PROCEDURE

The case originated in an application (no. 28137/02) 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 Şahin Çağdaş (“the applicant”), on 25 March 2002.

The applicant was represented by Mr S. Çetinkaya, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The applicant alleged that his detention for two months and twenty three-days contravened Article 5 §§ 1 and 5 of the Convention. He complained under Article 6 of the Convention that the written opinions which the Principal Public Prosecutors submitted to the Izmir Assize Court and to the Court of Cassation on the merits of his claim and appeal, respectively, had never been served on him, thus depriving him of the opportunity to put forward his counter-arguments.

The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 15 March 2005 the Court decided to communicate the application to the Government. In a letter of 18 March 2005, the Court informed the parties that, in accordance with Article 29 §§ 1 and 3 of the Convention, it would decide on both the admissibility and merits of the application.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1966 and lives in İzmir.

On 10 May 2000 the applicant was arrested on suspicion of having aided and abetted an illegal organisation, namely the PKK (the Kurdistan Workers' Party), in March 1995.

On 12 May 2000 a Magistrates' Court in criminal matters ordered the applicant's detention on remand.

On 23 May 2000 the Principal Public Prosecutor at the Izmir State Security Court filed an indictment charging the applicant with aiding and abetting an illegal terrorist organisation. In particular, the Public Prosecutor accused the applicant of having been involved in illegal activities in March 1995, notably sheltering members of the PKK, acting as their courier and recruiting new members for the organisation. The charges were brought under Article 169 of the now defunct Criminal Code. The Public Prosecutor asked the State Security Court to increase by half the penalty to be imposed on the applicant in application of Article 5 of Law no. 3713 (the Anti-terrorism Act) and Articles 31, 33 and 40 of the former Criminal Code.

On 3 August 2000 the applicant was released pending trial.

On 2 November 2000 the Izmir State Security Court discontinued the prosecution against the applicant, holding that the five year statutory time-limit laid down in Articles 102 § 4 and 104 § 2 of the Criminal Code had expired. The court noted that the offence in question had allegedly been committed in March 1995, whereas the indictment had been filed on 23 May 2000, i.e. more than five years after the commission of the alleged offence. It further found that the applicant had not been involved in any illegal activity during this time.

On 16 March 2001 the applicant filed a complaint under Law no. 466 with the Izmir Assize Court (Ağır Ceza Mahkemesi) against the Treasury, requesting 10,500,000,000 Turkish liras (TRL) by way of compensation for his detention between 10 May and 3 August 2000.

On 21 March 2001 the three-judge Izmir Assize Court appointed one of its members (naip hakim) to investigate the case and draft a report. On the same day, the judge-rapporteur decided to ask the Principal Public Prosecutor for his written observations on the applicant's claim.

On 21 March 2001 the Principal Public Prosecutor, as required by Law no. 466, submitted his opinion to the Izmir Assize Court. The Public Prosecutor noted that the criminal proceedings against the applicant had been discontinued because they had been time-barred, within the meaning of Articles 102 § 4 and 104 § 2 of the Criminal Code. The Public Prosecutor submitted that the applicant should not be granted compensation for non‑pecuniary damage since Law no. 466 did not provide for the possibility of compensation for cases concerning the discontinuation of criminal proceedings. This opinion was not served on the applicant.

The judge-rapporteur submitted his report to the Izmir Assize Court, recommending that the latter should not to accede to the applicant's claim.

On 28 March 2001 the Izmir Assize Court dismissed the applicant's claim for compensation, considering that he was not entitled to compensation under Law no. 466. The court held that section 1 of Law no. 466 provided an exhaustive list of situations for an award of compensation and that the applicant's circumstances did not fall within any of these categories.

On 1 October 2001 the applicant appealed to the Court of Cassation. He argued that he was not only unlawfully held in detention but was also deprived of the opportunity to be acquitted of the charges as a result of the Izmir State Security Court's decision to discontinue the proceedings. He therefore asked the Court of Cassation to quash the Assize Court's judgment and to award compensation.

On 2 October 2001, according to the relevant rules governing the functioning of the Court of Cassation in litigation of this nature, the case‑file of the Izmir 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 8 January 2002 the Principal Public Prosecutor submitted his opinion on the merits of the applicant's appeal. In his written opinion (tebliğname) to the Ninth Criminal Division of the Court of Cassation, 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, the appeal was unfounded. He advised that the appeal be rejected and that the first-instance judgment be approved, being in compliance with procedural rules and the law.

This opinion was not transmitted to the applicant.

On 5 February 2002 the Ninth Criminal Division of the Court of Cassation, having regard, inter alia, to the opinion of the Principal Public Prosecutor, upheld the judgment of 28 March 2001.