KARADEMIR v. TURKEY - 32990/96 [2001] ECHR 739 (30 October 2001)

JUDGMENT STRASBOURG 30 October 2001 FINAL 30/01/2002 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 Karademir v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mrs E. PALM, President , Mr L. FERRARI BRAVO, Mr GAUKUR JöRUNDSSON, Mr B. ZUPANčIč, Mr T. PANţîRU, Mr R. MARUSTE, judges , Mr F. GöLCüKLü, ad hoc judge , and Mr M. O’BOYLE, Section Registrar , Having deliberated in private on 31 August 1999 and on 9 October 2001, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 32990/96) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hicabi Karademir (“the applicant”), on 17 September 1996. 2. The applicant did not appoint a lawyer for his representation before the Court. The Turkish Government did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge, in his place (Article 27 § 2 of the Convention and Rule 29 § 1). 6. The President of the Chamber decided that in the interests of the proper administration of justice, the present application should be joined to other applications against the same respondent State raising the same complaints (applications nos. 26480/95, 28291/95, 29280/95, 26699/96, 29700/96, 29701/96, 29702/96, 29703/96, 29911/96, 29912/96, 29913/96, 31831/96, 31834/96, 31853/96, 31880/96, 31891/96, 31960/96, 32964/96, 32900/96, 32987/96, 33362, 33369/96, 33645/96, 34591/96, 34687/96, 39428/96 and 43362/96) (Rule 43 § 2). 7. By a decision of 31 August 1999, having obtained the parties’ observations, the Court declared the application admissible. 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Arrest and detention of the applicant 9. On 25 October 1980 police officers from the Fatsa Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation, the Dev-Yol (Revolutionary Way). 10. On 3 January 1981 the Per şembe Criminal ordered the applicant’s detention on remand. B. Trial in the Ankara Martial Law Court 11. On 10 May 1982 the Military Public Prosecutor filed a bill of indictment with the Erzincan Martial Law Court against the applicant and 722 other defendants. The Public Prosecutor accused the applicant, inter alia , of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code. 12. On 5 February 1985 the applicant was released pending trial. 13. In a judgment of 24 August 1988 the Martial Law Court convicted the applicant on account of his involvement in the Dev-Yol. It sentenced the applicant to fifteen years’ imprisonment under Article 146 § 3 of the Turkish Criminal Code, permanently debarred him from employment in the civil service. C. Proceedings on appeal 14. The applicant appealed to the Military Court of Cassation. 15. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation ( yargıtay ) acquired jurisdiction over the case and on 26 December 1994 the case file was transmitted to it. 16. On 4 July 1995 the Court of Cassation quashed the applicant’s conviction on the ground that he should have been convicted of the offence under Article 146 § 1 of the Turkish Criminal Code. It referred the case to the Ankara Assize Court ( ağır ceza mahkemesi ). 17. On 24 June 1997 the Ankara Assize Court decided, under Article 102 of the Turkish Criminal Code, that the criminal proceedings against the applicant should be discontinued since the prosecution was time-barred. II. RELEVANT DOMESTIC LAW AND PRACTICE 18. Article 146 §§ 1 and 3 of the Turkish Criminal Code provides: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty. ... Accomplices to the crime specified in paragraph one, other than those specified in paragraph two, shall be punished by heavy imprisonment for not less that fifteen years and be disqualified to hold public office for life.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained about the length of the criminal proceedings against him. He alleged a violation of Article 6 § 1 of the Convention, which provides, as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 20. The Government refuted the applicant’s allegations. They argued that the case was complex on account of the nature of the charges the applicant faced and the need to organise a large-scale trial involving 723 defendants, including the applicant, all of whose involvement in Dev-Yol activities had to be established. They averred that these factors explained the length of the proceedings and that no negligence or delay could be imputed to the judicial authorities. A. Period to be taken into consideration 21. The Court notes that the proceedings began on 25 October 1980, the date of the applicant’s arrest, and ended on 24 June 1997 by the decision of the Ankara Assize Court. They have thus already almost sixteen years and eight months. 22. The Court’s jurisdiction ratione temporis only permits it to consider the period of almost ten years and five months that elapsed after 28 January 1987, the date of deposit of Turkey’s declaration recognising the right of individual petition (see Cankoçak v. Turkey (Sect. 1), nos. 25182/94 and 26956/95, judgment of 20 February 2001, § 26). It must nevertheless take account of the state of the proceedings at the time when the aforementioned declaration was deposited ( ibid ., § 25). On the critical date the proceedings had already lasted more than six years. B. Reasonableness of the length of proceedings 23. The Court observes that the Martial Law Court took almost seven years and ten months to reach a verdict. It took the Military Court of Cassation six years and four months to rule on the appeal. Furthermore, the Court of Cassation gave judgment on 4 July 1995, approximately six months after it had been seized of the case. Subsequent to the latter judgment the case was referred to the Ankara Assize Court ( ağır ceza mahkemesi ), which terminated the criminal proceedings on the ground that the prosecution was time-barred, and the proceedings therefore lasted almost two years before that court. The Court considers that both at first instance and in the appeal proceedings there were substantial delays, which cannot be explained in terms of the admitted complexity of the case and must be considered attributable to the national authorities. 24. Having regard to all the evidence before it and to its case-law on the subject (see Şahiner v. Turkey (Sect. 1), no. 29279/95, judgment of 4 September 2001, to be published in ECHR 2001-...), the Court holds that the length of the proceedings in issue did not satisfy the “reasonable time” requirement. 25. There has accordingly been a breach of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. 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 27. The applicant claimed the sum of 269,000 American dollars by way of compensation for pecuniary and non-pecuniary damage. He referred in this connection to his suffering as a result of the excessive length of the proceedings against him. 28. The Government did not make any comments on the applicant’s claim. 29. The Court considers that the applicant must have suffered a certain amount of distress, having regard to the total length of the proceedings against him. Deciding on an equitable basis, it awards him the sum of 100,000 French francs (FRF). B. Costs and expenses 30. When submitting his post-admissibility observations, the applicant claimed in total that 269,000 American dollars be awarded to him. He did not give any particulars of his claim, such as bills for his legal costs and postage fees etc., although he was requested to do so (Rule 60 of the Rules of Court). 31. The Government did not make any observations under this head of claim either. 32. The Court considers that the applicant must be take to have waived his right to an award under this head having regard to his failure to submit a claim. C. Default interest 33. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 4,26% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to disjoin the application from other applications joined pursuant to Rule 43 § 1; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, in respect of non-pecuniary damage FRF 100,000 (one hundred thousand French francs), together with any tax that may be chargeable, to be converted into Turkish liras at the rate applicable on the date of the settlement; (b) that simple interest at an annual rate of 4,26% shall be payable from the expiry of the above-mentioned three months until settlement; 4. Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 30 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BOYLE Elisabeth PALM Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII