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SECOND
SECTION
CASE OF ÜNAY v. TURKEY
(Application
no. 24801/05)
JUDGMENT
STRASBOURG
22 September 2009
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 Ünay 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,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24801/05) 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 Selim Ünay (“the
applicant”), on 17 June 2005.
- The
applicant was represented by Mr and Ms Kırdök, lawyers
practising in İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
10 September 2008 the President of the Second Section
decided to give notice of the application. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1958 and lives in Kandıra.
- On
9 July 1996 the applicant was arrested in Istanbul during a bank
robbery. On 24 July 1996 he was brought before the investigating
judge at the Istanbul State Security Court, who remanded him in
custody.
- On
5 August 1996 the public prosecutor at the Istanbul State Security
Court filed an indictment against the applicant. Invoking Article 146
of the Criminal Code, he accused the applicant of membership of an
illegal armed organisation and of involvement in activities which
undermined the constitutional order of the State.
- The
trial commenced before the Istanbul State Security Court. In the
subsequent hearings, the court refused to release the applicant on
account of the nature of the alleged offence and the state of the
evidence.
- On
11 December 1997 the Istanbul State Security Court pronounced its
judgment. It convicted the applicant as charged and sentenced him to
life imprisonment.
- On
3 December 1998 the Court of Cassation quashed this judgment. The
case was accordingly remitted to the Istanbul State Security Court.
- On
5 January 1999 the Istanbul State Security Court resumed the trial.
During the subsequent hearings, the court rejected the applicant’s
requests for release, having regard to the state of the evidence.
- On
19 December 2002 the Istanbul State Security Court once again
convicted the applicant as charged and, pursuant to Article 146 of
the Criminal Code, sentenced him to life imprisonment.
- On
16 September 2003 the Court of Cassation once again quashed the
judgment of the first instance court.
- The
proceedings continued before the Istanbul State Security Court. On
7 May 2004 the State Security Courts were abolished following a
constitutional amendment, and the applicant’s case was
transferred to the Istanbul Assize Court.
- According
to the information in the case file, the proceedings are still
pending and the applicant is still remanded in custody.
THE LAW
- Relying
on Article 5 § 3 of the Convention, the applicant complained
about his pre-trial detention.
- The
Government asked the Court to dismiss the application under Article
35 § 1 for failure to exhaust domestic remedies. Referring to
the Court’s decision in the case of Köse v. Turkey
((dec.), no. 50177/99, 2 May 2006), the Government
maintained that the applicant had failed to object to his continued
detention under Articles 292-304 of the former Code of Criminal
Procedure. The Court reiterates that it has already examined and
rejected the Government’s preliminary objections in cases
similar to the present application (see, Koşti and Others v.
Turkey, no. 74321/01, §§ 18-24, 3 May 2007). It
finds no particular circumstances in the instant case which would
require it to depart from this jurisprudence. Consequently, it
rejects the Government’s preliminary objection.
- The
Government further argued that the application should be rejected for
non-compliance with the six months time-limit. In this respect, they
maintained that he should have lodged his application to the Court
sooner, had he considered that there were no effective domestic
remedies. The Court reiterates that, where no domestic remedy is
available, the six months time-limit contained in Article 35 § 1
of the Convention in principle runs from the date of the act
complained of in the application (Arı and Şen v. Turkey,
no. 33746/02, §23, 2 October 2007). In the present case, the
criminal proceedings against the applicant are still pending and he
is still in detention on remand. Furthermore, as explained above,
there are no effective remedies which the applicant can use to
challenge his prolonged detention pending trial (see, Koşti,
cited above, §§ 21-25). The Court therefore accepts that
the application has been brought within the six months time-limit. As
a result, it rejects the Government’s second objection.
- In
view of the above, the Court notes that the application 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.
- As
regards the merits of the complaint raised under Article 5 § 3
of the Convention, the Court observes that the applicant’s
pre-trial detention began on 9 July 1996 with his arrest. In line
with its case-law (see, Solmaz v. Turkey, no. 27561/02, §
36, ECHR 2007 ... (extracts), and Akyol v. Turkey,
no. 23438/02, § 25, 20 September 2007), after deducting the
periods when the applicant was detained after conviction under
Article 5 § 1 (a) of the Convention
from the total time he has been deprived of his liberty, the period
to be taken into consideration in the instant case is eleven years
and four months, at the date of adoption of the present judgment.
Over the years, the domestic courts constantly extended the
applicant’s detention using identical, stereotyped terms, such
as “having regard to the nature of the offence and the state of
the evidence”.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Atıcı v. Turkey,
no. 19735/02, 10 May 2007; Solmaz, cited above; Dereci
v. Turkey, no. 77845/01, 24 May 2005; Taciroğlu
v. Turkey, no. 25324/02, 2 February 2006). 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. In
the light of the foregoing, the Court finds that the length of the
applicant’s pre-trial detention contravenes Article 5 § 3
of the Convention. There has accordingly been a violation of this
provision.
- Concerning
just satisfaction, the applicant claimed 20,000 Euros (EUR) in
respect of non-pecuniary damage. The applicant further requested
5,500 Turkish liras (TRY) (approximately EUR 2,500) for the legal
fees and TRY 260 (approximately EUR 120) for the costs and expenses
incurred before the Court. In this respect, the applicant submitted a
legal fee agreement, but failed to submit any invoices regarding the
expenses. The Government contested these claims.
- The
Court considers that the applicant must have suffered certain
non-pecuniary damage which cannot be sufficiently compensated by the
finding of a violation alone. Therefore, ruling on an equitable
basis, it awards the applicant EUR 9,000 in respect of non-pecuniary
damage. Regarding the applicant’s claims for costs and
expenses, in accordance with its case-law and regard being had to the
documents in its possession and the above criteria, the Court finds
it reasonable to award the sum of EUR 1,000 for the proceedings
before the Court.
- The
Court further finds 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.
- Finally,
according to the information submitted by the parties, the criminal
proceedings against the applicant are still pending and the applicant
remains in custody. In these circumstances, the Court considers that
an appropriate means for putting an end to the violations found would
be to conclude the criminal proceedings against the applicant as
speedily as possible, while taking into account the requirements of
the proper administration of justice, and/or to release the applicant
pending the outcome of these proceedings (see Yakışan v.
Turkey, no. 11339/03, § 49, 6 March 2007, and Mehmet
Ali Çelik v. Turkey, no.
42296/07, § 26, 27 January 2009).
FOR THESE REASONS, THE COURT
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 3 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, the following amounts, to
be converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
9,000 (nine 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
