were duly notified of this hearing.
- On
31 March and 6 February 2003 the Treasury and the applicant appealed.
The applicant complained, inter alia, about the absence of an
oral hearing before the Bursa Assize Court and the refusal to fix an
interest rate for the compensation awarded to him.
- On
10 June 2003 the principal public prosecutor at the Court of
Cassation submitted his written opinion on the merits of the appeals.
He advised that the judgment of the first-instance court should be
quashed as it had failed, inter alia, to take statements from
the applicant in person before awarding him compensation for
non-pecuniary damage. On 2 July 2003 this opinion was served on the
applicant.
- On
12 May 2004 the Court of Cassation upheld the judgment of the Bursa
Assize Court. In its decision the court also noted that there had
been no need for an oral hearing in the case.
- The
Government stated that on 3 November 2004 the authorities paid the
amount due.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the Göç v. Turkey judgment ([GC], no.
36590/97, §§ 27-32, ECHR 2002 V).
- On
2 January 2003 Article 316 of the Code of Criminal Procedure was
amended to provide that the written opinion of the principal public
prosecutor at the Court of Cassation be notified to the parties.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had not had an oral hearing before the
Bursa Assize Court for the determination of his compensation claim.
He invoked Article 6 § 1 of the Convention which, in so far as
relevant, reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by [a]
... tribunal.”
A. Admissibility
- The
Government maintained that the applicant did not exhaust domestic
remedies, as required by Article 35 § 1 of the Convention, as he
failed to raise the substance of his complaint under Article 6 of the
Convention before the domestic court.
- The
applicant rejected that argument.
- The
Court observes that the applicant did raise the substance of his
complaint before the domestic courts (see paragraph 18 above). It
therefore rejects the Government's objections under this head.
- The
Court further notes that this part of the application is not
manifestly ill founded, within the meaning of Article 35 §
3 of the Convention, and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government maintained, in particular, that the domestic court had
held hearings but that the applicant had failed to attend.
- The
applicant repeated his arguments.
- The
Court has examined similar cases on previous occasions and has found
violations of Article 6 § 1 of the Convention in respect of the
absence of an oral hearing before the Assize Court in the course of
compensation proceedings initiated pursuant to Law no. 466 (see, in
particular, Özata v. Turkey, no. 19578/02, §§
34-37, 20 October 2005, and Göç, cited
above, §§ 50-52). It finds no reason to depart from
that conclusion in the present case since the Government have failed
to demonstrate that the applicant and/or his legal representative
were duly notified of the dates of the court's hearings which were
held on 20 August 2002 and 24 December 2002, in order to ensure their
attendance (see, a contrario, Göktaş v. Turkey,
no. 66446/01, § 23, 29 November 2007).
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his application forms lodged on 8 November 2002 and 9 July 2004
respectively, the applicant complained under Article 6 § 1 of
the Convention on two counts. Firstly, he had never been given an
opportunity to reply to the principal public prosecutor's written
opinion submitted to the Court of Cassation in the criminal
proceedings brought against him. Secondly, the criminal proceedings
had been unduly protracted. Finally, he also complained under Article
1 of Protocol No.1 of the amount of compensation awarded to him,
which he considered too low, and of the failure to fix a rate of
interest, running from the date of commission of the tort, on that
award, despite the high inflation in Turkey.
- In
his observations dated 12 October 2007, the applicant further alluded
to the unfairness of the compensation proceedings on account of the
failure to communicate the expert report to him. He also complained
of the length of the compensation proceedings.
- However, in the light of all the material in its
possession, the Court finds that the applicant's submissions do not
disclose any
appearance
of a violation
of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 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 900,000 new Turkish liras (TRL) (approximately
534,588 euros [EUR]), together with interest running from the date of
his arrest, in respect of damage incurred as a result of the
violation of his Convention rights.
- The
Government maintained that no request for pecuniary or non pecuniary
damage had been duly submitted by the applicant.
- The
Court considers that the finding of violation constitutes in itself
sufficient compensation for any non-pecuniary damage suffered by the
applicant (see Aydın and Şengül v. Turkey, no.
75845/01, § 31, 3 May 2007). It therefore makes no
financial award under this head.
B. Costs and expenses
- The
applicant also claimed EUR 15,000 for the costs and expenses incurred
before the Court and TRL 2,000 (approximately EUR 1,188) for those
incurred before the domestic courts. He submitted documentation
regarding postal and translation expenses, as well as the fees he
owed in relation to the contract concluded between him and his legal
representative concerning the Court proceedings.
- The
Government contested the amount.
- 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
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,000 for the
proceedings before the Court.
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 admissible the complaint concerning the
lack of an oral hearing in the determination of the applicant's
compensation claim before the Bursa Assize Court, 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 1,000 (one
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, which sum is to be
converted into new Turkish liras at the rate applicable at the date
of the 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 24 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
