SECOND
SECTION
CASE OF SOLMAZ v.
(Application no. 27561/02)
JUDGMENT
16
January 2007
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
Solmaz v.
The European Court of Human Rights
(Second Section), sitting as a Chamber composed of:
Mr A.B. Baka,
President,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović,
judges,
and Mrs S. Dollé,
Section Registrar,
Having deliberated in private on 12
December 2006,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 27561/02) against the
2. The applicant was
represented by Ms F.G. Yolcu, Ms G. Altay and Mr H. Karakuþ, lawyers
practising in
3. On 29 June 2005 the Court
decided to communicate 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 applicant was born in
1966 and lives in
5. On 23 January 1994 the
applicant was arrested and placed in police custody by officers from the
anti-terrorism branch of the Istanbul Security Directorate on suspicion of
being involved in the activities of an illegal armed organisation, namely the
TKP/ML (Türkiye Komünist Partisi / Marksist Leninist, Turkish Communist
Party / Marxist Leninist).
6. On 7 February 1994 he was
brought before the public prosecutor and then the investigating judge at the
7. On 31 March 1994 the
public prosecutor filed an indictment charging the applicant and four others
with membership of an illegal armed organisation and involvement in activities
which undermined the constitutional order of the State.
8. At the time of the events,
a similar case concerning certain activities of the TKP/ML was pending before
the third chamber of the
9. The applicant did not
attend a number of hearings.
10. In the course of the
proceedings, the court held 48 hearings. At the end of each hearing the
11. On 12 June 2000 the
12. On 15 May 2001 the Court
of Cassation quashed the decision for procedural reasons. The case was remitted
to the
13. On 8 February 2002 the applicant’s lawyer requested the court to release the applicant pending trial due to his poor health. He submitted a medical report certifying that Mr Solmaz was suffering from the Wernicke-Korsakoff syndrome. The court dismissed the lawyer’s request, maintaining that the applicant could be treated in the prison. Moreover, it held that, considering the nature of the offence, the state of evidence and the content of the file, the applicant should continue to be detained pending trial.
14. Following the objection of the applicant’s lawyer, the court reconsidered its decision of 8 February 2002. On 18 February 2002, relying on a medical report and considering the length of the period which the applicant had already spent in detention, the court ordered his release pending trial. It further held that it was likely that the final decision of the court would be in favour of the applicant.
15. State Security Courts
were abolished by constitutional amendments, introduced on 7 May 2004.
Subsequently, the applicant’s case was resumed before the
16. After holding 17
hearings, on 31 January 2005 the
17. However, on an unknown
date the Court of Cassation quashed the decision of the first instance court
once again. The case was resumed before the
II. RELEVANT DOMESTIC LAW
18. Article 63 of the
Criminal Code (Law no. 5237) provides as follows:
“ Any term, served due to circumstances which took place before the
finalisation of the judgment and resulted in the restriction of personal
liberty, shall be deducted from the sentence. (...)”
THE LAW
I. ADMISSIBILITY
19. The Court notes that the
application is not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE
5 § 3 OF THE CONVENTION
20. The applicant complained
that his detention on remand exceeded the “reasonable time” requirement of Articles
5 § 3, which reads in so far as relevant as follows:
Article 5 § 3
“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.”
21. The Government maintained
that the applicant’s detention was reviewed at regular intervals. However, in
view of the seriousness of the charges against him and the evidence in the case
file, the court had to prolong his detention pending trial.
22. The applicant argued that
the length of his detention had been unreasonable. He further contended that
the domestic court’s decisions ordering his continued detention did not justify
its excessive length.
A. Period to be taken into
consideration
1. Recapitulation of the relevant
case-law
23. The Court recalls that
the word “conviction”, for the purposes of Article 5 § 1 (a), is to be
understood as signifying both a finding of guilt, after it has been established
in accordance with the law that an offence has been committed, and the
imposition of a penalty or other measure involving a deprivation of liberty (Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A
no. 50, p. 19, § 35). The detention of a person
convicted at first instance, whether or not he or she was detained beforehand,
falls under Article 5 § 1 (a) which provides as follows:
“1. Everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a
person after conviction by a competent court; ...”
24. Thus, if an applicant has
been detained pending trial under Article 5 § 3, that form of custody would end
on the day on which the charge is determined, even if only by a court of first
instance (Wemhoff v. Germany judgment of 27 June 1968, Series
A no. 7, p. 23 § 9). The Court additionally
observes that a person who had cause to complain of the continued detention
after conviction pending a delayed appeal, may not be able to invoke Article 5
§ 3 but could possibly allege a breach of the “reasonable time” requirement of
Article 6 § 1 of the Convention (ibidem.).
25. This general principle
asserted in Wemhoff has been
confirmed in the B. v. Austria
judgment (28 March
1990, Series A no. 175, p. 23, § 9): Given the essential
link between paragraph 3 and sub-paragraph 1 (c) of Article 5, a person
convicted at first instance and detained pending appeal could not be considered
to be detained for the purpose of bringing him or her before the competent
legal authority on reasonable suspicion of having committed an offence.
26. There exist important
differences among the Contracting States on the question whether a person
convicted at first instance has started serving a prison sentence while an
appeal is still pending. However, the Court held in B. v
27. In the Neumeister v. Austria case (judgment of 27 June 1968,
Series A no. 8; p. 37, § 6), the applicant’s
initial period of detention ended more than six months before the date on which
he lodged his application with the Commission. Therefore the Court considered
that it may not be able to examine whether the first period was compatible with
the Convention. However, it went on to say that, in the event of an applicant
being convicted, the first period would normally be deducted from any term of
imprisonment imposed; it would thus reduce the actual length of imprisonment
which might be expected. The Court accordingly decided that the first period
should be taken into account in assessing the reasonableness of the applicant’s
later detention (ibid.).
In doing so, it explained that it would be excessively formalistic to require an applicant, complaining about the length of his or her remand in custody within the same criminal proceedings, to file a new application with the Convention organs after each pre-trial detention period ends (Neumeister, p. 38, § 7). Moreover, it observed that such a requirement would overburden the Convention system with multiple applications lodged by the same applicant, with the same complaint concerning different, yet consecutive detention periods (ibid.).
28. It can be construed from
the above explanations that the Wemhoff
and Neumeister judgments (pronounced
on the same day) complement each other, as the former determines when the
relevant period under Article 5 § 3 ceases to apply, while the latter advises
on the application of the six-month rule under Article 35 § 1 of the Convention
and the calculation of the total length of pre-trial detention periods.
29. The Court has followed
the same approach in more recent judgments. It has held that where an accused
person is detained for two or more separate periods pending trial, the
“reasonable time” guarantee of Article 5 § 3 requires a global assessment of
the accumulated periods (see Kemmache v.
France (no. 1 and no. 2) judgment of 27 November 1991, Series A
no. 218, § 44; I.A. v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VII,
p. 2979, § 98; Vaccaro
v. Italy, no. 41852/98, 16 November 2000, §§ 31‑33; Mitev v. Bulgaria, no. 40063/98, 22 December
2004, § 102). In these cases, unlike the Neumeister
judgment, no reference was made to the application of six-month rule.
30. However, until recently,
the approach adopted in Turkish cases examined by the Court under Article 5 § 3
has been slightly different from that above: If an application was lodged more
than six months after the end of initial periods of detention on remand, the
Court declared the complaints regarding these periods inadmissible.
Nevertheless, when deciding on the reasonableness of the last period of
detention on remand, account was taken of the previous periods of detention to
which the applicant had already been subjected (see, among others, Kalay v. Turkey, no. 16779/02, § 34, 22 September 2005; Gýyasettin Altun v. Turkey, no. 73038/01, § 28, 24 May 2005; Çiçekler v. Turkey, no. 14899/03,
§ 61, 22 December 2005; Bahattin Þahin v. Turkey (dec.), no. 29874/96, ECHR 17
October 2000; Köse v. Turkey (dec.),
no. 50177/99, ECHR 2 May 2006).
31. Then
again, in the
recent Baltacý v. Turkey judgment
(no. 495/02, §§ 44‑46, 18 July 2006), the Court
reinstated the global approach by making an assessment of the accumulated periods of detention, without
mentioning the
question of the six-month rule.
32. From
the above recapitulation of its case-law, the Court concludes that confusion
has grown regarding the application of the six-month rule in cases of the
present kind. It recalls that this rule, in reflecting
the wish of the Contracting Parties to prevent past decisions being called into
question after an indefinite lapse of time, serves the interests not only of
the respondent Government but also of legal certainty as a value in itself. It
marks out the temporal limits of supervision carried out by the organs of the
Convention and signals to both individuals and State authorities the period
beyond which such supervision is no longer possible. It is therefore not open
to the Court to set aside the application of the six-month rule solely because
a Government have not made a preliminary objection based on it (see, Walker
v. United Kingdom (dec.),
no. 34979/97, ECHR 2000-I).
33. In the light of the above
explanations, the Court wishes to clarify the application of the six-month rule
in cases of multiple detention periods, within the meaning of Article 5 § 3 of
the Convention, through its examination of the present case.
2. The approach in the instant case
34. The
Court observes that, in the present case, the applicant’s detention on remand
began when he was arrested on 23 January 1994. He was detained within the
meaning of Article 5 § 3 of the Convention until his conviction by the
35. The Court notes that, in
the absence of domestic remedies, the six-month time limit starts to run from the act of
which complaint is made. It nevertheless reaffirms and emphasises the Neumeister considerations cited above
(paragraph 27), in particular the need to avoid excessive formalism and the
imposition of an excessive burden on not only the applicant but also the
Convention supervisory mechanism (Neumeister, cited above, p. 38, § 7). This is especially so in the circumstances of the
present case where the criminal proceedings were pending at the appeal stage
and the applicant continued to be deprived of his liberty, albeit under Article
5 § 1 (a) of the Convention.
36. Consequently, the Court
considers that, in the instant case, the multiple, consecutive detention
periods of the applicant should be regarded as a whole, and the six-month
period should only start to run from the end of the last period of pre-trial
custody, i.e. 18 February 2002.
37. The Court further notes
that, according to Article 63 of the Criminal Code, any period of imprisonment
served before the finalisation of a judgment depriving an individual of
personal liberty shall be deducted from the sentence (paragraph 18). In order
to assess the reasonableness of the length of the applicant’s pre-trial
detention, the Court should therefore make a global evaluation of the
accumulated periods of detention under Article 5 § 3 of the Convention (see, mutatis mutandis, Neumeister, cited above, p. 37, § 6). Consequently, the
Court concludes that, after deducting the periods when the applicant was
detained after conviction under Article 5 § 1 (a) of the Convention
from the total time that he was deprived of his liberty, the period to be taken
under consideration in the instant case is nearly six years and eight months.
B. Reasonableness of the length of
detention
1. Principles established under the
Court’s case-law
38. The Court reiterates that
the question of whether or not 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 need to respect individual liberty
as guaranteed by Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], cited above,
§§ 110-111).
39. It falls in the first
place to the national judicial authorities to ensure that, in a given case, the
pre-trial detention of an accused person does not exceed a reasonable time. To
this end, they must examine all the facts arguing for or against the existence
of the above-mentioned requirement of public interest justifying a departure
from the rule in Article 5, and must 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 well-documented facts stated 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 § 3 (see, Labita
v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV; Kudła, cited above, § 110).
40. The persistence of
reasonable suspicion that the person arrested has committed an offence is a
condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of time it no
longer suffices. The Court must then establish whether the other grounds given
by the judicial authorities continued to justify the deprivation of liberty.
Where such grounds were “relevant” and “sufficient”, the Court must also be
satisfied that the national authorities displayed “special diligence” in the
conduct of the proceedings. The complexity and special characteristics of the
investigation are factors to be considered in this respect (see, for example, Scott v. Spain, judgment of 18 December
1996, Reports 1996-VI,
pp. 2399-2400, § 74; I.A. v. France,
judgment of 23 September 1998, Reports
1998-VII, p. 2978, § 102).
2. Application of the principles to
the circumstances of the present case
41. The Court observes that
the
42. In this context, the
Court notes that the State Security Court failed to indicate to what extent the
applicant’s release would have posed a risk, after - by then - well over eight
years of detention (including the periods of imprisonment after conviction), in
its last decision to prolong the applicant’s remand in custody pending his
re-trial at first instance (see Demirel,
cited above, § 60).
43. The foregoing
considerations are sufficient to enable the Court to conclude that the grounds
given for the applicant’s pre-trial detention were not “sufficient” and
“relevant” to justify holding him in custody for nearly six years and
eight months. In these circumstances it is not necessary to examine whether the
proceedings were conducted with special diligence.
44. There has accordingly been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
45. The applicant complained
under Article 6 § 1 of the Convention about the length of the criminal
proceedings, which are still pending after more than 12 years. Article 6 § 1
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...”
46. The Government submitted
that the case was complex, considering the charges against the applicant and
the need to organise a large-scale trial involving 16 defendants and numerous
witnesses. They contended that these factors explained the length of the
proceedings and that no negligence or delay could be imputed to the judicial
authorities. They alleged that the applicant had contributed to the length of
the proceedings by not participating in a number of hearings. Furthermore they
maintained that his lawyer failed to submit her defence statements for five
consecutive hearings.
47. The applicant contended
that he could not appear at some of the hearings due to his illness. He
maintained however that he cannot be held responsible for the total length of
the proceedings.
48. The Court observes that
the proceedings began on 23 January 1994 with the applicant’s arrest and are still pending before the
49. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to that in the present application (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II; Ertürk v. Turkey, no. 15259/02, 12 April 2005).
50. Having examined all the
material submitted to it and 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.
51. There has accordingly
been a breach of Article 6 § 1 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
52. 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
53. The applicant claimed
25,000 euros (EUR) in respect of pecuniary damage and EUR 12,500 for the
non-pecuniary damage he had sustained.
54. The Government disputed
these demands.
55. The Court does not
discern any causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. However, it accepts that the
applicant must have suffered some non-pecuniary damage on account of the undue
length of his pre-trial detention and criminal proceedings, which cannot be
sufficiently compensated by the finding of violations alone. Taking into
account the circumstances of the case and having regard to its case-law, the
Court awards the applicant EUR 10,000 under this head.
B. Costs and expenses
56. By way of costs and
expenses in relation to his representation, the applicant claimed 400 New
Turkish Liras (YTL) (EUR 200) in respect of communication and translation
costs, and YTL 6,700 (EUR 3,350) for legal expenses. He submitted that this
amount included the visiting and travel expenses of his lawyer, as well as the
work relating to the proceedings before the Court in preparing the application
and the observations on admissibility and merits. He claimed that his
representative had applied the scale recommended by the Istanbul Bar for
applications to the Court.
57. The Government contested
the applicant’s claim as being unsubstantiated by any documentation.
58. On the basis of the
material in its possession and ruling on an equitable basis, the Court awards
the applicant EUR 2,500 in respect of costs and expenses.
C. Default interest
59. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 5 § 3 of the
Convention;
3. Holds that there has been a violation of Article 6 § 1 of the
Convention;
4. 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, the following
amounts, to be converted into New Turkish liras at the rate applicable at the
date of settlement:
(i) EUR 10,000 (ten thousand
euros) in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five
hundred euros) in respect of costs and expenses;
(iii) any tax that may be
chargeable on the above amounts;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points
5. Dismisses the remainder of the applicant’s claim for just
satisfaction.
Done in
English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2
and 3 of the Rules of Court.
S. Dollé A.B.
Baka
Registrar President