PROCEDURE

The case originated in an application (no. 36590/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Göç (“the applicant”), on 28 April 1997. The application was registered on 20 June 1997.

The applicant, who had been granted legal aid, was represented by Mr G. Dinç, a lawyer practising in İzmir (Turkey). The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Chamber which initially examined the case. They subsequently designated Mr M. Özmen as Agent when the case was referred to the Grand Chamber (see paragraph 7 below ).

The applicant alleged that the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 5 and 6 of the Convention.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 6 April 2000 the application was declared partly admissible as regards the applicant's complaints under Article 6 of the Convention by a Chamber of that Section composed of Mr G. Ress, President, Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr R. Türmen, Mr V. Butkevych, Mr J. Hedigan, judges, and Mr V. Berger, Section Registrar.

On 9 November 2000 the Chamber delivered its judgment in which it held, unanimously, that there had been a violation of Article 6 of the Convention with respect to the applicant's lack of opportunity to respond to the submissions of the Principal Public Prosecutor at the Court of Cassation. It also held, unanimously, that it was not necessary to examine separately the applicant's complaint concerning the absence of an oral hearing in the domestic proceedings. The Chamber further held that the above finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage allegedly sustained by the applicant and that the respondent State was to pay the applicant FRF 10,000 (ten thousand French francs), in respect of costs and expenses, together with any value-added tax that might be chargeable, to be converted into Turkish liras at the rate applicable at the date of settlement, less FRF 4,100 (four thousand one hundred French francs) received by way of legal aid to be converted into Turkish liras at the rate applicable on 9 November 2000. The separate opinion of Judges Makarczyk and Türmen was annexed to the judgment.

On 15 January 2001 the applicant requested, pursuant to Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber, maintaining that the Chamber should have addressed the merits of his complaint regarding the absence of an oral hearing in the domestic proceedings. On 12 February 2001 the Government also filed a request for referral on the basis of the same provisions, contending that the Chamber had erred in its approach to the issue of non-communication of the Principal Public Prosecutor's opinion and should not have found a violation of Article 6. A panel of the Grand Chamber decided to refer the case to the Grand Chamber on 5 September 2001.

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The applicant and the Government filed memorials with the Registry on 12 November 2001 and 15 January 2002, respectively.

A hearing before the Grand Chamber took place in public in the Human Rights Building, Strasbourg, on 6 March 2002 (Rule 59 § 2). There appeared before the Court: (a) for the Government Mr M. Özmen, Agent, Mrs D. Bulutlar Ulusoy, Adviser; (b) for the applicant Mr G. Dinç, of the İzmir Bar, Counsel. The applicant was also present. The Court heard addresses by Mr Dinç, Mr Özmen and Mrs Bulutlar Ulusoy, and also their replies to questions from its individual members.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

At the material time the applicant was employed as a clerk in the İzmir 2nd Court of Taxation. On 18 July 1995 the İzmir Civil Court of General Jurisdiction forwarded the name and workplace of the applicant to the İzmir public prosecutor's office, stating that the applicant was suspected of having stolen and falsified court documents relating to a decided divorce case.

On 25 July 1995 the office of the public prosecutor referred the case to the İzmir Security Directorate.

At 5.10 p.m. on 25 July 1995 the applicant was taken into police custody and detained at the İzmir Security Directorate. He was accused of the above offences. The applicant gave a statement in which he denied that he had been involved in the incident relating to the court's case file. The applicant later claimed that he was not permitted to contact his family or consult a lawyer and that he was insulted and beaten for two hours.

Two other suspects were also detained and statements were taken from them. A statement was also taken from A.B., a party to the divorce proceedings.

On 27 July 1995 an investigation record was drawn up for the applicant and the two other suspects. At 5 p.m. on the same day the applicant was released pursuant to the decision of the public prosecutor. The two other suspects were kept in custody.

In the evening of 27 July 1995, following his release, the applicant went to the İzmir State Hospital. He was subsequently granted four days' sick leave by his employer. The medical report prepared at the hospital referred to the fact that the applicant was suffering from a common skin disease caused by the inflammation of the roots of his facial hair.

On 31 July 1995 the office of the public prosecutor of Karşıyaka decided not to bring charges against the applicant (takipsizlik kararı) for lack of evidence. The decision was served on the applicant on 19 August 1995.

The public prosecutor took a statement from the applicant on 28 August 1995. In his statement the applicant declared that he had applied to the Ministry of Justice to have proceedings brought against the individual who had reported him to the authorities.

On 29 August 1995 the public prosecutor decided not to bring charges against the person named by the applicant.

On 5 September 1995 the applicant filed a complaint under Law no. 466 with the Karşıyaka Assize Court (Ağır Ceza Mahkemesi) against the Treasury requesting 200,000,000 Turkish liras (TRL) by way of compensation for his detention between “24 and 27 July 1995”. In the petition, the applicant's lawyer stated, inter alia, that the applicant, while in detention, had been tortured and ill-treated by being beaten and insulted for two hours and deprived of his right to contact his family and a lawyer. As a result of his injuries, the applicant had had to take four days' sick leave. Furthermore, the applicant's reputation had suffered. He did not rely on any specific section of Law no. 466.

On 14 September 1995 the three-judge Karşıyaka Assize Court appointed one of its members (naip hakim) to investigate the case and draft a report. The judge designated for this purpose verified, inter alia, that the office of the public prosecutor of İzmir had dropped the charges against the applicant. He also obtained information about the applicant's personal, financial and social status. The judge found that the evidence obtained was sufficient to enable him to draft his report and decided in the exercise of his discretion under section 3 of Law no. 466 that it was unnecessary to hear the applicant. The public prosecutor was asked for his written observations on the applicant's claim. On 7 December 1995 the public prosecutor, as required by Law no. 466, submitted his opinion to the Karşıyaka Assize Court. The public prosecutor noted that the applicant was taken into custody on 25 July 1995, and not on 24 July 1995 as claimed, and was released on 27 July 1995. The public prosecutor recommended that the applicant be granted compensation for non-pecuniary damage in an amount to be assessed by the court. This opinion was not served on the applicant.

The judge stated in his report of 7 December 1995 to the President of the Karşıyaka Assize Court, inter alia, that the applicant had been detained for two days from 25 July to 27 July 1995 and upon his release had obtained a medical report which indicated that he had been assaulted (darp edildiği). The judge noted that the applicant had been given four days' sick leave by his employer. He further observed that, at the time when he was taken into custody, the applicant had been working in the İzmir 2nd Court of Taxation, had been paying TRL 3,000,000 in rent, was divorced and had two children. The judge concluded: “The complainant requested that he be granted the sum of TRL 200,000,000 in compensation. In determining the amount of compensation the court should consider both the complainant's economic and social position as well as the intensity of his emotional suffering. In the light of the above facts, I propose that the court grant the amount of compensation requested by the complainant.”

On 7 December 1995 the Karşıyaka Assize Court found that the applicant had been detained for two days and qualified for compensation. In its judgment, the court took note of all the complaints set out in the petition lodged by the applicant's lawyer as well as the content of the judge's report and the written submissions of the public prosecutor (see paragraphs 21 and 22 above). The court concluded that “... at the time he was taken into custody, the applicant had been working in the İzmir Tax Court, had been paying TRL 3,000,000 in rent, and was divorced with two children. The complainant requested that the court award him TRL 200,000,000, including interest, for the non-pecuniary damage suffered. The court considers that, in determining the amount of compensation, it should have regard both to the complainant's economic and social position as well as the intensity of his emotional suffering. In the light of the above facts and having considered the above criteria, the court concludes that the sum of TRL 10,000,000 should be awarded to the complainant”. The court also awarded the applicant TRL 1,500,000 for his legal costs.

The applicant's lawyer and the Treasury both appealed against the award. The applicant's lawyer contended on appeal that the amount of compensation was insufficient reparation for his wrongful arrest and detention. He did not challenge the dates of detention as determined by the court. The Treasury considered that the amount awarded was excessive. According to the relevant rules governing the functioning of the Court of Cassation in litigation of this nature, the case file at the Karşıyaka Assize Court was referred to the competent division of the Court of Cassation through the intermediary of the office of the public prosecutor at the Court of Cassation. On 17 October 1996 the Principal Public Prosecutor submitted his opinion on the merits of both parties' appeals. In his written opinion (tebliğname) to the Sixth Criminal Division of the Court of Cassation (Yargıtay), the Principal Public Prosecutor stated that, having regard to the first-instance proceedings, the evidence collected, the subject matter of the claim and the discretion of the first-instance court, neither of the parties had grounds for appeal. He advised that both appeals be rejected and that the first-instance judgment be approved, being in compliance with procedural rules and law. This opinion was not submitted to the applicant.

On 7 November 1996 the Sixth Criminal Division of the Court of Cassation, having regard, inter alia, to the opinion of the Principal Public Prosecutor, upheld the judgment of 7 December 1995.

According to information submitted by the Government, the applicant never applied to obtain the compensation awarded to him by the Karşıyaka Assize Court.
NOT_CONFIDENTIAL
check
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CODE
DIRECT
36590/97
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Republic of Turkey
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DEM
NO_MASK
Turkish
NOT_CONFIDENTIAL
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PERSON
DIRECT
Mr Mehmet Göç
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DATETIME
QUASI
28 April 1997
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20 June 1997
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Mr G. Dinç
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QUASI
İzmir (Turkey)
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Turkish Government
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Mr M. Özmen
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6 April 2000
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Mr G. Ress
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Mr A. Pastor Ridruejo
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Mr L. Caflisch
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QUASI
Mr J. Makarczyk
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QUASI
Mr R. Türmen
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QUASI
Mr V. Butkevych
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PERSON
QUASI
Mr J. Hedigan
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Mr V. Berger
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QUASI
9 November 2000
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Court of Cassation
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QUANTITY
QUASI
FRF 10,000 (ten thousand French francs)
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NO_MASK
Turkish liras
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QUANTITY
QUASI
FRF 4,100 (four thousand one hundred French francs)
NOT_CONFIDENTIAL
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NO_MASK
Turkish liras
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DATETIME
QUASI
9 November 2000
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Makarczyk
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Türmen
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DATETIME
QUASI
15 January 2001
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QUASI
12 February 2001
NOT_CONFIDENTIAL
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ORG
NO_MASK
Principal Public Prosecutor
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QUASI
5 September 2001
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QUASI
12 November 2001
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QUASI
15 January 2002
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LOC
NO_MASK
Human Rights Building, Strasbourg
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DATETIME
QUASI
6 March 2002
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QUASI
Mr M. Özmen
NOT_CONFIDENTIAL
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PERSON
QUASI
Mrs D. Bulutlar Ulusoy
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PERSON
QUASI
Mr G. Dinç
NOT_CONFIDENTIAL
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ORG
QUASI
İzmir Bar
NOT_CONFIDENTIAL
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PERSON
QUASI
Mr Dinç
NOT_CONFIDENTIAL
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QUASI
Mr Özmen
NOT_CONFIDENTIAL
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PERSON
QUASI
Mrs Bulutlar Ulusoy
NOT_CONFIDENTIAL
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DEM
QUASI
clerk
NOT_CONFIDENTIAL
check
001-60597_a3_e41
001-60597_a3_em46
ORG
QUASI
İzmir 2nd Court of Taxation
NOT_CONFIDENTIAL
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001-60597_a3_em47
DATETIME
QUASI
18 July 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e43
001-60597_a3_em48
ORG
QUASI
İzmir Civil Court of General Jurisdiction
NOT_CONFIDENTIAL
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ORG
QUASI
İzmir public prosecutor's office
NOT_CONFIDENTIAL
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001-60597_a3_e45
001-60597_a3_em50
MISC
QUASI
decided divorce case
NOT_CONFIDENTIAL
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001-60597_a3_em51
DATETIME
QUASI
25 July 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e47
001-60597_a3_em52
ORG
QUASI
İzmir Security Directorate
NOT_CONFIDENTIAL
check
001-60597_a3_e48
001-60597_a3_em53
DATETIME
QUASI
5.10 p.m.
NOT_CONFIDENTIAL
check
001-60597_a3_e46
001-60597_a3_em54
DATETIME
QUASI
25 July 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e47
001-60597_a3_em55
ORG
QUASI
İzmir Security Directorate
HEALTH
check
001-60597_a3_e49
001-60597_a3_em56
MISC
NO_MASK
beaten
NOT_CONFIDENTIAL
check
001-60597_a3_e50
001-60597_a3_em57
DATETIME
QUASI
two hours
NOT_CONFIDENTIAL
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PERSON
QUASI
A.B.
NOT_CONFIDENTIAL
insert
001-60597_a3_e45
001-60597_a3_em59
MISC
QUASI
001-60597_a3_em50
divorce proceedings
NOT_CONFIDENTIAL
check
001-60597_a3_e52
001-60597_a3_em60
DATETIME
QUASI
27 July 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e53
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DATETIME
QUASI
5 p.m.
NOT_CONFIDENTIAL
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DATETIME
QUASI
27 July 1995
HEALTH
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İzmir State Hospital
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MISC
NO_MASK
granted four days' sick leave
NOT_CONFIDENTIAL
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DATETIME
QUASI
four days'
HEALTH
insert
001-60597_a3_e57
001-60597_a3_em66
DEM
NO_MASK
skin disease caused by the inflammation of the roots of his facial hair
NOT_CONFIDENTIAL
check
001-60597_a3_e58
001-60597_a3_em67
DATETIME
QUASI
31 July 1995
NOT_CONFIDENTIAL
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001-60597_a3_e59
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ORG
QUASI
public prosecutor of Karşıyaka
NOT_CONFIDENTIAL
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001-60597_a3_em69
DATETIME
QUASI
19 August 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e61
001-60597_a3_em70
DATETIME
QUASI
28 August 1995
NOT_CONFIDENTIAL
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001-60597_a3_e62
001-60597_a3_em71
DATETIME
QUASI
29 August 1995
NOT_CONFIDENTIAL
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001-60597_a3_e63
001-60597_a3_em72
DATETIME
QUASI
5 September 1995
NOT_CONFIDENTIAL
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001-60597_a3_e64
001-60597_a3_em73
ORG
QUASI
Karşıyaka Assize Court (Ağır Ceza Mahkemesi)
NOT_CONFIDENTIAL
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001-60597_a3_e65
001-60597_a3_em74
ORG
NO_MASK
Treasury
NOT_CONFIDENTIAL
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001-60597_a3_e66
001-60597_a3_em75
QUANTITY
QUASI
200,000,000 Turkish liras (TRL)
NOT_CONFIDENTIAL
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001-60597_a3_e67
001-60597_a3_em76
DATETIME
QUASI
24 and 27 July 1995
HEALTH
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001-60597_a3_e68
001-60597_a3_em77
MISC
NO_MASK
tortured and ill-treated
HEALTH
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001-60597_a3_e49
001-60597_a3_em78
MISC
NO_MASK
beaten
NOT_CONFIDENTIAL
check
001-60597_a3_e50
001-60597_a3_em79
DATETIME
QUASI
two hours
NOT_CONFIDENTIAL
check
001-60597_a3_e56
001-60597_a3_em80
DATETIME
QUASI
four days'
HEALTH
insert
001-60597_a3_e69
001-60597_a3_em81
MISC
NO_MASK
four days' sick leave
NOT_CONFIDENTIAL
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001-60597_a3_e70
001-60597_a3_em82
DATETIME
QUASI
14 September 1995
NOT_CONFIDENTIAL
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ORG
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001-60597_a3_em73
Karşıyaka Assize Court
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001-60597_a3_e71
001-60597_a3_em84
ORG
QUASI
office of the public prosecutor of İzmir
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001-60597_a3_em85
DATETIME
QUASI
7 December 1995
NOT_CONFIDENTIAL
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001-60597_a3_em86
ORG
QUASI
Karşıyaka Assize Court
NOT_CONFIDENTIAL
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001-60597_a3_e46
001-60597_a3_em87
DATETIME
QUASI
25 July 1995
NOT_CONFIDENTIAL
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001-60597_a3_e73
001-60597_a3_em88
DATETIME
QUASI
24 July 1995
NOT_CONFIDENTIAL
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001-60597_a3_e52
001-60597_a3_em89
DATETIME
QUASI
27 July 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e72
001-60597_a3_em90
DATETIME
QUASI
7 December 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e64
001-60597_a3_em91
ORG
QUASI
Karşıyaka Assize Court
NOT_CONFIDENTIAL
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001-60597_a3_e74
001-60597_a3_em92
DATETIME
NO_MASK
two days
NOT_CONFIDENTIAL
check
001-60597_a3_e75
001-60597_a3_em93
DATETIME
QUASI
25 July
NOT_CONFIDENTIAL
check
001-60597_a3_e52
001-60597_a3_em94
DATETIME
QUASI
27 July 1995
NOT_CONFIDENTIAL
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001-60597_a3_e56
001-60597_a3_em95
DATETIME
QUASI
four days'
HEALTH
insert
001-60597_a3_e69
001-60597_a3_em96
MISC
NO_MASK
four days' sick leave
NOT_CONFIDENTIAL
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001-60597_a3_e41
001-60597_a3_em97
ORG
QUASI
İzmir 2nd Court of Taxation
NOT_CONFIDENTIAL
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001-60597_a3_e76
001-60597_a3_em98
QUANTITY
QUASI
TRL 3,000,000
NOT_CONFIDENTIAL
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001-60597_a3_e77
001-60597_a3_em99
DEM
QUASI
divorced
NOT_CONFIDENTIAL
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001-60597_a3_e78
001-60597_a3_em100
DEM
QUASI
two children
NOT_CONFIDENTIAL
insert
001-60597_a3_e79
001-60597_a3_em101
QUANTITY
QUASI
TRL 200,000,000
NOT_CONFIDENTIAL
check
001-60597_a3_e72
001-60597_a3_em102
DATETIME
QUASI
7 December 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e64
001-60597_a3_em103
ORG
QUASI
Karşıyaka Assize Court
NOT_CONFIDENTIAL
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001-60597_a3_e74
001-60597_a3_em104
DATETIME
NO_MASK
two days
NOT_CONFIDENTIAL
check
001-60597_a3_e80
001-60597_a3_em105
ORG
QUASI
İzmir Tax Court
NOT_CONFIDENTIAL
check
001-60597_a3_e76
001-60597_a3_em106
QUANTITY
QUASI
TRL 3,000,000
NOT_CONFIDENTIAL
check
001-60597_a3_e77
001-60597_a3_em107
DEM
QUASI
divorced
NOT_CONFIDENTIAL
check
001-60597_a3_e81
001-60597_a3_em108
DEM
QUASI
two children.
NOT_CONFIDENTIAL
check
001-60597_a3_e79
001-60597_a3_em109
QUANTITY
QUASI
TRL 200,000,000
NOT_CONFIDENTIAL
insert
001-60597_a3_e82
001-60597_a3_em110
QUANTITY
QUASI
TRL 10,000,000
NOT_CONFIDENTIAL
insert
001-60597_a3_e83
001-60597_a3_em111
QUANTITY
QUASI
TRL 1,500,000
NOT_CONFIDENTIAL
check
001-60597_a3_e65
001-60597_a3_em112
ORG
NO_MASK
Treasury
NOT_CONFIDENTIAL
check
001-60597_a3_e65
001-60597_a3_em113
ORG
NO_MASK
Treasury
NOT_CONFIDENTIAL
check
001-60597_a3_e22
001-60597_a3_em114
ORG
NO_MASK
Court of Cassation
NOT_CONFIDENTIAL
check
001-60597_a3_e64
001-60597_a3_em115
ORG
QUASI
Karşıyaka Assize Court
NOT_CONFIDENTIAL
check
001-60597_a3_e22
001-60597_a3_em116
ORG
NO_MASK
Court of Cassation
NOT_CONFIDENTIAL
insert
001-60597_a3_e22
001-60597_a3_em117
ORG
NO_MASK
Court of Cassation
NOT_CONFIDENTIAL
check
001-60597_a3_e84
001-60597_a3_em118
DATETIME
QUASI
17 October 1996
NOT_CONFIDENTIAL
check
001-60597_a3_e21
001-60597_a3_em119
ORG
NO_MASK
Principal Public Prosecutor
NOT_CONFIDENTIAL
insert
001-60597_a3_e85
001-60597_a3_em120
ORG
QUASI
Sixth Criminal Division of the Court of Cassation (Yargıtay)
NOT_CONFIDENTIAL
check
001-60597_a3_e21
001-60597_a3_em121
ORG
NO_MASK
Principal Public Prosecutor
NOT_CONFIDENTIAL
check
001-60597_a3_e86
001-60597_a3_em122
DATETIME
QUASI
7 November 1996 the
NOT_CONFIDENTIAL
insert
001-60597_a3_e85
001-60597_a3_em123
ORG
QUASI
001-60597_a3_em120
Sixth Criminal Division of the Court of Cassation
NOT_CONFIDENTIAL
check
001-60597_a3_e21
001-60597_a3_em124
ORG
NO_MASK
Principal Public Prosecutor
NOT_CONFIDENTIAL
check
001-60597_a3_e72
001-60597_a3_em125
DATETIME
QUASI
7 December 1995
NOT_CONFIDENTIAL
check
001-60597_a3_e64
001-60597_a3_em126
ORG
QUASI
Karşıyaka Assize Court
Mehmet Göç
TUR
GRANDCHAMBER
Task: Annotate the document to anonymise the following person: Mehmet Göç