In the case of Yagci and Sargin 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 Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr J. De Meyer,
Mr I. Foighel,
Mr B. Repik,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 27 October 1994 and
27 April 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 6/1994/453/533-534. 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) 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 11 March 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 two applications (nos. 16419/90 and 16426/90) against the
Republic of Turkey lodged with the Commission under Article 25
(art. 25) by two Turkish nationals, Mr Nabi Yagci and
Mr Nihat Sargin, on 6 February 1990.
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 applicants stated
that they wished to take part in the proceedings and designated
the lawyers 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. 3 (b)). On 24 March 1994,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr R. Bernhardt,
Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr R. Macdonald,
Mr J. De Meyer, Mr I. Foighel and Mr B. Repik (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
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 applicants'
lawyers 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 19 and 28 July 1994
respectively. The Delegate of the Commission did not submit any
written observations.
5. On 8 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 decision of the President, who had
given the applicants and their lawyers leave to use the Turkish
language (Rule 27 para. 3), the hearing took place in the Human
Rights Building, Strasbourg, on 25 October 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, Adviser;
(b) for the Commission
Mrs J. Liddy, Delegate;
(c) for the applicants
Mr E. Sansal,
Mr G. Dinç, avukatlar (lawyers), Counsel.
The Court heard addresses by them.
AS TO THE FACTS
I. Circumstances of the case
7. Mr Yagci, a journalist, and Mr Sargin, a doctor, were the
general secretaries of the Turkish Workers' Party and the Turkish
Communist Party respectively. At a press conference in Brussels
in October 1987 they announced their intention of returning to
Turkey to found the Turkish United Communist Party (TBKP) and
develop its organisation and political action while staying
within the law.
8. On arrival at Ankara on 16 November 1987, they were
arrested as they alighted from the plane and taken into police
custody. On 4 December the public prosecutor's office applied
to the Ankara National Security Court to have them placed in
detention pending trial. On 5 December a judge of that court
made an order to that effect on the basis of strong evidence of
guilt and after hearing the suspects. He charged them with
leading an organisation whose aim was to establish the domination
of a particular social class and disseminating propaganda to that
end and with the intention of abolishing the rights guaranteed
in the Constitution; inciting public hostility and hatred; and
harming the reputation of the Republic of Turkey, its President
and its Government (Articles 140, 141/1, 142/1-6, 142/3-6, 158,
159, 311 and 312 of the Turkish Criminal Code). These offences
also amounted to an attack on the Government's authority and
could be classified as serious crimes.
9. On 10 December 1987, counsel for the applicants appealed
against that decision, which was, however, unanimously upheld by
the National Security Court on 16 December.
10. On 11 March 1988 the public prosecutor's office brought
proceedings against Mr Yagci and Mr Sargin and fourteen others.
11. The trial opened on 8 June 1988 and there were
48 hearings. The case file was made up of 40 different files.
The defendants were represented by 400 lawyers, instructed before
or during the course of the trial.
12. The first two hearings were taken up with a reading of
the indictment, which ran to 229 pages. The court then devoted
six hearings (from 4 July to 24 August 1988) to questioning the
applicants and hearing addresses by them. This process, taken
together with the content of the file and the nature of the
offences which had given rise to the case were held by the court
to justify keeping the defendants in detention.
13. At the hearing on 29 August 1988 one of the counsel for
the applicants made the first application for their provisional
release. He put forward the following arguments. His clients
had been in detention for nine and a half months, including the
period spent in police custody; although the nature of the
offences with which Mr Yagci and Mr Sargin were charged might
give rise to fears that they would abscond if released, that
danger was ruled out in their case as they had publicly stated
that they would be returning to Turkey to put their party on a
lawful footing; and the differences of political opinion between
the applicants and the regime in power could not be regarded as
an attack on the authority of the Government and the State.
The court refused the application, holding that the
reasons set out in the order of 5 December 1987 (see
paragraph 8 above) remained valid.
14. On 21 September 1988 another of the applicants'
representatives renewed the application, which was rejected by
the court on the same day on the basis of the content of the
file, the nature of the offences and the reasons set out in the
relevant order.
15. On 14 October and 4 November 1988 the National Security
Court ordered that Mr Yagci and Mr Sargin should be kept in
detention, again on the basis of what was in the file. It also
considered the organisational problems posed by the hearings on
account of the large number of people wishing to attend them.
Their lawyers had left the courtroom in order to have the
security measures that applied during the trial lifted.
16. A fresh application for provisional release was lodged on
2 December 1988 by one of the applicants' lawyers. This placed
particular emphasis on statements made by senior politicians and
judges favouring changes to the legislation in order to permit
the establishment of a communist party. At the end of the
hearing the court dismissed the application, having regard to the
content of the file.
The court dealt similarly with an identical application
made by Mr Sargin on 30 December and with others made by counsel
on 27 January, 22 February, 24 March, 21 April and 18 May 1989.
The reasons for turning down the applications were always the
same: the nature of the offences charged, the content of the
file, the length of detention and the fact that the evidence
remained unchanged.
17. At the eighteenth hearing, on 21 April 1989, the court
ordered that the documents containing the evidence should be read
out, as counsel for the applicants had requested.
18. In a further application for release made on 3 July 1989
counsel for the applicants relied on the Convention. They
maintained that Articles 141 and 142 of the Criminal Code
conflicted with the provisions of the Convention and were shortly
to be repealed. The court dismissed the application, relying on
the content of the file, the date of detention and the reasons
for it.
19. A similar application by Mr Yagci on 2 August 1989 met
with no greater success. He criticised the court for the
repetitiveness of its orders and urged it to give more precise
reasons for them. He also observed that the one-month intervals
between hearings was contributing to prolonging his detention.
The court ruled that there had been no development warranting his
release.
20. On 25 August and 18 September 1989 the National Security
Court refused two more such applications, and the reasons given
for its decisions remained unchanged.
21. On 18 October 1989 one of the applicants' lawyers raised
the concept of "reasonable time" referred to in Articles 5
para. 3 and 6 para. 1 (art. 5-3, art. 6-1) of the Convention and
asserted that the length of his clients' detention infringed
those provisions (art. 5-3, art. 6-1). He challenged, in
particular, the repetitiveness of the reasons advanced by the
court for refusing their applications for release. The court
ordered that detention should continue, again relying on the
nature of the offences and the content of the file.
22. The Convention's direct applicability in Turkish law was
again emphasised in an application for release made at a hearing
on 17 November 1989; but the National Security Court rejected
this application and others made on 15 December 1989 and
6 April 1990.
On 8 February 1990 the court had looked into the
possibility of joining the case with other trials, and on 9 March
it had resumed the reading out of evidence. At both hearings it
had considered of its own motion the issue of the applicants'
continued detention.
23. Mr Yagci and Mr Sargin were eventually released
provisionally on 4 May 1990, subject to the condition that they
must not leave the country. In its unanimous decision the
National Security Court took into account the legislative changes
being prepared that might amend, to the defendants' advantage,
the Acts on which their indictment had been based.
24. On 11 September 1990 the court dismissed an application
to defer judgment that - on 11 July 1990 - had been made on the
ground that it would be advisable to await the outcome of
proceedings brought in the Constitutional Court concerning the
dissolution of the Turkish Communist Party.
25. On 10 June 1991, following the entry into force of the
Antiterrorist Act of 12 April 1991, which repealed Articles 141,
142 and 143 of the Criminal Code, the court decided to interrupt
the reading out of the evidence relating to those provisions and
to read out the evidence relating to the other charges. This
process ended on 10 July during the forty-fifth hearing.
26. On 26 July 1991 the prosecutor made his closing address,
and on 9 and 26 August the applicants put forward their defence.
27. On 9 October 1991 the Ankara National Security Court
acquitted Mr Yagci and Mr Sargin on the charges brought against
them under Articles 140, 141 and 142 of the Criminal Code as
these had been repealed, and on charges of incitement to hatred
made under Articles 311 and 312. It held that it had no
jurisdiction in respect of the attack on the reputation of the
Republic of Turkey, its President and its Government and referred
the relevant charges to the Ankara Sixth Assize Court.
28. On 27 January 1992 that court held that it had no
jurisdiction and referred the case to the Ankara Second Assize
Court, which in a judgment of 9 July 1992 acquitted the
applicants. No appeal on points of law was lodged against that
decision, which became final on 16 July.
II. Relevant domestic law
A. The Constitution
29. 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
30. The following were the provisions of the Criminal Code as
they applied at the material time:
Article 140
"It shall be an offence, punishable by not less than five
years' imprisonment, for any citizen to disseminate and
publish exaggeratedly untruthful information in a foreign
country for a subversive purpose, or to engage in any
activity contrary to the national interest in such a way
that the activity in question diminishes the regard or
respect in which Turkey is held abroad."
Article 141
"It shall be an offence, punishable by eight to fifteen
years' imprisonment, to attempt to establish the
domination of one social class over the others; to
attempt to bring about the disappearance of any social
class; or to attempt to set up associations in any manner
and under any name whatsoever with the aim of
overthrowing the country's fundamental social or economic
order; or to set up, organise, lead or manage such
associations or guide their activities.
Anyone organising, leading or managing several or all of
the associations of this type shall be liable to the
death penalty.
..."
Article 142
"It shall be an offence, punishable by five to ten years'
imprisonment, to disseminate propaganda, in any manner
and under any name whatsoever, with the aim of
establishing the domination of one social class over the
others, bringing about the disappearance of any social
class, overthrowing the country's fundamental social or
economic order, or totally destroying the State's
political or legal system.
...
It shall be an offence, punishable by one to three years'
imprisonment, to disseminate propaganda in any manner
whatsoever for racist reasons or with the intention of
wholly or partly abolishing the rights secured by the
Constitution, or with the aim of weakening national
sentiment.
It shall be an offence publicly to defend the acts set
out in the preceding two paragraphs, punishable by not
more than five years' imprisonment in the case of those
set out in the first and second paragraphs and by six
months' to two years' imprisonment in the case of those
set out in the third paragraph.
Where a person has committed the acts set out in the
preceding paragraphs as a member of one or more of the
organisations referred to in the sixth paragraph of
Article 141 or with the persons referred to therein, his
sentence shall be increased by not more than one-third.
Where the acts set out in the preceding paragraphs have
been committed through publications, the sentence shall
be increased by one-half."
Article 158
"It shall be an offence, punishable by not less than
three years' imprisonment, to utter insults against the
President of the Republic or to utter insults in his
presence.
Where the insulting words are uttered in the absence of
the President of the Republic, the offender shall be
punished by one to three years' imprisonment. Even where
the insult is veiled or allusive, the name of the
President of the Republic not being clearly mentioned, it
shall be deemed to have been uttered explicitly provided
that there are presumptions leaving no doubt that it was
directed against the person of the President of the
Republic.
Where this offence is committed through the medium of the
press, sentence shall be increased by one-third to
one-half."
Article 159
"It shall be an offence, punishable by one to six years'
imprisonment, publicly to insult or revile the nation,
the Republic, the Grand National Assembly, the moral
authority of the Government, ministries, the armed
forces, the national defence and security forces or the
moral authority of the judiciary.
Even where, in the commission of the offence set out in
the first paragraph, the name of the insulted person is
not openly mentioned, the insult shall be deemed to have
been uttered explicitly against that person provided that
there are presumptions leaving no doubt that it was
directed against one of the persons referred to in the
first paragraph.
It shall be an offence, punishable by fifteen days' to
six months' imprisonment and a fine of 100 to 500 liras,
to disparage in public the laws of the Turkish Republic
or the decisions of the Grand National Assembly.
If an insult against the Turkish nation is uttered by a
Turk in a foreign country, the applicable sentence shall
be increased by one-third to one-half."
Article 311
"It shall be an offence, punishable as hereinafter,
publicly to incite another to commit an offence:
three to five years' imprisonment in the case of an
offence carrying a sentence greater than fixed-term
imprisonment;
up to three years' imprisonment, depending on the nature
of the offence, where the penalty provided for is
fixed-term imprisonment;
a fine not exceeding 500 liras in all other cases.
Where incitement is by means of newspapers or magazines
or other distributed printed material or by means of
handwritten documents disseminated in duplicated form or
as placards and posters displayed in public places, the
terms of imprisonment laid down in the preceding
paragraphs shall be doubled. Where the penalty laid down
is a fine, the sum payable shall be 25 to 1,000 liras,
depending on the nature of the offence.
In the cases provided for in the second and third
paragraphs, the penalty may not exceed the maximum
sentence for the offence incited.
Where the public incitement has led to commission of the
offence or an attempt to commit it, the inciters shall be
punished in the same way as principals."
Article 312
"It shall be an offence, punishable by three months' to
one year's imprisonment and by a fine of 50 to 500 liras,
publicly to praise or defend an act punishable by law as
an offence or to urge the people to disobey the law, or
to incite hatred between the different classes in
society, in such a way as to endanger public safety.
The penalties for the acts set out in the preceding
paragraph shall be doubled where they have been committed
by means of a publication."
C. The Code of Criminal Procedure
31. The Code of Criminal Procedure contained the following
provisions at the material time:
Article 112
"In the course of the preliminary investigation, for the
duration of the accused's detention pending trial and at
intervals of no more than thirty days, the magistrate's
court shall examine, at the public prosecutor's request,
whether or not it is necessary to prolong the accused's
detention pending trial.
The accused may also request, within the period
prescribed by the foregoing paragraph, that the court
examine the question of his detention pending trial.
During the trial of an accused detained pending trial,
the court shall at each hearing or, if circumstances so
require, between hearings decide of its own motion
whether it is necessary to prolong his detention."
Article 219
"The trial shall continue without interruption in the
presence of the parties.
..."
Article 222
"Trials may not be interrupted for more than eight days,
except in cases of necessity. Where the accused are in
detention pending trial, the interruption may not exceed
thirty days, even where necessity exists."
Article 299
"... [A]pplications to set aside decisions and orders of
this court [the Assize Court] shall be heard by the
nearest other Assize Court ..."
PROCEEDINGS BEFORE THE COMMISSION
32. Mr Yagci and Mr Sargin applied to the Commission on
6 February 1990. They complained of the length of their
detention pending trial (Article 5 para. 3 of the Convention)
(art. 5-3) and of the criminal proceedings brought against them
(Article 6 para. 1) (art. 6-1).
33. The Commission declared the applications (nos. 16419/90
and 16426/90) admissible on 10 July 1991. In its report of
30 November 1993 (Article 31) (art. 31), it expressed the
unanimous opinion that there had been a breach of those two
provisions (art. 5-3, art. 6-1). The full text of the
Commission's opinion is reproduced as an annex to this
judgment (1).
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1. Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 319-A of Series A of the Publications of the Court), but
a copy of the Commission's report is obtainable from the
registry.
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FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT
34. In their memorial the Government asked the Court to
"allow [their] preliminary objections both as regards the
Court's jurisdiction and as regards the admissibility of
the case before the Commission and the Court itself.
In the alternative ... to hold that Articles 5 para. 3
and 6 para. 1 (art. 5-3, art. 6-1) of the Convention
ha[d] not been violated".
AS TO THE LAW
I. INTRODUCTORY OBSERVATION
35. 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
36. 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
37. 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
facts subsequent to 22 January 1990 which by their nature were
merely "extensions of ones occurring before that date".
38. Mr Yagci and Mr Sargin submitted that the Court, in the
same way as the Commission, had jurisdiction to deal with the
case from the time it began, namely 16 November 1987, when they
were arrested. Any other solution would result in different
treatment of the same facts by the two Convention institutions.
39. The Delegate of the Commission argued that even if the
Court held that it had jurisdiction from 22 January 1990, it
would have to take into consideration the fact that on that date
the applicants had been in detention pending trial, in connection
with criminal proceedings, for more than two years and two
months.
40. 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
41. The Government also pleaded - as they had done before the
Commission - failure to exhaust domestic remedies, arguing that
the applicants had in the first place neglected to apply to have
set aside the decisions in which the Ankara National Security
Court had ordered that they should continue to be kept in
detention, a possibility afforded them, in particular, by
Article 299 of the Code of Criminal Procedure.
Nor had Mr Yagci and Mr Sargin relied in the national
proceedings on Article 19 para. 7 of the Constitution, which gave
everyone in detention pending trial the right to be tried within
a reasonable time.
Lastly, the applicants 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.
42. As regards the first limb of the objection, the Court
notes - like the Commission - that the remedy indicated by the
Government must be sufficiently certain, in practice as well as
in theory (see, mutatis mutandis, the Navarra v. France judgment
of 23 November 1993, Series A no. 273-B, p. 27, para. 24). In
1958, however, the Court of Cassation twice held that Article 299
of the Code of Criminal Procedure, which was designed to enable
applications to be made to have detention orders set aside, did
not apply to orders prolonging detention. The Government did not
cite any case-law to the contrary.
43. As regards Article 19 of the Constitution, the Court
observes that the Government did not dispute - either before the
Commission or at the hearing on 25 October 1994 - that that
provision was largely modelled on Article 5 (art. 5) of the
Convention and that the latter had been relied on by the
applicants in the National Security Court three times (see
paragraphs 18, 21 and 22 above).
44. As to the last limb of the objection, the Court points
out that the applicants complained of the length of their
detention pending trial, whereas Law no. 466 refers to an action
for damages against the State in respect of detention undergone
by persons who have been acquitted. Besides, the right to be
tried within a reasonable time or released during the proceedings
is not the same as the right to receive compensation for
detention. Paragraph 3 of Article 5 (art. 5-3) of the Convention
covers the former and paragraph 5 of Article 5 (art. 5-5) the
latter. In conclusion, the objection is unfounded on this point
also.
3. Loss of victim status
45. Lastly, the Government maintained that once they had been
released on 4 May 1990, Mr Yagci and Mr Sargin could no longer
claim to be victims of breaches of the Convention. They had
received a kind of redress for the allegedly excessive length of
their detention and the proceedings; the National Security Court
had taken account of the major legislative reform that was under
way in Turkey, which might result in the criminal provisions on
which the applicants' committal for trial was based being amended
to their advantage; and on the above-mentioned date, Mr Yagci's
and Mr Sargin's acquittal seemed to be the only possible outcome
of the proceedings in question.
46. The Court notes that the objection was not raised before
the Commission, and it therefore dismisses it as there is
estoppel.
III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3) OF THE
CONVENTION
47. Mr Yagci and Mr Sargin complained of the length of their
detention pending trial. They 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."
48. The Government contested this view, in the alternative,
whereas the Commission accepted it.
A. Period to be taken into consideration
49. Having regard to the conclusion in paragraph 40 of this
judgment, the Court can only consider the period of three months
and twelve days which elapsed between 22 January 1990, when the
declaration whereby Turkey recognised the Court's compulsory
jurisdiction was deposited, and 4 May 1990, when the applicants
were provisionally released (see paragraph 23 above). However,
when determining whether the applicants' 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 applicants, having been placed in detention
on 16 November 1987 (see paragraph 8 above), had already been in
custody for two years and two months.
B. Reasonableness of the length of detention
50. 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).
51. During the period covered by the Court's jurisdiction
ratione temporis the Ankara National Security Court considered
the question of the applicants' continued detention on three
occasions - on 8 February and 9 March 1990 of its own motion and
on 6 April on an application by the applicants (see paragraph 22
above).
As grounds for refusing to release Mr Yagci and Mr Sargin
it cited the nature of the offences (classified as serious
crimes, they gave rise in law to a presumption that there was a
risk that the accused would abscond), "the state of the evidence"
and the date of arrest, namely 16 November 1987 (see
paragraph 8 above).
In the Government's submission, the applicants were kept
in detention for as long as that was necessary to prevent them
from absconding.
52. 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).
Mr Yagci and Mr Sargin had returned to Turkey of their
own accord and with the specific aim of founding the Turkish
United Communist Party (see paragraphs 7 and 13 above) and they
could not be unaware that they would be prosecuted for this.
The National Security Court's orders confirming detention
nearly always used an identical, not to say stereotyped, form of
words, without in any way explaining why there was a danger of
absconding.
53. 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).
54. The third reason put forward by the National Security
Court, namely the date of the applicants' arrest, does not stand
up to scrutiny either, since no total period of detention is
justified in itself, without there being relevant grounds under
the Convention.
55. In the light of these considerations, the Court holds
that the applicants' 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
56. Mr Yagci and Mr Sargin further complained of the length
of the criminal 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 ..."
57. The Government contested this view, again in the
alternative, whereas the Commission accepted it.
A. Period to be taken into consideration
58. The proceedings began on 16 November 1987, when the
applicants were arrested and taken into police custody, and ended
not - as the Government argued - on 9 October 1991, when the
applicants were acquitted of offences under Articles 141-43
(repealed on 12 April 1991 - see paragraphs 23, 25 and 27 above),
311 and 312 of the Criminal Code, but on 16 July 1992, when the
Ankara Second Assize Court's judgment of 9 July in which the
applicants were acquitted on the remaining charges became final
(see paragraph 28 above).
However, having regard to the conclusion in paragraph 40
of this judgment, the Court can only consider the period of two
years, five months and twenty-four days that elapsed between
22 January 1990, the date on which the declaration whereby Turkey
recognised the Court's compulsory jurisdiction was deposited, and
16 July 1992. Nevertheless, it must take into account the fact
that by the critical date the proceedings had already lasted more
than two years.
B. Reasonableness of the length of proceedings
59. 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
60. The Government maintained that the case had been an
extremely complex one as the evidence in the trial ran to forty
files concerning sixteen accused, who were defended by a very
large number of counsel. The Ankara National Security Court had
not only to look at the evidence before it but also to read it
out at the hearings, as requested by counsel for Mr Yagci and
Mr Sargin so that the defence could make their observations.
Ignoring that request would have resulted in the judgment's being
quashed under Article 250 of the Code of Criminal Procedure.
61. The applicants contended that they had asked to have the
documents in the case file read out because the prosecution had
given no indication as to which charges the documents were
supposed to prove. Furthermore, in view of the number of
documents, Mr Sargin had himself suggested to the court that his
counsel should, together with the representative of the public
prosecutor's office, make a preliminary selection from them in
order to speed up the trial; the court had refused. Nor had the
case been especially complex, since it was a question simply of
establishing that the party that they had wished to found was
illegal at the time. Three months ought to have sufficed to
complete the proceedings. The large number of counsel present
had to be interpreted as a form of protest against political
trials.
62. According to the Delegate of the Commission, even
supposing that the case had been a complex one, the National
Security Court's task of establishing the facts had been made
easier as the applicants had never denied their aims and the file
had contained documents concerning their political activities.
63. The Court notes merely that from 22 January 1990 the
National Security Court held twenty hearings, sixteen of which
were devoted almost entirely to reading out evidence. That
process, even allowing for the quantity of documents, cannot be
regarded as complex.
2. The applicants' conduct
64. The Government criticised the applicants' lawyers for
having contributed to prolonging the proceedings by leaving the
hearing room on several occasions in protest against the security
measures imposed at the trial and by not complying with the
time-limits for making observations on the evidence in the file.
Furthermore, the Government regarded the application of
11 July 1990 to defer judgment (see paragraph 24 above) and the
filing of numerous documents as having been delaying tactics.
65. The applicants said that they had always co-operated with
the relevant courts.
66. The Court reiterates that Article 6 (art. 6) does not
require a person charged with a criminal offence to co-operate
actively with the judicial authorities (see, as the most recent
authority, the Dobbertin v. France judgment of 25 February 1993,
Series A no. 256-D, p. 117, para. 43). It notes, like the
Commission, that the conduct of Mr Yagci and Mr Sargin and their
counsel at the hearings does not seem to have displayed any
determination to be obstructive. At all events, the applicants
cannot be blamed for having taken full advantage of the resources
afforded by national law in their defence. Even if the large
number of counsel present at the hearings and their attitude to
the security measures slowed down the proceedings to some extent,
they are not factors that, taken alone, can explain the length
of time in issue.
3. Conduct of the judicial authorities
67. In the Government's submission, the judicial authorities
had always tried to bring the trial to a swift conclusion
without, however, infringing the rights of the defence.
68. The applicants maintained that by claiming to be staging
a "mass trial" of which they were the sole targets, the
prosecution had been able to apply the special rules on the
length of police custody, judicial investigation and proceedings.
Furthermore, by holding an average of one hearing a month, the
National Security Court had systematically disregarded
Article 222 of the Code of Criminal Procedure, which prohibited
any interruption of a trial for longer than eight days except in
cases of necessity.
69. The Court does not in this instance have to speculate as
to the motives of the prosecution at the National Security Court.
It notes merely that between 22 January 1990 and 9 July 1992 that
court held only twenty hearings in the case at regular intervals
(less than thirty days), only one of which lasted for longer than
half a day.
Moreover, after the Antiterrorist Act of 12 April 1991,
repealing Articles 141-43 of the Criminal Code, had come into
force (see paragraph 25 above), the National Security Court
waited nearly six months before acquitting the applicants on the
charges based on those provisions.
70. In conclusion, the length of the criminal proceedings in
question 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. Damages
72. Mr Yagci and Mr Sargin firstly claimed compensation to be
calculated in European Currency Units and having regard to the
date of actual payment by Turkey. They did not quantify it but
said that the amount should be a large one in order to act as a
deterrent. They relied on their suffering throughout detention
and trial, the impossibility of carrying on their occupation and
the slur on their honour.
73. The Government referred to their preliminary objections
based on non-exhaustion of domestic remedies and loss of victim
status (see paragraphs 41 and 45 above) and asked the Court to
dismiss the claims.
74. The Delegate of the Commission did not make any
submissions.
75. While reiterating that in the instant case its
jurisdiction ratione temporis began on 22 January 1990, the Court
considers, having regard to the particular circumstances of the
case, that the applicants sustained non-pecuniary damage which
the findings of violations in paragraphs 55 and 70 of this
judgment cannot make good. It awards them each 30,000 French
francs (FRF) under this head.
As to pecuniary damage, it is not apparent from the
evidence that any was sustained.
B. Costs and fees
76. The applicants also sought reimbursement of the costs and
expenses incurred in both sets of proceedings before the
Convention institutions, which they estimated at FRF 38,000 in
all. As to the fees of their counsel, they wished to leave it
to the Court's discretion to assess the amount, having due regard
to "the rates applied in the profession for similar services".
77. No observations were made on the matter by either the
Government or the Commission.
78. On the basis of its case-law and the evidence before it,
the Court considers the amount for costs and expenses to be
reasonable. As to the fees, it decides to award FRF 30,000 for
the two lawyers on an equitable basis.
C. Other claims
79. The applicants asked the Court, lastly, to request the
respondent State to comply with the undertakings it made when
ratifying the Convention. They suggested a number of remedies
for the shortcomings in Turkish law.
In the first place, they considered it necessary to
repeal section 31 of Law no. 3842 of 1 December 1992, which
precluded application of the other provisions of the Law -
limiting the length of detention - to offences over which the
National Security Court continued to have jurisdiction.
Secondly, they deplored the lack of any procedure for
speeding up the handling of cases and for providing compensation
where a reasonable time had been exceeded.
Thirdly, they considered that Turkey should make greater
efforts to ensure that the Strasbourg institutions'
interpretations of the Convention's substantive provisions were
known, especially in academic and judicial circles.
80. The Government and the Delegate of the Commission did not
make any submissions.
81. The Court notes that the Convention does not empower it
to accede to such a request. It reiterates that it is for the
State to choose the means to be used in its domestic legal system
in order to comply with the provisions of the Convention or to
redress the situation that has given rise to the violation of the
Convention (see, mutatis mutandis, the Zanghì v. Italy judgment
of 19 February 1991, Series A no. 194-C, p. 48, para. 26, and the
Demicoli v. Malta judgment of 27 August 1991, Series A no. 210,
p. 19, para. 45).
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the preliminary objection of lack
of jurisdiction ratione temporis;
2. Dismisses unanimously the objection that domestic
remedies were not exhausted;
3. Dismisses unanimously the objection based on loss of
victim status;
4. Holds by eight votes to one that there has been a breach
of Article 5 para. 3 (art. 5-3) of the Convention on
account of the length of the applicants' detention;
5. Holds by eight votes to one 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 by eight votes to one that the respondent State is
to pay each of the applicants, within three months,
30,000 (thirty thousand) French francs in respect of
non-pecuniary damage;
7. Holds unanimously that the respondent State is to pay the
two applicants jointly, within three months, 38,000
(thirty-eight thousand) French francs in respect of costs
and expenses and 30,000 (thirty thousand) francs in
respect of lawyers' fees;
8. Dismisses unanimously 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: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the
dissenting opinion of Mr Gölcüklü is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE GÖLCÜKLÜ
(Translation)
1. I maintain the position I expressed in my dissenting
opinion in the case of Loizidou v. Turkey (judgment of
23 March 1995, Series A no. 310) concerning the question of the
validity of Turkey's declarations under Articles 25 and 46
(art. 25, art. 46) of the Convention.
2. Article 5 para. 3 (art. 5-3). When, on 22 January 1990,
Turkey recognised the Court's 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
was 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. The Court
acknowledges this: "Having regard to the wording of the
declaration Turkey made under Article 46 (art. 46) ..., the Court
... cannot entertain complaints about events which occurred
before 22 January 1990 and ... its jurisdiction ratione temporis
covers only the period after that date" (see paragraph 40). That
is correct and is patently obvious in view of the explicit
wording of Article 46 (art. 46).
3. However, the Court goes on to say: "... when examining
the complaints relating to Articles 5 para. 3 and 6 para. 1
(art. 5-3, art. 6-1) of the Convention, [the Court] will take
account of the state of the proceedings at the time when the
above-mentioned declaration was deposited" (see paragraph 40).
4. This assertion raises the question of the practical
consequences of this case-law, in other words the effect it has
on the merits of the case under consideration.
5. The Turkish declaration was made on 22 January 1990. The
applicants, who had been detained since 16 November 1987, lodged
an application for their release for the first time on
29 August 1988, that is to say nine months and thirteen days
after being deprived of their liberty (see paragraph 13); they
were provisionally released on 4 May 1990 (see paragraph 23),
only three months and eleven days after Turkey's declaration
under Article 46 (art. 46) of the Convention - a relatively short
period of time.
6. Article 6 para. 1 (art. 6-1). On 11 March 1988 the
public prosecutor's office brought proceedings against the
applicants; the trial opened on 8 June 1988. The case file was
very bulky. The defendants were represented by 400 lawyers (see
paragraphs 10-11).
7. At the time of the applicants' provisional release, the
legislative changes that were already under way with the aim of
repealing the Acts on which their indictment had been based were
making progress (see paragraph 23).
Articles 141, 142 and 143 of the Turkish Criminal Code,
under which Mr Yagci and Mr Sargin had been prosecuted, were
repealed, and as a result the court decided, on 10 June 1991, to
interrupt the reading out of the documents in the file relating
to those provisions and to read out the evidence relating to the
other charges. This process ended on 10 July 1991, one year,
four months and eighteen days after the Turkish declaration in
question. The proceedings could be considered as having really
ended on that date, since what happened subsequently was a mere
formality. And everything connected with the prosecution of the
applicants ended on 9 July 1992. Even if the proceedings are
regarded as having ended on the latter date, the trial lasted in
all for two years, five months and seventeen days after Turkey's
declaration under Article 46 (art. 46), which to my mind is not
excessive for a trial on such a scale.
8. It should be noted that on 11 July 1990 the applicants
themselves had asked the court to defer judgment, on the ground
that it would be advisable to await the outcome of the
proceedings brought in the Constitutional Court concerning the
dissolution of the Turkish Communist Party (see paragraph 24).
9. Even if one regards as appropriate and consistent with
the spirit of the Convention the Court's case-law to the effect
that, when assessing reasonableness for the purposes of
Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1), it will
take into account the period prior to the declaration made by
Turkey, the rule will, in my opinion, affect the outcome only
where the pointer of the scales is hovering on the line that
separates "reasonable" from "unreasonable".
10. We must bear in mind the fact that the provisions of
Article 25 and Article 46 (art. 25, art. 46) concerning time
limitations on them are totally and completely independent of
each other, and that a State may very well recognise the right
of individual petition without recognising the Court's
jurisdiction.
11. In the present case, the lines formed by the applicants'
provisional release after three months and eleven days
(Article 5 para. 3) (art. 5-3), and by the end of the
proceedings, one year, four months and eighteen days (or, if
preferred, two years, five months and seventeen days) after the
declaration made by Turkey under Article 46 (art. 46), cannot be
regarded as boundaries between "reasonable" and "unreasonable"
if account is taken of the conditions in which this trial was
conducted. Any other approach would mean confusing in an
unacceptable way the provisions of Articles 25 and 46 (art. 25,
art. 46) on limitations ratione temporis on the application of
those Articles (art. 25, art. 46).
12. I take the view that neither by applying the "evolutive
and progressive" method of interpretation it has adopted nor by
applying the principle of implementing the Convention in a
"useful" way, does the European Court of Human Rights have power
to modify the provision of Article 46 (art. 46) concerning
limitations ratione temporis to the point of rendering it
ineffective or negating its existence.
13. I therefore reach the conclusion, contrary to the opinion
of the majority, that Turkey has violated neither Article 5
para. 3 nor Article 6 para. 1 (art. 5-3, art. 6-1) of the
Convention.
Full & Egal Universal Law Academy