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SECOND
SECTION
CASE OF
ETEM KARAGÖZ v. TURKEY
(Application
no. 32008/05)
JUDGMENT
STRASBOURG
15
September 2009
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 Etem Karagöz
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 25 August 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32008/05) 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 Etem Karagöz (“the
applicant”), on 18 August 2005.
- The
applicant was represented by Mr S. Güzel, a lawyer practising in
Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
- On
27 June 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29§ 3).
THE FACTS
- The
applicant was born in 1973 and lives in Diyarbakır.
- On
19 January 1994 the applicant was arrested and taken into
police custody by officers of the Diyarbakır security police in
connection with an investigation into an illegal organisation.
- On
7 February 1994 the applicant was brought before the Diyarbakır
public prosecutor and then the investigating judge, who remanded the
applicant in custody.
- By
an indictment dated 17 March 1994, the public prosecutor at the
Diyarbakır State Security Court initiated criminal proceedings
against the applicant and a number of others, accusing him,
inter alia, of carrying out activities for the purpose of
bringing about the secession of part of the national territory under
Article 125 of the Criminal Code.
- On
30 July 1997 the Diyarbakır State Security Court convicted and
sentenced the applicant to life imprisonment, pursuant to Article 125
of the Criminal Code.
- The
applicant appealed. On 1 March 1999 the Court of Cassation quashed
the judgment of the first-instance court on procedural grounds and
remitted the case to the Diyarbakır State Security Court.
Following constitutional amendments introduced on 7 May 2004, the
State Security Courts were totally abolished. Subsequently,
the applicant's case was resumed before the 6th Assize Court of
Diyarbakır.
- Throughout
the whole proceedings the applicant regularly requested his release
whereas the trial courts rejected his requests. On 20 October 2005
the applicant noted that he had already been detained for a period of
more than eleven years and reiterated his request.
Relying on the accusations against the applicant, the existence of
strong evidence against him and the content of the case file, the 6th
Assize Court of Diyarbakır refused his request again. The
applicant appealed. On 25 October 2005 the 4th Assize Court of
Diyarbakır dismissed the appeal without further reasoning.
- On
9 March 2007 the 6th Assize Court of Diyarbakır convicted the
applicant and sentenced him to life imprisonment. On 7 March 2008 the
Court of Cassation upheld the judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 3 and 4 OF
THE CONVENTION
- The
applicant complained under Article 5 § 3 of the Convention that
the length of his detention on remand had been excessive. He further
contended under Article 5 § 4 of the Convention that there were
no remedies in domestic law to challenge the length of his detention
on remand.
- The
Court observes that the applicant's detention, for the purposes of
Article 5 § 3 of the Convention, began when he was taken into
police custody on 19 January 1994 and continued until he was
convicted by the trial court on 30 July 1997. From 30 July 1997 until
his conviction was quashed by the Court of Cassation on 1 March 1999,
he was detained “after conviction by a competent court”,
within the meaning of Article 5 § 1 (a) and therefore that
period of his detention falls outside the scope of Article 5 § 3
(see Cahit Solmaz v. Turkey, no. 34623/03, § 34,
14 June 2007 and the cases cited therein). From 1 March 1999 until
his conviction by the trial court again on 9 March 2007, however, the
applicant was once more in pre-trial detention for the purposes of
Article 5 § 3 of the Convention. It follows that the applicant
spent a total of over eleven years and six months as a remand
prisoner.
A. Article 5 § 3 of the Convention
- The
Government argued that there had been a genuine requirement of public
interest for the continued detention of the applicant, who had been
charged with a serious offence. There had also been a high risk of
him escaping and committing further crimes.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
- The
Court observes that the Diyarbakır State Security Court failed
to indicate to what extent the applicant's release would have posed a
risk, after – by then – well over eleven years of
detention (including the periods of imprisonment after conviction),
in its last decision to extend the applicant's detention pending his
trial at first instance. Neither are there any documents in the file
to suggest that the trial court, which ordered the applicant's
continued detention on many occasions, at any time displayed concern
about the length of the applicant's detention.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar
issues to those in the present application (see, for example,
Taciroğlu v. Turkey, no. 25324/02, §§
18-24, 2 February 2006; Solmaz v. Turkey, no. 27561/02, §
44, 16 January 2007; Güveç v. Turkey,
no. 70337/01, § 108, 20 January 2009).
- Having examined all the material
submitted to it, the Court considers that the Government have not put
forward any fact or convincing argument capable of persuading it to
reach a different conclusion. Having regard to its case-law on the
subject, it considers that in the instant case the length of the
applicant's detention pending trial was excessive and contravened
Article 5 § 3 of the Convention.
- There
has accordingly been a violation of this provision.
B. Article 5 § 4 of the Convention
- The
Government submitted that the applicant had challenged his detention
period before the trial court, which indicated that an effective
remedy had been available. Alternatively, if the applicant had
believed that the domestic remedies were ineffective, then he should
have lodged his application with the Court within six months of the
detention order.
- The
Court has already examined the possibility of challenging the
lawfulness of pre-trial detention in Turkey at the relevant time and
concluded that it offered little prospect of success in practice as
it did not provide for a procedure that was genuinely adversarial for
the accused (see Doğan Yalçın v. Turkey, no.
15041/03, § 43, 19 February 2008). The Court finds no particular
circumstances in the instant case which would require it to depart
from its previous findings. Additionally the Court observes that the
applicant challenged his detention, albeit unsuccessfully, on 20
October 2005, whereas the present application was introduced
beforehand, on 18 August 2005. The Government's objection
concerning compliance with the six-month rule under Article 35 §
1 of the Convention is not, therefore, pertinent.
- In
light of the foregoing, the Court concludes that there has been a
breach of Article 5 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
criminal proceedings lodged against him had exceeded the reasonable
time requirement of Article 6 § 1 of the Convention.
- The
Government contested that argument. They maintained that the case was
complex and involved eight suspects who had been accused of several
illegal actions. They contended that no negligence or delay could be
imputed to the judicial authorities. In this connection they referred
to the judgment in the case of İntiba v. Turkey (no.
42585/98, 24 May 2005) where the Court found a total period of ten
years to be reasonable.
- 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.
- The
Court observes that the proceedings began on 19 January 1994 with the
applicant's arrest and ended on 7 March 2008 when the Court of
Cassation delivered its judgment. They thus lasted over fourteen
years for two levels of jurisdiction delivering four judgments.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to that in the present
application (see Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II, and Ertürk v.
Turkey, no. 15259/02, 12 April 2005).
- The
Court notes that the circumstances in the case of İntiba
v. Turkey (see above) referred to by the Government differ
from the present application. In particular, that applicant had not
been detained on remand; the length taken into consideration was
seven years and eleven months; and approximately three years and
three months of this period was attributable to the applicant.
- 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 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 submitted that, as a result of his arrest and detention, he
had been unable to work and thus support his family. He claimed
50,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 for
non-pecuniary damage.
- The
Government contested these claims.
- 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 15,600 for non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,850 for costs and expenses incurred
before the Court. In support of his claim the applicant submitted a
schedule of costs, showing the hours spent by his lawyer on the case.
- The
Government considered the sums to be excessive and unsupported by
adequate documentation.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 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 application admissible;
- Holds that there has been a violation of Article
5 §§ 3 and 4 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 Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
15,600 (fifteen thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage,
(ii) EUR
3,000 (three thousand euros), plus any tax chargeable to the
applicant, in respect of costs and expenses;
(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 15 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
