CASE OF DOLUTAŞ v. TURKEY

SECOND SECTION

CASE OF DOLUTAŞ v. TURKEY

(Application no. 17914/09)

JUDGMENT

STRASBOURG

17 January 2012

This judgment is final but it may be subject to editorial revision.

In the case of Dolutaş v. Turkey,

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

Dragoljub Popović, President,
András Sajó,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 13 December 2011,

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

PROCEDURE

1. The case originated in an application (no. 17914/09) 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 Önder Dolutaş (“the applicant”), on 14 March 2009.

2. The applicant was represented by Mr H. Karakuş and Mrs Gül Altay, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 21 September 2010 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of criminal proceedings and the lack of effective remedy in that respect, to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1977 in Sivas.

5. On 6 May 1998 the applicant was taken into police custody on suspicion of being a member of an illegal organisation.

6. On 9 May 1998 he was brought before the public prosecutor and investigating judge at the Istanbul State Security Court, who ordered his pre-trial detention.

7. On 11 May 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him with membership of an illegal organisation.

8. On 14 July 1998 due to the factual and legal connection between the cases, the court decided to joint the applicant’s case to other proceedings, involving seven accused (no. 1998/2).

9. On the same day the applicant was released pending trial.

10. On 29 July 2000 a change took place in the judges sitting as a bench at the Istanbul State Security Court and therefore, the next hearing was scheduled on 7 September 2000.

11. On 16 November 2000 the hearing was postponed to 20 February 2001 due the change in the assignment of judges at the trial court.

12. On 20 February 2001 the applicant was summoned to appear before the court in order to make his supplementary submissions for his defence, in view of a possible alteration of the offence he was charged with.

13. On 10 May 2001 the court observed that the registered writ having sent to the applicant, returned to the case file without a delivery.

14. On 30 November 2001 the public prosecutor at the Istanbul State Security Court filed an additional bill of indictment, charging the applicant with using explosives.

15. From the date of 10 May 2001 to 24 May 2007, despite the authorities’ efforts to have summoned the applicant, his whereabouts could not be established. During that period, the court ordered the Avcılar Police Department to make an enquiry to the applicant’s family about his non‑appearance. Subsequently, the court was informed that the applicant had gone abroad to study.

16. The trial court invited the prosecutor’s office to transmit the arrest warrant against the applicant to the customs with a view to securing his appearance before the court once he entered the country.

17. Following a constitutional amendment, State Security Courts were abolished and the applicant’s case was transferred to the Istanbul Assize Court.

18. On 6 November 2007, in his defence submissions to the court, the applicant’s lawyer claimed that the applicant had already been tried by another chamber of the Istanbul Assize Court on the basis of the same facts and requested that the matter be examined further.

19. On 3 April 2008 the Istanbul Assize Court ordered the case file of the proceedings in question to verify the reason for the applicant’s previous conviction.

20. On 24 February 2009 the court ruled that the criminal proceedings be discontinued on the ground that the prosecution was time-barred. On the same day, the applicant’s lawyer lodged an appeal against the judgment.

21. According to the submissions in the case file, the proceedings are currently pending before the Court of Cassation.

THE LAW

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

22. The applicant complained that the length of the criminal proceedings against him had been excessive, in breach of the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

23. The Government contested that allegation.

24. The Court notes at the outset that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

25. The Government argued that the length of the proceedings could not be attributable to the national authorities as the applicant caused the protraction of the proceedings by his failure to have appeared before the trial court.

26. The applicant contended that the authorities were responsible for the excessive length because of their own conduct in the proceedings, namely frequent changes of the judges at the bench of the trial court and alteration of the criminal charges by the prosecution.

27. The Court notes that the criminal proceedings commenced on 6 May 1998 with the applicant’s arrest and according to the information in the case file, they are still pending before the Court of Cassation. They have, thus, already lasted for thirteen years before two levels of jurisdiction.

28. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Daneshpayeh v. Turkey, no. 21086/04, § 26, 16 July 2009).

29. The Court observes that from 10 May 2001 to 24 May 2007, the applicant was summoned to give his statement before the trial court in person in view of a possibility of an additional charge brought against him. Following a long inquest carried out by the authorities, they found out that the applicant had been living abroad.

30. The Court recalls that the obligation to appear before the court is an essential element of the criminal proceedings, except in cases of force majeure or having been excused (see Sarı v. Turkey and Denmark, no. 21889/93, § 85, 8 November 2001). In the present case, in order to establish the whereabouts of the applicant, the judicial authorities seem to have done everything that could reasonably be expected from them for securing the applicant’s presence before the trial court with a view to enabling him to have been questioned by the court as regards the new charge against him and to giving him an opportunity to make his defense submissions on the matter, as it guaranteed by the Code of Criminal Procedure.

31. The Court observes that although the applicant was represented by a lawyer throughout the proceedings, there had been no defence submissions made to the trial court for six years. Neither did the applicant’s lawyer inform the authorities of his personal circumstances, nor did he submit any request that the applicant should have been excused from attending to the hearings.

32. In this regard, the Court is of the opinion that the applicant contributed to the prolongation of the proceedings for six years by his own failure to appear before the court and that delay could not be attributable to the authorities (see Aladağ v. Turkey, no. 6781/04, decision of 9 February 2010).

33. On the other hand, given the remaining length of the proceedings, i.e, seven years before two levels of jurisdiction, the Court notes that the period in question cannot be explained solely by the delaying conduct of applicant, complexity of the proceedings or number of the accused involved. Observing a number of adjournments and intervals between the hearings, the Court finds that there were unnecessary delays in the proceedings, for which the judicial authorities were responsible. For this reason, the Court is not convinced that the domestic courts showed the required diligence to conclude the criminal proceedings within a reasonable time, despite the importance of a matter at stake for the applicant in the court proceedings.

34. The Court has frequently found a violation of Article 6 § 1 of the Convention in cases raising similar issues to the one in the present case (see, among others, Er v. Turkey, no. 21377/04, § 23, 27 October 2009; Şahap Doğan v. Turkey, no. 29361/07, § 39, 27 May 2010, and Fırat Can v. Turkey, no. 6644/08, § 74, 24 May 2011). 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. It concludes therefore that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement.

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

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

35. The applicant complained that there was no domestic remedy available under the Turkish law whereby he could challenge the excessive length of proceedings. He relies on Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

36. The Government argued that the applicant could have had resorted to the administarive law remedy for his complaint of undue length of proceeedings.

37. As the complaint under Article 6 § 1 was declared admissible, this part of the application must also be declared admissible. The Court observes that in the Turkish legal system there is no remedy capable of accelerating the proceedings. In this connection, the argument put forward by the Government that the applicant did not bring the complaint of the length of the proceedings before the administrative courts cannot be considered as an “effective remedy” for the purposes of Article 13 (see above Daneshpayeh v. Turkey, § 24; Tendik and Others v. Turkey, no. 23188/02, § 36, 22 December 2005).

38. The Court therefore concludes that Turkish law does not provide an effective remedy whereby the applicant could have contested the length of the proceedings.

There has accordingly been a breach of Article 13.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage and EUR 7,200 for cost and expenses incurred in the proceedings before the domestic courts as well as the Court. In this respect, the applicant submitted the agreement for legal representation concluded with his lawyer, the Bar Association’s tariff for legal fees, as well as a table of expenses prepared by his lawyer, demonstrating the total costs of translation, postal service and stationery.

40. The Government contested this amount, claiming that it was excessive and unsubstantiated.

41. The Court awards the applicant EUR 3,600 in respect of non‑pecuniary damage.

42. As regards the cost and expensses, the Court reiterates that an applicant is entitled to the reimbursement of those only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). In the present case, given the information in its possession and the above criteria, the Court, ruling on an equitable basis, awards the applicant EUR 1,200 for cost and expenses.

43. The Court considers it appropriate that the default interest rate 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 the remainder of the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of criminal proceedings;

3. Holds that there has been a violation of Article 13 of the Convention for the absence of an effective domestic remedy to challenge the excessive length of proceedings;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage and EUR 1,200 (one thousand two hundred euros) for costs and expenses, to be converted into Turkish liras at the rate applicable at 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;

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

Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosDragoljub Popović
RegistrarPresident

Full & Egal Universal Law Academy