Lexploria

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

Menu

ÖZGÜL v. TURKEY

ÖZGÜL v. TURKEY

LEXI