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THIRD SECTION
CASE OF MEHMET GÜNEŞ v. TURKEY
(Application no. 61908/00)
JUDGMENT
STRASBOURG
21 September 2006
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 Mehmet Güneş v. Turkey,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr R.
Türmen,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A.
Gyulumyan, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 31 August 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 61908/00)
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 Güneş (“the applicant”), on 23 July
2000.
- The applicant was
represented by Mr E. Kanar, a lawyer practising in Istanbul. The
Turkish Government (“the Government”) did not designate
an Agent for the purposes of the proceedings before the Court.
- On 26 May 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaints concerning the length of the applicant’s
detention on remand and his right to a fair hearing within a
reasonable time. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
- The applicant was born in 1951 and lives in Turkey.
- On 16 July 1993 the applicant was taken into police
custody by police officers from the anti-terrorist branch of the
Istanbul Security Directorate on suspicion of membership in an
illegal organisation, the TDP (Revolutionary
Party of Turkey) and of possessing a false identity card.
He was held in police custody until 30 July 1993.
- On 30 July 1993 he was
brought before a judge who ordered his detention on remand. He
asserted that he had not signed any statement and claimed that he had
been subjected to ill-treatment while in police custody.
- On 15 September 1993 the
Chief Public Prosecutor at the Istanbul State Security Court filed a
bill of indictment with the latter charging the applicant under
Article 168 § 1 of the Criminal Code with membership of an
illegal organisation.
- On 25 January 2000 the
applicant was released from detention.
- Between 16 July 1993
and 25 January 2000 the Istanbul State Security Court held thirty-six
hearings. The applicant requested to be released pending trial
several times before the trial court. The Istanbul State Security
Court dismissed his request on all occasions, having regard to the
state of the evidence, until 25 January 2000.
- On 26 March 1996 the
Istanbul State Security Court requested the Forensic Medical
Institute to carry out an analysis as to whether the documents, which
were submitted as written evidence, were drafted by the applicant and
another co-accused, namely M.A.A..
- Until 17 February 2004
the trial court postponed the hearings in order to wait for the
Forensic Medical Institute’s report on the issue and to be
informed about the prison that M.A.A had been detained.
- On 17 February 2004
the Istanbul State Security Court ordered that the criminal
proceedings against the applicant be terminated on the ground that
the statutory time-limit under Articles 102 and 104 of the Criminal
Code had expired.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The applicant complained that his detention on remand
exceeded the “reasonable time” requirement as provided in
Article 5 § 3 of the Convention, which reads insofar as relevant
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 that argument.
A. Admissibility
- 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
- The Government submitted that the State Security Court
did not unduly prolong the applicant’s detention on remand. The
offence with which the applicant was charged was of a serious nature,
and his detention on remand was also necessary to prevent him from
committing any further offences or from fleeing after having done so.
The State Security Court took into consideration the very high risk
of the applicant escaping of or removing evidence or traces, and
there has been a genuine public interest for the continued detention
of the applicant, since the offence attributed to him was of a
serious nature.
- The applicant maintained that the Istanbul State
Security Court relied on the “nature of the offence, the state
of the evidence and the duration of the detention” when it
rejected his requests for release pending trial, without having
discussed the possibility of his destroying evidence or absconding.
The applicant maintained that the grounds given by the Istanbul State
Security Court for his continued detention on remand had been
insufficient.
- The Court reiterates that it falls, in the first
place, to the national judicial authorities to ensure that, in a
given case, the detention of an accused person pending trial does not
exceed a reasonable time. To this end they must examine all the facts
arguing for or against the existence of a genuine requirement of
public interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty, and set them out in their decisions on the
applications for release. It is primarily on the basis of the reasons
given in these decisions and of the established facts mentioned by
the applicant in his appeals that the Court must determine whether or
not there has been a violation of Article 5 § 3 of the
Convention (see Assenov and Others v. Bulgaria, judgment
of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, § 154).
- The persistence of reasonable suspicion that the
person arrested has committed an offence is a sine qua non for
the validity of the continued detention but, after a certain lapse of
time, it no longer suffices. The Court must then establish whether
the other grounds cited by the judicial authorities continue to
justify the deprivation of liberty (see, among other authorities,
Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001,
and Labita v. Italy [GC], no. 26772/95, §§
152-153, ECHR 2000-IV).
- The Court notes that, in the instant case, the period
to be taken into consideration began on 16 July 1993 and ended on 25
January 2000, when the applicant was released. It thus lasted more
than six years and six months. During this period, the Istanbul State
Security Court prolonged the applicant’s detention on remand
using identical, stereotyped terms, such as “having regard to
the nature of the offence, the state of evidence and the duration of
detention”.
- The Court takes note of the seriousness of the offence
attributed to the applicant and the severity of the relevant
punishment. However, it recalls that the danger of absconding cannot
solely be assessed on the basis of the severity of the sentence
risked, but must be analysed with reference to a number of other
relevant additional elements, which may either confirm the existence
of such a danger or make it appear so slight that it cannot justify
detention pending trial (see Muller v. France, judgment of
17 March 1997, Reports 1997-II, § 43; Letellier
v. France, judgment of 26 June 1991, Series A no. 207, §
43). In this regard, the Court notes the lack of such sufficient
reasoning in the domestic court’s decisions to prolong the
applicant’s remand in custody.
- Finally, although, in general, the expression “the
state of evidence” may be a relevant factor for the existence
and persistence of serious indications of guilt, in the present case
it nevertheless, alone, cannot justify the length of the detention of
which the applicant complains (see Letellier, cited above;
Tomasi v. France, judgment of 27 August 1992, Series A
no. 241 A; Mansur v. Turkey, judgment of 8 June
1995, Series A no. 319 B, § 55, and Demirel v.
Turkey, no. 39324/98, § 59, 28 January 2003).
- The foregoing considerations are sufficient to enable
the Court to conclude that the length of the applicant’s
detention on remand, which lasted over six years and six months and
eleven days, given the stereotype reasoning of the court, has not
been shown to be justified.
- There has accordingly been a violation of Article 5 §
3 of the Convention.
II. 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, provided in Article 6 § 1 of the Convention, which
reads insofar as relevant 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 contested that argument.
A. Admissibility
- The Court considers that this complaint raises serious
issues of fact and law under the Convention, the determination of
which requires an examination of the merits. It concludes therefore
that this part of the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
B. Merits
- The Government contended that the length of the case
was not excessive and that there was no negligence on the part of the
national authorities. The case was complex, considering the
difficulties in collecting evidence, and the trial court waited for
the Forensic Medical Institute’s report concerning an analysis
as to whether the documents, which submitted as written evidence,
were drafted by the applicant.
- The Court notes that the period to be taken into
consideration began on 16 July 1993, when the applicant was taken
into police custody, and ended on 17 February 2004, when the Istanbul
State Security Court ordered that the criminal proceedings against
the applicant be terminated on the ground that the statutory
time-limit under Article 102 and 104 of the Criminal Code had
expired. The proceedings lasted approximately ten years and seven
months before one level of jurisdiction.
- 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)
- Having examined all the material submitted to it and
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.
There has accordingly been a breach of Article 6 § 1.
III. 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
- The applicant claimed 45,000 euros (EUR) in respect of
pecuniary damage. He further claimed a total of EUR 25,700 for
non pecuniary damage.
- The Government disputed these claims.
- As regards the alleged pecuniary damage sustained by
the applicant, the Court observes that he has not produced any
document in support of his claim. Accordingly, the Court dismisses
the applicant’s claims in respect of pecuniary damage.
- With regard to the non-pecuniary damage, the Court
considers that the applicant may have suffered a certain amount of
distress in the circumstances of the case. Taking into account the
circumstances of the case and having regard to its case-law, the
Court awards the applicant EUR 9,000 under that head.
B. Costs and expenses
- The applicant also claimed EUR 10,542 for the costs
and expenses incurred before the domestic courts and the Court.
- The Government maintained that only those expenses
which were actually and necessarily incurred could be reimbursed. In
this connection, they submitted that the applicant and his
representative had failed to submit documents showing the costs and
expenses.
- According to the Court’s case-law, an applicant
is entitled to reimbursement of his costs and expenses only in so far
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 to EUR 1,500
covering costs and expenses.
C. Default interest
- 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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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, the following amounts, to be converted into new Turkish
liras at the rate applicable at the date of settlement:
(i) EUR 9,000 (nine thousand euros) in respect of
non pecuniary damage;
(ii) EUR 1,500 (one thousand and five hundred euros) in
respect of costs and expenses;
(iii) any taxes that may be chargeable on the above
amounts;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
