In the case of Mitap and Müftüoglu 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 F. Gölcüklü,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr C. Russo,
Mr S.K. Martens,
Mr I. Foighel,
Mr J.M. Morenilla,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 23 November 1995 and
21 February 1996,
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 6/1995/512/595-596. The first number
is the case's position on the list of cases referred to the Court
in the relevant year (second number). The third number indicates
the case's position on the list of cases referred to the Court
since its creation and the last two numbers indicate its position
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) (1 October 1994) 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.
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PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 23 January 1995,
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 two applications (nos. 15530/89 and 15531/89) against the
Turkish Republic lodged with the Commission under Article 25
(art. 25) by two Turkish nationals, Mr Nasuh Mitap and
Mr Abdullah Oguzhan Müftüoglu, on 14 September 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 Article 5 para. 3 and
Article 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 applicants stated
that they wished to take part in the proceedings and designated
the lawyer who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio Mr F.
Gölcüklü, the elected judge of Turkish nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President
of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the
presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr L.-E. Pettiti,
Mr R. Macdonald, Mr C. Russo, Mr S.K. Martens, Mr I. Foighel,
Mr J.M. Morenilla and Mr P. Jambrek (Article 43 in fine of the
Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Turkish Government ("the Government"), the applicants' 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 applicants' and
the Government's memorials on 18 September and 16 October 1995
respectively. The Delegate of the Commission did not submit any
observations.
5. On 8 November 1995 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 decision of the President, who had
given the applicants and their lawyer leave to use the Turkish
language (Rule 27 para. 3), the hearing took place in public in
the Human Rights Building, Strasbourg, on 20 November 1995. The
Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr M. Özmen, Deputy Agent,
Mrs D. Akçay,
Mrs I. Boivin, Advisers;
(b) for the Commission
Mr B. Marxer, Delegate;
(c) for the applicants
Mr A. Atak, avukat (lawyer), Counsel.
The Court heard addresses by Mr Marxer, Mr Atak, Mr Özmen
and Mrs Akçay.
7. On 12 January 1996 the Agent of the Government produced
a copy of an extract from the Martial Law Court's judgment of
19 July 1989 and informed the Registrar that the Court of
Cassation had given judgment on 28 December 1995. The Agent
communicated a copy of this judgment on 16 February 1996.
AS TO THE FACTS
I. CIRCUMSTANCES OF THE CASE
8. Mr Mitap and Mr Müftüoglu are Turkish citizens born in
1947 and 1944 respectively. Mr Mitap is an economist and
Mr Müftüoglu a lawyer.
9. After being arrested by the Ankara police they were
placed in police custody, Mr Mitap on 22 January 1981 and
Mr Müftüoglu the following day, on the ground that they were
members of the central committee of the Dev-Yol (Revolutionary
Way) organisation (see paragraph 12 below). They were held in
police custody until 23 April 1981.
A. The proceedings concerning the applicants' detention
10. On 23 April 1981 the Ankara Martial Law Court
(sikiyönetim mahkemesi) remanded both applicants in custody.
11. After 28 January 1987, the date of the Turkish
declaration relating to Article 25 (art. 25) of the Convention,
Mr Mitap and Mr Müftüoglu made eight unsuccessful applications
for conditional release.
B. The proceedings on the merits
12. On 26 February 1982 the military prosecutor filed the
bill of indictment with the Martial Law Court. In this document,
which, according to the Government, set out charges against seven
hundred and twenty-three defendants, the applicants were accused
of being founder members and leaders of an organisation whose
object was to undermine the constitutional order and replace it
with a Marxist-Leninist regime. They were also suspected of
calling for committees to be set up to organise resistance
against attacks by extreme right-wing activists and of
instigating a number of acts of violence. The prosecution sought
the death penalty under Article 146 para. 1 of the Criminal Code.
13. In a judgment of 19 July 1989 the Martial Law Court found
the applicants guilty as charged and sentenced them to life
imprisonment (that is eighteen years assuming good conduct) for
offences under Article 146 para. 1 of the Criminal Code,
permanently debarred them from employment in the civil service
and placed them under judicial guardianship for the duration of
their imprisonment. It also decided to deduct from their
sentences the length of time they had spent in detention pending
trial. It took from 19 July 1989 until 1993 for the reasons for
the judgment to be set down in writing.
14. As the applicants' sentences exceeded fifteen years'
imprisonment, their cases were automatically referred to the
Military Court of Cassation (askeri yargitay).
15. They were released on parole on 23 July 1991.
16. Following promulgation of the Law of 27 December 1993,
which abolished the jurisdiction of the martial law courts, the
Court of Cassation (yargitay) acquired jurisdiction over the case
and the file was transmitted to it. In a judgment of
28 December 1995 it upheld the above-mentioned penalties.
II. THE TURKISH DECLARATION OF 22 JANUARY 1990 RELATING TO
ARTICLE 46 (art. 46) OF THE CONVENTION
17. On 22 January 1990 the Turkish Minister for Foreign
Affairs deposited with the Secretary General of the Council of
Europe the following declaration, relating to Article 46
(art. 46) of the Convention:
"On behalf of the Government of the Republic of Turkey
and acting in accordance with Article 46 (art. 46) of the
European Convention for the Protection of Human Rights
and Fundamental Freedoms, I hereby declare as follows:
The Government of the Republic of Turkey acting in
accordance with Article 46 (art. 46) of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms, hereby recognises as compulsory
ipso facto and without special agreement the jurisdiction
of the European Court of Human Rights in all matters
concerning the interpretation and application of the
Convention which relate to the exercise of jurisdiction
within the meaning of Article 1 (art. 1) of the
Convention, performed within the boundaries of the
national territory of the Republic of Turkey, and
provided further that such matters have previously been
examined by the Commission within the power conferred
upon it by Turkey.
This Declaration is made on condition of reciprocity,
including reciprocity of obligations assumed under the
Convention. It is valid for a period of 3 years as from
the date of its deposit and extends to matters raised in
respect of facts, including judgments which are based on
such facts which have occurred subsequent to the date of
deposit of the present Declaration."
This declaration was renewed, in almost identical terms,
for a three-year period beginning on 22 January 1993.
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Mitap and Mr Müftüoglu applied to the Commission on
14 September 1989. They alleged that there had been a violation
of Article 5 para. 3 (art. 5-3) of the Convention on account of
the length of their detention pending trial and of Article 6
para. 1 (art. 6-1) because their case had not been heard (a)
within a reasonable time, (b) by a tribunal established by law,
or (c) fairly by an independent and impartial tribunal.
19. The Commission declared the applications (nos. 15530/89
and 15531/89) admissible on 10 October 1991. In its report of
8 December 1994 (Article 31) (art. 31), it expressed the
unanimous opinion that there had been breaches of Article 5
para. 3 and of Article 6 para. 1 (art. 5-3, art. 6-1) as regards
the first and third complaints but not the second. The full text
of the Commission's opinion is reproduced as an annex to this
judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
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FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
20. In their memorial the Government asked the Court:
"In chief,
(a) to hold that the Commission lacked jurisdiction
ratione temporis on account of the Turkish declaration
under Article 25 (art. 25) and also on account of the
non-exhaustion of domestic remedies; and
(b) to rule that the Court lacks jurisdiction ratione
temporis on account of the Turkish declaration
recognising its compulsory jurisdiction under Article 46
(art. 46);
in the alternative,
to hold that there has been no breach of the Convention."
AS TO THE LAW
21. The applicants complained (1) of the excessive length of
their detention pending trial, (2) of the excessive length of the
criminal proceedings against them and (3) that the Martial Law
Court had not been established by law, that it was not
independent and impartial and that they had not had a fair trial.
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
22. As their main submission the Government raised two
objections to admissibility, based on lack of jurisdiction
ratione temporis and failure to exhaust domestic remedies.
23. They contended, primarily, that when, on 28 January 1987,
Turkey had recognised the Commission's competence regarding
"allegations made 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
Commission's review not only facts which had occurred before the
date on which the declaration made under Article 25 (art. 25) of
the Convention was deposited but also judgments based on those
facts even where these were subsequent to the date of deposit.
The Commission had accordingly lacked competence ratione temporis
as regards both the complaints that the Ankara Martial Law Court
had not been established by law, that it was not independent and
that it was not impartial and the complaint concerning the
fairness of the proceedings before that court, since the case
concerned two laws enacted in 1963 and 1971. The above objection
ought also to exclude from consideration of the complaints
relating to the length of detention and of the proceedings the
period preceding Turkey's recognition of the Commission's
competence.
The Government contended, in the alternative, that the
Court lacked jurisdiction ratione temporis to examine the
complaints relating to the length of detention pending trial and
the complaints based on Article 6 para. 1 (art. 6-1), with the
exception of those concerning the length of the proceedings.
This would involve discussing the nature of a court which had
been set up in accordance with the two laws of 1963 and 1971
mentioned above and which had given judgment on 19 July 1989,
whereas Turkey had not recognised the Court's jurisdiction until
22 January 1990.
24. Mr Mitap and Mr Müftüoglu maintained that the Court had
jurisdiction to deal with the case because their detention had
ended on 23 July 1991 (see paragraph 15 above) and the
proceedings were still pending.
25. The Commission ruled that it was competent as from
28 January 1987 to deal with each of the complaints submitted.
Its Delegate argued that, if the Court were to take a similar
approach, it could examine only complaints based on facts that
had occurred after 22 January 1990, and on that basis only the
complaint relating to the length of the proceedings could be
entertained. On the other hand, the Court could deal with the
other complaints if it were to take the view that the applicants
had not been properly convicted until 1993, when they were able
to read the reasons for the Martial Law Court's judgment (see
paragraph 13 above).
26. The Court points out that Turkey has accepted its
jurisdiction only in respect of facts or events that have
occurred since 22 January 1990, when the relevant declaration was
deposited (see paragraph 17 above).
Of the applicants' three complaints (see paragraph 21
above) only the second, relating to the excessive length of the
criminal proceedings in issue, satisfies that condition. The
applicants' detention pending trial - the length of which formed
the subject of their first complaint - ended with the Martial Law
Court's judgment of 19 July 1989, that is well before
22 January 1990, while the third complaint concerns that judgment
and the part of the proceedings which it brought to a close. In
that respect, since the pronouncement of judgment is an essential
element of the concept of a judicial decision, the decisive
factor is the date on which the Martial Law Court gave judgment,
namely 19 July 1989.
27. It follows in the first place that as the two complaints
in question fall outside the Court's jurisdiction, it can
likewise not deal with the objection that the Commission lacked
competence ratione temporis (see paragraph 23 above), or with the
other objections relating to them raised by the Government.
28. Further, it follows that the Court can only deal with the
complaint relating to the length of the criminal proceedings as
from 22 January 1990. However, in doing so, it will take account
of the state of the proceedings at the time when the
above-mentioned declaration was deposited (see, among other
authorities, the Yagci and Sargin v. Turkey and Mansur v. Turkey
judgments of 8 June 1995, Series A nos. 319-A and 319-B, p. 16,
para. 40, and p. 48, para. 44).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
29. Mr Mitap and Mr Müftüoglu complained of the length of the
proceedings against them. They 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 ..."
30. The Government contested this view, whereas the
Commission accepted it.
A. Period to be taken into consideration
31. The proceedings began on 22 and 23 January 1981, when the
applicants were arrested and placed in police custody; they ended
on 28 December 1995 with the judgment of the Court of Cassation.
They thus lasted just under fifteen years.
However, having regard to the conclusion in paragraph 28
of this judgment, the Court can only consider the period of
nearly six years that elapsed after 22 January 1990, the date on
which the declaration whereby Turkey recognised the Court's
compulsory jurisdiction was deposited. Nevertheless, it must
take into account the fact that by the critical date the
proceedings had already lasted nine years.
B. Reasonableness of the length of the proceedings
32. 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 authorities, the Yagci and Sargin judgment and
the Mansur judgment previously cited, p. 20,
para. 59, and p. 51, para. 61).
33. The Government pleaded the complexity of the case and the
nature of the charges Mr Mitap and Mr Müftüoglu faced. In
particular, the case had concerned six hundred and seven criminal
offences, some of which were extremely serious, and there had
been seven hundred and twenty-three defendants. These
defendants, who included the applicants, were alleged to have
committed the offences as members of a terrorist organisation
whose strength, activities and connections the authorities had
to establish.
Pursuant to the relevant legislation, the Martial Law
Court had followed an expedited procedure and made every
necessary effort to speed up the trial. Between 18 October 1982
and 19 July 1989 it had held five hundred and twelve hearings,
at a rate of three per week. The investigation, during which all
the accused were questioned, had lasted five years. The public
prosecutor, to whom the file was sent on 11 November 1987, had
not been able to complete his one thousand seven hundred and
sixty-six pages of written submissions before 23 March 1988. The
hearings for oral argument, which began on 11 May 1988, had
lasted ten months. Lastly, the file comprised approximately one
thousand loose-leaf binders and the summary of the judgment ran
to no fewer than two hundred and sixty-four pages. These
circumstances explained the length of the proceedings. No
negligence or delay was imputable to the judicial authorities.
34. The applicants asserted that the large number of accused
was due to the artificial relation established between separate
facts and that they had not been involved in any of the six
hundred and seven offences. Moreover, the authorities had
omitted to use certain techniques which could have expedited the
proceedings. Lastly, the Martial Law Court had not taken any
steps to gather evidence against them. The expression
"reasonable time" could not be used in connection with
proceedings that had lasted approximately fifteen years.
35. In the Commission's opinion the case had been complex and
the length of the proceedings had mainly been due to the fact
that the military criminal judicial authorities had organised a
very large-scale trial. Nevertheless, the proceedings had been
punctuated by lengthy periods of inactivity, including the three
years it had taken the Martial Law Court to set down the reasons
for its judgment in writing. It followed that a reasonable time
had been exceeded because of the way the said authorities had
handled the case.
36. The Court notes that the proceedings in the Military
Court of Cassation, to which the case was automatically referred
on
19 July 1989, and then in the Court of Cassation, ended on
28 December 1995; they thus lasted more than six years. It
acknowledges that the case was complex, but has not been informed
of any circumstance capable of justifying such a lengthy period,
especially as account must be taken of the fact that the
proceedings at first instance lasted approximately eight years
and six months.
37. In conclusion, the length of the criminal proceedings in
issue contravened Article 6 para. 1 (art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
38. 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
39. Mr Mitap and Mr Müftüoglu each claimed 500,000 French
francs (FRF) for pecuniary damage and the same amount for
non-pecuniary damage. They asserted that they had been unable
to carry on their occupations and had had no idea how long the
trial would last or what its outcome would be.
40. The Government and the Delegate of the Commission
considered that, as there was no causal connection between any
violations and the damage alleged, the applicants had not
sustained any pecuniary damage. On the question of non-pecuniary
damage, the Delegate suggested that compensation should be
awarded. The Government disagreed, on the ground that the Court
of Cassation had not yet given judgment at the time.
41. On the question of pecuniary damage, the Court agrees
with the Government and the Delegate of the Commission.
As for non-pecuniary damage, it points out in the first
place that its jurisdiction ratione temporis began to run in this
case on 22 January 1990. Having regard to the particular
circumstances of the case, it considers that the applicants
sustained considerable non-pecuniary damage which the finding of
a violation in paragraph 37 above cannot make good. Under this
head it awards each of them FRF 80,000.
B. Costs
42. The applicants also claimed reimbursement of the costs
incurred in presenting their case before the Convention
institutions, which they put at FRF 260,500 in total.
43. The Government considered the above sum excessive. In
the opinion of the Delegate of the Commission, with the exception
of FRF 15,000 claimed for the first journey made by Mr Mitap and
Mr Müftüoglu's lawyers in order to lodge the applications, the
expenses incurred did not seem unreasonable, and the amount
should be fixed on an equitable basis.
44. Having regard to its case-law and the information in its
possession, the Court decides on an equitable basis to award the
applicants jointly FRF 60,000, minus the sum of FRF 44,821
received from the Council of Europe in legal aid, that is
FRF 15,179.
C. Default interest
45. Not having sufficient information about the statutory
rate of interest applicable in Turkey to the currency in which
the sums awarded are made out, the Court considers it appropriate
to base itself on the statutory rate applicable in France on the
date of adoption of the present judgment, namely 6.65% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that, not having jurisdiction ratione temporis, it
cannot deal with
(a) the applicants' complaints relating to the length of
their detention pending trial; the lawfulness,
independence and impartiality of the Martial Law Court;
and the fairness of the proceedings before it; or
(b) the objections raised on these points by the
Government;
2. 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;
3. Holds that the respondent State is to pay each applicant,
within three months, 80,000 (eighty thousand) French
francs in respect of non-pecuniary damage and both
applicants jointly 15,179 (fifteen thousand one hundred
and seventy-nine) French francs in respect of costs, and
that simple interest at an annual rate of 6.65% shall be
payable on these sums from the expiry of the
above-mentioned three months until settlement;
4. 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
25 March 1996.
Signed: Rolv Ryssdal
President
Signed: Herbert Petzold
Registrar
Full & Egal Universal Law Academy