AS TO THE ADMISSIBILITY OF
Application No. 36589/97
by Mehmet ÖZGÜL
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 January 1997
by Mehmet ÖZGÜL against Turkey and registered on 20 June 1997 under
file No. 36589/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1967, is Turkish citizen and resident in
istanbul. He is represented before the Commission by Mr Mehmet Nur
Terzi, a lawyer practising in izmir.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 9 July 1992 the applicant, a University student at the time
in Izmir, was arrested by policemen. He was accused of having
participated in a demonstration in izmir against the territorial
integrity of the State on 18 May 1991.
On 15 July 1992 the applicant was brought before the izmir State
Security Court. The same day the applicant was placed in detention on
remand by the court.
On 1 September 1992 the applicant was released by the izmir State
Security Court.
On 24 November 1992 the applicant was acquitted by the izmir
State Security Court on account of insufficient evidence for his
conviction.
On 13 January 1993 the applicant brought an action before the
izmir Assize Court. He requested that a certain amount of compensation
be granted to him in accordance with Law No. 466 of 7 May 1964, which
guarantees the possibility of compensation to any person who is
acquitted or discharged after standing trial.
On 28 May 1993 the izmir Assize Court declined jurisdiction
ratione loci and referred the case to the Osmaniye Assize Court in
Adana.
On 31 March 1995 the Osmaniye Assize Court granted a certain
amount of compensation to the applicant.
The applicant lodged an appeal with the Court of Cassation as he
considered the amount of the compensation granted to him insufficient.
On 11 October 1996 the Court of Cassation dismissed the
applicant's appeal and upheld the Judgment of the Osmaniye Assize
Court.
COMPLAINTS
1. The applicant complains under Article 5 para. 5 of the Convention
that he was not granted sufficient compensation by the Osmaniye Assize
Court although he was deprived of his liberty for 54 days.
2. The applicant further complains that the length of the
compensation proceedings between 1993 and 1996 exceeded the reasonable
time requirement under Article 6 para. 1 of the Convention.
THE LAW
1. The applicant complains under Article 5 para. 5 (Art. 5-5) of the
Convention that he was not granted sufficient compensation by the
Osmaniye Assize Court although he was deprived of his liberty for 54
days.
Article 5 para. 5 (Art. 5-5) of the Convention provides as
follows.
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have
an enforceable right to compensation."
The Commission recalls that under Article 5 para. 5 (Art. 5-5)
of the Convention the right to compensation for any material or moral
damage sustained as a result of a detention is plainly conditioned on
a breach of one of the paragraphs of Article 5 (Art. 5). It follows
that the Commission cannot consider an applicant's claim exclusively
based on Article 5 para. 5 (Art. 5-5) unless a breach of Article 5
paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) has been established either
directly or in substance (No. 7950/77, Dec. 4.3.80, D.R. 19, p. 215).
The Commission notes that the applicant was held in detention for
54 days between 9 July 1992 and 1 September 1992. However, the
application was introduced with the Commission on 20 January 1997,
which is more than six months after the end of his detention. The
Commission is therefore prevented from proceeding directly to an
examination of the applicant's complaint based on his detention on
remand as it has been lodged out of time.
The Commission observes that, the applicant was acquitted on
24 November 1992 and the Turkish courts did not make any finding of a
violation of Article 5 (Art. 5) of the Convention. Moreover, the
Commission recalls that the Convention does not guarantee a general
right to compensation for detention of an accused, following his
acquittal.
An examination of the facts does not disclose any appearance of
a breach of Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) of the
Convention. Therefore, Article 5 para. 5 (Art. 5-5) of the Convention
is not applicable in the present case.
It follows that this part of the application is outside the
competence of the Commission ratione materiae and must accordingly be
rejected as being incompatible with the provisions of the Convention,
within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant further complains that the length of the
compensation proceedings between 1993 and 1996 exceeded the reasonable
time requirement under Article 6 (Art. 6) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, in so far as
relevant, provides as follows.
"In the determination of his civil rights...everyone is
entitled to a fair and public hearing within a reasonable
time..."
The Commission primarily recalls that in the Georgiades case
(Eur. Court HR, Georgiades v. Greece judgment of 29 May 1997, Reports
1997-III, no. 38, p. 35, para. 30) and also in the Werner case (Eur.
Court HR, Werner v. Austria judgment of 24 November 1997, Reports
1997-VII, no. 56, p. 11, para. 40) the Court held that the right to
compensation after acquittal of a person who had been held in detention
was a civil one. The Commission sees no reason to depart from that
assessment in the instant case, in which the applicant's right to
compensation concerned compensation sought for detention undergone for
54 days. Accordingly, the Commission concludes that Article 6 para. 1
(Art. 6-1) was applicable to the proceedings in issue.
As regards the applicant's complaints that the compensation
proceedings exceeded the reasonable time requirement, the Commission
observes that the applicant brought an action before the izmir Assize
on 13 January 1993. The Osmaniye Assize Court granted compensation to
the applicant on 31 March 1995. This judgment was upheld by the Court
of Cassation on 11 October 1996. The proceedings therefore lasted
almost three years and nine months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the established case-law, in particular the complexity of the case
and the conduct of the applicant and of the relevant authorities
(Eur. Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995,
Series A no. 319, p. 20, para. 59). Furthermore, the Convention organs
also consider it appropriate to make an overall assessment of the
length of proceedings in some cases (see e.g., Eur. Court HR, Cifola
v. Italy judgment of 27 February 1992, Series A no. 231, p. 9,
para. 14).
The Commission notes that, in the present case, the applicant's
case was dealt with by two levels of jurisdiction in three years and
nine months. The Commission therefore considers that the total period
at issue does not appear unreasonably long. Moreover, the applicant has
not shown any substantial periods of inactivity attributable to the
judicial authorities.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy