CASE OF TAMAMBOĞA AND GÜL v. TURKEY

THIRD SECTION

CASE OF TAMAMBOĞA AND GÜL v. TURKEY

(Application no. 1636/02)

JUDGMENT

STRASBOURG 

29 November 2007

FINAL

29/02/2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tamamboğa and Gül v. Turkey,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

MrB.M. Zupančič, President,

MrC. Bîrsan,

MrR. Türmen,

MrE. Myjer,

MrDavid Thór Björgvinsson,

MrsI. Ziemele,

MrsI. Berro-Lefèvre, judges,

and Mr S. Quesada, Section Registrar,

Having deliberated in private on 8 November 2007,

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

PROCEDURE

1. The case originated in an application (no. 1636/02) 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 two Turkish nationals, Mr Mustafa Tamamboğa and Mr Eyüp Gül (“the applicants”), on 10 October 2001.

2. The applicants, who had been granted legal aid, were represented by Mr M.A. Altunkalem, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3. On 6 June 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1973 and 1974 respectively. The first applicant lives in İzmir. By a letter dated 28 August 2006 the Court was informed that the second applicant was purging his sentence in Bolu prison.

5. The applicants were arrested and taken into police custody on suspicion of membership of an illegal armed organisation, namely the PKK, on 25 and 26 July 1993 respectively. They were remanded in custody on 5 August 1993.

6. On 31 August 1993 the public prosecutor at the Diyarbakır State Security Court filed an indictment against twenty-one persons, including the applicant. He accused the applicants of membership of an illegal armed organisation and of aiding and abetting that organisation. The charges included, in particular, bombings of various public and private establishments between July 1992 and June 1993.

7. The first hearing, held before the Diyarbakır State Security Court on 3 September 1993, in the applicants' absence, was taken up with procedural matters such as the measures to be taken for securing the presence of the accused.

8. Between 3 September 1993 and 23 January 1996, the first-instance court held hearings on a regular basis during which the judges dealt mostly with procedural matters. It also heard the accused and their representatives who were present on the date of the hearings. At the end of each hearing, the court considered releasing the applicants pending trial both ex officio as well as upon their requests. At each hearing, the court, relying on the nature of the offence, the state of the evidence and the content of the case-file, decided to prolong their remand in custody.

9. During this time the court also heard two witnesses, on 25 November 1993 and 13 January 1994, who stated that they did not know any of the accused or whether they had any organisational link with the armed organisation. On 28 March 1995 the public prosecutor submitted his observations on the merits. On 7 November 1995 the court decided, upon the request of the accused, to hear a witness, Mr O.B. who was being tried before another court. In the hearing held on 19 December 1995, the court heard Mr O.B. who stated, inter alia, that he knew the second applicant from school. He claimed that the applicant used to talk about the PKK but that he did not know anything about him being a member of or participating in the activities of that organisation. Upon this statement the second applicant maintained that he was not a member of the organisation as was confirmed by the witness and that it was normal to talk like that at school. At this hearing the prosecutor reiterated his observations of 28 March 1995.

10. In a hearing held on 23 January 1996 the first applicant's representative submitted his observations on the merits. The court also heard the accused. On the same day, the Diyarbakır State Security Court convicted the applicants as charged and sentenced them to life imprisonment.

11. On 14 July 1997 the Court of Cassation quashed the judgment in respect of fourteen of the accused, including the applicants.

12. The case was sent back to the Diyarbakır State Security Court where the proceedings against the applicants commenced on 29 July 1997.

13. Between 29 July 1997 and 15 May 2001, the first-instance court held hearings on a regular basis during which the judges dealt with procedural matters and adjourned many hearings, since one of the co-accused could not be found and the statements of another one residing in Germany could not be taken. It also heard the accused and their representatives who were present on the date of the hearings and the public prosecutor, both parties relying on previous submissions. The applicants failed to attend some of the hearings. At the end of each hearing, the court also considered releasing the applicants pending trial both ex officio as well as upon their own requests. At each hearing the court, relying on the nature of the offence, the state of the evidence and the content of the case-file, decided to prolong their remand in custody.

14. During this time in a hearing held on 7 July 1999 the judge who had been appointed to replace the military judge, sat as a member of the trial court for the first time. On 16 November 1999 the public prosecutor read out his observations on the merits.

15. On 15 May 2001 the Diyarbakır State Security Court decided to disjoin the case of the two co‑accused who could not be found. On the same day the court convicted the applicants as charged and sentenced them to life imprisonment.

16. On 7 November 2001 the Court of Cassation quashed the judgment in respect of the first applicant and upheld it in respect of the second applicant.

17. On 24 January 2002 the principal public prosecutor at the Court of Cassation dismissed the second applicant's request for a rectification of the Court of Cassation's decision.

18. On 7 February 2002 the case was sent back to the first-instance court where the first applicant was tried alone.

19. Between 7 February 2002 and 10 September 2002, the first-instance court held hearings on a regular basis.

20. During this time on 12 March 2002 the applicant repeated his earlier submissions. The prosecutor requested time to prepare his observations on the merits. In the hearing held on 14 May 2002 the prosecutor submitted his observations on the merits of the case. The applicant was given time to prepare his observations on the merits. The court, taking into account the amount of time the first applicant had spent in remand in custody, ordered his release pending trial.

21. On 10 September 2002 the Diyarbakır State Security Court convicted the first applicant as charged and sentenced him to twelve years and six months' imprisonment. On 17 March 2003 the Court of Cassation upheld this judgment.

22. By an additional judgment, the first applicant's sentence was reduced to six years and three months' imprisonment on 22 June 2005.

II. RELEVANT DOMESTIC LAW AND PRACTICE

23. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Öcalan v. Turkey ([GC], no. 46221/99, §§ 52‑54, ECHR 2005‑IV, and Çobanoğlu and Budak v. Turkey, no. 45977/99, §§ 29-30, 30 January 2007.

24. By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, State Security Courts were abolished.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 5 § 3 AND 6 § 2 OF THE CONVENTION

25. The applicants complained that their remand in custody exceeded the “reasonable time” requirement as provided in Article 5 § 3 of the Convention. They further submitted under Article 6 § 2 of the Convention that their lengthy remand in custody violated their right to be presumed innocent.

26. The Court considers that these complaints should be examined from the standpoint of 5 § 3 alone, which reads:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

27. The Government asked the Court to dismiss this part of the application for failure to exhaust domestic remedies, under Article 35 § 1 of the Convention. In this regard, the Government maintained that the applicants failed to object to their continued remand in detention pursuant to Articles 298 and 299 of the Code of Criminal Procedure (CCP).

28. The Court reiterates that it has already examined and rejected the Government's preliminary objections in similar cases (see, in particular, Koşti and Others v. Turkey, no. 74321/01, §§ 19-24, 3 May 2007). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above mentioned application.

29. Consequently, the Court rejects the Government's preliminary objection. It further notes that this complaint is not inadmissible on any other grounds and must, therefore, be declared admissible.

B. Merits

30. The Government maintained that the length of the applicants' remand in custody was reasonable. In particular, they submitted that the seriousness of the crime and the special circumstances of the case justified their continued remand in custody and that the domestic authorities displayed diligence when considering the applicants continued detention.

31. The applicants maintained their allegations.

32. The Court reiterates that it falls in the first place to the domestic 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 primarily on the basis of the reasons given in these decisions, and of the established facts mentioned by the applicants in their appeals, that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see Sevgin and İnce v. Turkey, no. 46262/99, § 61, 20 September 2005).

33. The persistence of a reasonable suspicion that the person arrested has committed an offence is a 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 continued to justify the deprivation of liberty (see, among other authorities, Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001, and Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV).

34. The first applicant's remand in custody consisted of three periods of pre-trial detention and lasted around six years and ten months in total. The second applicant's remand in custody consisted of two periods of pre-trial detention and lasted around six years and four months in total (see, in particular, Solmaz v. Turkey, no. 27561/02, §§ 23-36, 16 January 2007 as regards the calculation of periods of pre-trial detention). During this time, the first-instance court considered the applicants' continued detention at the end of each hearing, either on its own motion or upon the request of the applicants. It notes however, from the material in the case file, that the court ordered the applicants' continued detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence and the state of evidence”.

35. The Court takes note of the seriousness of the offence attributed to the applicants and the severity of the relevant punishment. However, it reiterates that the issue of whether a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI). In this connection, the Court further reiterates that the Convention case-law has developed four basic acceptable reasons for refusing bail: the risk that the accused will fail to appear for trial; the risk that the accused, if released, would take action to prejudice the administration of justice or commit further offences or cause public disorder (see, in particular, Smirnova v. Russia, nos. 46133/99 and 48183/99, § 59, ECHR 2003-IX (extracts)). In the instant case, the Court notes the lack of such reasoning in the domestic court's decisions to prolong the applicants' remand in custody. There is also no evidence that the authorities took into account the time which had elapsed as a criterion in the applicants' favour.

36. Finally, although, in general, the expression “the state of the evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43, Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, and Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319-B, § 55).

37. The foregoing considerations are sufficient to enable the Court to conclude that the grounds given for the applicants' remand in detention were not “sufficient” and “relevant” to justify holding them in custody for almost six years and ten months and six years and four months respectively.

38. There has accordingly been a violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

39. The applicants complained that they had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge sitting on the bench of the Diyarbakır State Security Court which tried them. They further complained that the length of the criminal proceedings brought against them was excessive and that there was no effective remedy in domestic law whereby they could challenge it. The applicants relied on Articles 6 § 1 and 13 of the Convention, which reads:

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

40. The Government asked the Court to dismiss this part of the application for failure to exhaust domestic remedies, under Article 35 § 1 of the Convention. They maintained, firstly, that the proceedings were still pending before the domestic courts when the applicants introduced their application before the Court. Secondly, they failed to raise the substance of their complaint concerning the length of the proceedings before the domestic courts.

41. The Court reiterates that it has already examined and rejected the Government's preliminary objections in similar cases (see, in particular, Vehbi Ünal v. Turkey, no. 48264/99, § 38, 9 November 2006, and Mete v. Turkey, no. 39327/02, §§ 18-19, 25 October 2005). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned applications.

42. Consequently, the Court rejects the Government's preliminary objection. It further notes that this part of the application is not inadmissible on any other grounds and must, therefore, be declared admissible.

B. Merits

1. Independence and impartiality of the State Security Court

43. The Government maintained that, by Law no. 4388 of 18 June 1999, amendments were made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention. In this connection they pointed out that, in the present case, the military judge sitting on the bench of the Diyarbakır State Security Court had been replaced by a civilian judge in the course of the proceedings and that the applicants were convicted by a State Security Court which was composed of three civilian judges.

44. The applicants maintained their allegations.

45. The Court has consistently held that certain aspects of the status of military judges sitting as members of the State Security Courts rendered their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 68, Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 39). The Court also found in Öcalan v. Turkey, §§ 114-115, mentioned above, that when a military judge participated in one or more interlocutory decisions that remained in effect during the criminal proceedings in question, the military judge's replacement by a civilian judge in the course of those proceedings, before the verdict was delivered, failed to dissipate the applicant's reasonably held concern about that trial court's independence and impartiality, unless it was established that the procedure subsequently followed in the State Security Court sufficiently allayed that concern.

46. The Court observes that the applicants' trial commenced before the Diyarbakır State Security Court whose composition included a military judge. On 7 July 1999 the military judge sitting on the bench of this court was replaced by a civil judge. Consequently, when the applicants were convicted on 15 May 2001, the Diyarbakır State Security Court was composed of three civilian judges. As the regards the first applicant, the Court notes that his conviction was subsequently quashed by the Court of Cassation and that as a result he was once again tried before the Diyarbakır State Security Court, which was composed from the outset of three civilian judges.

47. In the instant case, the Court notes that before his replacement, the military judge sat at the bench of the State Security Court between 3 September 1993 and 7 July 1999 where the court held hearings on regular intervals. At these hearings, the domestic court heard the accused, including the applicants, on many occasions as well as witnesses, whose testimonies did not have any bearing on their case and mostly took some minor procedural acts during this period. However, no interlocutory decisions of importance, in particular for the rights of the defence of the applicants, were taken by the domestic court during these hearings. In this connection, the Court notes that after the military judge was replaced by a civilian judge, the domestic court continued to hold regular hearings during which time it heard the accused, including the applicants, a number of times. Furthermore, the final submissions of both the public prosecutor and the applicants were read out before the court, composed of three civilian judges. The Court takes note of the respective importance of the procedural acts which took place before and after the replacement of the military judge. It finds that, in the instant case, none of the acts which took place with the participation of the military judge required an immediate renewal after his replacement by a civilian judge (see, for example, Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01, § 34, 19 September 2006).

48. In view of the overall proceedings, the Court finds that, in the particular circumstances of the case, the replacement of the military judge in the course of the proceedings disposed of the applicants' reasonably held concern about the trial court's independence and impartiality (see, among others, Osman v. Turkey, no. 4415/02, § 17, 19 December 2006).

49. In the light of the foregoing, the Court concludes that the applicants' complaint concerning the independence and impartiality of the Diyarbakır State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Length of the criminal proceedings

50. The Government maintained that, in the circumstances of the present case, the length of the criminal proceedings could not be considered unreasonably long. In this respect, they referred to the number of the co‑accused and the time spent gathering evidence. The Government further submitted that the applicants and the co-accused had contributed to the prolongation of the proceedings by failing to attend to a number of hearings. They maintained that the applicants could have asked the first-instance court to speed up the proceedings.

51. The applicants maintained their allegations.

(a) Article 6 § 1

(i) Period to be taken into consideration

52. As regards the first applicant, the period to be taken into consideration in determining whether the proceedings satisfied the “reasonable time” requirement laid down by Article 6 § 1 began on 25 July 1993, with his arrest, and ended on 17 March 2003, when the Court of Cassation upheld the judgment of the first-instance court. The period under consideration thus lasted approximately nine years and eight months' before two instances who examined the case three times.

53. As to the second applicant, the period to be taken into consideration in determining whether the proceedings satisfied the “reasonable time” requirement laid down by Article 6 § 1 began on 26 July 1993, with his arrest, and ended on 7 November 2001, when the Court of Cassation upheld the judgment of the first-instance court. The period under consideration thus lasted approximately eight years and three months' before two instances who examined the case twice.

(ii) Reasonableness of the length of the proceedings

54. 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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicants and of the relevant authorities and what was at stake for the applicants in the dispute (see, among many others, Sekin and Others v. Turkey, no. 26518, § 35, 22 January 2004).

55. The Court considers that, even though the case involved a certain degree of complexity since it involved the prosecution of a certain number of accused for charges regarding their involvement in the activities of an illegal armed organisation, it cannot be said that this in itself justified the total length of the proceedings.

56. As regards the conduct of the applicants, the Court does not find that they contributed significantly to the prolongation of the proceedings by their failure to attend a number of hearings since none of them were adjourned on this ground.

57. Concerning the conduct of the authorities, the Court notes that there were significant periods of delay which are attributable to them. In this respect, it observes that the proceedings before the State Security Court, after the first time the case file was remitted to it, was unduly deferred since the court was unable to secure the additional defence submissions of two of the co-accused. The Court finds that the delay in securing testimonies from the accused must be considered to be attributable to the domestic court's handling of the proceedings (see, in particular, Atkın v. Turkey, no. 39977/98, § 44, 21 February 2006).

58. In addition, the fact that the second applicant was kept in custody throughout the proceedings and the first applicant released only during the last stages required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002-VI). Recalling that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to decide cases within a reasonable time (see Arvelakis v. Greece, no. 41354/98, § 26, 12 April 2001), the Court considers that the domestic court could have applied stricter measures to speed up the proceedings. In particular, it could have decided to sever much earlier the proceedings in respect of the co-accused who were not heard by the first-instance court after the case was remitted to it for the first time. It therefore finds that, in the absence of any explanation from the Government, the proceedings in the instant case were unnecessarily prolonged as the national court failed to act with the necessary diligence in conducting the proceedings against the applicants.

59. Finally, the Court considers that what was at stake for the applicants in these proceedings was of considerable importance to them.

60. Having regard to its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

(b) Article 13

62. The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see, in particular, Bahçeyaka v. Turkey, no. 74463/01, §§ 26-30, 13 July 2006, and Tendik and Others v. Turkey, no. 23188/02, §§ 34-39, 22 December 2005). It finds no reason to depart from that conclusion in the present case.

63. There has accordingly been a breach of Article 13.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

64. In their observations dated 5 January 2007 the applicants also complained under Articles 5 § 3 and 13 of the Convention about the length of their detention in police custody and the lack of an effective domestic remedy in this respect.

65. The Court finds that these complaints relate to events which intervened more than six months before being lodged with the Court on 5 January 2005, and it therefore rejects them in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

66. 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

67. The applicants claimed, in total, 55,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. This sum included loss of earnings as a result of their lengthy remand in custody.

68. The Government contested the amount.

69. As regards the alleged pecuniary damage sustained by the applicants, the Court notes that some of their claims disclose no causal link between the violation found and the pecuniary damage requested. It further notes that the applicants have failed to properly substantiate the remaining claims under this head. The Court accordingly dismisses them.

70. However, the Court accepts that the applicants must have suffered some non‑pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law, it awards Mr Tamamboğa EUR 6,500 and Mr Gül EUR 5,500 in respect of non‑pecuniary damage.

B. Costs and expenses

71. The applicants, who received EUR 850 by was of legal aid from the Council of Europe, also claimed EUR 2,595 for the costs and expenses incurred before the Court. The applicants relied on the Diyarbakır Bar Association's recommended fees list. They also submitted a receipt concerning translation of documents.

72. The Government contested the amount.

73. Since the applicants submitted no justification as regards costs and expenses as required by Rule 60 of the Rules of Court save for a receipt concerning translation of documents and having regard to the fact that they have already received a certain amount as legal aid from the Council of Europe, the Court makes no award under this head.

C. Default interest

74. 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 complaints concerning the length of the applicants' remand in custody and of the criminal proceedings against them as well as the lack of an effective domestic remedy in this respect admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

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

4. Holds that there has been a violation of Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,500 (six thousand five hundred euros) to Mr Tamamboğa and EUR 5, 500 (five thousand five hundred euros) to Mr Gül in respect of non‑pecuniary damage, to be converted into new Turkish liras at the rate applicable at the date of the settlement and free of any taxes or charges that may be payable;

(b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 29 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago QuesadaBoštjan M. Zupančič
RegistrarPresident

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