ECHR

In the case of Koçak and Others v. Turkey,

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

          Mr     B.M. Zupančič, President,
          Mr     R. Türmen,
          Mr     C. Bîrsan,
          Mr     V. Zagrebelsky,
          Mr     E. Myjer,
          Mr     David Thór Björgvinsson,
          Mrs   I. Ziemele, judges,
and Mr V. Berger, Section Registrar,

Having deliberated in private on 30 November 2006,

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

PROCEDURE

1. The case originated in three applications (nos. 23720/02, 23735/02 and 23736/02) 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 three Turkish nationals, Mr Turgut Koçak, Mr Hasan Yavaş and Mr Necmi Özyurda (“the applicants”), on 24 May 2002.

2. The applicants were represented by Mr M.A. Keleş, Mr S. Kozağaçlı, Mr E. Olkun, Ms N. B. Vangölü and Mr K. Arslan, lawyers practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3. On 3 July 2003 the Court joined the applications. It further decided to declare them partly inadmissible and to communicate to the Government the complaint concerning the non-communication of the written opinion of the principal public prosecutor at the Court of Cassation.

4. In a letter of 24 June 2005, the Court informed the parties that in accordance with Article 29 §§ 1 and 3 of the Convention it would decide on both the admissibility and merits of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1949, 1960 and 1964 respectively and were serving their prison sentences in Antalya prison at the time of their applications to the Court.

6. At the time of the events, the first applicant was the General Secretary and the other applicants were the members of the board of directors of the Turkish Socialist Workers Party (Türkiye Sosyalist İşçi Partisi).

7. On 12 December 2000 a demonstration concerning the establishment of F-type prisons turned violent. On the same day the police, in accordance with a search warrant issued by a State Security Court, searched the Party building and found a number of documents and materials.

8. On 19 December 2000 the applicants were remanded in custody.

9. On 9 January 2001 the public prosecutor at the Ankara State Security Court filed an indictment accusing the applicants of aiding and abetting an illegal organisation and requested that they be convicted and sentenced under Article 169 of the Criminal Code and Article 5 of the Law no. 3713.

10. In the course of the proceedings, the applicants maintained that the materials found during the search could have been placed there by anyone since anyone could have entered into the building. They pointed out that, on the day of the search, there had been a violent demonstration during which the doors and the windows of the Party building had been broken.

11. On 15 May 2001 the Ankara State Security Court, referring to the documents and materials seized in the Party building, convicted the applicants as charged and sentenced them to three years and nine months' imprisonment. The court further barred them from public service for three years.

12. The applicants appealed to the Court of Cassation.

13. On an unspecified date, the principal public prosecutor submitted his written opinion to the Court of Cassation. This opinion was not communicated to the applicants.

14. On 26 November 2001 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. This decision was pronounced, in the absence of the applicants and their representatives, on 28 November 2001.

15. On 20 August 2003 the applicants were released from prison.

II. RELEVANT DOMESTIC LAW AND PRACTICE

16. The relevant domestic law and practice in force at the material time are outlined in the Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002‑V).

17. On 2 January 2003 Article 316 of the Code of Criminal Procedure Law was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

18. The applicants complained that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. The applicants relied on Article 6 § 3 (b) of the Convention.

19. The Court considers that this complaint should be examined from the standpoint of Article 6 § 1, which in so far as relevant provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Admissibility

20. 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.

B. Merits

21. The Government maintained, in particular, that the applicants had the possibility to submit their counter-arguments since the written opinion of the principal public prosecutor had been read out during the hearing before the Court of Cassation.

22. The applicants maintained their allegations.

23. The Court notes that it has already examined the same grievance in the past and has found a violation of Article 6 § 1 (see, in particular, Göç, cited above, § 58; Abdullah Aydın v. Turkey (no. 2), no. 63739/00, § 30, 10 November 2005; and Ayçoban and Others v. Turkey, nos. 42208/02, 43491/02 and 43495/02, 22 December 2005).

24. The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned cases.

25. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

26. 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

27. The applicants claimed, in total, 600,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. They submitted that as a result of the attack of the police and members of a right-wing party, the windows of the Party building and the furniture contained in it were destroyed. They maintained that they were unable to work during the criminal proceedings and whilst in prison. Finally, they claimed that as a result of the trial they had been deprived of their right to vote and to be elected.

28. The Government contested these claims.

29. As regards the alleged pecuniary damage sustained by the applicants, the Court notes that some of their claims discern no causal link between the violation found and the pecuniary damage requested. It further notes that in support of their remaining claims the applicants failed to produce any receipt or other relevant documents. The Court accordingly dismisses it.

30. The Court further considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicants (see, mutatis mutandis, Parsil v. Turkey, no. 39465/98, § 38, 26 April 2005; and Ayçoban and Others, cited above, § 32).

B. Costs and expenses

31. The applicants, relying on the fee agreed upon with their representatives, also claimed 7,500,000,000 Turkish liras (TRL) (approximately EUR 4,598) in respect of costs and expenses.

32. The Government contested the amount.

33. 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 applicants, jointly, the sum of EUR 1,000 under this head.

C. Default interest

34. 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 remainder of the applications admissible;

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 applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of costs and expenses, to be converted into New Turkish liras at the rate applicable at the day of settlement, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger Boštjan M. Zupančič
Registrar President