Last Updated on June 15, 2019 by LawEuro
SECOND SECTION
CASE OF İSHAK SAĞLAM v. TURKEY
(Application no. 22963/08)
JUDGMENT
STRASBOURG
10 July 2018
FINAL
10/10/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of İshak Sağlam v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 19 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22963/08) 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, Mr İshak Sağlam (“the applicant”), on 13 May 2008.
2. The applicant was represented by Mr K. Yıldız, a lawyer practising in London. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant alleged, in particular, that the criminal proceedings against him had lasted too long, that the trial court had failed to provide him with the opportunity to examine the witnesses against him and that he had not benefited from legal assistance during the preliminary investigation.He also raised several complaints under Articles 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.
4. On 2 May 2011 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1966 and lives in Diyarbakır.
6. At the time of the events he was a lawyer practising in that city.
7. On 18 April 2000 the applicant was questioned by the public prosecutor at the Diyarbakır State Security Court, on suspicion of membership of an illegal organisation, namely Hizbullah. The contents of a computer disk holding detailed information on the applicant’s background, which had been obtained by the security forces in a house belonging to Hizbullah, and police statements offourpeople, all of whom were accused of being members of the same illegal organisation, were read out to him during thequestioning. The applicant denied having any affiliation with the illegal organisation and contested the accuracy of the evidence presented to him. He maintained that he had assisted certain members of Hizbullah as a lawyer and that he always acted within the limits of his profession, without directing those people’s submissions as alleged. He further maintained that certain information in the illegal organisation’s background report, such as the ages of his siblings, was wrong and that this in itself proved that he had not provided the information. He did not benefit from the assistance of a lawyer during questioning.
8. On the same day the applicant gave statements before the investigating judge of the Diyarbakır State Security Court, this time together with his business partner, who was accused of being a member of the same illegal organisation. He reiterated his submissions given to the public prosecutor and added that the fact that he had provided legal assistance tosomemembers of the illegal organisation might have been perceived as a demonstration of support by certain people. The investigating judge refused the public prosecutor’s request for the applicant’s detention and decided that he should be released pending trial.
9. The following day, on 19 April 2000, the public prosecutor objected to the applicant’s release. The applicant was subsequently arrestedon the basis of a warrant issued by the Diyarbakır State Security Court.
10. On 20 April 2000 the applicant was taken before the investigating judge, who decided that he should be detained on remand.
11. On the same day the public prosecutor filed a billof indictment with the Diyarbakır State Security Court, accusing the applicant of membership of an illegal organisation. He relied on the police statements of the four witnesses as well as the background information obtained from the computer disk.
12. On an unspecified date the applicant’s lawyers lodged a petition with the trial court. They argued that there was no evidence against the applicant in that all of the witnesses relied on by the prosecution had denied their statements later on. They further stated that the background information obtained from the computer disk was not reliable.
13. At the hearing on 30 May 2000 the applicant’s lawyers once again challenged the use of the background information obtained from the computer disk, arguing that it was unreliable in that the disk had been de-encrypted and the information extracted in their absence. During the same hearing, the court noted that the four witnesses, who had mentioned the applicant in their police statements, had denied those submissions during the subsequent stages of the proceedings against them. The court held that the applicant should be released pending trial.
14. On 3 September 2001, following statements made by a certain M.S.B., the public prosecutor drew up another bill of indictment against the applicant, once again accusing him of membership of an illegal organisation. The allegations put forward by this latter indictment were joined with the case which was already pending before the State Security Court.
15. At the hearing on 4 December 2001, during whichthe applicant was not present, M.S.B.’s police statements were read out. On 30 April 2002 the court noted that M.S.B. had denied those statements at a later point.
16. On an unspecified date the public prosecutor submitted his written observations to the court. He argued that the applicant’s guilt was proven by various items of evidence, namelythe background report prepared in respect of him, which contained detailed personal information, as well asthe background reports and police statements of several other members of Hizbullah. In that connection, he referred to the statements of a certain N.S., whohadmaintained before both the police and the public prosecutorthat the applicant hadbeen a recruiter for the illegal organisation, had givencourses to new members and hadbeen incharge of certain cells. The public prosecutor also noted that the applicant’s name had been mentioned in the background reports of several members, including a certain Ş.A.
17. On 18 November 2003 the applicant’s lawyer applied forthe expansion of the investigation and the cross-examination of the witnesses who had confirmed the applicant’s membership of Hizbullah. He mentioned, in particular, the names of N.S. and Ş.A., who had given statements against the applicant. The applicant’s lawyer further challenged the credibility of these two witnesses’ statements. In that connection, he argued that N.S. had not repeated his police statements against the applicant at a later point as alleged by the public prosecutor in his written opinion. The lawyer further noted that Ş.A. had claimed to have taken courses run by the applicant until the latter started his military service andasked the trial court to obtain information as regards the dates the applicant had served in the army in order to prove that those allegations were not credible.
18. On 27 January 2004 the court refused the application for the expansion of the investigation, without stating anything as regards the cross-examination of witnesses.
19. On 23 March 2004 the applicant applied to benefit from the Reintegration of Offenders into Society Act (Law no. 4959).
20. During the course of the proceedings,the State Security Courts were abolished and the case was transferred to the Diyarbakır Assize Court.
21. At the hearing on 21 February 2006 the Assize Court read out the police statements of Ş.A., in which he had claimed that the applicant had acted as a mentor within the illegal organisation and had given courses to other members, including him, which had ended when the applicanthad started his military service. The trial court stated that although Ş.A. had reiterated his submissions in so far as they concerned himself before the public prosecutor and the investigating judge, he had not mentioned the applicant after his questioning by the police. The court nevertheless added the statements of N.S. and Ş.A. to the case file. The applicant’s lawyers maintained that they did not accept the statements against the applicant.
22. On 18 April 2006 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced him to six years and three months’ imprisonment. The court relied oncertain information obtainedfrom the computer disk,namely the background report on the applicant and reports concerning other members, as well as the statements of N.S. and Ş.A.It also refused the applicant’s application to benefit from Law no. 4959, finding that he had not disclosed any information about the structure of the illegal organisation.
23. The applicant appealed against the judgment. He argued that the trial court had failed to hear evidencefrom N.S. and Ş.A. despite his requests to that effectand that he had been deprived of the possibility to put his questions to them.
24. On 19 November 2007 the Court of Cassation upheld the judgment of the Diyarbakır Assize Court.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6§§ 1 AND 3 (c) AND (d) OF THE CONVENTION
25. The applicant complained of the excessive length of the criminal proceedings against him. He further argued that the proceedings had been unfair in that he had not benefited from legal assistance during the preliminary investigation stage, could not cross-examine the witnesses against him during the trial and had not had access to the other incriminating evidence against him, specifically the computer disk.He relied on Article 6 of the Convention, the relevant parts of which read as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …”
A. Admissibility
1. Length of the criminal proceedings
26. The Court observes that a new domestic remedy has been established in Turkey since the application of the pilot judgment procedure in the case of Ümmühan Kaplan v.Turkey (no.24240/07, 20March 2012). In the Court’s decision in the case of Turgut and Others v.Turkey (no. 4860/09, 26 March 2013) it declared a new application inadmissible on the grounds that the applicants had failed to exhaust the domestic remedies, that is to say the new remedy. In doing so, the Court considered in particular that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
27. The Court notes that in Ümmühan Kaplan (cited above, §77), it stressed that it could pursue the examination of applications of this type which had already been communicated to the Government. It further notes that in the present case the Government did not raise an objection in respect of the new domestic remedy.
28. In view of the above, the Court decides to pursue the examination of the present application. However, it notes that this conclusion is without prejudice to an objection that may ultimately be raised by the Government in the context of other communicated applications (see Hasan Yazıcı v. Turkey, no. 40877/07, §§ 71-73, 15 April 2014, and Gürbüz and Özçelik v. Turkey, no. 11/05, §§ 19-21, 2 February 2016).
2. Six-month time-limit
29. The Government raised an objection as regards the six-month period, arguing that the application was lodged on 23 December 2008, that is, more than six months after the final decision of the Court of Cassation dated 19 November 2007.
30. The Court notes that at the time of the application, it considered the date of the introduction of an application to be the date of the first letter indicating an intention to lodge an application and giving some indication of its nature (see Chalkley v. the United Kingdom (dec.), no. 63831/00, 26 September 2002). It observes in the present case that the applicant sent such a letter on 13 May 2008, which was registered as the date ofintroduction of the application. On 23 December 2008 he submitted the completed application form to the Court. In the absence of a substantial interval between the first letter and the return of the completed application form, the Court finds no reason to review the introduction date of the application (contrastGaillard v. France (dec.), no. 47337/99, 11 July 2000, where the application was found inadmissible as a result of the twenty-month period between the initial communication and the completed application form). Accordingly, it dismisses the Government’s objection.
3. Conclusion
31. The Court notes that the complaints under this headare not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Length of the criminal proceedings
32. The applicant complained that the length of the proceedings against him had been incompatible with the “reasonable time” requirement laid down in Article6 § 1 of the Convention.
33. The Government contended that there had been no period of inactivity attributable to the domestic authorities. In that connection, they argued that the length of the proceedings could not be considered unreasonable in view of the complexity of the case, the difficulties faced in the determination of evidence due to the brutality of the illegal organisation, and the seriousness of the allegation against the applicant.
34. 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, the conduct of the applicant and the conduct of the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi [GC], no. 25444/94, § 67, ECHR 1999-II;Idalov v. Russia [GC], no. 5826/03, § 186, 22 May 2012;Vayiç v. Turkey, no. 18078/02, § 43, ECHR 2006‑VIII (extracts); and Gurban v. Turkey, no. 4947/04, § 39, 15 December 2015).
35. The Court observes that in the present case the period to be taken into consideration began on 18 April 2000 with the applicant’s questioning by the public prosecutor at the Diyarbakır State Security Court and ended on 19 November 2007 with the final decision of the Court of Cassation. The proceedings thus lasted for a period of seven years and seven months at two levels of jurisdiction.
36. It further notes that the case before the criminal court was not particularly complex. However, it took the trial court six years to deliver its judgment on the applicant’s case, without there being any delays attributable to him. During that period, the trial court mainly examined evidence obtained from the case files against other members of the illegal organisation and from a computer disk. Accordingly, the Court cannot give weight to the Government’s argument that the proceedings were delayed owing to the difficulties encountered in the determination of evidence.
37. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (seeÜmmühan Kaplan, cited above, §§ 46-48).
38. 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. In the light of its case-law on the subject, it finds in the instant case that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see Daneshpayeh v. Turkey, no. 21086/04, §28, 16July 2009, and Gürbüz and Özçelik, cited above, § 24)
39. There has accordingly been a violation of Article 6 § 1 of the Convention.
2. The applicant’s inability to cross-examine the witnesses against him
40. The applicant argued under Article 6 §§ 1 and 3 (d) of the Convention that he had not been able to examine the witnesses against him in person.
41. The Government maintained that the statements of other people, which had been considered as evidence by the trial court, had not been witness statements within the meaning of Article 6 § 3 (d) of the Convention, in that they had not been made directly in relation to the applicant but as part of the investigations against those people. They argued accordingly that such evidence could only be considered as collateral evidence. They further contended that the domestic court had delivered its judgment relying on a whole body of evidence which pointed to thefact that the applicant had been a lawyer who had practised according to the instructions of the illegal organisation Hizbullah. Lastly, referring to the Court’s Vidal v. Belgium judgment, they stated that Article 6 § 3 (d) left it to the national courts to assess whether it was appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system(Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235‑B).
(a) General principles
42. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision; it will therefore consider the applicant’s complaint under both provisions taken together (see Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).
43. The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment the Court will look at the proceedings as a whole, including the way in which the evidence was obtained, having regard not only to the rights of the defence but also to the interest of the public and the victims in seeing crime properly prosecuted (ibid., § 101).
44. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all the evidence against himmust normally be produced in his presence at a public hearing for the purpose of adversarial argument (ibid., § 103).
45. The principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him orher were admitted as evidence have been summarised and refined in the judgment of the Grand Chamber of 15 December 2011 in Al-Khawaja and Taheryv. the United Kingdom([GC], nos. 26766/05 and 22228/06, ECHR 2011). According to the principles developed in that judgment, it is necessary to examine in three steps the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who was not present and questioned at the trial were used as evidence (ibid., § 152). The Court must examine
(i) whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statement as evidence (ibid., §§ 119-25);
(ii) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction (ibid., §§ 119 and 126-47); and
(iii) whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid., § 147).
46. In the judgment of Schatschaschwili (cited above), the Court clarified the relationship between the above-mentioned three steps of the Al- Khawaja test when it comes to the examination of the compliance with the Convention of a trial in which untested incriminating witness evidence was admitted. It concluded that even where there were no good reasons for the non-attendance of a witness, the Court is still called upon to assess whether the witness statement was the sole or decisive evidence supporting the accused’s conviction and whether there were sufficient counterbalancing factors to secure a fair and proper assessment of the reliability of such evidence (ibid., §§ 113 and 116).
(b) Application of the general principles to the present case
(i) Whether there was good reason for the non-attendance of the witnesses at the trial
47. The Court notes first of all that both N.S. and Ş.A., whose statements the Diyarbakır Assize Court relied on in convicting the applicant, made their submissions during the course of the criminal proceedings against them. Although it is not clear whether those proceedings were conducted simultaneously with those against the applicant and whether the absent witnesses were in a place within the exclusive knowledge and control of the authorities, the Court observes that the trial court did not even attempt to summon them to a hearing and made no effort to determine their whereabouts. The Court concludes therefore that there were no good reasons for the witnesses’ absence from the trial hearings and the reading out of their pre-trial statements as evidence.
(ii) Whether the evidence of the absent witnesses was “sole or decisive”
48. As for whether the evidence of the absent witnesses was the sole or decisive basis for the applicant’s conviction, the Court notes that it is not in doubt that these statements did not constitute the only item of evidence on which the trial court relied in its judgment. The Court therefore needs to determine whether the evidence produced by these witnesses was “decisive” for the applicant’s conviction. In that connection, it notes that neither the trial court nor the Court of Cassation made an evaluation of the probative value of the absent witnesses’ statements. Accordingly, the Court must make its own assessment of the weight of the evidence given by N.S. and Ş.A., having regard to the strength of the additional incriminating evidence available (see Schatschaschwili, cited above, § 143; Poletan and Azirovikv. the former Yugoslav Republic of Macedonia, no. 26711/07 and 2 others, § 88, 12 May 2016; and Daştan v. Turkey, no. 37272/08, § 25, 10 October 2017).
49. The Court notes that besides the statements of the absent witnesses against the applicant, the Diyarbakır Assize Court relied on certain information obtained from a computer disk, which had been found at a house belonging to Hizbullah. That information consisted of the background report on the applicant and reports concerning several members of the illegal organisation, where his name was mentioned as a member. In that connection, the Court observes that during the course of the proceedings, the applicant’s lawyers challenged the reliability of the contents of the computer disk, arguing that they had been excluded from the extraction procedure. Moreover, the applicant stated that the background informationabout him contained substantial mistakes, which proved that it had not been provided by him. Nevertheless, the trial court did not examine further the impugned evidence or respond to the applicant’s allegations,nor did it provide the applicant with a copy of the computer disk. In view of the foregoing, the Court considersthat the only other incriminating evidence against the applicant remained untested and accordingly, its strength was not such as to corroborate his guilt.
50. In view of these elements, itconcludes that the statements of N.S. and Ş.A. were “decisive”, that is tosay determinative of the applicant’s conviction.
(iii) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured
51. Lastly, the Court will examine whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence. Among many other elements which could be relevant in this context, the following might be mentioned: the trial court’s approach to the untested evidence; the availability and strength of further incriminating evidence; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial (see Schatschaschwili, cited above, § 145). In that regard, the Court notes first of all, that neither the applicant nor his lawyers had the opportunity to question the absent witnesses at any stage of the proceedings.
52. The Court further notes that there is no indication in the domestic court’s judgment that it approached the statements given by N.S. and Ş.A. with any specific caution or that the fact that they had not testified and had not been cross-examined in person prompted it to attach less weight to their statements (see Paić v. Croatia, no. 47082/12, § 43, 29 March 2016, and Daştan, cited above, § 31). While it is true that the Diyarbakır State Security Court took account of the applicant’s arguments as regards the other witnesses’ subsequent denial of their police statements (see paragraphs 13 and 15 above), it did not evaluate whether that was the case for N.S. despite the applicant’s allegations to that effect. Moreover, although the Diyarbakır Assize Court, which took over the case following the abolition of the State Security Courts, noted that Ş.A. had not repeated his allegations against the applicant after his interview by the police, it went on to accept his police statements as evidence (see paragraph 21 above). In doing so, the trial court did not take any steps to assess the veracity of the evidence provided by Ş.A. by, for example, takingaccount ofthe applicant’s request to obtain further information concerning the dates of his military service.
53. The Court reiterates that one of the requirements of a fair trial is the possibility for the accused to confront the witnesses in the presence of a judge who must ultimately decide the case, because the judge’s observations on the demeanour and credibility of a witness may have consequences for the accused (see Hanu v. Romania, no. 10890/04, § 40, 4 June 2013, and Asatryan v. Armenia, no. 3571/09, § 61, 27 April 2017). The assessment of the trustworthiness of a witness is a complex task which usually cannot be achieved by a mere reading of his or her recorded words. In that connection, the Court notes that the statements of N.S. and Ş.A., given to the police,were not recorded on video and accordingly neither the domestic court nor the applicant had an opportunity to observe their conduct (see Daştan, cited above, § 33).
54. In view of the absence of any procedural guarantee and taking into account that the remaining incriminating evidence against the applicant was also untested, the Court considers thatthe absence of an opportunity for the applicant to examine or have examined the witnesses N.S. and Ş.A. at any stage of the proceedings rendered the trial as a whole unfair (see Gökbulut v. Turkey,no. 7459/04, § 70, 29 March 2016).
55. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
3. Alleged violation of Article 6 § 1 and 3 (c) of the Convention
56. The applicant complained under Article 6 § 1 and 3 (c) of the Convention that he had been denied legal assistance while giving his statements to the public prosecutor and the investigating judge. He further argued under Article 6 § 1 of the Convention that the other substantive evidence in his case, namely the computer disk, had been merely read out to him during the trial without him having hadany access to its content, and that its use by the trial court had run contrary to the principle of equality of arms.
57. In view of its finding of a violation under Article 6 §§ 1 and 3 (d) of the Convention (see paragraph 55 above), the Court considers that there is no need to make a separate ruling on these complaints (see Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3others, § 69, ECHR 2001 VIII, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 54, 24 May 2016).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
58. The applicant complained under Article 5 of the Convention that he had been detained unlawfully because of his legal representation of members of certain illegal organisations.
59. The Court observes that the applicant was released pending trial on 30 May 2000, more than six months before he lodged an application with the Court. Accordingly, the complaint is inadmissible for being outside of the six-month time-limit.
60. Relying on Article 6 § 1 of the Convention, the applicant maintained that he had not been tried by an independent and impartial tribunal. He also complained about the fact that he could not benefit from the Reintegration of Offenders into Society Act (Law no. 4959). He argued under Article 6 § 2 of the Convention that his right to be presumed innocent had been violated, alleging that he had been paraded before members of the press.
61. The applicant complained, under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, that his office had been searched unlawfully.
62. Lastly, he relied on Articles 13 and 14 of the Convention in conjunction with the above-mentioned Articles.
63. 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
64. 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
65. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
66. The Government contested these claims, considering the requested amount unsubstantiated and excessive.
67. The Court considers that the applicant must have suffered pain and distress as a result of the violations of the Convention which cannot be compensated solely by the Court’s findings in this respect. Ruling on an equitable basis, it awards him EUR 5,000 in respect of non-pecuniary damage.
68. The Court further notes that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Balta and Demirv. Turkey, no. 48628/12, §70, 23 June 2015).
B. Costs and expenses
69. The applicant claimed 10,050 pounds sterling(GBP) for lawyers’ fees and GBP 440 for other costs and expenses incurred before the Court.In support of his claims, he submitted detailed timesheets showing that his representative in the United Kingdom had carried out sixty-seven hours’ legal work on the application submitted to the Court. The remaining expenses were not supported by any documents.
70. The applicant also claimed EUR 2,558 for the costs and expenses incurred before the domestic courts by his representatives in Turkey.In that connection, he submitted the Diyarbakır Bar Association’s scale of fees.
71. The Government contested these claims, arguing that the applicant had failed to provide invoices or receipts substantiating that the alleged costs and expenses had actually been incurred.
72. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads.
C. Default interest
73. 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. Declaresthe complaints under Article 6 §§ 1 and 3 (c) and (d) of the Convention admissible and the remainder of the application inadmissible;
2. Holdsthat there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings;
3. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;
4. Holdsthat there is no need to examine the complaints under Article 6 §§ 1 and 3 (c) of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three monthsfrom the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts,to be converted into Turkish lirasat the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundredeuros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
6. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Robert Spano
Registrar President
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