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SECOND
SECTION
CASE OF AKALIN v. TURKEY
(Application
no. 23480/06)
JUDGMENT
STRASBOURG
23
November 2010
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 Akalın v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub Popović,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos, judges,
and
Stanley Naismith, Registrar,
Having
deliberated in private on 2 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23480/06) 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 Nuri Akalın (“the
applicant”), on 10 May 2006.
- The
applicant was represented by Ms İ. Kadirhan and Ms G. Tuncer,
lawyers practising in İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
19 May 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and detained in Kandıra prison.
- On
3 March 1997 the applicant was arrested on suspicion of being a
member of an illegal organisation.
- On
14 March 1997 the applicant was examined by a doctor. The medical
report drawn up by the doctor indicated that there was hyperaemia on
the applicant's thighs.
- On
the same day the applicant was brought before the public prosecutor,
where he stated that he had been stripped and hosed with water under
police custody.
- On
the same day the judge at the İstanbul State Security Court
ordered his pre-trial detention. Before the judge the applicant
stated that his statement in police custody had been taken under
torture, but he did not give any details.
- On
28 April 1997 the public prosecutor at the İstanbul State
Security Court issued an indictment charging the applicant with
attempting to undermine the constitutional order under Article 146 of
the former Criminal Code.
- On
7 July 1997 the applicant stated before the İstanbul State
Security Court that his statement in police custody had been taken
under torture, without giving any details.
- On
26 April 2002 the İstanbul State Security Court convicted the
applicant under Article 146 of the former Criminal Code.
- On
12 May 2003 the Court of Cassation quashed the judgment of 26 April
2002.
- By Law no. 5190 of 16 June 2004,
published in the Official Gazette on 30 June 2004, State
Security Courts were abolished. The case against the applicant was
subsequently resumed before the İstanbul
Assize Court.
- On
25 December 2008 and 9 April 2009 the applicant objected to his
continued detention and requested his release. The 11th
Chamber of the İstanbul Assize Court dismissed the applicant's
objections on 14 January and 15 April 2009 respectively, having
regard to the nature of the offence in question and to the state of
the evidence. No hearing was held.
- On
2 April 2009 the İstanbul Assize Court
convicted the applicant.
- According
to information in the case file, the case is pending before the Court
of Cassation.
- Throughout
the proceedings, the first instance courts examined the applicant's
continued detention at the end of each hearing, either on
their own motion or upon the applicant's requests. Each time the
courts ordered the applicant's continued detention having regard to
the state of the evidence, the nature of the offence, the strong
suspicion of his having committed the offence in issue, the danger of
flight, the overall period of the pre-trial detention, and the
persistence of the grounds for the continued detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A description of the relevant domestic law and
practice prior to the entry into force of the new Code of Criminal
Procedure (CCP) (Law no. 5271) on 1 June 2005 may
be found in Çobanoğlu and Budak v. Turkey
(no. 45977/99, §§ 29-31, 30 January 2007). The
current practice under Law no. 5271 is outlined in Şayık
and Others v. Turkey (nos. 1966/07, 9965/07,
35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§
13-15, 8 December 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been subjected to ill-treatment while in police custody and
that there had been no effective remedy at his disposal as regards
his complaints of ill-treatment.
- The
Court observes that the applicant most recently submitted his
allegations of ill-treatment during the proceedings on 7 July 1997.
He did not pursue these allegations in the course of other court
hearings. Nor did the İstanbul State Security Court mention the
applicant's allegation in its judgment of 26 April 2002.
- In
the particular circumstances of the present case, the Court considers
that the failure of the judicial authorities to act must have become
gradually apparent to the applicant by 26 April 2002, i.e. the date
on which the İstanbul State Security Court rendered its
judgment, and that the applicant should therefore have been aware of
the ineffectiveness of remedies in domestic law by that date.
Accordingly, the six month period provided for in Article 35 of the
Convention should be considered to have started running not later
than 26 April 2002 (see İçöz v. Turkey
(dec.), no. 54919/00, 9 January 2003). However, the application
was introduced with the Court on 10 May 2006, more than six months
later.
- It
follows that these complaints have been introduced out of time and
must be rejected under Article 35 §§ 1 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Articles 3 and 5 §§ 1, 2 and 3
of the Convention that both the length of his detention in police
custody and the length of his pre-trial detention had been excessive.
He further complained under Article 6 § 2 of the Convention that
his right to be presumed innocent had been violated because he had
been detained on remand for an excessive length of time. The
applicant maintained that the postponement by Law no. 5320
of the date of enforcement of Article 102 of the new CCP, which
regulates the maximum authorised length of pre-trial detention, to
31 December 2010 for certain types of offences including his
own, violated Article 14 of the Convention. He claimed under Article
13 of the Convention that there had been no effective remedy for his
grievance under Article 14. The Court deems it appropriate to
examine all these complaints from the standpoint of Article 5 §
3 alone as they mainly concern the length of the applicant's
pre-trial detention (Ayhan Işık v. Turkey (dec.),
no. 33102/04, 16 December 2008, and Can v. Turkey (dec.),
no.6644/08, 14 April 2009).
- The
applicant further complained under Articles 5 § 4, 6 § 1
and 13 of the Convention that there was no effective remedy by which
to challenge the lawfulness of the length of his pre-trial detention.
The Court considers that this complaint must be examined under
Article 5 § 4 of the Convention alone.
A. Article 5 § 3 of the Convention
1. As regards the length of detention in police custody
- The
Court observes that the applicant's police custody ended on 14 March
1997 whereas the application was lodged with the Court on 10 May
2006, that is, more than six months later (see Ege v. Turkey
(dec.), no. 47117/99, 10 February 2004, and Doğan
v. Turkey (dec.), no. 67214/01, 7 June 2005).
- It follows that this complaint has been lodged out of
time and must be rejected in accordance with Article 35 §§
1 and 4 of the Convention.
2. As regards the length of pre-trial detention
- 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.
- As
regards merits, the Government maintained that the applicant's
detention was based on the existence of reasonable grounds of
suspicion of his having committed an offence, and that his detention
had been reviewed periodically by the competent authority, with
special diligence, in accordance with the requirements laid down by
the applicable law. They pointed out that the offence with which the
applicant was charged was of a serious nature, and that his continued
remand in custody was necessary to prevent crime and to preserve
public order.
- The
Court notes that, after deducting the period when the applicant was
detained after conviction under Article 5 § 1 (a) of the
Convention the period to be taken into consideration in the instant
case is over eleven years (see Solmaz v. Turkey, no. 27561/02,
§§ 36-37, ECHR 2007-II (extracts)).
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases disclosing comparable lengthy periods of
pre-trial detention (see, for example, Tutar v. Turkey, no.
11798/03, § 20, 10 October 2006, and Cahit Demirel
v. Turkey, no. 18623/03, § 28, 7
July 2009). 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. Having regard to its case-law on the subject,
the Court finds that in the instant case the length of the
applicant's pre-trial detention was excessive.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
B. Article 5 § 4 of the Convention
- 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.
- As
regards the merits, the Government submitted that the applicant did
in fact have the possibility of challenging his continued remand by
lodging objections. They further stated that the applicant could seek
compensation under Article 141 of the new CCP following its entry
into force on 1 June 2005.
- The
applicant maintained his allegations.
- The
Court has already examined the possibility of challenging the
lawfulness of pre-trial detention in Turkey in other cases and
concluded that the Government had failed to show that the remedy they
referred to provided for a procedure that was genuinely adversarial
for the accused (see, for example, Koşti and Others v.
Turkey, cited above, §§ 19-24 and Şayık and Others
v. Turkey, cited above, §§ 28-32). The Court notes that
the Government have not put forward any argument or material in the
instant case which would require the Court to depart from its
previous findings.
- In
the light of the foregoing the Court concludes that there has been a
breach of Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the reasonable time
requirement, laid down in Article 6 § 1 of the Convention. The
Government disputed this allegation.
- 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.
- As
regards the merits, the Government submitted that the length of the
proceedings could not be considered to be unreasonable in view of the
complexity of the case, the number of the accused and the nature of
the offence with which the applicant was charged.
- The
Court notes that the proceedings in question commenced on 3 March
1997 when the applicant was taken into police custody, and according
to the information in the case file, they are still pending before
the Court of Cassation. They have thus already lasted over thirteen
years and seven months before two levels of jurisdiction.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in applications raising issues similar to the one in the
present case (see Bahçeli v. Turkey,
no. 35257/04, § 26, 6 October 2009, and Er v. Turkey,
no. 21377/04, § 23, 27 October 2009).
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.
The Court therefore considers that 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 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 80,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the applicant EUR 17,200 in respect of non-pecuniary
damage.
- Furthermore,
according to the information submitted by the parties, the criminal
proceedings against the applicant are still pending. In these
circumstances, the Court considers that an appropriate means of
putting an end to the violation which it has found would be to
conclude the criminal proceedings in issue as speedily as possible,
while taking into account the requirements of the proper
administration of justice (see Yakışan v. Turkey,
no. 11339/03, § 49, 6 March 2007).
B. Costs and expenses
- The
applicant claimed EUR 11,605 for cost and expenses. In support of his
claims, the applicant submitted a legal fee agreement and invoices
for the legal fees paid.
- The
Government contested this claim.
- 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 documents 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 complaints concerning the length of
pre-trial detention, the lack of a remedy to challenge the lawfulness
of the pre-trial detention and the length of the criminal proceedings
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 §§ 3 and 4 of the Convention;
- 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, the following
amounts to be converted into Turkish liras at the rate applicable on
the date of settlement:
(i) EUR
17,200 (seventeen thousand two hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant;
(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 23 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
