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SECOND
SECTION
CASE OF HASDEMİR v. TURKEY
(Application
no. 44027/09)
JUDGMENT
STRASBOURG
22
May 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Hasdemir 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 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 44027/09) 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 Mehmet Hasdemir (“the applicant”),
on 25 August 2009.
- The
applicant was represented by his sibling, Ms N. Hasdemir. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
16 March 2010 the
Court declared the application partly inadmissible and decided to
communicate the complaints concerning the right
to be released pending trial, to have a compensatory remedy for the
alleged breach of Article 5 and to be tried within a reasonable time,
to the Government. Furthermore, by virtue of
Article 29 § 1 of the Convention, the Court decided to rule
on the admissibility and merits of the application at the same time.
- As
the issues raised in this application are subject of well-established
case-law of the Court, the Court decided to assign the application to
a Committee of three judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and is currently detained in İzmit
F type prison.
- On
6 May 2000 the applicant was arrested and taken into police custody
on suspicion of membership of a criminal profit-making
organisation and carrying out illegal
activities on its behalf.
- On
8 May 2000 the investigating judge at the İstanbul State
Security Court ordered the applicant’s pre-trial detention.
- On
19 June 2000 a bill of indictment was filed against the applicant and
four other persons with the İstanbul State Security Court,
accusing them of forming a criminal profit-making organisation
and of being involved in incidents of murder, extortion and fraud.
- On
30 January 2003 the first-instance court acquitted the applicant and
the other accused of the former charge on the ground that the mental
elements of the crime had not been established on their parts. It
followed that it lacked jurisdiction to examine the other charges
brought against them and transferred the proceedings to the Kartal
Assize Court.
- On
20 December 2004 the Court of Cassation quashed the judgment of the
first-instance court, noting that the latter had erroneously
acquitted the applicant and his co-accused of the charge concerned.
In its decision, the court held that all components of forming a
criminal profit-making organisation had been sufficiently
established against the accused.
- Subsequently,
the case was remitted to the first-instance court.
- Following
the abolition of the State Security Courts by
Law no. 5190, the İstanbul
Assize Court resumed the criminal proceedings.
- During
the proceedings, the İstanbul Assize Court reviewed the
lawfulness of the applicant’s continued detention regularly at
the end of each hearing or, at the latest, every thirty days, of its
own motion, without holding any oral hearing.
- At
the hearing on 3 March 2010 the İstanbul Assize Court decided,
once more, to extend the applicant’s continued detention on
account of the reasonable grounds of suspicion that he had committed
the offences with which he was charged, and the state of the evidence
in the case file.
- On
5 January 2011 having regard to the period he had spent in detention,
the İstanbul Assize Court released the applicant.
- On
the basis of the range of evidence in the case file, on 6 December
2011 the İstanbul Assize Court convicted the applicant of a
number of crimes; including forming a criminal profit-making
organisation, murder, abduction and extortion. Subsequently, the
court sentenced the applicant to life imprisonment.
- According
to the information in the case file, the applicant lodged an appeal
with the Court of Cassation, before which the proceedings are
currently pending.
II. RELEVANT DOMESTIC LAW
- The
relevant sections of the Turkish Code of Criminal Procedure (Law
no.5271) can be found in the judgment of Araz v. Turkey
(no. 44319/04, §§ 15-16, 20 May 2010).
THE LAW
I. ALLEGED VIOLATION OF
ARTICLE 5 OF THE CONVENTION
A. Article 5 § 3 of the Convention
- The
applicant complained that the length of his pre-trial detention had
been excessive, having caused him great distress and unbearable
suffering. He relied on Article 5 § 3 of the Convention, which
reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The Government
contested the applicant’s argument.
- The
Court notes that this complaint is admissible, as no ground for
declaring it inadmissible has been established.
- As
regards the merits of the complaint, the Government submitted that
the applicant’s detention had been based on the existence of
reasonable grounds of suspicion that he had committed an offence, and
that it had been reviewed periodically by the competent authority in
accordance with the requirements laid
down by the domestic law.
- The
applicant was detained on 6 May 2000 and was convicted by the
İstanbul Assize Court on 6 December 2011. The Court notes
that after deducting the period between 5 January and 6 December 2011
when the applicant was released pending trial, from the total time of
his detention, the period that he was held in pre-trial detention
lasted for ten years and eight months (see Solmaz v. Turkey,
no. 27561/02, §§ 36-37, 16 January 2007).
- 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 § 5 of the Convention
- The
applicant complained that he had had no right to compensation under
the domestic law for the alleged violation of his right to be
released pending trial, as required by Article 5 § 5 of the
Convention, which reads as follows:
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
- The
Government maintained that the applicant had not exhausted the
remedies provided under Article 141 of the Turkish Code of Criminal
Procedure (Law no. 5271).
- The
Court notes that the Government’s preliminary objection is
inextricably linked to the merits of the applicant’s complaint
under Article 5 § 5 of the Convention. It follows that
this issue should be joined to the merits.
- The
Court considers that this part of 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 and must therefore be declared admissible.
- The
Court reiterates that paragraph 5 of Article 5 requires a remedy in
compensation for a deprivation of liberty effected in conditions
contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands,
27 September 1990, § 38, Series A no. 185 A). This right to
compensation presupposes that a violation of one of the preceding
paragraphs of Article 5 has been established, either by a domestic
authority or by the Court.
- In
this connection, the Court notes that it has found that the
applicant’s right to be released pending trial was infringed in
the present case (see paragraph 25 above). It follows that
Article 5 § 5 of the Convention is applicable. The Court must
therefore establish whether or not Turkish law afforded the applicant
an enforceable right to compensation for the breach of Article 5 in
this case.
- The
Court notes, as indicated by the Government, that Article 141 § 1(d)
of the Law no. 5271 introduces a mechanism, whereby a person who has
been lawfully detained but whose pre-trial detention exceeds a
reasonable time, may demand compensation from the State. The Court
also notes, however, that according to Article 142 § 1 of the
same Code, such demand may only be made after the relevant criminal
proceedings have come to an end. This remedy is therefore not
available in circumstances where the domestic proceedings are still
pending, as in the instant case (see Kürüm v. Turkey, no.
56493/07, §§ 18-21, 26 January 2010).
- The
Court thus considers that the Law no. 5271 does not provide for an
enforceable right to compensation for the applicant’s
deprivation of liberty in breach of Article 5 § 3 of the
Convention, as required by Article 5 § 5.
- The
Court therefore rejects the Government’s objection and
concludes that there has been a violation of Article 5 § 5 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
brought against him 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 argued that the applicant could not
be considered to have exhausted domestic remedies as the criminal
proceedings were still pending before the domestic courts.
- The
Court notes that, according to its case-law, complaints concerning
the length of proceedings can be brought before it prior to the final
termination of the proceedings in question (see, among many others,
Plaksin v. Russia,
no. 14949/02, §§ 34-35, 30 April 2004). Accordingly, the
Government’s objection regarding non-exhaustion of domestic
remedies must be dismissed. It further notes that this part of the
application is not inadmissible on any other grounds and must,
therefore, be declared admissible.
- As
regards the merits, the Court notes that the proceedings in question
began on 6 May 2000 and, according to the information in the case
file, they are still pending before the Court of Cassation. They
have, thus, already lasted around twelve years before two levels of
jurisdiction.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see Hasan Döner
v. Turkey,
no. 53546/99, § 54, 20 November 2007; Uysal
and Osal v.
Turkey, no. 1206/03, § 33,
13 December 2007; and Can and
Gümüş v.
Turkey, nos. 16777/06 and 2090/07, §
19, 31 March 2009). It finds no reason to reach a different
conclusion in the present circumstances. Consequently, there has been
a breach of Article 6 § 1 of the Convention on account of
the excessive length of the criminal proceedings against the
applicant.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages and costs and expenses
- The
applicant claimed 120,000 Turkish Liras (TRY)
in respect of pecuniary and non-pecuniary damages on the basis
of loss of his earning and the alleged anguish and distress he and
his family had suffered. The applicant did not claim any amount under
cost and expenses.
- The
Government contested the claim, maintaining that the applicant had
failed to submit any documents supporting his claim.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it accepts that the applicant must have suffered
non pecuniary damage which cannot be sufficiently compensated by
the finding of a violation alone. Ruling on an equitable basis, the
Court awards the applicant EUR 11,900 in respect of non-pecuniary
damage.
B. 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 remainder of the application
admissible;
2. Holds that there have been
violations of Article 5 §§ 3 and 5 and Article 6 § 1
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within
three months, EUR 11,900 (eleven thousand nine hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into Turkish liras at the rate applicable at
the date of settlement;
(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 22 May 2012, pursuant to Rule
77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle
Berro-Lefèvre
Deputy Registrar President
