CASE OF MANSUR v. TURKEY



        In the case of Mansur v. Turkey (1),

        The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of Court A (2),

as a Chamber composed of the following judges:

        Mr R. Ryssdal, President,

        Mr R. Bernhardt,

        Mr F. Gölcüklü,

        Mr R. Macdonald,

        Mr I. Foighel,

        Mr G. Mifsud Bonnici,

        Mr J. Makarczyk,

        Mr D. Gotchev,

        Mr P. Jambrek,

and also of Mr H. Petzold, Registrar,

        Having deliberated in private on 25 November 1994 and

23 May 1995,

        Delivers the following judgment, which was adopted on the

last-mentioned date:

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Notes by the Registrar

1. The case is numbered 14/1994/461/542.  The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number).  The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) and thereafter only to

cases concerning States not bound by that Protocol (P9).  They

correspond to the Rules that came into force on 1 January 1983,

as amended several times subsequently.

_______________

PROCEDURE

1.      The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 15 April 1994,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention.  It originated

in an application (no. 16026/90) against the Turkish Republic

lodged with the Commission under Article 25 (art. 25) by a

Turkish national, Mr Sadi Mansur, on 23 November 1989.

        The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Turkey

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46).  The object of the request was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Articles 5 para. 3

and 6 para. 1 (art. 5-3, art. 6-1) of the Convention.

2.      In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3.      The Chamber to be constituted included ex officio

Mr F. Gölcüklü, the elected judge of Turkish nationality

(Article 43 (art. 43) of the Convention), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)).  On 26 April 1994,

in the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr. R. Bernhardt,

Mr. R. Macdonald, Mr I. Foighel, Mr G. Mifsud Bonnici,

Mr J. Makarczyk, Mr D. Gotchev and Mr P. Jambrek (Article 43

(art. 43) in fine of the Convention and Rule 21 para. 4).

4.      As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent of

the Turkish Government ("the Government"), the applicant's lawyer

and the Delegate of the Commission on the organisation of the

proceedings (Rules 37 para. 1 and 38).  Pursuant to the order

made in consequence, the Registrar received the memorials of the

Government and the applicant on 1 and 5 August 1994 respectively.

The Delegate of the Commission did not submit any written

observations.

5.      On 10 November 1994 the Commission produced the file on

the proceedings before it, as requested by the Registrar on the

President's instructions.

6.      In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 22 November 1994.  The Court had held a preparatory meeting

beforehand.

        There appeared before the Court:

(a) for the Government

Mr M. Özmen,                                            Acting Agent,

Mrs D. Akçay,                                                Counsel;

(b) for the Commission

Mr H.G. Schermers,                                          Delegate;

(c) for the applicant

Mr T. Akillioglu, avukat (lawyer),                           Counsel.

        The Court heard addresses by Mr Özmen, Mrs Akçay,

Mr Schermers and Mr Akillioglu, and also Mr Akillioglu's replies

to its questions.

        The Government sent their replies in writing on

12 December 1994.

AS TO THE FACTS

I.      Circumstances of the case

7.      Mr Mansur, who is of Iranian origin, acquired Turkish

nationality by naturalisation on 5 May 1989.

8.      On 12 June 1981 the Salonika Court of Appeal (Greece)

sentenced him to four years' imprisonment for drug trafficking

between Greece and Turkey.

A.      The criminal proceedings

9.      Three years later, in respect of the same facts, two sets

of criminal proceedings were brought against the applicant in the

First and Second Assize Courts at Edirne (Turkey).  The trials

were conducted concurrently until 6 May 1987, when the Second

Assize Court realised that the subject-matter of the two cases

was identical and relinquished jurisdiction in favour of the

First Assize Court (see paragraphs 14 and 27 below).

        1.  The proceedings in the Edirne First Assize Court

10.     On 18 April 1984, at the end of a preliminary

investigation opened after the conviction in Greece, the Ipsala

public prosecutor's office committed Mr Mansur and A.D., his

alleged accomplice, for trial at the Edirne First Assize Court

("the first court") on a charge of exporting drugs (Article 403

of the Turkish Criminal Code - see paragraph 35 below).

11.     On 1 May 1984 that court asked the Greek authorities for

the documents from the criminal file opened on the two defendants

(the records of their statements, the judgment and the laboratory

report on the confiscated substances).

        On 4 October 1984 the Greek Ministry of Justice replied

that the documents requested had already been sent twice, on

30 June and 23 November 1982, through the Turkish Embassy in

Athens.

12.     The first court then, on 27 November 1985, ordered an

expert opinion on the substances confiscated in Greece.  On

7 February 1986 the Institute of Forensic Medicine filed its

report, concluding on the basis of the case file alone that the

sample contained heroin.

13.     On 31 March and 21 November 1986 the court asked the

Turkish Ministry of Justice what action had been taken on its

request for communication of the documents.

14.     At a hearing on 1 May 1987 it learned that the Edirne

Second Assize Court was also trying the applicant in respect of

the same facts.  It then requested joinder of the two cases,

which was ordered on 6 May (see paragraphs 9 above and 27 below).

        Moreover, noting that the reply given in the meantime by

the Greek courts concerned A.D. only, the first court asked for

specific information about each type of drug confiscated from

Mr Mansur's car in Greece.

15.     On 12 April 1988 the first court asked the Ankara Assize

Court to have a Turkish translation made of a one-page expert

opinion communicated by the Greek judicial authorities on

28 October 1987; on 19 July 1988 it repeated this request.

16.     The Ankara Assize Court failed to find a sworn translator

and returned the document in question on 7 November 1988.

17.     On 11 November 1988 the first court then made the same

request to the Istanbul Assize Court, which was unable to comply,

however, for the reason previously given by its counterpart in

Ankara.

18.     At the hearing on 15 June 1989 Mr Mansur produced a

translation of the report.  The court, noting that the report

merely stated that Mr Mansur was not a drug addict, once again

requested communication of the expert report on the drugs seized

in Greece.

19.     On 13 July 1990 the Turkish Ministry of Justice

transmitted the report in question to the first court, which on

19 July 1990 attempted without success to obtain a translation

through the Ankara Assize Court.

20.     On 19 February 1991 the first court sentenced the

applicant to thirty years' imprisonment.  In its judgment it

pointed out that Mr Mansur had already been given a sentence of

four years' imprisonment in Greece for the same facts, and, on

the basis of the judgment given in Greece, the observations of

the Institute of Forensic Medicine and Mr Mansur's confessions,

established that the substance exported by him had indeed been

heroin.

21.     On 30 April 1991 the Court of Cassation dismissed an

appeal by Mr Mansur on points of law.

22.     On 21 June 1991, as Article 403 of the Criminal Code had

been amended by Law no. 3756 of 5 June 1991 (see paragraph 35

below), the first court reduced the sentence imposed on

19 February 1991 to ten years' imprisonment.

        2.  The proceedings in the Edirne Second Assize Court

23.     After being released by the Greek authorities on

12 September 1984, Mr Mansur returned to Turkey.  He was taking

steps to acquire Turkish nationality when, on 1 November 1984,

the police arrested him in Istanbul, at the Civil Status Registry

Office.  In an order made on 5 November the Ipsala police court,

on an application by the Edirne public prosecutor's office,

placed him in detention pending trial.

        The next day the same public prosecutor's office brought

criminal proceedings against him in the Edirne Second Assize

Court ("the second court") for drug trafficking.

24.     On 16 November 1985 that court asked the Greek

authorities to send it the judgment in which the applicant had

been convicted and the laboratory report on the chemical

substances.

25.     The documents were received on 18 June 1985 through the

Turkish Ministry of Justice.  On 7 August 1985 the second court

sent them to the Ankara Assize Court to have them translated.

The translation was filed on 9 October 1985.

26.     At the hearing on 25 October 1985 the second court noted

that the laboratory report was not among the documents received.

In response to a renewed request, the Greek authorities stated

that the documents in question had already been sent twice to the

Turkish Embassy in Athens.  The second court then applied to the

Turkish Ministry of Justice, which sent it the report on

7 October 1986.

        On being requested to provide a translation of the expert

report, the Ankara Assize Court stated that it had already sent

it for translation.

27.     After making enquiries, the second court found that the

applicant was being tried for the same facts in the Edirne First

Assize Court.  It therefore decided, on 6 May 1987, to relinquish

jurisdiction in favour of the latter (see paragraphs 9 and 14

above).

B.      The detention pending trial

28.     Mr Mansur's detention began on 5 November 1984 (see

paragraph 23 above).  The Ipsala police court had given as the

reason for this detention the nature of the offence of which the

applicant stood accused.

29.     On 6 December 1984 the second court dismissed Mr Mansur's

application to it to set that decision aside.

30.     Subsequently the court ordered that the applicant should

remain in detention

(a)     on 17 December 1984, 5 February and 10 April 1985,

        "having regard to the nature of the alleged offence and

        the content of the file"; and

(b)     at twenty-five hearings held between 7 June 1985 and

        22 April 1987, either giving no reasons or "because the

        reasons set out in the detention order [were] still ...

        valid".

31.     After the second court relinquished jurisdiction, the

first court in turn ordered that the applicant should remain in

detention

(a)     at seventeen hearings held between 12 May 1987 and

        2 August 1988, without giving precise reasons;

(b)     on 29 August, 28 September and 2 November 1988, "on

        account of the nature of the offence the defendant stands

        accused of";

(c)     on 30 November 1988, without giving precise reasons;

(d)     at nineteen hearings held between 23 December 1988 and

        26 June 1990, having regard to "the nature of the

        offence" and/or "the state of the evidence", and once

        without giving precise reasons;

(e)     on 25 July and 22 August 1990, without giving precise

        reasons; and

(f)     on 11 September and 9 October 1990, "on account of the

        nature of the offence".

32.     On 24 November 1987 Mr Mansur pointed out to the

President of the first court that he had already been detained

for more than three years, two of which had been taken up

exclusively with correspondence between the Turkish and Greek

judicial authorities, and that he was undergoing "great

suffering", especially as he had already served a four-year

sentence in Greece for the same facts.  He asked for the trial

to be concluded speedily.

        The court did not respond to this request.

33.     Mr Mansur was released on 1 July 1991.

II.     Relevant domestic law

A.      The Constitution

34.     Article 19 para. 7 of the Constitution provides:

        "Everyone who is deprived of his liberty for any reason

        whatsoever shall be entitled to take proceedings by which

        his case shall be decided speedily by a court and his

        release ordered if the detention is not lawful."

B.      The Criminal Code

35.     Article 403 of the Criminal Code, as in force at the

material time, provided:

        "It shall be an offence, punishable by not less than ten

        years' imprisonment ..., to manufacture, import or export

        dangerous drugs without a permit or in contravention of

        the terms of an existing permit.

        Where the drugs referred to in the preceding paragraph

        are heroin, cocaine, morphine base or hashish, the

        maximum penalty shall be life imprisonment."

        Law no. 3756 of 5 June 1991 amended this provision,

replacing the sentence of life imprisonment laid down for the

offence of organising the export of highly toxic substances by

a sentence of eighteen years' imprisonment and providing for

deduction of periods of detention abroad.

PROCEEDINGS BEFORE THE COMMISSION

36.     Mr Mansur applied to the Commission on 23 November 1989.

He complained of the length both of his detention pending trial

(Article 5 para. 3 (art. 5-3) of the Convention) and of the

criminal proceedings against him (Article 6 para. 1) (art. 6-1).

37.     The Commission declared the application (no. 16026/90)

admissible on 10 July 1991.  In its report of 28 February 1994

(Article 31) (art. 31), it expressed the unanimous opinion that

there had been a violation of these two provisions.  The full

text of the Commission's opinion is reproduced as an annex to

this judgment (1).

_______________

1.  Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 319-B of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

38.     In their memorial the Government asked the Court to allow

the preliminary objections they had submitted or, in the

alternative, to hold that there had been no violation of

Article 5 para. 3 or Article 6 para. 1 (art. 5-3, art. 6-1) of

the Convention.

AS TO THE LAW

I.      INTRODUCTORY OBSERVATION

39.     The Government submitted that their arguments in the

present case should be considered only if Turkey's recognition

of the Court's compulsory jurisdiction were deemed valid in its

entirety.

        In the case of Loizidou v. Turkey the Government

contended that Turkey's declaration of 22 January 1990 under

Article 46 (art. 46) of the Convention would not be valid if the

Court held the limitation ratione loci it contained to be

invalid.  The Court, in its judgment of 23 March 1995, while

holding the limitation in question invalid, ruled that the said

declaration contained a valid acceptance of its competence

(Series A no. 310, p. 32, para. 98).

II.     THE GOVERNMENT'S PRELIMINARY OBJECTIONS

40.     As their main submission the Government raised three

objections to admissibility, based on lack of jurisdiction

ratione temporis, failure to exhaust domestic remedies and loss

of victim status.

        1.  Lack of jurisdiction ratione temporis

41.     The Government contended that when, on 22 January 1990,

Turkey had recognised the Court's compulsory jurisdiction over

"matters raised in respect of facts, including judgments which

are based on such facts which have occurred subsequent to" that

date, its intention had been to remove from the ambit of the

Court's review events that had occurred before the date on which

the declaration made under Article 46 (art. 46) of the Convention

was deposited.  Moreover, in the present case the Court's

jurisdiction ratione temporis was also excluded in respect of

events subsequent to 22 January 1990 which by their nature were

merely "extensions of ones occurring before that date".

42.     The Delegate of the Commission argued that the Court had

jurisdiction to deal with the case from 28 January 1987, the date

when the recognition of the right of individual petition had

taken effect.

43.     Mr Mansur agreed.

44.     Having regard to the wording of the declaration Turkey

made under Article 46 (art. 46) of the Convention, the Court

considers that it cannot entertain complaints about events which

occurred before 22 January 1990 and that its jurisdiction ratione

temporis covers only the period after that date.  However, when

examining the complaints relating to Articles 5 para. 3 and

6 para. 1 (art. 5-3, art. 6-1) of the Convention, it will take

account of the state of the proceedings at the time when the

above-mentioned declaration was deposited (see, among other

authorities and mutatis mutandis, the Neumeister v. Austria

judgment of 27 June 1968, Series A no. 8, p. 38, para. 7, and the

Baggetta v. Italy judgment of 25 June 1987, Series A no. 119,

p. 32, para. 20).

        It therefore cannot accept the Government's argument that

even facts subsequent to 22 January 1990 are excluded from its

jurisdiction where they are merely extensions of an already

existing situation.  From the critical date onwards all the

State's acts and omissions not only must conform to the

Convention but are also undoubtedly subject to review by the

Convention institutions.

        2.  Non-exhaustion of domestic remedies

45.     The Government also pleaded failure to exhaust domestic

remedies, arguing that Mr Mansur had in the first place neglected

to rely in the national proceedings on Article 19 para. 7 of the

Constitution (see paragraph 34 above), which gave everyone in

detention pending trial the right to be tried within a reasonable

time.  In addition, he had not sought relief under Law no. 466

of 7 May 1964, which guaranteed persons who had been lawfully or

unlawfully in detention the possibility of obtaining damages,

irrespective of whether they had been acquitted, discharged

without being brought to trial, or convicted.

46.     Like the Delegate of the Commission, the Court notes that

this objection was not raised at the admissibility stage of the

application.  There is therefore estoppel.

        3.  Loss of victim status

47.     Lastly, the Government maintained that the applicant

could no longer claim to be a victim of breaches of the

Convention since he had been granted a substantial reduction of

his sentence on 21 June 1991 after the entry into force of Law

no. 3756 (see paragraph 22 above) and had been released on

1 July 1991.

48.     Here again, the Court notes that this objection was not

raised before the Commission.  It must therefore be dismissed as

there is estoppel.

III.    ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3) OF THE

        CONVENTION

49.     Mr Mansur complained of the length of his detention

pending trial.  He considered it contrary to Article 5 para. 3

(art. 5-3) of the Convention, which provides:

        "Everyone arrested or detained in accordance with the

        provisions of paragraph 1 (c) of this Article

        (art. 5-1-c) shall be ... entitled to trial within a

        reasonable time or to release pending trial.  Release may

        be conditioned by guarantees to appear for trial."

50.     The Government contested this view, in the alternative,

whereas the Commission accepted it.

A.      Period to be taken into consideration

51.     Having regard to the conclusion in paragraph 44 of this

judgment, the Court can only consider the period of one year and

twenty-eight days which elapsed between the deposit of the

declaration whereby Turkey recognised the Court's compulsory

jurisdiction (22 January 1990) and the judgment of the Edirne

First Assize Court (19 February 1991).  However, when determining

whether the applicant's continued detention after 22 January 1990

was justified under Article 5 para. 3 (art. 5-3) of the

Convention, it must take into account the fact that by that date

the applicant, having been placed in detention on 5 November 1984

(see paragraph 23 above), had been in custody for nearly five

years and three months.

B.      Reasonableness of the length of detention

52.     It falls in the first place to the national judicial

authorities to ensure that, in a given case, the detention of an

accused person pending trial does not exceed a reasonable time.

To this end they must examine all the facts arguing for or

against the existence of a genuine requirement of public interest

justifying, with due regard to the principle of presumption of

innocence, a departure from the rule of respect for individual

liberty and set them out in their decisions on the applications

for release.  It is essentially on the basis of the reasons given

in these decisions and of the true facts mentioned by the

applicant in his appeals, that the Court is called upon to decide

whether or not there has been a violation of Article 5 para. 3

(art. 5-3) of the Convention (see, among other authorities, the

Letellier v. France judgment of 26 June 1991, Series A no. 207,

p. 18, para. 35).

        The persistence of reasonable suspicion that the person

arrested has committed an offence is a condition sine qua non for

the validity of the continued detention, but, after a certain

lapse of time, it no longer suffices; the Court must then

establish whether the other grounds cited by the judicial

authorities continue to justify the deprivation of liberty (ibid.

and see the Wemhoff v. Germany judgment of 27 June 1968,

Series A no. 7, pp. 24-25, para. 12, and the Ringeisen v. Austria

judgment of 16 July 1971, Series A no. 13, p. 42, para. 104).

Where such grounds are "relevant" and "sufficient", the Court

must also ascertain whether the competent national authorities

displayed "special diligence" in the conduct of the proceedings

(see the Matznetter v. Austria judgment of 10 November 1969,

Series A no. 10, p. 34, para. 12; the B. v. Austria judgment of

28 March 1990, Series A no. 175, p. 16, para. 42; and the

Letellier judgment previously cited, p. 18, para. 35).

53.     During the period covered by the Court's jurisdiction

ratione temporis the Edirne First Assize Court ("the first

court") considered the question of the applicant's continued

detention on nine occasions of its own motion.

        As grounds for refusing to release Mr Mansur it cited

"the nature of the offence" the applicant stood accused of and

"the state of the evidence" (see paragraph 31 above); on three

occasions it omitted to state the reasons for its decision.

        The Government emphasised the heavy sentence to which the

accused was liable, the danger that he would abscond or destroy

evidence and the risk of collusion.  Mr Mansur had no fixed abode

in Turkey and, once released, might have ignored the summonses

of the judicial authorities or evaded enforcement of the

sentence, only the length of which remained to be determined.

54.     The applicant complained of the repetitiveness of the

orders in issue and asserted that he had always lived in Turkey

and worked as a trader in the Great Bazaar in Istanbul.  The

courts had therefore neglected to look into the true facts of his

situation.

55.     The Court points out that the danger of an accused's

absconding cannot be gauged solely on the basis of the severity

of the sentence risked.  It must be assessed with reference to

a number of other relevant factors which may either confirm the

existence of a danger of absconding or make it appear so slight

that it cannot justify detention pending trial (see, mutatis

mutandis, the Letellier judgment previously cited, p. 19,

para. 43).

        In the instant case the first court's orders confirming

detention nearly always used an identical, not to say

stereotyped, form of words, and on three occasions gave no

reasons.

56.     The expression "the state of the evidence" could be

understood to mean the existence and persistence of serious

indications of guilt.  Although in general these may be relevant

factors, in the present case they cannot on their own justify the

continuation of the detention complained of (see the Kemmache v.

France (nos. 1 and 2) judgment of 27 November 1991, Series A

no. 218, p. 24, para. 50).

57.     In the light of these considerations, the Court holds

that the applicant's continued detention during the period in

question contravened Article 5 para. 3 (art. 5-3).

        That conclusion makes it unnecessary to look at the way

in which the judicial authorities conducted the case.

IV.     ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

        CONVENTION

58.     Mr Mansur further complained of the length of the

criminal proceedings against him.  He relied on Article 6

para. 1 (art. 6-1) of the Convention, which provides:

        "In the determination of ... any criminal charge against

        him, everyone is entitled to a ... hearing within a

        reasonable time by [a] ... tribunal ..."

59.     The Government contested this view, again in the

alternative, whereas the Commission accepted it.

A.      Period to be taken into consideration

60.     The proceedings began when the applicant was committed

for trial at the Edirne First Assize Court, on 18 April 1984.

        However, having regard to the conclusion in paragraph 44

of this judgment, the Court can only consider the period of one

year, three months and eight days that elapsed between

22 January 1990, the date on which the declaration whereby Turkey

recognised the Court's compulsory jurisdiction was deposited, and

30 April 1991, when the Court of Cassation upheld the first

court's judgment (see paragraph 21 above).  Nevertheless, it must

take into account the fact that by the critical date the

proceedings had already lasted more than seven years.

B.      Reasonableness of the length of the proceedings

61.     The reasonableness of the length of proceedings is to be

assessed in the light of the particular circumstances of the

case, regard being had to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the

applicant's conduct and that of the competent authorities (see,

among many other precedents, the Kemmache (nos. 1 and 2) judgment

previously cited, p. 27, para. 60).

        1.  Complexity of the case

62.     The Government asserted that the case had been a complex

one, partly because it had been necessary to elucidate certain

matters relating to the drug traffic concerned - in particular

the type and quantity of drugs - and partly owing to the lack of

co-operation by the Greek authorities, who delayed supplying the

documents from Mr Mansur's criminal file.

63.     According to the Delegate of the Commission, the

complexity alleged by the Government was entirely attributable

to the judicial authorities, who instituted two sets of

proceedings against the same person in respect of the same facts,

and moreover before two different assize courts in the same city.

64.     Like the applicant, the Court points out that the

documents requested from the Greek authorities were sent by them

through the Turkish Embassy in Athens (see paragraphs 11 and 26

above), but for a number of reasons - including a breakdown of

communications between the various State departments concerned

and the unavailability of any sworn translators - it was not

possible for them to be used in time.  On 15 June 1989 Mr Mansur

himself produced a Turkish translation of one of the documents

concerning him (see paragraph 18 above).  Moreover, the Edirne

First Assize Court convicted the applicant on the basis of the

Salonika Court of Appeal's judgment (see paragraph 8 above), his

own confessions and the report produced by the Institute of

Forensic Medicine (see paragraph 20 above).  Accordingly, the

case cannot be regarded as complex.

        2.  The applicant's conduct

65.     The Court merely notes that the Government have not made

any criticism of the accused's behaviour at any stage of the

trial.

        3.  Conduct of the judicial authorities

66.     In the Government's submission, the judicial authorities

could not be criticised for any delay in their handling of the

case.  Being conscious of their country's international

responsibility in the prevention of drug trafficking, they could

not adopt an expeditious procedure; on the contrary, they had a

duty to look into all matters which might have a bearing on the

judgment.  Nor did the first court lose any time in applying to

Mr Mansur's case the legislative amendment of 5 June 1991 which

made it necessary to reduce his sentence and deduct the length

of the one he had already served in Greece.  The applicant was

thus able to secure his release on 1 July of the same year.

67.     The Court is aware of the danger represented by drug

trafficking and of the need for effective measures to prevent it,

but in this case it cannot accept the Government's argument.

68.     Article 6 para. 1 (art. 6-1) of the Convention guarantees

to everyone against whom criminal proceedings are brought the

right to a final decision within a reasonable time on the charge

against him (see, among many other authorities, the Adiletta and

Others v. Italy judgment of 19 February 1991, Series A no. 197-E,

p. 65, para. 17).  It is for the Contracting States to organise

their legal systems in such a way that their courts can meet this

requirement (see, mutatis mutandis, the Vocaturo v. Italy

judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

69.     In this case the Edirne First Assize Court did not

receive the laboratory report on the substances confiscated in

Greece until 13 July 1990; six days later it sent a letter of

request to the Ankara Assize Court, asking for a translation (see

paragraph 19 above).  Then, on 19 February 1991, it convicted the

applicant on the basis of other evidence, since it still did not

have a translation of the report (see paragraphs 20 and 64

above).

        The Court finds it hard to understand why the proceedings

were conducted in this way, especially as the Edirne First and

Second Assize Courts had each previously persisted in requesting

the report and in adjourning the case pending receipt of it.

70.     In conclusion, the length of the criminal proceedings in

issue contravened Article 6 para. 1 (art. 6-1).

V.      APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

71.     Under Article 50 (art. 50) of the Convention,

        "If the Court finds that a decision or a measure taken by

        a legal authority or any other authority of a High

        Contracting Party is completely or partially in conflict

        with the obligations arising from the ... Convention, and

        if the internal law of the said Party allows only partial

        reparation to be made for the consequences of this

        decision or measure, the decision of the Court shall, if

        necessary, afford just satisfaction to the injured

        party."

A.      Damage

72.     Mr Mansur claimed 850,000,000 Turkish liras (TRL) for

pecuniary damage and TRL 500,000,000 for non-pecuniary damage.

He argued that throughout the proceedings it had been impossible

for him to carry on his occupation and that the poor conditions

of his detention had had lasting effects on his health.

73.     The Government referred to their preliminary objections

based on failure to exhaust domestic remedies and loss of victim

status (see paragraphs 45 and 47 above) and asked the Court to

dismiss these claims.

74.     The Delegate of the Commission expressed the opinion that

the applicant had not sustained any pecuniary damage, as the

whole length of his detention pending trial had been set off

against his sentence.  As to non-pecuniary damage, a sum of

between 50,000 and 60,000 French francs (FRF) would constitute

sufficient just satisfaction.

75.     The Court agrees as regards the first point.  As to the

second point, on the other hand, it fixes the sum to be paid to

Mr Mansur for non-pecuniary damage at FRF 30,000.

B.      Costs and fees

76.     The applicant also requested reimbursement of lawyer's

fees incurred for his defence in Turkey and before the Convention

institutions, which he put at TRL 300,000,000 in all.

77.     The Government made no submissions on this point.

78.     Like the Delegate of the Commission, the Court notes that

in Turkish law there are no remedies in respect of the length of

proceedings, so that no costs can have been incurred under that

head; as to costs incurred before the Convention institutions,

it considers that a reasonable sum would be FRF 30,000, less the

amount of FRF 14,106.50 paid by the Council of Europe in legal

aid.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.      Dismisses the preliminary objection of lack of

        jurisdiction ratione temporis;

2.      Dismisses the objection that domestic remedies were not

        exhausted;

3.      Dismisses the objection based on loss of victim status;

4.      Holds that there has been a breach of Article 5 para. 3

        (art. 5-3) of the Convention on account of the length of

        the applicant's detention;

5.      Holds that there has been a breach of Article 6 para. 1

        (art. 6-1) of the Convention on account of the length of

        the criminal proceedings;

6.      Holds that the respondent State is to pay the applicant,

        within three months, 30,000 (thirty thousand) French

        francs in respect of non-pecuniary damage and 30,000

        (thirty thousand) francs in respect of costs and fees,

        less 14,106 (fourteen thousand one hundred and six)

        francs 50 (fifty) centimes;

7.      Dismisses the remainder of the claim for just

        satisfaction.

        Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 8 June 1995.

Signed: Herbert PETZOLD

        Registrar

Signed: Rolv RYSSDAL

        President

 

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