ECHR

In the case of Abdullah Altun v. Turkey,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Mr     B.M. Zupančič, President,
          Mr     J. Hedigan,
          Mr     R. Türmen,
          Mr     C. Bîrsan,
          Mr     V. Zagrebelsky,
          Mrs   A. Gyulumyan,
          Mr     David Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,

Having deliberated in private on 28 September 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 66354/01) 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, Abdullah Altun (“the applicant”), on 25 July 2000.

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

3. On 24 March 2005 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the applicant's right to a fair trial by an independent and impartial tribunal. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1972 and lives in Diyarbakır.

5. The applicant was a student in the Medical Faculty of the Diyarbakır Dicle University at the time of the events giving rise to the present application.

6. On 23 March 1995 the applicant was notified by an arrest warrant, which he signed, about the basis and the reasons for his arrest. On the same day he was taken into custody by the police officers from the Anti-Terror Branch of the Diyarbakır Security Directorate (Terörle Mücadele Şubesi) on suspicion of his involvement in the PKK.

7. On 5 April 1995 the police officers drafted a report of the re‑construction of events, which was signed by the applicant.

8. On 9 April 1995 the applicant gave a statement to the police, where he confessed that he had been involved in certain activities for the PKK.

9. On 10 April 1995 he was brought before the judge who ordered his detention on remand.

10. On 13 April 1995 the chief public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the latter charging the applicant under Article 125 of the Criminal Code with carrying out activities for the purpose of bringing about the secession of part of the national territory.

11. On 3 June 1999 the Diyarbakır State Security Court composed of two civilian judges and a military judge, convicted the applicant of the charges against him and sentenced him to death under Article 125 of the Criminal Code. Taking into account the applicant's behaviour during the trial, the death penalty was commuted to a life sentence. It is to be noted that the Diyarbakır State Security Court held thirty hearings and heard nineteen witnesses.

12. On 21 February 2000 the Court of Cassation upheld the judgment of the Diyarbakır Security Court.

13. On 1 March 2000 the decision of the Court of Cassation was pronounced in the presence of the applicant's lawyer.

14. On 25 April 2000, the Court of Cassation dismissed the applicant's request for rectification of decision.

II. RELEVANT DOMESTIC LAW AND PRACTICE

15. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).

THE LAW

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

A. As regards the independence and impartiality of the Diyarbakır State Security Court and the fairness of the proceedings

16. The applicant complained in the first place that he had not received a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of the Diyarbakır State Security Court, which tried and convicted him. He further alleged that he had been denied a fair hearing before the domestic courts since his conviction was based on his statement obtained under duress in the course of his detention in police custody. Finally, he claimed that he was deprived of his right to a lawyer during his detention in police custody. The applicant invoked Article 6 § 1 of the Convention, which in so far as relevant reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

17. The Government contested that argument.

1. Admissibility

18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

a) As to the independence and impartiality of the Diyarbakır State Security Court

19. The Government maintained that the State Security Courts had been established by law to deal with threats to the security and integrity of the State. They submitted that in the instant case there was no basis to find that the applicant could have any legitimate doubts about the independence of the Diyarbakır State Security Court. The Government further referred to the constitutional amendment of 1999 whereby military judges could no longer sit on such courts. Finally, they stated that the State Security Courts had been abolished as of 2004.

20. The Court notes that it has examined similar cases in the past and has found a violation of Article 6 § 1 of the Convention (see Özel, cited above, §§ 33-34; Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6 February 2003).

21. The Court sees no reason to reach a different conclusion in this case. It is understandable that the applicant who was prosecuted in a State Security Court for carrying out activities for the purpose of bringing about the secession of part of the national territory should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, he could legitimately fear that the Diyarbakır State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicants' fears as to the State Security Court's lack of independence and impartiality can be regarded as objectively justified (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1573, § 72 in fine).

22. In the light of the foregoing the Court finds that there has been a violation of Article 6 § 1 of the Convention in this respect.

b) As to the fairness of the proceedings

23. Having regard to its finding that the applicant's right to a fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant's complaints under Article 6 § 1 of the Convention (Işik v. Turkey, no. 50102/99, § 38-39, 5 June 2003).

B. As regards the length of proceedings

24. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention.

25. The Government stated that the length of the proceedings had not exceeded a reasonable time.

26. The Court notes that the proceedings began on 23 March 1995 when the applicant was taken into police custody and ended on 21 February 2000 when the Court of Cassation upheld the judgment of the Diyarbakır State Security Court. The proceedings thus lasted approximately four years and eleven months. During this period the Diyarbakır State Security Court held thirty hearings and heard twenty-six witnesses.

27. The Court recalls 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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, amongst many others, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

28. The Court considers that the present case was not particularly complex. As regards the conduct of the applicant, the Court observes that, it does not appear from the case-file that he contributed to the prolongation of the proceedings.

29. As to the conduct of the authorities, the Court observes that there is a substantial delay in the proceedings before the first-instance court. In this connection it points out that the Diyarbakır State Security Court took more than four years to render a decision on the case. During this period, on a number of occasions the court requested information from the authorities and suspended the hearings in order to wait for their replies. However, the administrative authorities had failed to deal with the case diligently by not submitting to the court the relevant information within the allotted time-limit and had caused a substantial delay to the proceedings. In the Court's opinion, four years before one instance is an excessively long period which cannot be justified with reference to the considerations of complexity. The Court therefore considers that no convincing justification for these excessive delays had been offered by the respondent Government.

30. The Court reiterates in this connection that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to decide cases within a reasonable time (see, among other authorities, Pélissier and Sassi, cited above, § 74).

31. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

32. In the light of the foregoing, the Court finds that there has been a violation of Article 6 § 1 of the Convention in this respect.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. 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

34. The applicant claimed a total of 1,813,000 euros (EUR) in respect of pecuniary damage. He further claimed a total of EUR 100,000 for non‑pecuniary damage.

35. The Government disputed these claims.

36. As regards the alleged pecuniary damage sustained by the applicant, the Court observes that he has not produced any document in support of his claim. Accordingly, the Court dismisses the applicant's claims in respect of pecuniary damage.

37. With regard to the non-pecuniary damage, the Court considers that the applicant may have suffered a certain amount of distress as a result of the excessive length of the proceedings in question. Taking into account the circumstances of the case and having regard to its jurisprudence in similar cases, the Court awards the applicant EUR 3,000 under that head.

38. Nevertheless, the Court considers that where an individual, as in the instant case, has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents, in principle an appropriate way of redressing the violation (see Öcalan v. Turkey, no. 46221/99 [GC], § 210, in fine, ECHR 2005-IV)

B. Costs and expenses

39. The applicant also claimed EUR 106,000 for the costs and expenses incurred before the domestic courts and the Court.

40. The Government maintained that only those expenses which were actually and necessarily incurred could be reimbursed. In this connection, they submitted that the applicant and his representative had failed to submit documents showing the costs and expenses.

41. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award to EUR 1,000 covering costs and expenses.

C. Default interest

42. The Court considers 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 application admissible;

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

3. 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 new Turkish liras at the rate applicable on the date of settlement:

(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros) in respect of costs and expenses;

(iii) any taxes that may be chargeable on the above amounts;

(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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 19 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger Boštjan M. Zupančič
Registrar President