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FOURTH
SECTION
CASE OF BORAK v. TURKEY
(Application
no. 60132/00)
JUDGMENT
STRASBOURG
5
December 2006
FINAL
05/03/2007
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 Borak v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Türmen,
Mr M. Pellonpää,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 14 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 60132/00) 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 İdris Borak (“the
applicant”), on 5 April 1999.
- The
applicant was represented by Mrs Z.S. Özdoğan, a lawyer
practising in Izmir. The Turkish Government (“the Government”)
did not designate an Agent for the purpose of the proceedings before
the Court.
- On
3 November 2005 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaint concerning the applicant’s right to a fair hearing
before an independent and impartial tribunal and the interference
with his right to respect for private life and home on account of the
alleged unlawful search of his house. 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 1978 and was serving his prison sentence in the
Sakarya Prison at the time of his application to the Court.
- On
17 July 1997 the applicant was arrested and taken into police custody
by the Anti-terror branch of the Izmir Security Directorate on
suspicion of his involvement in an illegal organisation, namely the
DHP (Revolutionary Peoples’ Party).
- According
to the search protocol drafted on 18 July 1997 by police officers and
signed by the applicant’s father, the police, after obtaining
his consent, searched the applicant’s parents’ flat and
did not find any incriminating evidence.
- According
to the search and seizure protocol drafted on the same day by the
police officers and signed by the applicant, the police searched the
applicant’s flat and had found inside a book a paper with coded
inscriptions and numbers on it. Following the search the applicant
was taken back to the police station. However, three police officers
remained in the applicant’s flat, until 6.30 p.m., in case
other members of the illegal organisation appeared.
- On
18 July 1997 the applicant’s representative requested the
public prosecutor at the Izmir State Security Court to give her
permission to see the applicant in police custody. On the same day
the public prosecutor refused.
- Also
the same day, the applicant was examined by a doctor at the Izmir
Forensic Medicine Institute. The applicant complained that he had
been beaten. However, the doctor found no physical evidence of
ill treatment.
- On
21 July 1997 the applicant was brought before the public prosecutor
at the Izmir State Security Court. Before the public prosecutor the
applicant gave information as to his relations with various people
but denied that he had been involved in an illegal organisation and
that he had taken part in military training in Greece. He claimed
that he did not know anything about the code found during the search.
He acknowledged that he knew Mr A.T and Mr U.M who had identified him
in the police station. He submitted further that he knew Mr A.E.K.,
Mr M.K, and Mr G.C. because they were in the same prison as his
sister. He admitted that Mr A.T and Mr U.M knew him as Kemal
Borak but stated that this was not a code name.
- On
the same day the applicant was brought, together with two other
suspects, before the Izmir State Security Court. He refuted the
statements he had given to the police and reiterated his statements
made to the public prosecutor. The other suspects claimed that they
knew the applicant as “Kemal” and acknowledged their
statements given to the police and to the public prosecutor. The
court ordered the applicant’s remand in custody.
- On
25 July 1997 the public prosecutor at the Izmir State Security Court
filed a bill of indictment with that court, accusing the applicant of
membership of an illegal organisation, namely the DHP. The public
prosecutor requested that the applicant be convicted and sentenced
under Article 168 § 2 and Article 5 of Law no.
3713.
- On
an unspecified date the Izmir State Security Court commenced the
trial against the applicant and two other co-accused.
- At
a hearing held on 7 October 1997 the applicant stated that he was not
a member of the DHP and that he did not accept the content of the
statements he had given to the police since they had been extracted
under duress and torture. The statements which the applicant had made
to the public prosecutor were read out to him. He rectified certain
details. He further submitted that he had asked his brother for money
but since he did not have an identity document and a bank account,
his brother had sent the money to the bank account of Mr R.A. He was
asked about Ms S.D, who had sent the money to R.A. He stated that he
did not know Ms S.D. personally but that she was a friend of his
brother. He maintained that he did not have a code name and that
people knew him as “Kemal” because that was his middle
name. As to the coded inscriptions, he claimed that the police made
him write them in the police station. The search and seizure protocol
was read out to him. He denied that the coded inscriptions had been
found in his house.
- At
a hearing held on 6 November 1997 the applicant requested that
witnesses on his behalf be heard by the court. The court, taking into
account the evidence contained in the case file and the fact that the
witness Ms S.D. was living in Germany, decided not to hear the latter
witness. On the other hand, the court decided to hear the other
witnesses. On 27 November 1997 the court heard the applicant’s
witnesses.
- On
23 December 1997 the applicant submitted his final written defence
submissions to the court. He claimed that there was no evidence in
the case file to support the accusations against him apart from his
statements given under duress in police custody. In particular, he
alleged that the police had made him write the coded inscriptions
while he was in custody.
- On
23 December 1997 the Izmir State Security Court convicted the
applicant as charged and sentenced him to twelve years and six
months’ imprisonment. The court held, inter alia, that
as the applicant’s statements in police custody were consistent
with the statements made by Mr I.A., Mr R.K, Mr A.T and Mr U.M.,
it did not find the applicant’s statements made during the
trial convincing. As to the defence witnesses’ statements, the
court ruled that, as the witnesses were the applicant’s
relatives, their submissions could not be considered reliable. The
court further held that since the profile of the applicant did not
match that given by two convicted persons who had given evidence it
did not take into account the latter’s statements in its
assessment.
- On
23 September 1998 the applicant appealed against the judgment of the
Izmir State Security Court. In his appeal petition, the applicant
reiterated his previous submissions. He further argued that the court
had relied on unlawfully obtained evidence and that there was no
evidence to support the allegation that he was a member of an illegal
organisation. The applicant also attached the written witness
statement of Ms S.D to his petition. According to the written
statement of Ms S.D., she was a friend of the applicant’s
brother and since he had been busy she had made all the necessary
transactions and sent the money to the bank account given to her.
- On
28 September 1998 the Court of Cassation held a hearing and upheld
the judgment of the İzmir State Security Court. The court
pronounced its decision on 30 September 1998 in the absence of the
applicant and his representative. The applicant’s
representative claims that she learned of the decision of the Court
of Cassation on 12 October 1998 when she went to that court on other
business.
- On
26 October 1998 the decision of the Court of Cassation was deposited
with the registry of the first-instance court.
- The
applicant’s representative informed the Court that the
applicant had been released from prison after having served his
sentence.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments: Özel v. Turkey
(no. 42739/98, §§ 20-21, 7 November 2002) and
Gençel v. Turkey (no. 53431/99, §§ 11-12,
23 October 2003).
- By
Law no. 5190 of 16 June 2004, published in the Official Journal on 30
June 2004, the State Security Courts were abolished.
THE LAW
I. 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 sitting on the bench of the Izmir State Security Court
which tried and convicted him. He submitted that his statements in
police custody which had been extracted under torture were admitted
in evidence and that he had been denied the assistance of a lawyer at
the initial stages of the proceedings. He argued that the court did
not take into account his objections to the admissibility of the
document and the findings of the unlawful search. He claimed that the
unlawfully obtained evidence and other documents prepared by the
police and the prosecution had been prejudicial to his defence
rights. He claimed that the court did not hear Ms S.D. and
despite the fact that her testimony was admitted to the case file at
the appeal stage, the Court of Cassation did not take it into
account. The applicant maintained that the court did not give any
reasons as to why it had not taken into account the testimony of his
witnesses. He complained that the testimony of two convicted persons
had been included in the case file. Finally, he argued that his
defence rights had been infringed as he was detained in a prison far
from Izmir, thus making it difficult for his representative to see
him. The applicant relied on Article 6 §§ 1, 2
and 3 of the Convention, which in so far as relevant provides:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by an independent and impartial tribunal
established by law.
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require.”
A. Admissibility
- The Government maintained under Article 35 § 1 of
the Convention that the applicant had failed to comply with the
six-month rule. In this regard, they submitted that the applicant
should have lodged his application with the Court within six months
following the date of the pronouncement of the Court of Cassation’s
judgment.
- The applicant denied the Government’s arguments.
- The
Court reiterates that where an applicant is entitled to be served ex
officio with a written copy of the final domestic decision the
object and purpose of Article 35 § 1 of the Convention are best
served by counting the six-month period as running from the date of
service of the written judgment. Where, as in the present case, the
domestic law does not provide for service, it considers it
appropriate to take the date on which the final domestic decision was
deposited with the registry of the first-instance court as the
starting-point, the latest date on which the applicant was
definitively able to find out about the content of the final decision
(see, among others, Esmer v. Turkey (dec.), no.
57888/00, 30 June 2005). The Court also reiterates that the six-month
period runs from the date on which the applicant’s lawyer
became aware of the decision completing the exhaustion of the
domestic remedies, notwithstanding the fact that the applicant only
became aware of the decision later (see, in particular, Bölükbaş
and Others v. Turkey (dec.), no. 37793/97, 12 October 1999).
- The
Court observes that the applicant’s lawyer obtained a copy of
the decision of the Court of Cassation on 12 October 1998. It further
notes that the Court of Cassation’s decision had been deposited
with the registry of the Court of Cassation on 26 October 1998. The
application was lodged with the Court on 5 April 1999, i.e. within
six months. It therefore rejects the Government’s objection
under this head.
- In the light of its established case-law (see, among
many other authorities, Çıraklar v. Turkey,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998-VII) and in view of the materials submitted to it, the Court
considers that the applicant’s complaints raise complex issues
of law and fact under the Convention, the determination of which
should depend on an examination of the merits. The Court therefore
concludes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. No other
grounds for declaring it inadmissible have been established.
B. Merits
1. Independence and impartiality of the State Security
Court
- The Court has examined a large number of cases raising
similar issues to those in the present case and found 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).
- The Court finds no reason to reach a different
conclusion in the instant case. Accordingly, the Court
concludes that there has been a violation of Article 6 § 1.
2. Fairness of the proceedings
- Having
regard to its finding of a violation of the
applicant’s right to a fair hearing by an independent
and impartial tribunal, the Court considers that it is not necessary
to examine the remaining complaints under Article 6 of the Convention
relating to the fairness of the proceedings before the domestic
courts (see, among other authorities, Incal v. Turkey,
judgment of 9 June 1998, Reports 1998 IV, p. 1568, §
74).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the search conducted in his house was
unlawful and in breach of Article 8 of the Convention, which reads as
follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government argued under Article 35 § 1 of the Convention that
this part of the application must be rejected for non-exhaustion of
domestic remedies. They maintained that the applicant had neither
raised this complaint during the proceedings nor lodged an official
complaint with the public prosecutor.
- The
applicant maintained that during the criminal proceedings he had
complained about the search conducted in his house. He also suggested
that there were no effective domestic remedies at the time of the
events.
- The
Court reiterates that, under the terms of Article 35 § 1 of the
Convention, it may only deal with a matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law. This condition is not met by the mere
fact that an applicant has submitted his case to the various
competent courts. It is also necessary for the complaint brought
before the Court to have been raised, at least in substance, during
the proceedings in question (see, among other authorities,
Çakar v. Turkey, no. 42741/98, §
30, 23 October 2003).
- In
the instant case, the Court observes that at no time, did the
applicant allege, rely on or raise any arguments that his house had
been unlawfully searched in breach of his right to respect for his
private and family life. The Court notes that, before the domestic
courts, the applicant challenged solely the admission in evidence of
the paper allegedly found during the search in support of his general
argument that he had not been involved in any illegal organisation.
Accordingly, the Court considers that the applicant has failed to
raise the substance of his complaints under this head before the
domestic instances (see, in particular, Rüzgar v. Turkey
(dec.), no. 59246/00, 9 November 2004).
- In
these circumstances, the Court accepts the Government’s
objection that the applicant has failed to exhaust domestic remedies.
It follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention.
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, in total, 36,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
- The
Government contested the amount.
- On the question of pecuniary damage, the Court
considers in the first place that it cannot speculate as to what the
outcome of proceedings compatible with Article 6 § 1 would have
been. The Court therefore makes no award in respect of pecuniary
damage.
- The
Court further considers that the finding of a violation of Article 6
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant (see Incal, cited above, §
82).
B. Costs and expenses
- The
applicant also claimed EUR 4,000 for the costs and expenses incurred
before the Court.
- The
Government contested the amount.
- 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 1,000.
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
- Declares the complaints concerning the
applicant’s right to a fair trial by an independent and
impartial tribunal admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the lack of independence and
impartiality of the Izmir State Security Court;
- Holds that it is not necessary to consider the
applicant’s other complaints under Article 6 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant;
- 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) to be converted into New Turkish Liras at the rate
applicable at the date of the settlement and free of any taxes or
charges that may be payable;
(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 5 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza Registrar President
