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FOURTH
SECTION
CASE OF PAKKAN v. TURKEY
(Application
no. 13017/02)
JUDGMENT
STRASBOURG
31
October 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 Pakkan v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr R. Türmen,
Mr M. Pellonpää,
Mr K.
Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 10 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13017/02) 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 Muammer Pakkan (“the
applicant”), on 7 March 2002.
- The
applicant was represented by Mr M. Filorinalı and Ms Y. Başara,
lawyers practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
13 October 2005 the Court decided to communicate 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and is currently detained on remand in the
Edirne F-type prison.
- On
28 November 1992 the applicant was taken into police custody by
police officers from the Anti-Terrorism Department of the Istanbul
Security Directorate. On 10 December 1992 the Istanbul State Security
Court ordered his detention on remand.
- On
5 January 1993 the Public Prosecutor at the Istanbul State Security
Court filed an indictment against the applicant and twenty-nine
others, charging them with membership of an illegal left-wing
organisation, contrary to Article 146 of the Criminal Code and
Article 5 of the Law on Prevention of Terrorism.
- At
the hearing of 22 November 1993 before the Istanbul State Security
Court, which included a military judge, the accused protested against
the proceedings by shouting slogans in the hearing room. Following
the intervention of the security forces, they broke the windows of
the court building.
- At
the hearings held between 1993 and 1994 the court heard the testimony
of several witnesses and took the statements of the accused.
- On
18 June 1999 the Constitution was amended and the military judges
sitting on the bench of State Security Courts were replaced by
civilian judges.
- At
the end of almost every hearing the court dismissed the applicant’s
request to be released pending trial and ordered his continued
detention on remand, having regard to the nature of the offence and
the content of the case file. At the hearings during which the
applicant was absent the court considered his situation of its own
motion and ordered his detention on remand, relying on the same
reasons.
- At
the hearing of 27 March 2000 the court finished taking the final
statements of almost all the accused including the applicant and
stated that no additional time would be given to those who had not
yet submitted their final observations.
- On
30 July 2001 the applicant filed a petition with a different chamber
of the Istanbul State Security Court, complaining about the court’s
order for his continued remand in custody. On 1 August 2001 his
objection was dismissed on account of the nature of the offence and
the content of the case file.
- By
12 October 2001 fifty-five hearings had been held before the Istanbul
State Security Court and the judges on the bench of the court had
been changed on six occasions.
- State
Security Courts were abolished by
constitutional amendments introduced on 7 May 2004. As a result, all
of the procedural safeguards provided for by the ordinary criminal
procedure henceforth became applicable to all proceedings without
exception.
- On
27 October 2004 the Istanbul Assize Court found the applicant guilty
of the charges and sentenced him to life imprisonment.
- On
13 July 2005 the Court of Cassation quashed the decision of the State
Security Court on procedural grounds.
- The
case is still pending before the Istanbul Assize Court and the
applicant is still in detention on remand. The latest hearing was
held on 2 December 2005.
II. RELEVANT DOMESTIC LAW
- A full description of the domestic law may be found in
the judgments of Demirel v. Turkey (no. 39324/98, §§
47-49, 28 January 2003) and Özel v. Turkey (no. 42739/98,
§§ 20-21, 7 November 2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention on remand, which lasted
almost thirteen years, exceeded the “reasonable time”
requirement of 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
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
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 maintained that the applicant’s arrest was based on
the existence of reasonable grounds to suspect that he had committed
an offence and that the custodial measure had been reviewed
periodically and diligently by the competent authority. They pointed
out that the offence with which the applicant had been charged was
serious, and that his continued remand in custody was necessary to
prevent crime and to preserve public order. Finally, the Government
submitted that the overall length of his remand in custody was
reasonable in view of the number of co-accused and the complex nature
of the proceedings.
- The
applicant contested these arguments. He argued that nothing could
justify thirteen years of detention on remand.
- The Court reiterates that it falls in the first place
to the domestic 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 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 applicants
in their appeals, that the Court must determine whether or not there
has been a violation of Article 5 § 3 of the Convention (see
Sevgin and İnce v. Turkey, no. 46262/99, §
61, 20 September 2005).
- The
persistence of a 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 continued 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).
- In
the instant case, the Court notes that there were two periods of
pre-trial detention. The first period began on 28 November 1992 with
the applicant’s arrest and ended on 27 October 2004, the date
of the judgment of the Istanbul Assize Court. From that point on, and
until the Court of Cassation’s decision of 13 July 2005, the
applicant was detained “after conviction by a competent court”,
which falls within the scope of Article 5 § 1 (a)
of the Convention. The second period began on 13 July 2005 and is
still pending. It has therefore already lasted more than thirteen
years in total.
- The Istanbul State Security Court considered the
applicant’s continued detention at the end of each hearing,
either of its own motion or upon the request of the applicant.
However the Court notes from the material in the case file that the
State Security Court ordered the applicant’s continued
detention on remand using identical, stereotyped terms, such as
“having regard to the nature of the offence and the state of
evidence”. 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, taken alone, cannot justify the length of the
detention of which the applicant complains (see, among others,
Letellier v. France, judgment of 26 June 1991, Series A no.
207, and Demirel, cited above, § 59). Additionally, the
Court notes that there was a lack of diligence on the part of the
domestic authorities in the conduct of the criminal procedure. The
Court will elaborate further on this matter under Article 6 (see
paragraph 42 below).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the length of the applicant’s detention pending
trial, which lasted more than thirteen years, taken together with the
stereotyped reasoning of the court, has exceeded the reasonable-time
requirement under Article 5 § 3 of the Convention.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been denied a fair hearing by an
independent and impartial tribunal on account of the presence of a
military judge on the bench of the Istanbul State Security Court
which tried him. The applicant further complained that the length of
the criminal proceedings brought against him, which are still
pending, was in breach of the “reasonable time”
requirement of Article 6 § 1 of the Convention. Article 6
of the Convention, in so far as relevant, reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal established
by law.”
A. Admissibility
1. Independence and impartiality of the trial court
- The
Government argued under Article 35 of the Convention that the
applicant’s complaint in respect of the independence and
impartiality of the Istanbul State Security Court must be rejected
for non-exhaustion of domestic remedies. They maintained that the
applicant did not raise this complaint before the domestic courts.
Moreover, the Government referred to the constitutional amendment of
1999 whereby military judges could no longer sit on such courts. They
contended that the applicant cannot therefore claim to be a victim of
a violation of his right to a trial by an independent and impartial
court.
- As
regards the Government’s first objection, the Court reiterates
that it has already examined and rejected similar preliminary
objections of the Government in respect of the non-exhaustion of
domestic remedies (see Vural v. Turkey, no. 56007/00, §
22, 21 December 2004, Çolak v. Turkey (no. 1),
no. 52898/99, § 24, 15 July 2004, and Özel, cited
above, § 25). It finds no particular circumstances in the
instant case which would require it to depart from its findings in
the above-mentioned cases.
- Accordingly,
the Court rejects this limb of the preliminary objection.
- As
regards the second objection of the Government, the Court recalls
that it has examined similar cases in the past and has concluded that
there was a violation of Article 6 § 1 of the Convention (see
Özel, cited above, §§ 33 34, and
Özdemir v. Turkey, no. 59659/00, §§
35-36, 6 February 2003). However, the present application may be
distinguished for the following reasons.
Although the applicant’s trial commenced before the Istanbul
State Security Court whose composition included a military judge,
while the proceedings were still pending, in 1999, the Constitution
was amended and the military judge sitting on the bench of the
Istanbul State Security Court was replaced by a civilian judge.
Consequently the applicant was tried thereafter by the Istanbul State
Security Court which was composed of three civilian judges.
Additionally, State Security Courts were
abolished by constitutional amendments introduced on 7 May 2004. The
applicant’s case was therefore resumed before the Istanbul
Assize Court. On 27 October 2004 the
Istanbul Assize Court convicted the applicant. Subsequently,
the conviction was quashed by the Court of Cassation for procedural
reasons. As a result, the applicant is now being tried afresh before
the Istanbul Assize Court with all of the procedural safeguards
provided for by the ordinary criminal procedure (see Yaşar v.
Turkey (dec.), no. 46412/99, 31 March 2005, and Tarlan
v. Turkey (dec.), no. 31096/02, 30 March 2006).
- In
the light of the foregoing, the Court finds that the applicant’s
complaint concerning the independence and impartiality of the
Istanbul State Security Court should be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
2. Length of proceedings
- The
Court notes that the applicant’s complaint regarding the length
of the criminal proceedings is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government stated that the length of the proceedings in the instant
case could not be considered unreasonable in view of the number of
accused persons, the complexity of the case and the nature of the
offence with which the applicant was charged. Moreover they alleged
that the applicant had contributed to the length of the proceedings
by staging a demonstration in the hearing room.
- The
applicant alleged that the case was not complex as all the accused
were charged simply with membership of an illegal organisation. He
also contended that the accused staged protests on only a few
occasions and that it was their democratic right to do so.
- The
Court notes that the period to be taken into consideration began on
28 November 1992, when the applicant was taken into police custody,
and that the criminal proceedings are still pending. They have
therefore already lasted more than thirteen years and nine months,
for three levels of jurisdiction.
- The
Court recalls in the first place that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case, with reference to the criteria established
by its case-law, particularly the complexity of the case, the conduct
of the applicant and of the relevant authorities, and what was at
stake for the applicant (see, amongst many others, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II).
- The
Court notes that, even though the case involved a certain degree of
complexity, it cannot be said that this in itself justified the total
length of the proceedings.
- As
regards the conduct of the applicant, the Court observes that he did
not appear before the court on a number of occasions. However, it is
of the opinion that the applicant’s absence from some of the
hearings cannot justify the overall length of the proceedings.
Furthermore, the Court notes that there was only one occasion on
which the applicant, together with the rest of the accused, delayed
the proceedings by staging a protest.
- Concerning
the conduct of the authorities, the Court notes that there was a
significant period of delay which is attributable to them. In this
respect, it observes from the documents in the case file that by the
end of 1994 the court has finished hearing almost all witnesses.
However, the final statements of the accused were only obtained by 27
March 2000. No sufficient explanation has been provided for this
delay. Nor has any satisfactory explanation been offered as to why it
took the first-instance court another four and a half years to render
its judgment.
- Recalling
that Article 6 § 1 of the Convention imposes on the Contracting
States the duty to organise their legal systems in such a way that
their courts can meet each of the requirements of that provision,
including the obligation to decide cases within a reasonable time
(see Arvelakis v. Greece, no. 41354/98, § 26, 12 April
2001), the Court considers that the domestic court should have
applied stricter measures to speed up the proceedings. It therefore
finds that the proceedings in the instant case were unnecessarily
prolonged as the national court failed to act with the necessary
diligence.
- In
view of the above, the Court considers that the criminal proceedings
cannot be considered to have complied with the reasonable time
requirement laid down in Article 6 § 1.
- There
has accordingly been a violation of this provision.
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 the sum of 67,500 euros (EUR)
for pecuniary damage. He referred in this connection to the excessive
length of the criminal proceedings and the time he had spent in
detention pending trial, as a result of which he had not been able to
work. He also claimed EUR 50,000 for non-pecuniary damage.
- The
Government contested the amounts requested by the applicants.
- 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 some
non-pecuniary damage which cannot be sufficiently compensated by the
finding of a violation alone. Taking into account the circumstances
of the case and having regard to its case-law, the Court awards the
applicant EUR 9,000 for non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 4,750 for the costs and expenses incurred
before the domestic courts and the Strasbourg Court. He claimed that
his representative had applied the scale recommended by the Istanbul
Bar for applications to the Court.
- The
Government contested this claim.
- 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 global sum of EUR 1,500 under
this head.
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 complaint concerning the length of
the applicant’s detention pending trial and the length of the
criminal proceedings admissible and the remainder of the application
inadmissible;
- 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 sums, to be
converted into new Turkish liras at the rate applicable at the date
of settlement:
(i) EUR
9,000 (nine thousand euros) for non-pecuniary damage,
(ii) EUR
1,500 (one thousand five hundred euros) for costs and expenses,
(iii) 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
