ECHR

In the case of İzmirli v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Mrs   F. Tulkens, President,
          Mr     A.B. Baka,
          Mr     I. Cabral Barreto,
          Mr     R. Türmen,
          Mr     M. Ugrekhelidze,
          Mrs   A. Mularoni,
          Ms     D. Jočienė, judges,
and Mrs F. Elens-passos, Deputy Section Registrar,

Having deliberated in private on 5 June 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 30316/02) 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 Hilmi İzmirli (“the applicant”), on 11 June 2002.

2. The applicant was represented by Mrs O. Ersoy, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3. The applicant complained of a violation of his right to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.

4. On 12 September 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Istanbul.

6. On 16 October 1981, at a time when Turkey was ruled by martial law following the military “coup” of 12 September 1980, the applicant was arrested on suspicion of being a member of an illegal armed organisation, the Dev-Yol (Revolutionary Way).

7. He was detained for forty-seven days. During his interrogation, which allegedly involved ill-treatment, he confessed to having been involved in various illegal activities of the Dev-Yol. On 2 December 1981 the Ankara Martial Law Court (Sıkıyönetim Mahkemesi) ordered his detention on remand and transferred him to the Mamak Military Prison.

8. On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant and 722 other defendants. The prosecutor accused the applicant, inter alia, of membership of the Dev-Yol, whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the – then in force – Criminal Code.

9. In a judgment of 13 March 1985, the Martial Law Court convicted the applicant of membership of the Dev-Yol. It sentenced him to five years' imprisonment under Article 168 § 2 of the Criminal Code. One of the judges dissented, opining that the evidence against the applicant was insufficient.

10. Both the defendants and the prosecutor appealed to the Military Court of Cassation. While the appeal was pending, the applicant was released from prison on 14 November 1988.

11. In the meantime, martial law was terminated. Following the promulgation of the Law of 27 December 1993 abolishing the jurisdiction of the martial law courts, the Court of Cassation (Yargıtay) acquired jurisdiction over the case.

12. On 27 December 1995 the Court of Cassation quashed the applicant's conviction. It re-qualified the offence under Article 146 § 1 of the Turkish Criminal Code, which entailed a more severe sentence. It transmitted the case to the Ankara Assize Court, which held its first hearing on 6 May 1996.

13. On 16 July 2002 the Assize Court handed down its verdict on the applicant and numerous other accused.

14. On 28 May 2004, however, the Court of Cassation quashed the verdict, holding that the court should have taken into account some recent legislative amendments affecting the situation of some of the accused including the applicant. It remitted the case to the assize court, before which the proceedings are still pending.

15. On 3 October 2006 the Ankara Assize Court convicted the applicant, under Article 146 § 1 of the Turkish Criminal Code, of attempting to undermine the constitutional order and sentenced him to life imprisonment. The applicant appealed against this judgment and the proceedings are still pending before the Court of Cassation.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement, provided 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...”

17. The Government contested that argument. They argued that the criminal proceedings brought against the applicant could not be considered to have been unreasonably long, given the difficulties involved in the collection of the evidence, hearing witnesses and the testimonies of the defendants. They maintained that the courts had to deal with a trial involving 723 defendants, including the applicant, whose activities and connections with the terrorist organisation had to be established. In this connection, the Government pointed out that the overall case-file was composed of four hundred and sixty binders.

18. They further asserted that the defendants had caused a substantial delay in the proceedings by making repetitive requests for extension of time-limits. The Government contended that these factors explained the length of the proceedings and that no negligence or delay could be imputed to the judicial authorities.

19. The Court notes that the proceedings began on 16 October 1981, the date of the applicant's arrest, and are still pending before the Court of Cassation. They have already lasted more than twenty-six years.

20. The Court's jurisdiction ratione temporis only permits it to consider the period of just above twenty years that elapsed after 28 January 1987, the date of deposit of Turkey's declaration recognising the right of individual petition. It must nevertheless take account of the state of the proceedings at the time when the aforementioned declaration was deposited (see Şahiner v. Turkey, no. 29279/95, ECHR 2001‑IX, § 22; and Cankoçak v. Turkey, nos. 25182/94 and 26956/95, §§ 25‑26, 20 February 2001). On that critical date the proceedings had already lasted more than six years.

A. Admissibility

21. The Court notes that 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. It must therefore be declared admissible.

B. Merits

22. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

23. The Court considers that there were substantial delays both at first instance and in the appeal proceedings. It can accept that the case, mounted against a large number of defendants, was complex. That being so, it cannot but note that the proceedings have already lasted more than twenty-five years of which twenty years are within the scope of the Court's consideration. The length of this period is excessive and cannot be justified by the complexity of the case alone. In the Court's opinion, the length of the proceedings can only be explained by the failure of the domestic courts to deal with the case diligently (see, in this connection, Cankoçak, cited above § 32, and Şahiner, cited above, § 27).

24. Finally, the Court considers that what was at stake for the applicant in the domestic litigation was of considerable importance to him.

25. Having regard to all the evidence before it and to its case-law on the subject (see, Cankoçak, cited above, § 33 and Şahiner, cited above, § 30), the Court finds that the length of the proceedings at issue did not satisfy the “reasonable time” requirement.

26. There has been accordingly been a breach of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Admissibility

1. The complaints stemming from the events preceding the date of recognition by Turkey of right to individual petition

27. The applicant alleged that the length of his detention pending the trial before the Ankara Martial law Court had violated his rights protected by Articles 5 § 3 and 6 § 2 of the Convention. He maintained that the Martial Law Court was not an independent and impartial tribunal established by law. He also alleged that his right to a fair trial had been breached since the Martial Law Court had convicted him on the basis of the statements he had made to the police under duress.

28. The Government submitted that these complaints should be declared inadmissible.

29. The Court reiterates that it can only consider complaints relating to facts occurring after 28 January 1987, the date on which Turkey recognised the competence of the Convention organs to examine individual applications (see Cankoçak, cited above, § 25).

30. In this connection, the Court observes that the proceedings before the Martial Law Court came to an end on 13 March 1985, which was almost two years before Turkey recognised the right of individual petition. Accordingly, these complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The complaint arising from the facts which occurred after 28 January 1987

31. The applicant finally complained under Article 6 § 1 of the Convention that the Court of Cassation had disregarded the dissenting opinion from the verdict and had held instead that the applicant's conduct fell under the scope of a more severe provision of the Criminal Code.

32. The Government did not comment on this complaint.

33. The Court notes that the criminal proceedings against the applicant are still pending before the Court of Cassation. The Court is therefore unable to examine the entire criminal proceedings in order to express an opinion as to whether they comply with the requirements of Article 6 of the Convention. Accordingly, the introduction of the above complaints appears to be premature given the current state of the proceedings.

34. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. 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

36. The applicant claimed 87,591 euros (EUR) by way of pecuniary damage for loss of earnings as a teacher since 25 May 1980. He also claimed EUR 50,000 for non-pecuniary damage.

37. The Government contested the amounts claimed by the applicant. They submitted that he had not provided any evidence in support of his alleged pecuniary or non-pecuniary loss. They also argued that the Court should not allow the compensation procedure to be exploited or lead to unjust enrichment.

38. As regards the pecuniary damage, having regard to the evidence in its possession, the Court considers that the applicant has failed to demonstrate that the pecuniary damage pleaded was actually caused by the unreasonable length of the impugned proceedings. Consequently, there is no justification for making any award to him under that head (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 164, ECHR 2000-XI).

39. However, the Court accepts that the applicant has certainly suffered non-pecuniary damage – such as distress and frustration resulting from the protracted length of his detention and trial – which is not sufficiently compensated by the findings of violation of the Convention. Ruling on an equitable basis and having regard to the criteria laid down in its case-law (see, among many others, Ertürk v. Turkey, no. 15259/02, § 32, 12 April 2005), the Court awards the applicant EUR 24,000 under this head.

B. Costs and expenses

40. The applicant also claimed EUR 7,861.30 for the costs and expenses incurred before the Court.

41. The Government submitted that no award should be made under this heading given that the applicant has failed to provide any document in support of his claim.

42. According to the Court's case-law, an applicant is entitled to reimbursement of his 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 information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for costs and expenses.

C. Default interest

43. 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

1. Declares the complaint concerning the length of criminal proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. 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, EUR 24,000 (twenty-four thousand euros) in respect of non-pecuniary damage and EUR 2,000 (two thousand euros) for costs and expenses, plus any tax that may be chargeable;

(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;

4. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

F. Elens- Passos F. Tulkens
Deputy Registrar President