SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4236/03
by Ramazan BALABAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 5 June 2007 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrR. Türmen,
MrM. Ugrekhelidze,
MrV. Zagrebelsky,
MsD. Jočienė,
MrD. Popović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 8 November 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ramazan Balaban, is a Turkish national who was born in 1950 and lives in Bursa. He is represented before the Court by Mrs N. Bener, a lawyer practising in Bursa.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Criminal proceedings against the applicant
On 17 October 1996 the applicant was taken into police custody on suspicion of complicity in an armed robbery and homicide in Bursa.
On 27 October 1996 the applicant was detained on remand.
On 4 November 1996 the Bursa public prosecutor filed a bill of indictment with the Bursa Assize Court, charging the applicant and three other persons with the murder of M.T. and an armed robbery.
On 21 November 1997 the Bursa Assize Court acquitted the applicant and two of his co-accused. The fourth person, A.Ş., was convicted. The first-instance court ordered the applicant’s release from prison.
The Bursa public prosecutor, A.Ş. and M.T.’s father, who had joined the proceedings before the Bursa Assize Court, appealed.
On an unspecified date the principal public prosecutor at the Court of Cassation submitted his written opinion (tebliğname) on the merits of the appeal. This opinion was not served on the applicant.
On 28 April 1998 the Court of Cassation quashed the judgment of 21 November 1997, holding that the first-instance court had failed to collect certain, relevant evidence. The case was remitted to the Bursa Assize Court.
On 29 June 2001 the Bursa Assize Court once again acquitted the applicant and two of his co-accused after having gathered the evidence mentioned in the Court of Cassation’s decision. In its judgment, the first-instance court held that there was insufficient evidence to conclude that the applicant had committed the offences in question.
The Bursa public prosecutor, A.Ş. and M.T.’s father once again appealed. The applicant was not notified of the written opinion of the principal public prosecutor at the Court of Cassation.
On 19 March 2002 the Court of Cassation upheld the judgment of 29 June 2001.
B. Compensation proceedings
On 6 August 2002 the applicant brought a case before the Bursa Assize Court, requesting compensation, pursuant to Law no. 466, for his detention between 17 October 1996 and 21 November 1997.
On 24 December 2002 the Bursa Assize Court awarded the applicant 195,680,000 (TRL) (approximately EUR 116) for pecuniary damage and TRL 3,000,000,000 (approximately EUR 1,791) for non-pecuniary damage. It further awarded the applicant a certain amount for costs and expenses incurred before the criminal court. The court, however, dismissed the applicant’s request for interest running from the date of his release, holding that interest could not be awarded in cases brought pursuant to Law no. 466.
On 31 March and 6 February 2003 the Treasury and the applicant appealed. The applicant complained, inter alia, about the absence of an oral hearing before the Bursa Assize Court and the refusal to fix an interest rate for the compensation awarded to him.
On 10 June 2003 the principal public prosecutor at the Court of Cassation submitted his written opinion on the merits of the appeals. He advised that the judgment of the first-instance court should be quashed as it had failed, inter alia, to take statements from the applicant in person before awarding him compensation for non-pecuniary damage. On 2 July 2003 this opinion was served on the applicant.
On 12 May 2004 the Court of Cassation upheld the judgment of the Bursa Assize Court.
At the time of his application to the Court, the applicant did not state whether, and if so when, he had been paid the compensation.
COMPLAINTS
A. Complaints submitted on 8 November 2002 regarding the criminal proceedings
The applicant complained under Articles 5 § 3 and 6 § 2 of the Convention that the length of his detention on remand was excessive.
He also complained under Article 6 § 1 of the Convention that the criminal proceedings against him were not concluded within a reasonable time. Relying on the judgment in the case of Göç v. Turkey ([GC], no. 36590/97, ECHR 2002‑V), he alleged that the written observations of the principal public prosecutor at the Court of Cassation on the merits of his appeal were not served on him. The applicant contended under the same head that the Bursa Assize Court had not reheard the case although, during the proceedings, judges sitting on the bench of the court were replaced several times. The applicant maintained under Article 6 § 1 that the date of the decision concerning his detention on remand was erroneously mentioned by the trial court as being 27 October 1997. The applicant finally complained under the same head that the decision of the Court of Cassation was not served on him, and that his petition against the perpetrators of the robbery and homicide was not taken into consideration by the domestic court.
B. Complaints submitted on 9 July 2004 regarding the compensation proceedings
The applicant complains under Article 6 § 1 of the Convention that he was not afforded a public hearing in the determination of his compensation claim.
He maintains under Article 1 of Protocol No. 1 that he suffered damage as no rate of interest was fixed for the compensation granted to him, despite high inflation in Turkey.
THE LAW
A. As regards the complaints concerning the criminal proceedings against the applicant
1. The applicant complained under Articles 5 § 3 and 6 § 2 of the Convention that the length of his detention on remand was excessive.
The Court notes that the applicant’s detention on remand ended on 21 November 1997 when the Bursa Assize Court acquitted him. However, the applicant lodged this complaint with the Court on 8 November 2002 which is more than six months after the end of his detention. It follows that this complaint has been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him were not concluded within a reasonable time. He further complained under the same head that the written observations of the principal public prosecutor at the Court of Cassation on the merits of his appeal were not served on him.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. As regards the applicant’s other complaints under Article 6 of the Convention, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and insofar as the matters complained of are within its competence. Accordingly, it rejects this part of the application as being manifestly-ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. As regards the complaints concerning the compensation proceedings
The applicant maintained under Article 6 § 1 of the Convention his compensation claim was determined without a public hearing. He contended under Article 1 of Protocol No. 1 that he suffered damage as no rate of interest was fixed for the compensation award, despite high inflation in Turkey.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of the criminal proceedings, the non-communication of the principal public prosecutor’s observations before the Court of Cassation, the lack of a public hearing in the determination of his compensation claim and the alleged damage he suffered as a result of the domestic court’s failure to order payment of interest;
Declares the remainder of the application inadmissible.
F. Elens-Passos F. Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy