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CASE OF YAĞCI AND SARGIN v. TURKEYDISSENTING OPINION OF JUDGE GÖLCÜKLÜ

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Document date: June 8, 1995

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CASE OF YAĞCI AND SARGIN v. TURKEYDISSENTING OPINION OF JUDGE GÖLCÜKLÜ

Doc ref: • ECHR ID:

Document date: June 8, 1995

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DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

1. I maintain the position I expressed in my dissenting

opinion in the case of Loizidou v. Turkey (judgment of

23 March 1995, Series A no. 310) concerning the question of the

validity of Turkey's declarations under Articles 25 and 46

(art. 25, art. 46) of the Convention.

2. Article 5 para. 3 (art. 5-3). When, on 22 January 1990,

Turkey recognised the Court's jurisdiction over "matters raised

in respect of facts, including judgments which are based on such

facts which have occurred subsequent to" that date, its intention

was to remove from the ambit of the Court's review events that

had occurred before the date on which the declaration made under

Article 46 (art. 46) of the Convention was deposited. The Court

acknowledges this: "Having regard to the wording of the

declaration Turkey made under Article 46 (art. 46) ..., the Court

... cannot entertain complaints about events which occurred

before 22 January 1990 and ... its jurisdiction ratione temporis

covers only the period after that date" (see paragraph 40). That

is correct and is patently obvious in view of the explicit

wording of Article 46 (art. 46).

3. However, the Court goes on to say: "... when examining

the complaints relating to Articles 5 para. 3 and 6 para. 1

(art. 5-3, art. 6-1) of the Convention, [the Court] will take

account of the state of the proceedings at the time when the

above-mentioned declaration was deposited" (see paragraph 40).

4. This assertion raises the question of the practical

consequences of this case-law, in other words the effect it has

on the merits of the case under consideration.

5. The Turkish declaration was made on 22 January 1990. The

applicants, who had been detained since 16 November 1987, lodged

an application for their release for the first time on

29 August 1988, that is to say nine months and thirteen days

after being deprived of their liberty (see paragraph 13); they

were provisionally released on 4 May 1990 (see paragraph 23),

only three months and eleven days after Turkey's declaration

under Article 46 (art. 46) of the Convention - a relatively short

period of time.

6. Article 6 para. 1 (art. 6-1). On 11 March 1988 the

public prosecutor's office brought proceedings against the

applicants; the trial opened on 8 June 1988. The case file was

very bulky. The defendants were represented by 400 lawyers (see

paragraphs 10-11).

7. At the time of the applicants' provisional release, the

legislative changes that were already under way with the aim of

repealing the Acts on which their indictment had been based were

making progress (see paragraph 23).

Articles 141, 142 and 143 of the Turkish Criminal Code,

under which Mr Yagci and Mr Sargin had been prosecuted, were

repealed, and as a result the court decided, on 10 June 1991, to

interrupt the reading out of the documents in the file relating

to those provisions and to read out the evidence relating to the

other charges. This process ended on 10 July 1991, one year,

four months and eighteen days after the Turkish declaration in

question. The proceedings could be considered as having really

ended on that date, since what happened subsequently was a mere

formality. And everything connected with the prosecution of the

applicants ended on 9 July 1992. Even if the proceedings are

regarded as having ended on the latter date, the trial lasted in

all for two years, five months and seventeen days after Turkey's

declaration under Article 46 (art. 46), which to my mind is not

excessive for a trial on such a scale.

8. It should be noted that on 11 July 1990 the applicants

themselves had asked the court to defer judgment, on the ground

that it would be advisable to await the outcome of the

proceedings brought in the Constitutional Court concerning the

dissolution of the Turkish Communist Party (see paragraph 24).

9. Even if one regards as appropriate and consistent with

the spirit of the Convention the Court's case-law to the effect

that, when assessing reasonableness for the purposes of

Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1), it will

take into account the period prior to the declaration made by

Turkey, the rule will, in my opinion, affect the outcome only

where the pointer of the scales is hovering on the line that

separates "reasonable" from "unreasonable".

10. We must bear in mind the fact that the provisions of

Article 25 and Article 46 (art. 25, art. 46) concerning time

limitations on them are totally and completely independent of

each other, and that a State may very well recognise the right

of individual petition without recognising the Court's

jurisdiction.

11. In the present case, the lines formed by the applicants'

provisional release after three months and eleven days

(Article 5 para. 3) (art. 5-3), and by the end of the

proceedings, one year, four months and eighteen days (or, if

preferred, two years, five months and seventeen days) after the

declaration made by Turkey under Article 46 (art. 46), cannot be

regarded as boundaries between "reasonable" and "unreasonable"

if account is taken of the conditions in which this trial was

conducted. Any other approach would mean confusing in an

unacceptable way the provisions of Articles 25 and 46 (art. 25,

art. 46) on limitations ratione temporis on the application of

those Articles (art. 25, art. 46).

12. I take the view that neither by applying the "evolutive

and progressive" method of interpretation it has adopted nor by

applying the principle of implementing the Convention in a

"useful" way, does the European Court of Human Rights have power

to modify the provision of Article 46 (art. 46) concerning

limitations ratione temporis to the point of rendering it

ineffective or negating its existence.

13. I therefore reach the conclusion, contrary to the opinion

of the majority, that Turkey has violated neither Article 5

para. 3 nor Article 6 para. 1 (art. 5-3, art. 6-1) of the

Convention.

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