CASE OF BALABAN v. TURKEY

SECOND SECTION

CASE OF BALABAN v. TURKEY

(Application no. 4236/03)

JUDGMENT

STRASBOURG 

24 June 2008

FINAL

24/09/2008

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 Balaban v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Françoise Tulkens, President,

Antonella Mularoni,

Ireneu Cabral Barreto,

Vladimiro Zagrebelsky,

Dragoljub Popović,

Nona Tsotsoria,

Işıl Karakaş, judges,

and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 3 June 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 4236/03) 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 Ramazan Balaban (“the applicant”), on 8 November 2002.

2. The applicant was represented by Mrs N. Bener, a lawyer practising in Bursa. The Turkish Government (“the Government”) were represented by their Agent for the purposes of the proceedings before the Court.

3. On 5 June 2007 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the criminal proceedings brought against the applicant, 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 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

4. The applicant was born in 1950 and lives in Bursa.

A. The criminal proceedings against the applicant

5. On 17 October 1996 the applicant was taken into police custody on suspicion of complicity in an armed robbery and homicide in Bursa.

6. On 27 October 1996 he was detained on remand.

7. On 4 November 1996 the Bursa public prosecutor filed a bill of indictment with the Bursa Assize Court, charging the applicant and three others with the murder of M.T. and armed robbery.

8. On 21 November 1997 the Bursa Assize Court acquitted the applicant and two of his co-accused. The fourth accused, A.Ş., was convicted. The first-instance court ordered the applicant’s release from prison.

9. The Bursa public prosecutor, M.T.’s father, who had joined the proceedings before the Bursa Assize Court, and A.Ş. appealed.

10. 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.

11. 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.

12. On 29 June 2001 the Bursa Assize Court once again acquitted the applicant and two of his co-accused after gathering the evidence mentioned in the Court of Cassation’s decision. In its judgment, it held that there was insufficient evidence to conclude that the applicant had committed the offences in question.

13. The Bursa public prosecutor, M.T.’s father and A.Ş. again 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.

14. On 19 March 2002 the Court of Cassation upheld the judgment of 29 June 2001. This decision was recorded in the records held by the Registry of the Bursa Assize Court on 17 April 2002.

B. The compensation proceedings

15. On 6 August 2002 the applicant brought an action in the Bursa Assize Court for compensation under Law no. 466 for his detention between 17 October 1996 and 2 November 1997.

16. On 20 August 2002 the court held a hearing and appointed one of its members as judge rapporteur to investigate the case and draft a report. There is no indication that the applicant and/or his legal representative were duly notified of this hearing. The rapporteur held investigatory sittings between 30 September 2002 and 23 December 2002. There is no indication that the applicant and/or his legal representative were summoned to be heard by the rapporteur during this time.

17. On 24 December 2002 the Bursa Assize Court held a hearing and, relying on the expert report and the documents contained in the case file, 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. In determining the award of pecuniary damage, the court referred to the minimum wage at the time and the applicant’s loss of income during his incarceration. With respect to non-pecuniary damage, it took into account the applicant’s socio-economic position, the seriousness of the charges brought against him, the time he had spent in detention and the intensity of his emotional suffering. It further awarded the applicant an amount for costs and expenses incurred before the criminal court. However, it dismissed his request for interest running from the date of his release, holding that interest could not be awarded in cases brought under Law no. 466. There is no indication that the applicant and/or his legal representative were duly notified of this hearing.

18. 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.

19. 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.

20. On 12 May 2004 the Court of Cassation upheld the judgment of the Bursa Assize Court. In its decision the court also noted that there had been no need for an oral hearing in the case.

21. The Government stated that on 3 November 2004 the authorities paid the amount due.

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. The relevant domestic law and practice in force at the material time are outlined in the Göç v. Turkey judgment ([GC], no. 36590/97, §§ 27-32, ECHR 2002‑V).

23. On 2 January 2003 Article 316 of the Code of Criminal Procedure was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

24. The applicant complained that he had not had an oral hearing before the Bursa Assize Court for the determination of his compensation claim. He invoked Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal.”

A. Admissibility

25. The Government maintained that the applicant did not exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as he failed to raise the substance of his complaint under Article 6 of the Convention before the domestic court.

26. The applicant rejected that argument.

27. The Court observes that the applicant did raise the substance of his complaint before the domestic courts (see paragraph 18 above). It therefore rejects the Government’s objections under this head.

28. The Court further notes that this part of the application is not manifestly ill‑founded, within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

29. The Government maintained, in particular, that the domestic court had held hearings but that the applicant had failed to attend.

30. The applicant repeated his arguments.

31. The Court has examined similar cases on previous occasions and has found violations of Article 6 § 1 of the Convention in respect of the absence of an oral hearing before the Assize Court in the course of compensation proceedings initiated pursuant to Law no. 466 (see, in particular, Özata v. Turkey, no. 19578/02, §§ 34-37, 20 October 2005, and Göç, cited above, §§ 50-52). It finds no reason to depart from that conclusion in the present case since the Government have failed to demonstrate that the applicant and/or his legal representative were duly notified of the dates of the court’s hearings which were held on 20 August 2002 and 24 December 2002, in order to ensure their attendance (see, a contrario, Göktaş v. Turkey, no. 66446/01, § 23, 29 November 2007).

32. There has accordingly been a breach of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

33. In his application forms lodged on 8 November 2002 and 9 July 2004 respectively, the applicant complained under Article 6 § 1 of the Convention on two counts. Firstly, he had never been given an opportunity to reply to the principal public prosecutor’s written opinion submitted to the Court of Cassation in the criminal proceedings brought against him. Secondly, the criminal proceedings had been unduly protracted. Finally, he also complained under Article 1 of Protocol No.1 of the amount of compensation awarded to him, which he considered too low, and of the failure to fix a rate of interest, running from the date of commission of the tort, on that award, despite the high inflation in Turkey.

34. In his observations dated 12 October 2007, the applicant further alluded to the unfairness of the compensation proceedings on account of the failure to communicate the expert report to him. He also complained of the length of the compensation proceedings.

35. However, in the light of all the material in its possession, the Court finds that the applicant’s submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

36. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

37. 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

38. The applicant claimed 900,000 new Turkish liras (TRL) (approximately 534,588 euros [EUR]), together with interest running from the date of his arrest, in respect of damage incurred as a result of the violation of his Convention rights.

39. The Government maintained that no request for pecuniary or non‑pecuniary damage had been duly submitted by the applicant.

40. The Court considers that the finding of violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Aydın and Şengül v. Turkey, no. 75845/01, § 31, 3 May 2007). It therefore makes no financial award under this head.

B. Costs and expenses

41. The applicant also claimed EUR 15,000 for the costs and expenses incurred before the Court and TRL 2,000 (approximately EUR 1,188) for those incurred before the domestic courts. He submitted documentation regarding postal and translation expenses, as well as the fees he owed in relation to the contract concluded between him and his legal representative concerning the Court proceedings.

42. The Government contested the amount.

43. 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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court.

C. Default interest

44. 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

1. Declares admissible the complaint concerning the lack of an oral hearing in the determination of the applicant’s compensation claim before the Bursa Assize Court, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. 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), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, which sum is to be converted into new Turkish liras at the rate applicable at the date of the settlement;

(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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident

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