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SECOND
SECTION
CASE OF NİZAMETTİN GEZER
v. TURKEY
(Application
no. 16155/04)
JUDGMENT
STRASBOURG
6
March 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Nizamettin Gezer 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 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 16155/04) 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 Nizamettin Gezer (“the applicant”),
on 15 March 2004.
- The
applicant was represented by Mr S. Zilan and Mr M. Atalay, lawyers
practising in Diyarbakır. The Turkish Government
(“the Government”) were represented by their Agent.
- On
27 August 2009 the
application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Diyarbakır.
- On
29 March 1998 the applicant was arrested on suspicion of being a
member of Hizbullah, an illegal organisation.
- On
5 April 1998, the Diyarbakır State Security Court ordered the
applicant’s pre-trial detention.
- On
15 May 1998 the Diyarbakır Public Prosecutor filed a bill of
indictment accusing the applicant, along with 94 others, of
membership of an illegal organisation.
- On
27 May 1998 the criminal proceedings were initiated before the
Diyarbakır State Security Court.
- On
23 July 1998 the applicant was released pending trial.
- On
an unspecified date, the applicant was dismissed from his post at a
factory of the General Directorate of State Monopolies (TEKEL) due to
his detention. His reinstatement request was rejected by the
administration on 13 August 1998, stating that his request could be
considered on the submission of decision of acquittal.
- Subsequent
to the abolition of State Security Courts, the applicant’s case
was resumed before the Diyarbakır Assize Court as from 6 July
2004.
- On
22 November 2005 the case brought against the applicant and forty
five others were separated and registered under a new reference
number (case file no.2005/223).
- On
28 February 2006, the Diyarbakır Assize Court decided to
discontinue the proceedings against the applicant, holding that the
prosecution was time-barred.
- On
29 March 2006 the judgment was served on the applicant and became
final on 5 April 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings 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 put forward various preliminary objections concerning
non-exhaustion of domestic remedies and asked the Court to dismiss
the complaints under Article 6 § 1 of the Convention, as
required by Article 35 § 1 of the Convention. They further
contended that the impugned proceedings could not be considered to
have been excessively long in view of the complexity of the case and
the number of the accused persons involved. They concluded therefore
that there had been no delay in the proceedings that may be
attributable to the State.
- The
Court notes that it has already examined similar submissions made by
the respondent Government in Daneshpayeh
v. Turkey (no. 21086/04,
§§ 35-38, 16 July 2009). The Government have not
submitted any arguments which could lead the Court to reach a
different conclusion in the instant case. Consequently, the Court
rejects the Government’s preliminary objections.
- The
Court notes that this 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 29 March
1998 and ended on 28 February 2006.
It thus lasted approximately seven years and eleven months for one
level of jurisdiction.
- 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 considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement
(see Daneshpayeh, cited above, § 28,
and Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999 II).
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that there was no domestic remedy available
under the Turkish law whereby he could challenge the excessive length
of proceedings. He relied on Article 13 of the Convention which reads
as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ...”
- The
Government argued that the applicant could have brought action before
the administrative and civil courts or have sought reparation for the
damages he allegedly suffered.
- As
this complaint is linked to the above complaint under Article 6, it
must therefore also be declared admissible The Court has
examined similar cases on previous occasions and has found violations
of Article 13 of the Convention in respect of the lack of an
effective remedy under Turkish law whereby the applicant could have
contested the length of the proceedings at issue (see Daneshpayeh,
cited above, §§ 37 and 51; and Bahçeyaka
v. Turkey, no. 74463/01, §§ 26-30, 13 July 2006;
and Tendik
and Others v. Turkey, no. 23188/02, §§
34-39, 22 December 2005). It finds no reason to depart from that
conclusion in the present case.
There
has accordingly been a breach of Article 13.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 2 that his right to be
presumed innocent had been violated as he had been dismissed from his
work and had not been reinstated on account of the criminal
proceedings initiated against him.
- The Court notes that the
proceedings against the applicant were discontinued as the
prosecution of the offences had become time-barred. Consequently, the
applicant was not convicted and cannot claim to be a victim of the
alleged violation of Article 6 of the Convention (Er
v. Turkey (dec.), no. 21377/04,
18 November 2008). It follows that this
part of the application is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 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
- Without
specifying an amount, the applicant asked the Court to make an award
for non-pecuniary damage due to his mental and physical suffering and
distress. He also claimed 144,000 Turkish liras (TRY –
approximately 60,000 euros (EUR)) in respect of pecuniary damage
referring mainly to the salary he had been deprived of during the
lengthy proceedings.
- The
Government submitted that no award should be made as the applicant
failed to produce any concrete evidence to prove his alleged loss.
- 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, ruling on an equitable basis, it awards the applicant
EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 excessive
length of the proceedings and lack of effective remedy admissible and
the remainder of the application inadmissible;
- Holds that there have been violations of Article
6 § 1 and 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 6,000 (six thousand euros) to be converted into Turkish liras at
the rate applicable at the date of settlement, plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(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 6 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle Berro-Lefèvre Deputy
Registrar President
