SECOND SECTION

CASE OF YEŞİLYURT v. TURKEY

(Application no. 15649/05)

JUDGMENT

STRASBOURG

23 February 2010

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 ,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Françoise Tulkens, President,
	Ireneu Cabral Barreto,
	Vladimiro Zagrebelsky,
	Danutė Jočienė,
	Dragoljub Popović,
	Nona Tsotsoria,
	Işıl Karakaş, judges,
and SallyDolléSection Registrar,
Having deliberated in private on 2 February 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 15649/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Bahar Yeşilyurt (“the applicant”), on 27 April 2005.
2.  The applicant was represented by Mr M.S. Talay, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 10 September 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
4.  The applicant was born in 1978 and lives in Batman.
5.  On 12 October 1995 the applicant was taken into custody by police officers from the anti-terror branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation. On 25 October 1995 she was brought before the investigating judge at the Istanbul State Security Court, who ordered her detention on remand.
6.  On 29 November 1995 the Istanbul State Security Court Public Prosecutor declared a lack of jurisdiction and transferred the case file to the Diyarbakır State Security Court.
7.  On 29 December 1995 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing her, inter alia, of membership of an illegal armed organisation and of involvement in activities that undermined the constitutional order of the State. The prosecution requested that the applicant be sentenced pursuant to Article 125 of the Criminal Code.
8.  The trial commenced before the Diyarbakır State Security Court. In the subsequent hearings, the court refused to release the applicant on account of the nature of the alleged offence and the state of evidence.
9.  On 12 June 2001 the applicant submitted a petition to the Diyarbakır State Security Court, alleging that she had been ill-treated during police custody.
10.  The case against the applicant continued before the Diyarbakır State Security Court until 7 May 2004 when, following a constitutional amendment, State Security Courts were abolished. Thereafter, the applicant's case was transferred to the Diyarbakır Assize Court.
11.  On 3 November 2004 the applicant was released pending trial.
12.  On 26 January 2005 the Diyarbakır Assize Court declared its lack of jurisdiction and transferred the applicant's case to the Diyarbakır Juvenile Court, holding that the applicant had been a minor at the time of the events.
13.  On an unspecified date, the Diyarbakır Juvenile Court also declared its non-jurisdiction and the case file was then transferred to the Batman Assize Court.
14.  9 May 2005 the Batman Assize Court declared a lack of jurisdiction and transmitted the case file to the Court of Cassation to resolve the jurisdictional conflict.
15.  On 17 October 2006 the Court of Cassation decided that the case should be heard by the Batman Assize Court.
16.  On 4 December 2007 the Batman Assize Court acquitted the applicant of the charges against her.
17.  Subsequently, the applicant applied to the Midyat Assize Court seeking compensation for both non-pecuniary and pecuniary damage pursuant to Law no. 466 pertaining to the payment of compensation to persons unjustifiably arrested or detained. On 24 April 2008 the Midyat Assize Court awarded the applicant 11,881 Turkish liras (TRY) in respect of pecuniary damage and TRY 10,000 in respect of non-pecuniary damage. According to the information submitted by the applicant, the proceedings are still pending before the Court of Cassation, following her appeal, and she has not yet received the due amount.
THE LAW
I.  THE GOVERNMENT'S PRELIMINARY OBJECTIONS
18.  The Government submitted that as, following her acquittal, the applicant had been awarded pecuniary and non-pecuniary compensation by the national courts pursuant to Law no. 466, she can no longer claim to be a victim of the alleged violation under Article 5 § 3 of the Convention. The Government further asked the Court to reject the complaint raised under Article 6 § 1 of the Convention for failure to comply with the rules of exhaustion of domestic remedies and the six-month time-limit under Article 35 § 1 of the Convention. In this respect, they submitted that the criminal proceedings against the applicant had still been pending when the application was lodged with the Court.
19.  The Court observes that, in awarding compensation under the terms of Law no. 466, the national court based its assessment solely on the fact that there had been an acquittal. The national court's assessment was an automatic consequence of the acquittal and did not amount to the establishment of any violation of paragraphs 1 to 4 of Article 5 of the Convention (see Elğay v. Turkey, no. 18992/03, §§ 28-34, 20 January 2009, and Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007). As a result, although the applicant will receive compensation from the authorities, she can still claim to be a victim of a breach of Article 5 § 3 of the Convention.
20.  As for the remaining objections of the Government, the Court recalls that, according to its well established case-law, complaints concerning length of proceedings can be lodged with it before the termination of the domestic proceedings (see Mustafa Türkoğlu v. Turkey, no. 58922/00, § 30, 8 August 2006). Accordingly, the Government's objections must be dismissed.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
21.  Relying on Article 5 § 3 of the Convention, the applicant complained about the length of her pre-trial detention.
22.  The Court observes that the applicant's pre-trial detention began on 12 October 1995 with her arrest and lasted until 3 November 2004 when she was released pending trial. Tperiod to be taken into consideration in the instant case is therefore nine years. During this time, the domestic courts constantly extended the applicant's detention using identical, stereotyped terms, such as “having regard to the nature of the offence and the state of the evidence”.
23.  The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issues to those in the present application (see, for example, Atıcı v. Turkey, no. 19735/02, 10 May 2007;Solmaz v. Turkey, no. 27561/02, ECHR 2007‑II (extracts); Dereci v. Turkey, no. 77845/01, 24 May 2005; and Taciroğlu v. Turkey, no. 25324/02, 2 February 2006). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. the light of the foregoing, the Court finds that the length of the applicant's pre-trial detention contravened Article 5 § 3 of the Convention. There has accordingly been a violation of this provision.
III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
24.  The applicant maintained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.
25.  The Court observes that the period to be taken into consideration began on 12 October 1995 with the applicants' arrest and ended on 4 December 2007 with her acquittal by the Batman Assize Court. It therefore lasted twelve years and one month for one level of jurisdiction. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).
26.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Pélissier and Sassi, cited above). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court therefore considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.
IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27.  Invoking Articles 3 and 13 of the Convention, the applicant alleged that she had been ill-treated during her police custody. Under Article 6 of the Convention, she further challenged the independence and impartiality of the Diyarbakır State Security Court and complained that she had not been provided with an interpreter during her police custody.
28.  However, an examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  The applicant claimed TRY 75,329 (approximately EUR 33,651) in respect of pecuniary damage and TRY 75,000 (approximately EUR 33,505) in respect of non-pecuniary damage. She did not submit any claim for costs and expenses. The Government contested the claims.
30.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, in respect of non-pecuniary damage, ruling on an equitable basis, it awards her EUR 13,000.
31.  The Court further finds it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaints concerning the length of the pre-trial detention and the length of the criminal proceedings admissible and the remainder of the application inadmissible;

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

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 23 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	Sally Dollé	Françoise Tulkens
	Registrar	President