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SECOND
SECTION
CASE OF DOĞAN AND KALIN v. TURKEY
(Application
no. 1651/05)
JUDGMENT
STRASBOURG
21
December 2010
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 Doğan and Kalin v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1651/05) 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 two Turkish nationals, Mr Metin Doğan and
Mr Talip Kalın (“the applicants”), on 16
December 2004.
- The
applicants were represented by Mrs M. Avcı, a lawyer practising
in İstanbul. The Turkish Government (“the Government”)
were represented by their Agent.
- On
8 October 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
24 February 1994 the applicants were taken into police custody in
Istanbul on suspicion of membership of an illegal organisation.
- On
11 March 1994 the applicants were brought before the investigating
judge at the İstanbul State Security Court, who ordered their
detention pending trial.
- On
23 June 1994, the public prosecutor at the İstanbul State
Security Court filed a bill of indictment against the applicants,
charging them under Article 125 of the former Criminal Code with
carrying out activities with the aim of bringing about the secession
of part of the national territory.
- On
5 May 1999 the İstanbul State Security Court convicted the first
applicant as charged and sentenced him to death. As regards the
second applicant, the court decided that his case should be disjoined
from the file as his defence had not been submitted to the court.
- On
29 February 2000 the Court of Cassation quashed the judgment of 5 May
1999.
- The
case was remitted to the İstanbul State Security Court for
further examination.
- On
5 February 2001 the second applicant's case was joined to the file
again.
- On
21 June 2004 the applicants were released pending trial.
- By Law no. 5190 of 16 June 2004,
published in the Official Gazette on 30 June 2004, State
Security Courts were abolished. The case against the applicants was
subsequently resumed before the İstanbul
Assize Court.
- According
to the information submitted to the case file on 3 February 2010
the proceedings are currently pending before the İstanbul Assize
Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A description of the relevant domestic law and
practice prior to the entry into force of the new Code of Criminal
Procedure (“the CCP”) (Law no. 5271) on
1 June 2005 may be found in Çobanoğlu and
Budak v. Turkey (no. 45977/99, §§ 29-31,
30 January 2007). The current practice under the CCP is outlined in
Şayık and Others v. Turkey (nos. 1966/07,
9965/07, 35245/07, 35250/07, 36561/07, 36591/07, and 40928/07, §§
13-15, 8 December 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants complained under Article 5 § 3 of the Convention that
the length of their pre-trial detention had been excessive. The
applicants further complained under Article 13 of the Convention that
there had been no domestic remedies available under Turkish law
whereby they could challenge the
unlawfulness of their pre-trial detention. The Court considers that
this complaint should be examined under Article 5 § 4 of the
Convention, being the lex specialis
in the matter (see Elğay v.
Turkey (dec.), no. 18992/03,
11 September 2007).
- The
Government contested the applicants' arguments.
A. Article 5 § 3 of the Convention
- 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.
- As
regards the merits, the Government maintained that the applicants'
detention had been based on the existence of reasonable grounds of
suspicion of them having committed an offence, and that their
detention had been reviewed periodically by a competent authority,
with special diligence, in accordance with the requirements laid down
by the applicable law. They pointed out that the offences with which
the applicants had been charged had been of a serious nature, and
that their continued remand in custody had been necessary to prevent
crime and to preserve public order.
- The
Court notes that the period to be taken under consideration is over
nine years and six months for the first applicant and over ten years
and three months for the second applicant (see Solmaz v. Turkey,
no. 27561/02, §§ 36-37, ECHR 2007-II (extracts)).
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases disclosing comparable lengthy periods of
pre-trial detention (see, for example, Tutar v. Turkey, no.
11798/03, § 20, 10 October 2006, and Cahit Demirel v. Turkey,
no. 18623/03, § 28, 7 July 2009).
Having examined all the material submitted to it, the Court
considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. Having regard to its case-law on the subject and
the length of the applicants' pre-trial detention in the present
case, the Court finds that in the instant case the length of the
applicants' pre-trial detention was excessive.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
B. Article 5 § 4 of the Convention
- 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.
- As
regards the merits of the case, the Government submitted that the
applicants had in fact had the possibility of challenging their
continued detention by lodging objections.
- The
Court has already examined the possibility of challenging the
lawfulness of pre-trial detention in Turkey in other cases and
concluded that the Government had failed to show that the
above-mentioned remedies provided for a procedure that was genuinely
adversarial for the accused (see, for example, Koşti and
Others v. Turkey, no. 74321/01, §§ 19-24, 3 May
2007, and Şayık and Others v. Turkey, cited above,
§§ 28-32). The Court notes that the Government have not put
forward any argument or material in the instant case which would
require the Court to depart from its previous findings.
- In
the light of the foregoing the Court concludes that there has been a
breach of Article 5 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
the length of the criminal proceedings brought against them had been
unreasonable. They further complained under Article 13 of
the Convention that there were no domestic remedies available under
Turkish law whereby they could challenge the
excessive length of the criminal proceedings in question. The
Government disputed these allegations.
- 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.
- As
regards the merits of the complaint under Article 6 § 1 of the
Convention, the Government submitted that the length of the
proceedings could not be considered to be unreasonable in view of the
complexity of the case, the number of the accused and the nature of
the offence with which the applicants were charged.
- The
Court notes that the criminal proceedings commenced on 24 February
1994 when the applicants were taken into police custody, and
according to the information in the case file, they are still pending
before the first-instance court. They have thus already lasted over
sixteen years and eight months before two levels of jurisdiction.
- Having
examined all the material submitted to it, the Court considers that
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement (see Daneshpayeh v.
Turkey, no. 21086/04, § 28, 16 July 2009).
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
- As
regards the merits of the complaint under Article 13 of the
Convention, the Court has examined similar issues in previous
applications and has found violations of Article 13 of the Convention
in respect of the lack of an effective remedy under Turkish law
whereby the applicants could have contested the length of the
proceedings at issue (see, most recently, Daneshpayeh v. Turkey,
cited above, §§ 35-38). It finds no reason to depart
from that conclusion in the present case.
- There
has accordingly been a violation of Article 13 of the Convention.
III. OTHER ALLEGED VIOLATION OF THE CONVENTION
-
The applicants maintained under Article 14 of the Convention that
they were discriminated against since they were tried and charged
with offences against the State.
- In
the light of all the material in its possession, the Court finds that
the above submission by the applicants does not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this complaint must be
declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
IV. 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
applicants claimed 10,000 euros (EUR) each in respect of pecuniary
and non-pecuniary damage.
- The
Government contested this amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards the applicants EUR 10,000 each in respect of
non-pecuniary damage.
- Furthermore,
according to the information submitted by the parties, the criminal
proceedings against the applicants are still pending. In these
circumstances, the Court considers that an appropriate means for
putting an end to the violations which it has found would be to
conclude the criminal proceedings at issue as speedily as possible,
while taking into account the requirements of the proper
administration of justice (see Yakışan v. Turkey,
no. 11339/03, § 49, 6 March 2007).
B. Costs and expenses
- The
applicants did not submit a claim for costs and expenses.
Accordingly, the Court considers that there is no call to award them
any sum on that account.
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 complaints concerning the length of
pre-trial detention, the lack of a remedy to challenge the lawfulness
of the pre-trial detention, the length of criminal proceedings and
the lack of a domestic remedy in respect of this complaint admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 §§ 3 and 4 of the Convention;
- Holds that there has been a violation of
Articles 6 § 1 and 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros) each, plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Turkish liras at the
rate applicable on the date of settlement;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
