SECOND SECTION
CASE OF KANBUR v. TURKEY (no. 2)
(Application no. 9984/03)
JUDGMENT
STRASBOURG
14 October 2008
FINAL
14/01/2009
This judgment may be subject to editorial revision.
In the case of Kanbur v. Turkey (no. 2),
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,
Antonella Mularoni,
Dragoljub Popović, substitute judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 23 September 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 9984/03) 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 Yaşar Kanbur (“the applicant”), on 4 February 2003.
2. The applicant was represented by Mr Ö. Kavili, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 14 February 2006 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1960 and lives in Istanbul.
5. On 30 October 2001 the Court found that there had been a violation of Article 6 § 1 of the Convention, following an application lodged by the applicant on 21 July 1995 (Kanbur v. Turkey, no. 28291/95) concerning the length of criminal proceedings brought against him for his membership of Dev-Yol (Revolutionary Way). By then the proceedings had lasted for over nineteen years. The Court awarded the applicant 100,000 French francs (approximately 15,000 euros) in compensation.
6. At the time of the Court’s judgment, the criminal proceedings against the applicant were still pending before the Ankara Assize Court.
7. The facts of the case thereafter, as submitted by the applicant, may be summarised as follows.
8. On 14 May 2002 the applicant attended a hearing before the Ankara Assize Court, gave a statement and submitted the Court’s judgment of 30 October 2001 in order to ensure that his case would be heard within a reasonable time.
9. On 16 July 2002 the Assize Court sentenced the applicant to death, and then commuted his sentence to life imprisonment. The judgment was subject to appeal.
10. In the meantime in October 2001, Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. Subsequently, by Law no. 4771, which was published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime.
11. On 28 May 2004 the Court of Cassation quashed the judgment of the first-instance court on the ground that the death penalty had been abolished during the course of the proceedings.
12. On 23 December 2004 the Ankara Assize Court resumed the trial. On that day it ordered, in absentia, the provisional detention of the applicant in order to secure a statement from him.
13. On 27 December 2004 the Ankara Assize Court heard a statement from the applicant as regards the state of the case and revoked the detention order as having served its purpose. Subsequently, the Ankara Assize Court held thirteen more hearings.
14. On 3 October 2006, at its fourteenth hearing, the Ankara Assize Court delivered its judgment and sentenced the applicant to life imprisonment pursuant to Article 146 of the Criminal Code.
15. According to the information made available to the Court by the parties to date, the case is apparently still pending before the Court of Cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicant complained that the length of the proceedings had been incompatible with 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...”
17. The Government contested that argument.
18. The period to be taken into consideration began on 30 October 2001, following the Court’s judgment in case no. 28291/95, and has not yet ended. It has thus lasted for more than six years and ten months for two levels of jurisdiction.
A. Admissibility
19. The Court notes that the 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.
B. Merits
20. 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, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
21. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to that of the present case (see Pélissier and Sassi, cited above).
22. 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, the Court finds 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. 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
24. The applicant claimed 19,500 euros (EUR) in respect of pecuniary damage and EUR 39,000 in respect of non-pecuniary damage.
25. The Government contested these claims.
26. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 3,000 under that head.
B. Costs and expenses
27. The applicant also claimed EUR 35,128 for the costs and expenses and the legal fees incurred before the Court. In respect of his request, the applicant submitted a lawyer’s fee agreement and a detailed schedule of costs.
28. The Government contested the claim.
29. 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 finds it reasonable to award the sum of EUR 1,000 under this head.
C. Default interest
30. 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 the remainder of the application admissible;
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, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 14 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy