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SECOND
SECTION
CASE OF ŞENAY YILDIZ v. TURKEY
(Application
no. 21167/06)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Şenay Yıldız v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Isabelle Berro-Lefèvre,
President,
Guido Raimondi,
Helen Keller,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 21167/06) 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, Ms Şenay Yıldız (“the
applicant”), on 5 May 2006.
- The
applicant was represented by Mr M. Altunkalem, a lawyer practising in
Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
- On
20 October 2009 the
Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the proceedings to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
- The
applicant was born in 1973 and lives in
Diyarbakır.
- On
20 July 1993 the applicant was arrested on suspicion of membership of
an illegal organisation. On 2 August 1993 she was brought before the
investigating judge, who ordered her detention on remand.
- On
11 August 1993 the public prosecutor at the Diyarbakır State
Security Court filed an indictment with that court accusing the
applicant, with several others, of membership of an illegal armed
organisation and of praising the offenders.
- On
26 March 1996 the Diyarbakır State Security Court sentenced the
applicant to six years and three months’ imprisonment for
involvement in activities that undermined the constitutional order of
the State. With the same judgment, the court released the applicant,
taking into account the period she had spent in detention.
- On
25 December 1997 the Court of Cassation quashed the judgment of the
first-instance court in respect of the applicant, finding that the
court erred in the qualification of the offence.
- Following
a constitutional amendment in 2004, State Security Courts were
abolished and the applicant’s case was transferred to the
Diyarbakır Assize Court.
- On
14 March 2006 the Diyarbakır Assize Court sentenced the
applicant to six years and three months’ imprisonment for
membership of an illegal armed organisation. The Court of Cassation
upheld that judgment on 5 July 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
criminal proceedings against her 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, claiming that the applicant had
failed to exhaust the domestic remedies in that she had not
complained about the length of the proceedings before the domestic
courts. They further contended that there had been no delay in the
proceedings which could be attributable to the State, taking account
of the complexity of the matter, the number of defendants and the
difficulties in gathering evidence.
- The
Court notes that it has already examined and dismissed similar
submissions made by the respondent Government in its Daneshpayeh
v. Turkey judgment (no. 21086/04, 16 July 2009). In
that judgment, the Court examined the preliminary objection together
with the applicant’s complaint under Article 13 of the
Convention and concluded that the Turkish legal system did not
provide an effective remedy where the excessive length of proceedings
could be challenged (see Daneshpayeh cited above, §§
24 and 37). Consequently, the Court rejects the Government’s
preliminary objection concerning the exhaustion of domestic remedies.
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
- The
period to be taken into consideration began on 20 July 1993 with the
applicant’s arrest and ended on 5 July 2007 with the final
decision of the Court of Cassation. It thus lasted for a period of
thirteen years and eleven months for two levels of jurisdiction.
16. The Court has frequently found
violations of Article 6 § 1 of the Convention in cases raising
issues similar to the one in the present case (see, among others, Er
v. Turkey, no. 21377/04, §
23, 27 October 2009; Şahap Doğan
v. Turkey, no. 29361/07, §
39, 27 May 2010 and Fırat Can
v. Turkey, no. 6644/08, §
74, 24 May 2011). 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. It concludes therefore that in the
instant case the length of the proceedings failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed a total of 20,000 euros (EUR)
in respect of pecuniary and non-pecuniary damage. She also requested
EUR 2,780 for costs and expenses incurred before the Court.
- The
Government contested these claims, considering the requested amounts
excessive.
- 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
9,500 in respect of non-pecuniary damage.
- As
regards costs and expenses, the Court reiterates that 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 (see Sawicka
v. Poland, no. 37645/97, § 54,
1 October 2002). Making its own estimate based on the receipt
indicating the payment made to the applicant’s lawyer, and
ruling on an equitable basis, the Court awards the applicant EUR
1,000 in this respect.
- 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 application
admissible;
- 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, the following amounts, to be converted into
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
9,500 (nine thousand and 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 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle
Berro-Lefèvre
Deputy
Registrar President
