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SECOND
SECTION
CASE OF ŞENTÜRK v. TURKEY
(Application
no. 27577/04)
JUDGMENT
STRASBOURG
24 November 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 Şentürk
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27577/04) 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 Hasan Şentürk
(“the applicant”), on 2 July 2004.
- The
applicant was represented by Mrs N. Bener, a lawyer practising in
Bursa. The Turkish Government (“the Government”) were
represented by their Agent.
- On
2 April 2008 the President of the Second Section decided to give
notice of the application to the Government. 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 Karacabey.
- On
17 October 1996 the applicant was taken into police custody on
suspicion of armed robbery and murder. On 27 October 1996 he was
placed in detention on remand. On 4 November 1996 the public
prosecutor initiated criminal proceedings against the applicant in
the Bursa Assize Court. On 27 November 1997 the applicant was
released pending trial. Subsequently, on 29 June 2001 the Bursa
Assize Court acquitted the applicant of the charges against him and
this judgment was upheld by the Court of Cassation on 19 March 2002.
- On
5 August 2002 the applicant applied to the Bursa Assize Court,
seeking compensation for both non-pecuniary and pecuniary damage
pursuant to Law no. 466 pertaining to the payment of compensation to
persons unlawfully arrested or detained.
- On
23 January 2003 the Bursa Assize Court awarded the applicant
358,071,000 Turkish
liras (TRL) for pecuniary damage and TRL 3,000,000,000 for
non-pecuniary damage. It also decided that no default interest should
be applied.
- On
31 March 2004 the Court of Cassation upheld this judgment.
- On
26 April 2004 the applicant applied to the Bursa Enforcement Office
and requested the payment of TRL 6,022,015,000, including interest
running from the date of the judgment. On 10 August 2004 the Treasury
objected to the interest rate, but paid the amount of
TRL 5,727,000,000 which was not in dispute. Following the
objection of the Treasury, proceedings commenced before the Bursa
Enforcement Court to determine the exact amount and interest rate to
be paid by the Treasury. On 26 October 2004 the Bursa Enforcement
Court dismissed the objection of the Treasury. Subsequently, on 25
February 2005 the Court of Cassation quashed the judgment, holding
that the interest rate should be calculated on the basis of that laid
down in the Budget Law. The case was then remitted to the Enforcement
Court. Following a re-examination of the case, and based on an expert
report, on 10 June 2005 the Enforcement Court ordered an additional
payment of TRL 479,450,000 to the applicant. This amount was paid in
August 2005. Consequently, the domestic authorities had applied an
interest rate of 50% per annum between 23 January 2003
and 1 January 2004, and 15% per annum as from 1 January
2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had not had an oral hearing before the Bursa Assize Court for the
determination of his compensation claim. He further claimed under the
same provision that the amount of compensation awarded to him had
been too low.
A. Absence of an oral hearing in domestic proceedings
1. Admissibility
- The
Government stated that Law no. 466 did not foresee hearings in
compensation cases, in order to provide a speedy means of dealing
with applications. As a result, in their view, the applicant, who had
a legal representative in the domestic proceedings, should have known
by 23 January 2003 at the latest that there would be no oral
hearing. Since the application was lodged on 2 July 2004, in the
Government's view the application should be rejected for
non-compliance with the six months rule under Article 35 § 1 of
the Convention.
- The
Court observes that the final decision concerning the amount of
compensation was delivered on 31 March 2004 by the Court of Cassation
and that the application was lodged with the Court on 2 July 2004.
Consequently, the application was lodged in
time and the Government's objection must be rejected.
- The
Court adds 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.
2. Merits
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its established
case-law on the matter (see Göç v. Turkey [GC],
no. 36590/97, § 55, ECHR 2002 V, and Şahin
Karakoç v. Turkey, no. 19462/04, §§ 33 41,
29 April 2008).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention in respect of the applicant's complaint concerning the
lack of a public hearing.
B. Fairness of proceedings
- The
applicant argued that the amount of compensation awarded to him was
insufficient.
- The Court recalls that it is not its task to act as a
court of appeal or, as is sometimes said, as a court of fourth
instance, for the decisions of domestic courts. According to the
case-law, the latter are best placed to assess the credibility of
witnesses and the relevance of evidence to the issues in the case
(see, amongst many authorities, Vidal v. Belgium, 22 April
1992, § 32, Series A no. 235 B, and Edwards v. the
United Kingdom, 16 December 1992, § 34, Series A no.
247 B).
- In
the present case, it is observed that the national court decisions
were based on the domestic law and the particular circumstances of
the case. The Court finds no element which might lead it to conclude
that the domestic courts acted in an arbitrary or unreasonable manner
in their assessment. There is therefore no appearance of a violation
of Article 6 § 1 in this respect.
- In
the light of the foregoing, the Court finds that this complaint
should be rejected as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- Relying
on Article 1 of Protocol No. 1 to the Convention, the applicant
stated that the interest rate applied by the domestic authorities did
not compensate for his financial loss caused by the depreciation of
the national currency. He further maintained that the interest should
have started running from the date of his arrest.
- The
Government claimed that the applicant could no longer be considered
as a victim, since the Treasury had paid the debt owed to the
applicant, together with statutory interest.
- The
Court considers that it is not required to decide whether the
applicant could still be considered a victim, as this complaint is
inadmissible for the reasons stated below.
- The
Court reiterates that abnormally lengthy delays in paying
compensation awarded by courts might lead to increased financial loss
for the person and to uncertainty, especially if there is significant
monetary depreciation in the country concerned (see Akkuş v.
Turkey, 9 July 1997, § 29, Reports of Judgments and
Decisions 1997 IV). In this connection, the Court observes
that in the present case a large part of the compensation award was
paid to the applicant on 10 August 2004, that is to say four months
after the decision of the domestic courts became final. The Court
further recalls that it has in the past examined cases against Turkey
in which the authorities delayed paying compensation awarded under
Law no. 466, without any interest (see Ertuğrul Kılıç
v. Turkey, no. 38667/02, §§ 19-21, 12 December 2006,
and Göktaş v. Turkey, no. 66446/01, §§
37-41, 29 November 2007). In these cases, the Court found that
the applicants had had to bear an individual and excessive burden
which had upset the fair balance which should be maintained between
the demands of the general interest and the protection of the
individual's right to the peaceful enjoyment of possessions.
- However,
the facts of the present case differ from those cited above. The
Court observes that, although the domestic courts did not order that
a particular rate of interest be applied to the compensation awarded
to the applicant, in practice the authorities applied the statutory
interest rate of 50% per annum between 23 January 2003 and 1
January 2004, and 15% per annum as from 1 January 2004.
Accordingly, although initially the domestic courts awarded the
equivalent of EUR 2,100 to the applicant, he actually received the
equivalent of EUR 3,900, covering both compensation and interest.
- The
Court is aware that the national authorities have a margin of
appreciation and that it may be economically necessary for them to
limit the amount of interest payable on debts due by the State.
Nevertheless, it cannot decline to verify whether the “fair
balance” between the demands of the general interest and the
requirements of the protection of the individual's fundamental rights
has been preserved. To that end, the Court must ensure that a
reasonable relationship of proportionality between the means employed
and the aim pursued has been maintained and that no disproportionate
burden has been imposed on the person who has been deprived of his or
her property (see Aka v. Turkey, 23 September 1998, § 47,
Reports 1998 VI).
- As
explained above, in the particular circumstances of the present case,
and in accordance with the calculation method adopted in the Akkuş
judgment (cited above), the Court cannot conclude that the applicant
suffered an excessive burden due to the interest rates applied and
the deferral of payment.
- The
Court therefore concludes that this part of the application is
manifestly ill-founded and must be rejected, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicant claimed EUR 6,000 in respect of pecuniary damage and
900,000 Turkish liras (TRY,
approximately EUR 417,000) in respect of non-pecuniary damage.
-
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this
claim. Moreover, it considers that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicant.
B. Costs and expenses
- The
applicant also claimed EUR 841 for costs and expenses and EUR 5,200
in respect of legal fees. He did not submit any supporting documents
in respect of his 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 were
reasonable as to quantum. In the present case,
the applicant has not established that he actually incurred the costs
claimed. Accordingly, the Court makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of a
public hearing admissible and the remainder of the application
admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
