THIRD
SECTION
CASE OF MESUT YURTSEVER v.
(Application no. 42086/02)
JUDGMENT
This judgment will become final in the circumstances
set out in Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Mesut
Yurtsever v.
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr S. Quesada,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 42086/02) against the
2. The applicant was
represented by Mr M. Beştaş, a lawyer
practising in
3. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in
1974 and lives in
5. On
6. On
7. On
8. On 17 January 2002 the Principal Public Prosecutor submitted his written opinion to the 9th Division of the Court of Cassation, in which he had argued that the Court of Cassation should quash the applicant's conviction on account of the severity of the sentence imposed on the applicant. He opined that the applicant should have been sentenced pursuant to Article 168 § 2 of the Criminal Code, which punishes membership of an illegal organisation, instead of Article 125.
9. On
II. RELEVANT DOMESTIC LAW AND PRACTICE
10. 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).
11. On
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12. The applicant complained that the written opinion of the Principal Public Prosecutor at the Court of Cassation had never been served on him, thus depriving him of the opportunity to put forward his counter-arguments. He relied on Article 6 § 3 (b) of the Convention.
13. 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
14. 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
15. The Government maintained, in particular, that the applicant had the possibility to submit his counter-arguments since the written opinion of the Principal Public Prosecutor had been read out during the hearing before the Court of Cassation. They argued that had the applicant's representative attended the hearing he would have been aware of the opinion of the Principal Public Prosecutor and thus could have challenged them and submitted counter-arguments.
16. The applicant maintained his allegations.
17. The Court notes that it
has already examined the same grievance in the past and has found a violation
of Article 6 § 1 of the Convention (see, in particular, Göç, cited above, § 55; Sağır v. Turkey, no. 37562/02, § 26,
18. 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.
19. There has accordingly
been a violation of Article 6 § 1 of the Convention.
II. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
20. 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
21. The applicant did not claim pecuniary damage. He claimed 20,000 new Turkish liras (YTL), approximately 11,214 euros (EUR), in respect of non-pecuniary damage.
22. The Government contended
that the amount claimed was excessive and unjustified.
23. The Court considers that,
in the present case, the finding of a violation constitutes in itself
sufficient compensation for any non-pecuniary damage suffered by the applicant
(see, mutatis mutandis, Parsil v. Turkey, no. 39465/98, § 38,
26 April 2005; and Ayçoban and Others, cited above, § 32).
B. Costs and expenses
24. The applicant also claimed YTL 9,800 (approximately EUR 5,488) for the costs and expenses that had incurred in the preparation and presentation of the case before the Court.
25. The Government contested the amount.
26. Making its own estimate,
based on the information available, the Court considers it reasonable to award
the sum of EUR 1,000 under this head.
C. Default interest
27. 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
application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that finding of a violation constitutes itself sufficient
compensation for any non-pecuniary damage incurred by the applicant;
4. 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 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;
5. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing
on
Registrar President