SECOND SECTION
CASE OF ŞENAY YILDIZ v. TURKEY
(Application no. 21167/06)
JUDGMENT
STRASBOURG
20 December 2011
This judgment is final but it may be subject to editorial revision.
In the case of Şenay Yıldız v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Isabelle Berro-Lefèvre, President,
Guido Raimondi,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 29 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 21167/06) 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, Ms Şenay Yıldız (“the applicant”), on 5 May 2006.
2. The applicant was represented by Mr M. Altunkalem, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3. On 20 October 2009 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
4. The applicant was born in 1973 and lives in Diyarbakır.
5. On 20 July 1993 the applicant was arrested on suspicion of membership of an illegal organisation. On 2 August 1993 she was brought before the investigating judge, who ordered her detention on remand.
6. On 11 August 1993 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing the applicant, with several others, of membership of an illegal armed organisation and of praising the offenders.
7. On 26 March 1996 the Diyarbakır State Security Court sentenced the applicant to six years and three months’ imprisonment for involvement in activities that undermined the constitutional order of the State. With the same judgment, the court released the applicant, taking into account the period she had spent in detention.
8. On 25 December 1997 the Court of Cassation quashed the judgment of the first-instance court in respect of the applicant, finding that the court erred in the qualification of the offence.
9. Following a constitutional amendment in 2004, State Security Courts were abolished and the applicant’s case was transferred to the Diyarbakır Assize Court.
10. On 14 March 2006 the Diyarbakır Assize Court sentenced the applicant to six years and three months’ imprisonment for membership of an illegal armed organisation. The Court of Cassation upheld that judgment on 5 July 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
11. The applicant complained that the length of the criminal proceedings against her 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...”
12. The Government contested that argument, claiming that the applicant had failed to exhaust the domestic remedies in that she had not complained about the length of the proceedings before the domestic courts. They further contended that there had been no delay in the proceedings which could be attributable to the State, taking account of the complexity of the matter, the number of defendants and the difficulties in gathering evidence.
13. The Court notes that it has already examined and dismissed similar submissions made by the respondent Government in its Daneshpayeh v. Turkey judgment (no. 21086/04, 16 July 2009). In that judgment, the Court examined the preliminary objection together with the applicant’s complaint under Article 13 of the Convention and concluded that the Turkish legal system did not provide an effective remedy where the excessive length of proceedings could be challenged (see Daneshpayeh cited above, §§ 24 and 37). Consequently, the Court rejects the Government’s preliminary objection concerning the exhaustion of domestic remedies.
14. The Court notes 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.
15. The period to be taken into consideration began on 20 July 1993 with the applicant’s arrest and ended on 5 July 2007 with the final decision of the Court of Cassation. It thus lasted for a period of thirteen years and eleven months for two levels of jurisdiction.
16. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. The applicant claimed a total of 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. She also requested EUR 2,780 for costs and expenses incurred before the Court.
18. The Government contested these claims, considering the requested amounts excessive.
19. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 9,500 in respect of non-pecuniary damage.
20. As regards costs and expenses, the Court reiterates that 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 are reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Making its own estimate based on the receipt indicating the payment made to the applicant’s lawyer, and ruling on an equitable basis, the Court awards the applicant EUR 1,000 in this respect.
21. 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 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, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:
(i) EUR 9,500 (nine thousand and five hundred 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 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-PassosIsabelle Berro-Lefèvre
Deputy RegistrarPresident
Full & Egal Universal Law Academy