PROCEDURE

1.  The case originated in two applications (nos. 7638/02 and 24146/04) 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, Ms Sakine Aba (“the applicant”), on 12 September 2001 and 5 May 2004 respectively.

2.  The applicant was represented by Mr A.A. Talipoğlu, a lawyer practising in . The Turkish Government (“the Government”) were represented by their Agent.

3.  On 26 September 2006 the Court decided to join the applications, declared them partly inadmissible (the complaints which had been raised in application no. 24146/04) and decided to communicate to the Government complaints concerning the applicant’s time in police custody – its length, an alleged absence of a right to compensation and a lack of legal assistance. It also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).

THE FACTS

4.  The applicant was born in 1965 and lives in . She was arrested and placed in police custody on suspicion of membership of an illegal organisation. During her custody period, she was interrogated by the police, the public prosecutor and the investigating judge respectively, in the absence of a lawyer. These statements were subsequently used for her conviction by the trial court.

The details of the application are indicated in the table below.

table-0

THE LAW

5.  Relying on Article 5 § 3 of the Convention, the applicant complained that the length of her police custody exceeded the reasonable time requirement. Under Article 5 § 5 of the Convention, she further maintained that she did not have any remedy whereby to seek compensation for the time she had spent in police custody. Finally, invoking Article 6 §§ 3 (c) of the Convention, the applicant complained that she had been denied the assistance of a lawyer during this same period.

6.  The Court notes that these complaints of the applicant are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

7.  As regards the complaint raised under Article 5 § 3 of the Convention, the Court notes that the applicant’s police custody lasted five days. It reiterates that in the case of Brogan and Others v. the United Kingdom,  (29 November 1988, § 62, Series A no. 145B), it held that detention in police custody which had lasted four days and six hours without judicial control fell outside the strict time constraints of Article 5 § 3 of the Convention, even if its purpose was to protect the community as a whole against terrorism. In the present case, the Court cannot accept that it was necessary to detain the applicant for five days without being brought before a judge or another officer authorised by law to exercise judicial power. There has accordingly been a violation of Article 5 § 3 of the Convention.

8.  As regards the complaint of an absence of a remedy in compensation under Article 5 § 5 of the Convention, the Court has examined the present case and finds no particular circumstances which would require it to depart from its established case-law on the matter, to the effect that, indeed, no such remedy was available to the applicant (see, Saraçoğlu and Others v. Turkey, no. 4489/02, §§ 50-53, 29 November 2007; Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007; Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007). There has accordingly been a violation of Article 5 § 5 of the Convention.

9.  Finally, as regards the complaint concerning the lack of legal assistance to the applicant during her police custody, the Court observes that it has already examined the same grievance in the case of Salduz v. Turkey and found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 ([GC], no. 36391/02, §§ 56-62, 27 November 2008). In the present case, it finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

10.  Concerning just satisfaction, the applicant claimed 423 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. Based on the Istanbul Bar Association’s scale of fees, she further requested EUR 4,772 in respect of her lawyer’s fees and EUR 583 in respect of costs and expenses.

11.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, in respect of non-pecuniary damage, ruling on an equitable basis, it awards EUR 3,000 to the applicant.

12.  It further considers that the most appropriate form of redress would be the re-trial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Salduz, cited above, § 72).

13.  According to its relevant case-law, in respect of costs and expenses, and in the light of the documents in its possession, the Court considers it reasonable to award the sum of EUR 1,500 to the applicant less the sum of EUR 850 received in legal aid from the Council of Europe.

14.  The Court further finds it appropriate that the default interest 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.  Declares the remainder of the applications admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 5 § 5 of the Convention;

4. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while in police custody;

5.  Holds

(a)  that the respondent State is to pay the applicant, within three months from 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 liras at the rate applicable at the date of settlement:

(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.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case was referred to the Court by Mr Ernst Lughofer and Mrs Anna Lughofer (“the applicants”), Austrian nationals, on 22 October 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It originated in an application (no. 22811/93) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 by the applicants. The applicants are represented by Mr E. Proksch, a lawyer practising in Vienna (Austria). The Government of Austria are represented by their Agent, Mr F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The applicants’ application to the Court referred to Article 48 as amended by Protocol No. 9, which Austria had ratified. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.

2.  Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with Article 5 § 4 thereof read in conjunction with Rule 100 § 1 and Rule 24 § 6 of the Rules of Court, a Panel of the Grand Chamber decided on 14 January 1999 that the case should be dealt with by a Chamber constituted within one of the Sections of the Court.

3.  In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section. The Chamber ultimately constituted within the Section included Mr. J.-P. Costa, Mr P. Kūris, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mrs H.S. Greve and Mr K. Traja.

4.  On 12 March 1999 the President of the Chamber invited the parties to submit a memorial on the issues of the case. By letter of 29 April 1999 the applicants informed the Court that they did not wish to submit a memorial; on 17 May 1999 the Government conceded that there had been a violation of Article 6 § 1 of the Convention in the circumstances of the case.

5.  After consulting the Agent of the Government and applicants’ lawyer the Chamber decided not to hold a hearing in the case.

AS TO THE FACTS

I.	THE CIRCUMSTANCES OF THE CASE

6.  The applicants' farm was the object of land consolidation proceedings (Zusammenlegungsverfahren) instituted by the Gmunden District Agricultural Authority (Agrarbezirksbehörde) on 22 February 1973.

7.  On 21 August 1984 the District Authority held a hearing at which the farmers concerned could express their wishes (Wunschverhandlung) and on 22 August 1985 the District Authority ordered the provisional transfer of the properties concerned, inter alia, land owned by the applicants. In July 1989 the District Authority issued a consolidation plan (Zusammenlegungsplan). The applicants appealed, claiming that they had not received adequate land in exchange for their parcels AK 2 and AK 8. On 5 July 1990 the Upper Austria Regional Land Reform Board (Landesagrarsenat) dismissed the applicants' appeal after an oral hearing held in private, but in the presence of the parties and their lawyer.

8.  On 25 September 1990 the applicants filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the above decision. They also asked the Court to hold an oral hearing.

9.  On 15 December 1992 the Administrative Court dismissed the complaint, rejecting at the same time, in accordance with Section 39 (2) no. 6 of the Administrative Court Act, the applicants' request for an oral hearing.

II.	RELEVANT DOMESTIC LAW

A.	Hearings before Land Reform Boards

10.  Section 9 (1) of the Federal Agricultural Proceedings Act (Agrarverfahrensgesetz) provided as follows:

"Land Reform Boards take their decisions after an oral hearing in the presence of the parties."

It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise.

By virtue of legislation enacted in December 1993 (Bundesgesetzblatt no. 901, p. 7160), hearings before Land Reform Boards are now public.

B.	Hearings before the Administrative Court

11.  Pursuant to Section 36 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), proceedings consist essentially in an exchange of written pleadings. If one of the parties so requests the Administrative Court may hold a hearing which is in principle held in public (Sections 39 (1) no. 1 and 40 (4)).

12.  Section 39 (1) of the Administrative Court Act provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 (2) no. 6, which was added to the Act in 1982, provides however:

"Notwithstanding a party's application ..., the Administrative Court may decide not to hold a hearing where ...

6. it is apparent to the Court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further."

PROCEEDINGS BEFORE THE COMMISSION

13.  The applicants applied to the Commission on 27 September 1993. They alleged, inter alia, a violation of Article 6 § 1 of the Convention on account of the lack of a public hearing in the land consolidation proceedings.

14.  The Commission declared the application (no. 22811/93) partly admissible on 16 April 1998. In its report of 9 September 1998 (former Article 31 of the Convention), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 of the Convention.

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

15.  By letter of 17 May 1999 the Government conceded that there had been a violation of Article 6 § 1 of the Convention in the circumstances of this application.

AS TO THE LAW

I.	ALLEGED VIOLATION OF aRTICLE 6 § 1 OF THE CONVENTION

16.  Article 6 § 1 of the Convention reads, insofar as relevant, as follows:

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing  ... by an independent and impartial tribunal ... .”

17.  The Government did not contest the opinion of the Commission on the allegation of a breach of this provision (see § 15 above).

18.  The Court sees no reason to disagree with the conclusion reached by the Commission, which, moreover, coincides with the Court’s own findings in the case of Stallinger and Kuso v. Austria (judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, pp. 677-680, §§ 38-51). It concludes in the present case that the failure to hold a public hearing in the land consolidation proceedings was not compatible with Article 6 § 1 of the Convention.

II.	APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  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.	Damages

20.  The applicants submitted that the pecuniary damage resulting from the improper procedure to which they were subject amounted to a total of 600,000 Austrian schillings (ATS). Moreover, as compensation for non-pecuniary damage they claimed an amount of ATS 50,000.

21.  In the Government’s submission, compensation could not be awarded on the basis of speculation as to what the outcome of the proceedings would have been had a public hearing taken place. If the Court should consider to award compensation at all under this head, the amount should not exceed ATS 100,000.

22.  The Court observes that the applicants have not sought to substantiate their claim for just satisfaction under Article 41. In any event, in so far as the claim may concern damage of a pecuniary nature, the Court cannot speculate as to the outcome of the proceedings had a public hearing taken place before the Administrative Court; the claim must therefore be rejected. As to non-pecuniary damage, the Court recalls its conclusion in the Stallinger and Kuso case that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction (op. cit. pp. 680-681, § 57). The Court is unable to find any features distinguishing the present case from that of Stallinger and Kuso which might justify a departure from the Court’s approach in that judgment. Accordingly, it concludes that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction for the applicants’ alleged non-pecuniary damage.

B.	Costs and expenses

23.  The applicants further claimed a total of ATS 81,172.82 in respect of costs and expenses incurred in the domestic proceedings and in those before the Convention organs. ATS 30,965.42 of this amount relate to the proceedings before the Commission and the Court. The Government made no comment on this claim.

24.  The Court finds that compensation for costs incurred in domestic proceedings may only be granted insofar as they were necessary in trying to prevent the violation found (see the König v. Germany judgment  of 10 March 1980 (Article 50), Series A no. 36, p.17, § 20). In the present case it does not appear from the applicants’ submissions that any specific costs were incurred in relation to the demand for an oral hearing. This part of the claim must therefore be rejected. As regards the costs for the proceedings before the Convention organs, the Court finds the claim reasonable, and consequently allows it in full.

C.	Default interest

25.  According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% per annum.

FOR THESE REASONS THE COURT UNANIMOUSLY

1.	Holds that there has been a violation of Article 6 § 1 of the Convention;

2.	Holds

3.	Dismisses unanimously, the remainder of the applicants’ claims for just satisfaction.

Done in English and notified in writing on 30 November 1999, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.