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.