SECOND SECTION

CASE OF N Ä°ZAMETTÄ°N GEZER v. TURKEY

( Application no. 16155/04 )

JUDGMENT

STRASBOURG

6 March 2012

This judgment is final but it may be subject to editorial revision.

In the case of Nizamettin Gezer v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Committee composed of:

Isabelle Berro-Lefèvre , President, Guido Raimondi , Helen Keller , judges, and Françoise Elens-Passos , Deputy Section Registrar ,

Having deliberated in private on 14 February 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 16155/04) 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 nati onal, Mr Nizamettin Gezer (“the applicant”), on 15 March 2004 .

2 . The applicant was represented by Mr S. Zilan and Mr M. Atalay , lawyers practising in Diyarbakır . The Turkish Government (“the Government”) were represented by their Agent .

3 . On 27 August 2009 the application was communicated to the Government .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1965 and lives in Diyarbakır .

5 . On 29 March 1998 the applicant was arrested on suspicion of being a member of Hizbullah , an illegal organisation.

6 . On 5 April 1998, the Diyarbakır State Security Court ordered the applicant ’ s pre-trial detention.

7 . On 15 May 1998 the Diyarbakı r Public Prosecutor fil ed a bill of indictment accusi ng the applicant , along with 94 others , of members hip of an illegal organisation.

8 . On 27 May 1998 t he criminal proceedings were initiated before the Diyarbak ı r State Security Court .

9 . On 23 July 1998 the applic ant was released pending trial.

10 . On an unspecified date, the applicant was dismissed from his post at a factory of the General Directorate of State Monopolies (TEKEL) due to his detention . His reinsta tement request was rejected by the administration on 13 August 1998 , stating that his request could be considered on the submission of decision of acquittal.

11 . Subsequent to the abolition of State Security Courts, the applicant ’ s case was resumed before the Diyarbakır Assize Court as from 6 July 2004.

12 . On 22 November 2005 the case brought against the applicant and forty five others were separated and registered under a new reference number (case file no.2005/223) .

13 . On 28 February 2006, the Diyarbakır Assize Court decided to discontinue the proceedings against the applicant, holding that t he prosecution was time-barred.

14 . On 29 March 2006 the judgme nt was served on the applicant and became final on 5 April 2006.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

15 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” r equirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“ In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal... ”

16 . The Government put forward various preliminary objections concerning non-exhaustion of domestic remedies and asked the Court to dismiss the complaints under Article 6 § 1 of the Convention, as required by Article 35 § 1 of the Convention. They further contended that the impugned proceedings could not be considered to have been excessively long in view of the complexity of the case and the number of the accused persons involved . They concluded therefore that there had been no delay in the proceedings that may be attributable to the State.

17 . The Court notes that it has already examined similar submissions made by the respondent Government in Daneshpayeh v. Turkey (no. 21086/04, §§ 35-38, 16 July 2009). The Government have not submitted any arguments which could lead the Court to reach a different conclusion in the instant case. Consequently, the Court rejects the Government ’ s preliminary objections.

18 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

19 . The period to be taken into consideration began on 29 March 1998 and ended on 28 February 2006. It thus lasted approximately seven years and eleven months for one level of jurisdiction .

20 . 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. 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 fa iled to meet the “reasonable time” requirement (see Daneshpayeh , cited above , § 28, and Pélissier and Sassi v. France [GC] , no. 25444/94, § 67, ECHR 1999 ‑ II ).

There has accordingly been a breach of Article 6 § 1 .

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

21 . The applicant complained that there was no domestic remedy available under the Turkish law whereby he could challenge the excessive length of proceedings. He relied on Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ... ”

22 . The Government argued that the applicant could have brought action before the administrative and civil courts or have sought reparation for the damages he allegedly suffered.

23 . As this complaint is linked to the above complaint under Article 6, it must therefore also be declared admissible The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicant could have contested the length of the proceedings at issue ( see Daneshpayeh , cited above, § § 37 and 51 ; and Bahçeyaka v. Turkey , no. 74463/01, §§ 26-30, 13 July 2006 ; and Tendik and Others v. Turkey , no. 23188/02, §§ 34-39, 22 December 2005). It finds no reason to depart from that conclusion in the present case.

There has accordingly been a breach of Article 13.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24 . The applicant complained under Article 6 § 2 that his ri ght to be presumed innocent had been violated as he had been dismissed from his work and had not been reinstated on account of the criminal proceedings initiated against him.

25 . The Court notes that the proceedings against the applicant were discontinued as the prosecution of the offences had become time-barred. Consequently, the applicant was not convicted and cannot claim to be a victim of the alleged violation of Article 6 of the Convention ( Er v. Turkey ( dec .), no. 21377/04, 18 November 2008). It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

IV . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

27 . Without specifying an amount, the applicant asked the Court to make an award for non-pec uniary damage due to his mental and physical suffering and distress . He also claimed 144 ,000 Turkish liras (TRY – approximately 60,000 euros (EUR)) in respe ct of pecuniary damage referring mainly to the salary he had been deprived of during the lengthy proceedings .

28 . The Government submitted that no award should be made as the applicant failed to produce any concrete evidence to prove his alleged loss.

29 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, r uling on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B. Costs and expenses

30 . The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.

C. Default interest

31 . The Court considers it appropriate that the default interest rate 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 complaint s concerning the excessive length of the proceedings and lack of effective remedy admissible and the remainder of the application inadmissible;

2 . Holds that there have been violation s of Article 6 § 1 and 13 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant , within three months , EUR 6,000 (six thousand euros ) to be converted into Turkish liras at the rate applicable at the date of settlement , plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 poin ts;

4 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 6 March 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Isabelle Berro-Lefèvre              Deputy Registrar              President