CASE OF ÖCALAN v.
(Application no. 46221/99)
JUDGMENT
12 May 2005
In the case of Öcalan v.
The European Court of Human
Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber,
President,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Mr G. Ress,
Sir Nicolas Bratza,
Mrs E. Palm,
Mr L. Caflisch,
Mr L. Loucaides,
Mr R. Türmen,
Mrs V. Strážnická,
Mr P. Lorenzen,
Mr V. Butkevych,
Mr J. Hedigan,
Mr M. Ugrekhelidze,
Mr L. Garlicki,
Mr J. Borrego
Borrego,
Mrs A. Gyulumyan,
judges,
and Mr P.J. Mahoney, Registrar,
Having deliberated in private
on
Delivers the following
judgment, which was adopted in its final form after further consideration on
PROCEDURE
1. The
case originated in an application (no. 46221/99) against the
2. The
applicant was represented by Sir Sydney Kentridge, Mr M. Muller and
Mr T. Otty, who are
3. The
applicant alleged, in particular, violations of various provisions of the
Convention, namely Articles 2 (right to life), 3 (prohibition of ill‑treatment),
5 (right to liberty and security), 6 (right to a fair trial), 7 (no punishment
without law), 8 (right to respect for private and family life), 9 (freedom
of thought, conscience and religion), 10 (freedom of expression), 13 (right to
an effective remedy), 14 (prohibition of discrimination), 18 (limitation on use
of restrictions on rights) and 34 (right of individual application).
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).
5. On
4 March 1999 the Court requested that the Government take interim measures
within the meaning of Rule 39, notably to ensure that the requirements of
Article 6 were complied with in proceedings which had been instituted against
the applicant in the National Security Court and that the applicant was able to
exercise his right of individual application to the Court effectively through
lawyers of his own choosing.
On
On
On
On
The Government filed their
observations on
On
On
“The Court requests the respondent State to
take all necessary steps to ensure that the death penalty is not carried out so
as to enable the Court to proceed effectively with the examination of the
admissibility and merits of the applicant's complaints under the Convention.”
6. A
hearing concerning both the admissibility and the merits of the complaints
(Rule 54 § 4) took place in public in the
7. By
a decision of
8. The
Chamber delivered its judgment on
9. On
On
10. The
composition of the Grand Chamber was determined according to the provisions of
Article 27 §§ 2 and 3 of the Convention and Rule 24. In accordance with Article
23 § 7 of the Convention and Rule 24 § 4, Mrs Palm continued to sit in the
case following the expiry of her term of office.
11. The applicant and the Government each filed observations on the merits and comments on each other's observations.
12. A
hearing took place in public in the
There appeared before the
Court:
(a) for the Government
Mr Ş. Alpaslan,
Mr M. Özmen, Co-Agents;
Mr E. İşcan,
Ms İ. Altıntaş,
Ms B. Arı,
Ms B. Özaydın,
Mr A. Çiçek,
Mr M. Tire,
Mr K. Tambaşar,
Mr N. Üstüner,
Mr B. Çalışkan,
Mr O. Nalcıoğlu,
Ms N. Erdim,
Counsel;
(b) for the applicant
Sir Sydney Kentridge QC,
Mr M. Muller,
Mr T. Otty,
Ms A. Tuğluk, Counsel,
Mr K.Yildız,
Mr M. Sakhar,
Mr İ. Dündar
Mr F. Aydınkaya,
Mr L. Chralambous,
Ms A. Stock, Advisers.
The Court heard addresses by
Sir Sydney Kentridge, Mr Muller, Mr Otty, Ms Tuğluk and Mr Alpaslan.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
13. The
applicant was born in 1949 and is currently being held in İmralı
Prison (Mudanya,
The facts of the case, as
submitted by the parties, may be summarised as follows.
A. The
applicant's arrest and transfer to
14. On
15. On
16. On
The Kenyan Minister for Foreign Affairs also stated
that Kenyan diplomatic missions abroad had been the target of terrorist attacks
and that the applicant's presence in
The Kenyan Minister for Foreign Affairs added that
the Kenyan authorities had played no part in the applicant's arrest and had had
no say in the choice of his final destination. The Minister had not been
informed of any operations by Turkish forces at the time of the applicant's
departure and there had been no consultations between the Kenyan and Turkish governments
on the subject.
17. On the final day of his
stay in
On
18. The
Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted
notice (Red Notice) had been circulated by Interpol. In each of those documents,
the applicant was accused of founding an armed gang in order to destroy the
territorial integrity of the
On the flight from
19. The
applicant was kept blindfolded throughout the flight except when the Turkish
officials wore masks. The blindfold was removed as soon as the officials put
their masks on. According to the Government, the blindfold was removed as soon
as the aircraft entered Turkish airspace.
The applicant was taken into
custody at İmralı Prison on
B. Police custody on the island of İmralı
20. From
21.
22. According to the
applicant, on
23. As soon as the applicant's
detention began, the island of İmralı was
decreed a prohibited military zone. According to the applicant, the security
arrangements in his case were managed by a “crisis desk” set up at Mudanya. It
was the crisis desk that was responsible for granting lawyers and other
visitors access to the applicant. According to the Government, special measures
were taken to ensure the applicant's safety. He had many enemies who might have
been tempted to make an attempt on his life, and it was for security reasons
that lawyers were searched.
24. On
C. Appearance
before a judge and pre-trial detention
25. On
D. Contact
with the outside world during the judicial investigation and conditions at
İmralı Prison
26. On
the day after the applicant's arrival in
27. At Istanbul
Airport on 17 February 1999, Ms Böhler, Ms Prakken
and their partner Mr Koppen were refused leave to enter Turkey to visit the
applicant, on the grounds that they could not represent him in Turkey and that
Ms Böhler's past history (she was suspected of having campaigned against Turkey's
interests and of having taken part in meetings organised by the PKK) created a
risk of prejudice to public order in Turkey.
28. On
29. During the preliminary
investigation between
30. According to the
applicant, his conversations with his lawyers were monitored from behind glass
panels and filmed with a video camera. After the first two short visits, the
applicant's contact with his lawyers was restricted to two visits per week,
lasting an hour each. On each visit, the lawyers were searched five times and
required to fill in a very detailed questionnaire. He and his advisers were not
allowed to exchange documents or take notes at their meetings. The applicant's
representatives were unable to give him either a copy of his case file (other
than the bill of indictment, which was served by the prosecution) or any other
material that would allow him to prepare his defence.
31. According to the
Government, no restrictions were placed on the applicant as regards either the
number of visits by his lawyers or their duration. Apart from the first visit,
which took place under the supervision of a judge and members of the security
forces, the meetings were held subject to the restrictions provided for in the
Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken
to the island of İmralı by boat after
embarking at a private quay. Hotel rooms were booked for them near the
embarkation point. According to the Government, no restrictions were placed on
the applicant's correspondence.
32. In the meantime, on
33. The CPT delegates next visited
İmralı Prison, where the applicant is the sole
inmate, as part of their mission to
34. On
its visit of 16-17 February 2003, the CPT noted that visits to the applicant by
his lawyers and members of his family were often cancelled owing to adverse
weather conditions and inadequate means of transport.
E. The trial
at the
35. In
a bill of indictment preferred on 24 April 1999 (and joined to several others
that had been drawn up in the applicant's absence by various public prosecutors'
offices between 1989 and 1998), the public prosecutor at the Ankara National
Security Court accused the applicant of activities carried out for the purpose
of bringing about the secession of part of the national territory. He sought
the death penalty under Article 125 of the Criminal Code.
36. The
case file ran to 17,000 pages and had been prepared by joining the files in
seven sets of proceedings that were pending against the applicant in various national
security courts. The applicant's lawyers were given access to the case file and
the bill of indictment on
37. The
first two hearings, held in Ankara on 24 and 30 March 1999 in the applicant's
absence, were taken up with procedural matters, such as third-party
applications to intervene in the proceedings or the measures to be taken in
readiness for the hearings on the island of İmralı and to enable the parties to take part in and members of the public
to attend the trial. According to the Government, allegations that the lawyers
were harassed by the police when they emerged from the first hearing in
38. From 31 May to
39. The
applicant said that he was willing to cooperate with the
40. The
applicant's lawyers' applications for the communication of additional documents
or for further investigations in order to collect more evidence were refused by
the
41. The
applicant's lawyers complained to the
The lawyers did not appear at
the hearing on
42. On
The applicant's advisers requested a one-month
adjournment to enable them to prepare their final submissions. The
43. On
44. At
the hearing on
Counsel for the applicant opposed
the appointment of the civilian judge owing to his previous involvement in the
case. Their application for an order requiring him to stand down was dismissed
by the
45. At
the same hearing, counsel for the applicant set out the applicant's substantive
defence to the charges.
46. On
F. The appeal
on points of law
47. The
applicant appealed on points of law against the above judgment, which, on
account of the severity of the sentence, was in any event automatically subject
to review by the Court of Cassation.
48. In
a judgment adopted on
49. As
to the merits, the Court of Cassation had regard to the fact that the applicant
was the founder and president of the PKK. It referred to the latter's aim and
activities, namely that it sought the foundation of a Kurdish State on a
territory that Turkey should be made to cede after an armed struggle and to
that end carried out armed attacks and sabotage against the armed forces,
industrial premises and tourist facilities in the hope of weakening the
authority of the State. The PKK also had a political front (the ERNK) and a
military wing (the ARNK), which operated under its control. Its income was
derived mainly from “taxes”, “fines”, donations, subscriptions, and the
proceeds of armed robberies, gun-running and drug trafficking. According to the
Court of Cassation, the applicant led all three of these groups. In his
speeches at party conferences, in his radio and television appearances and in
the orders he had given to his activists, the applicant had instructed his
supporters to resort to violence, indicated combat tactics, imposed penalties
on those who did not obey his instructions and incited the civilian population
to put words into action. As a result of the acts of violence carried out by
the PKK from 1978 until the applicant's arrest (in all, 6,036 armed attacks, 3,071
bomb attacks, 388 armed robberies and 1,046 kidnappings), 4,472 civilians,
3,874 soldiers, 247 police officers and 1,225 village guards had died.
50. The
Court of Cassation held that the PKK, founded and led by the applicant, represented
a substantial, serious and pressing threat to the country's integrity. It ruled
that the acts of which the applicant was accused constituted the offence laid
down in Article 125 of the Criminal Code and that it was not necessary, in
order for that provision to apply, for the applicant – the founder and
president of the PKK and the instigator of the acts of violence committed by
that organisation – personally to have used a weapon.
G. Commutation of the death penalty
to life imprisonment
51. In
October 2001, Article 38 of the Constitution was amended so that the death
penalty could no longer be ordered or implemented other than in time of war or
of imminent threat of war, or for acts of terrorism.
By Law no. 4771, which was
published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty
in peacetime (that is to say except in time of war or of imminent threat of
war) and to make the necessary amendments to the relevant legislation,
including the Criminal Code. As a result of the amendments, a prisoner whose
death sentence for an act of terrorism has been commuted to life imprisonment
must spend the rest of his life in prison.
By a judgment of
The Nationalist Action Party (MHP
– Milliyetçi Hareket Partisi), a
political party with representatives in Parliament, applied to the
Constitutional Court for an order setting aside certain provisions of
Law no. 4771, including the provision abolishing the death penalty in
peacetime for persons found guilty of terrorist offences. The
II. RELEVANT DOMESTIC AND
INTERNATIONAL LAW AND PRACTICE
A. Provisions
on National Security Courts
52. Before
the Constitution was amended on
53. As
amended by Law no. 4388 of
“... National security courts shall be
composed of a president, two other full members, a substitute member, a public
prosecutor and a sufficient number of assistant prosecutors.
The president, two full members, a substitute
member and the public prosecutor shall be appointed from among judges and
public prosecutors of the first rank and assistant prosecutors from among
public prosecutors of other ranks. Appointments shall be made for four years by
the Council of the National Legal Service, in accordance with procedures laid
down in special legislation. Their terms of office shall be renewable ...”
54. The
necessary amendments concerning the appointment of the judges and public
prosecutors were made to Law no. 2845 on national security courts by Law no.
4390 of
B. Article
125 of the Turkish Criminal Code
“Anyone committing an act designed to subject
the State or a part of the State to the domination of a foreign State, to
diminish its independence or to impair its unity, or which is designed to
remove from the administration of the State a part of the territory under its
control shall be liable to the death penalty.”
C. Review
of the lawfulness of detention
55. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and, if successful, be released.
56. Section
1 of Law no. 466 on the payment of compensation to persons unlawfully arrested
or detained provides:
“Compensation shall be paid by the State in
respect of all damage sustained by persons:
(1) who have been arrested or
detained under conditions or in circumstances incompatible with the
Constitution or statute;
(2) who have not been immediately
informed of the reasons for their arrest or detention;
(3) who have not been brought
before a judicial officer after being arrested or detained within the time
allowed by statute for that purpose;
(4) who have been deprived of their
liberty without a court order after the statutory time allowed for being
brought before a judicial officer has expired;
(5) whose close family have not
been immediately informed of their arrest or detention;
(6) who, after being arrested or
detained in accordance with the law, are not subsequently committed for trial
..., or are acquitted or discharged after standing trial;
(7) who have been sentenced to a
term of imprisonment shorter than the period spent in detention or ordered to
pay a pecuniary penalty only ...”
57. Article
144 of the Code of Criminal Procedure provides that, in principle, anyone
arrested or detained pending trial may speak with his legal representative in
private, whether or not the latter has an authority to act. The version of
Article 144 that applied to proceedings in the national security courts at the
material time was the version as worded prior to the amendments of
D. The Council of
58. Protocol No. 6 to the Convention provides (Article 1): “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides:
“A State may make provision in its law for the
death penalty in respect of acts committed in time of war or of imminent threat
of war; such penalty shall be applied only in the instances laid down in the
law and in accordance with its provisions. The State shall communicate to the
Secretary General of the Council of Europe the relevant provisions of that
law.”
Protocol No. 6 has been
ratified by forty-four member States of the Council of Europe and signed by two
others (
Protocol No. 13 to the
Convention, which provides for the abolition of the death penalty in all
circumstances, was opened for signature on
“The member States of the Council of Europe
signatory hereto,
Convinced that everyone's right to life is a
basic value in a democratic society and that the abolition of the death penalty
is essential for the protection of this right and for the full recognition of
the inherent dignity of all human beings;
Wishing to strengthen the protection of the right
to life guaranteed by the Convention for the Protection of Human Rights and
Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to
as 'the Convention');
Noting that Protocol No. 6 to the Convention,
concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April
1983, does not exclude the death penalty in respect of acts committed in time
of war or of imminent threat of war;
Being resolved to take the final step in order
to abolish the death penalty in all circumstances,
Have agreed as follows:
...”
Article 1 of Protocol No. 13 states:
“The death penalty shall be abolished. No one
shall be condemned to such penalty or executed.”
Protocol No. 13 has been
signed by forty-three member States of the Council of Europe and ratified by
twenty-nine. It came into force on
In its Opinion No. 233 (2002)
on the Draft Protocol to the European Convention on Human Rights concerning the
abolition of the death penalty in all circumstances, the Parliamentary Assembly
of the Council of Europe referred to:
“2. ... its most recent resolutions
on the subject, Resolution 1187 (1999) on Europe: a death-penalty free continent,
and Resolution 1253 (2001) on the abolition of the death penalty in Council of
Europe Observer states, in which it reaffirmed its beliefs that the application
of the death penalty constitutes inhuman and degrading punishment and a
violation of the most fundamental right, that to life itself, and that capital
punishment has no place in civilised, democratic societies governed by the rule
of law.”
It further noted:
“5. The second sentence of Article
2 of the European Convention on Human Rights still provides for the death
penalty. It has long been in the interest of the Assembly to delete this
sentence, thus matching theory with reality. This interest is strengthened by
the fact that more modern national constitutional documents and international
treaties no longer include such provisions.”
59. Article
X § 2 of the “Guidelines on human rights and the fight against terrorism”,
issued by the Committee of Ministers of the Council of Europe on
“Under no circumstances may a person convicted
of terrorist activities be sentenced to the death penalty; in the event of such
a sentence being imposed, it may not be carried out.”
E. Other international developments
concerning the death penalty
60. In
a number of cases involving the application of the death penalty, the United
Nations Human Rights Committee has observed that if the due process guarantees
in Article 14 of the International Covenant on Civil and Political Rights were
violated, a sentence of death which was carried out would not be in conformity
with Article 6 § 2 of the Covenant, that sets out the circumstances in which it
is permissible to give effect to the death penalty.
In Reid v. Jamaica (no. 250/1987), the Committee stated as follows:
“[T]he imposition of a sentence of death upon
the conclusion of a trial in which the provisions of the Covenant have not been
respected constitutes ... a violation of Article 6 of the Covenant. As the
Committee noted in its general comment 6(7), the provision that a sentence of
death may be imposed only in accordance with the law and not contrary to the
provisions of the Covenant implies that 'the procedural guarantees therein
prescribed must be observed, including the right to a fair hearing by an
independent tribunal, the presumption of innocence, the minimum guarantees for
the defence, and the right to review by a higher tribunal'.”
Similar observations were made
by the Committee in Daniel Mbenge v.
Zaire (Communication no. 16/1977, 8 September 1977, UN Doc. Supp. no. 40,
[A/38/40], at 134 [1983]) and Wright v.
Jamaica (Communication no.
349/1989, UN Doc. CCPR/C/45/D/349/1989 [1992]).
In an advisory opinion on the
right to information on consular assistance in the framework of the guarantees
of due process of law (Advisory Opinion OC-16/99 of 1 October 1999), the
Inter-American Court of Human Rights examined the implication of the guarantees
of a fair procedure for Article 4 of the American Convention on Human Rights,
which permitted the death penalty in certain circumstances. It stated:
“134. It might be useful to recall
that in a previous examination of Article 4 of the American Convention
(Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September,
1983, Series A No. 3) the Court observed that the application and imposition of
capital punishment are governed by the principle that '[n]o one shall be
arbitrarily deprived of his life'. Both Article 6 of the International Covenant
on Civil and Political Rights and Article 4 of the Convention require strict
observance of legal procedure and limit application of this penalty to 'the
most serious crimes'. In both instruments, therefore, there is a marked
tendency toward restricting application of the death penalty and ultimately
abolishing it.
135. This tendency, evident in
other inter-American and universal instruments, translates into the
internationally recognised principle whereby those States that still have the
death penalty must, without exception, exercise the most rigorous control for
observance of judicial guarantees in these cases. It is obvious that the
obligation to observe the right to information becomes all the more imperative
here, given the exceptionally grave and irreparable nature of the penalty that
one sentenced to death could receive. If the due process of law, with all its
rights and guarantees, must be respected regardless of the circumstances, then
its observance becomes all the more important when that supreme entitlement
that every human rights treaty and declaration recognises and protects is at
stake: human life.
136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.”
In Hilaire, Constantine and Benjamin et al. v.
“Taking into account the exceptionally serious
and irreparable nature of the death penalty, the observance of due process,
with its bundle of rights and guarantees, becomes all the more important when
human life is at stake.” (paragraph 148)
THE LAW
I. ALLEGED VIOLATION OF ARTICLE
5 OF THE CONVENTION
61. The
applicant complained of violations of Article 5 §§ 1, 3 and 4 of the
Convention, the relevant provisions of which read as follows:
“1. Everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention
of a person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing
after having done so;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this Article
shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release may be conditioned by guarantees to appear
for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Government pleaded a failure to exhaust domestic
remedies with regard to the complaints under Article 5 §§ 1, 3 and 4. The Grand
Chamber considers this preliminary objection to be closely linked to the merits
of the complaint under Article 5 § 4 and will therefore examine it with that
complaint, which – like the Chamber – it will deal with first.
A. Article 5 § 4 of the Convention
62. The
applicant complained that, contrary to Article 5 § 4 of the Convention, he had
not had an opportunity to take proceedings by which the lawfulness of his
detention in police custody could be decided.
1. The applicant's submissions
63. The
applicant asked the Grand Chamber to uphold the Chamber's finding that he had
not had an effective remedy by which to have the lawfulness of his detention in
police custody decided. He said that during the first ten days of his detention
he had been held incommunicado and had been unable to contact his lawyers. He
did not have the legal training that would have enabled him to lodge an appeal
without the assistance of his lawyers. Nor had he been given access to the
documents concerning his arrest that he needed to enable him to prepare such an
appeal. The applicant maintained that in his case an application to a district
judge or a judge of the
2. The Government's submissions
64. On
this point, the Government contested the Chamber's reasons for finding that
there had been a violation of Article 5 § 4. As they had done in the Chamber
proceedings, they also raised a preliminary objection of failure to exhaust
domestic remedies with regard to all the Article 5 complaints. Neither the
applicant's lawyers nor his close relatives had lodged an application with the
Mudanya Court of First Instance or a judge of the
65. The
Government provided the Grand Chamber with examples of decisions in which the
courts had examined applications from persons in police custody for a decision
on the lawfulness of their detention and, in the absence of an order from the
public prosecutor authorising their continued detention, had made an order for
the prisoners to be brought before the judge responsible for pre-trial
detention at the end of the statutory period for which they could be held in
police custody. Each of the applications referred to by the Government was
decided on the papers, in the absence of the prisoner.
3. The Court's assessment
66. The
remedy required by Article 5 § 4 must be of a judicial nature, which implies
that “the person concerned should have access to a court and the opportunity to
be heard either in person or, where necessary, through some form of
representation, failing which he will not have been afforded the fundamental
guarantees of procedure applied in matters of deprivation of liberty” (see Winterwerp v. the Netherlands, judgment
of 24 October 1979, Series A no. 33, p. 24, § 60). Furthermore, Article 5 § 4
requires that the court invited to rule on the lawfulness of the detention
should have jurisdiction to order release if the detention is unlawful (see Weeks v. the United Kingdom, judgment of
2 March 1987, Series A no. 114, p. 30, § 61).
67. In addition, in accordance with the generally recognised rules of international law, there may be special grounds for releasing the applicant from the obligation to exhaust the available domestic remedies (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, pp. 18-19, §§ 36-40).
68. Having
examined the examples of judicial decisions produced by the Government, the
Court finds that the domestic courts' review of the lawfulness of the detention
in these cases (which concerned the arrest, the police custody or the length of
such custody) did not comply with the requirements of Article 5 § 4 in two
respects. Firstly, in none of the decisions did the domestic courts order the
prisoner's release, not even when they found that the statutory period had
expired or the public prosecutor had failed to order the prisoner's continued
detention. They merely referred the persons concerned to the judge responsible
for pre-trial detention.
Secondly, in none of the
proceedings that resulted in the decisions cited by the Government did the
person detained appear before the court. The judge's review was carried out
solely on the papers following an application by the lawyer concerned.
69. The
judicial decisions on which the Government relied in seeking to demonstrate the
effectiveness of this remedy were delivered in 2001 and 2003, that is to say at
least two years after the applicant's arrest and detention in the present case.
70. As
regards the special circumstances in which the applicant found himself while in
police custody, the Court sees no reason to disagree with the Chamber's finding
that the circumstances of the case made it impossible for the applicant to have
effective recourse to the remedy referred to by the Government. In its
judgment, the Chamber reasoned as follows (see the judgment of
“... Firstly, the conditions in which the
applicant was held and notably the fact that he was kept in total isolation
prevented him using the remedy personally. He possessed no legal training and
had no possibility of consulting a lawyer while in police custody. Yet, as the
Court has noted above ..., the proceedings referred to in Article 5 § 4 must be
judicial in nature. The applicant could not reasonably be expected under such
conditions to be able to challenge the lawfulness and length of his detention
without the assistance of his lawyer.
... Secondly, as regards the suggestion that
the lawyers instructed by the applicant or by his close relatives could have
challenged his detention without consulting him, the Court observes that the
movements of the sole member of the applicant's legal team to possess an authority
to represent him were obstructed by the police ... The other lawyers, who had
been retained by the applicant's family, found it impossible to contact him
while he was in police custody. Moreover, in view of the unusual circumstances
of his arrest, the applicant was the principal source of direct information on
events in
... Lastly, solely with regard to the length of time the applicant was held in police custody, the Court takes into account the seriousness of the charges against him and the fact that the period spent in police custody did not exceed that permitted by the domestic legislation. It considers that, in those circumstances, an application on that issue to a district judge would have had little prospect of success.”
71. As
to the Government's assertion before the Chamber that the applicant could have
claimed compensation under Law no. 466, the Grand Chamber also considers that
such a claim cannot constitute proceedings of the type required by Article 5 §
4 for the reasons set out in paragraph 75 of the Chamber judgment, namely the
court's lack of jurisdiction to order release if the detention is unlawful or
to award reparation for a breach of the Convention if the detention complies
with domestic law.
72. For
the aforementioned reasons, the Court dismisses the preliminary objection in
respect of the complaints under Article 5 §§ 1, 3 and 4 of the Convention. It
further holds for the same reasons that there has been a violation of Article 5
§ 4.
B. Article 5 § 1 of the Convention
73. The
applicant complained that he had been deprived of his liberty unlawfully,
without the applicable extradition procedure being followed. He alleged a
violation of Article 5 § 1 of the Convention on that account.
1. The applicant's submissions
74. The applicant contested the Chamber's findings that his detention by Turkish officials was lawful and that his interception by Kenyan officials and transfer to the Turkish aircraft where Turkish officials were waiting for him could not be regarded as a violation of Kenyan sovereignty or international law.
In that connection, he
maintained that there was prima facie evidence that he had been abducted by the
Turkish authorities operating abroad, beyond their jurisdiction, and that it
was for the Government to prove that the arrest was not unlawful. The fact that
arrest warrants had been issued by the Turkish authorities and a Red Notice
circulated by Interpol did not give officials of the
75. The
applicant pointed out that no proceedings had been brought to extradite him
from
The applicant further
suggested that the Kenyan officials involved in his arrest had been bribed by
Turkish agents and had acted without the authority of the Kenyan government.
76. The
applicant referred to the case-law of the Convention institutions in Cyprus v. Turkey (no. 8007/77,
Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85) and Drozd and Janousek v. France and Spain
(judgment of 26 June 1992, Series A no. 240, p. 29, § 91), and submitted that
Turkey was responsible for acts performed by its officials beyond its borders.
He maintained that he had been arrested as a result of an operation that had
been planned in
77. Referring
to Bozano v. France (judgment of
78. In
his submission, the Commission's decision in Sánchez Ramirez v. France (no. 28780/95, Commission decision of
79. Relying
on the case-law of various national courts (the House of Lord's decision in R. v. Horseferry Road Magistrates' Court, ex
parte Bennett [1994] 1 Appeal Cases 42; the decision of the Court of Appeal
of New Zealand in Reg. v. Hartley [1978]
2 New Zealand Law Reports 199; the decision of the United States Court of
Appeals (2nd Circuit, 1974) in United
States v. Toscanino 555 Federal Reporter (Second Series) 267-68; the
decision of 28 May 2001 of the Constitutional Court of South Africa in Mohamed and Dalvie v. President of the
Republic of South Africa and Others 2001 (3) South African Law Reports 893 (CC)),
the applicant maintained that the arrest procedures that had been followed did
not comply with Kenyan law or the rules established by international law, that
his arrest amounted to an abduction, and that his detention and trial, which
were based on that unlawful arrest, had to be regarded as null and void.
80. The
applicant also submitted that, contrary to what the Chamber had found, he could
not be expected to prove “beyond reasonable doubt” that the operation by
Turkish officials on Kenyan territory in the instant case had violated Kenyan
sovereignty. He was merely required to adduce prima facie evidence that it had in
order for the burden of proof to shift to the respondent Government to show
that there had been no violation of Kenyan sovereignty.
2. The Government's submissions
81. The Government agreed with and supported the Chamber's view that in this type of case cooperation between States confronted with terrorism was normal and did not infringe the Convention.
On that point, they maintained
that the applicant had been arrested and detained in accordance with a
procedure prescribed by law, following cooperation between two
The applicant had been apprehended by the Kenyan authorities and handed over to the Turkish authorities by way of cooperation between the two States. On his arrival in Turkey, he had been taken into custody under arrest warrants issued by the proper and lawful judicial authorities in Turkey, in order to be brought before a judge (the Turkish courts had issued seven warrants for the applicant's arrest before his capture and Interpol had circulated a Red Notice with regard to him).
There had been no extradition
in disguise:
82. The
applicant had thus been brought before a Turkish judicial authority at the end
of a lawful procedure, in conformity with customary international law and the
policy of cooperation between sovereign States in the prevention of terrorism.
3. The Court's assessment
(a) General principles
83. The
Court will consider the complaint in the light of the following principles.
On the question whether detention is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. What is at stake here is not only the “right to liberty” but also the “right to security of person” (see, among other authorities, Bozano, cited above, p. 23, § 54, and Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24).
84. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996‑III, p. 753, § 41, and Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, p. 21, § 49).
85. An arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person concerned's individual rights to security under Article 5 § 1 (see, to the same effect, Stocké v. Germany, judgment of 19 March 1991, Series A no. 199, opinion of the Commission, p. 24, § 167).
86. The
Convention does not prevent cooperation between States, within the framework of
extradition treaties or in matters of deportation, for the purpose of bringing
fugitive offenders to justice, provided that it does not interfere with any
specific rights recognised in the Convention (ibid., pp. 24-25, § 169).
87. As
regards extradition arrangements between States when one is a party to the
Convention and the other is not, the rules established by an extradition treaty
or, in the absence of any such treaty, the cooperation between the States
concerned are also relevant factors to be taken into account for determining
whether the arrest that has led to the subsequent complaint to the Court was
lawful. The fact that a fugitive has been handed over as a result of
cooperation between States does not in itself make the arrest unlawful and does
not therefore give rise to any problem under Article 5 (see Freda v. Italy, no. 8916/80, Commission
decision of 7 October 1980, DR 21, p. 250; Altmann (Barbie) v. France, no. 10689/83, Commission decision of 4 July
1984, DR 37, p. 225; and Reinette v. France,
no. 14009/88, Commission decision of 2 October 1989, DR 63, p. 189).
88. Inherent in the whole of the Convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person, but also tend to undermine the foundations of extradition (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 35, § 89).
89. The
Convention contains no provisions concerning the circumstances in which
extradition may be granted, or the procedure to be followed before extradition
may be granted. Subject to it being the result of cooperation between the
States concerned and provided that the legal basis for the order for the
fugitive's arrest is an arrest warrant issued by the authorities of the
fugitive's State of origin, even an atypical extradition cannot as such be
regarded as being contrary to the Convention (see Sánchez Ramirez, cited
above).
90. Irrespective of whether
the arrest amounts to a violation of the law of the State in which the fugitive
has taken refuge – a question that only falls to be examined by the Court if
the host State is a party to the Convention – the Court requires proof in the
form of concordant inferences that the authorities of the State to which the
applicant has been transferred have acted extra-territorially in a manner that
is inconsistent with the sovereignty of the host State and therefore contrary
to international law (see, mutatis
mutandis, Stocké, cited above, p. 19,
§ 54). Only then will the burden of proving that the sovereignty of the host
State and international law have been complied with shift to the respondent
Government. However, the applicant is not required to adduce proof “beyond all
reasonable doubt” on this point, as was suggested by the Chamber (see paragraph
92 of the Chamber judgment).
(b) Application of the principles to
the present case
(i) Whether the arrest complied with
Turkish law
91. The Court notes that the
applicant was arrested by members of the Turkish security forces inside an
aircraft registered in
It is common ground that, directly after being
handed over to the Turkish officials by the Kenyan officials, the applicant was
effectively under Turkish authority and therefore within the “jurisdiction” of
that State for the purposes of Article 1 of the Convention, even though in this
instance Turkey exercised its authority outside its territory. It is true that
the applicant was physically forced to return to Turkey by Turkish officials
and was under their authority and control following his arrest and return to
Turkey (see, in this respect, the aforementioned decisions in Sánchez Ramirez and Freda, and, by converse implication, Banković and
Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII).
92. As
to whether the arrest complied with Turkish domestic law, the Court notes that
the Turkish criminal courts had issued seven warrants for the applicant's
arrest while Interpol had put out a Red Notice. In each of these documents, the
applicant was accused of criminal offences under the Turkish Criminal Code,
namely founding an armed gang with a view to undermining the territorial
integrity of the State and instigating a series of terrorist acts that had
resulted in the loss of life. Following his arrest and on the expiry of the
statutory period for which he could be held in police custody the applicant was
brought before a court. Subsequently, he was charged, tried and convicted of
offences under Article 125 of the Criminal Code. It follows that his arrest and
detention complied with orders that had been issued by the Turkish courts “for
the purpose of bringing him before the competent legal authority on reasonable
suspicion of having committed an offence”.
(ii) Interception by Kenyan agents
93. The Court must decide in
the light of the parties' arguments whether the applicant's interception in
Kenya immediately before he was handed over to Turkish officials on board the
aircraft at Nairobi Airport was the result of acts by Turkish officials that
violated Kenyan sovereignty and international law (as the applicant submitted),
or of cooperation between the Turkish and Kenyan authorities in the absence of
any extradition treaty between Turkey and Kenya laying down a formal procedure (as
the Government submitted).
94. The
Court will begin by examining the evidence on the actual role played by the
Kenyan authorities in the present case. The applicant entered
95. The
Kenyan authorities did not perceive the applicant's arrest by the Turkish
officials on board an aircraft at
96. The
Kenyan authorities did, however, issue a formal protest to the Greek government,
accompanied by a demand for the Greek ambassador's immediate recall, on the
grounds that the applicant had entered
97. These aspects of the case lead the Court to accept the Government's version of events: it considers that at the material time the Kenyan authorities had decided either to hand the applicant over to the Turkish authorities or to facilitate such a handover.
98. The
applicant has not adduced evidence enabling concordant inferences (see
paragraph 90 above) to be drawn that
“... The Court is not persuaded by the statement
by the Kenyan Minister for Foreign Affairs on 16 February 1999 that, contrary
to what the applicant maintained, the Kenyan authorities had had no involvement
in the applicant's arrest or transfer ... While it is true that the applicant
was not arrested by the Kenyan authorities, the evidence before the Court
indicates that Kenyan officials had played a role in separating the applicant
from the Greek ambassador and in transporting him to the airport immediately
preceding his arrest on board the aircraft.” (see paragraph 100 of the Chamber
judgment)
99. Consequently,
the applicant's arrest on
C. Article 5 § 3 of the Convention
100. The
applicant alleged that, contrary to Article 5 § 3 of the Convention, he had not
been brought “promptly” before a judge or other officer authorised by law to
exercise judicial power.
1. The applicant's submissions
101. The
applicant asked the Grand Chamber to uphold the Chamber's finding of a
violation under this provision as there had been no need for him to be detained
for seven days before being brought before a judge. He said that he had been
arrested before
2. The Government's submissions
102. The
Government contested the Chamber's finding of a violation in respect of this
complaint. They pointed out that at the material time the Turkish rules of
criminal procedure permitted police custody to be extended to seven days when
the person detained was suspected of terrorist-related offences. In the instant
case, the applicant had been arrested on
3. The Court's assessment
103. The Grand Chamber notes
at the outset the importance of the guarantees afforded by Article 5 § 3 to an
arrested person. The purpose of this provision is to ensure that arrested persons
are physically brought before a judicial authority promptly. Such automatic
expedited judicial scrutiny provides an important measure of protection against
arbitrary behaviour, incommunicado detention and ill-treatment (see, among
other authorities, Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993,
Series A no. 258-B, p. 55, §§ 62-63; Aquilina v. Malta [GC], no. 25642/94, § 49,
ECHR 1999‑III; Brogan and Others v.
the United Kingdom, judgment of 29 November 1988, Series A no. 145‑B,
pp. 31-32, § 58; and Dikme v. Turkey,
no. 20869/92, § 66, ECHR 2000-VIII).
104. Having
examined the parties' arguments, the Grand Chamber sees no good reason to
disagree with the Chamber's findings, which were as follows:
“106. The Court has already noted
on a number of occasions that the investigation of terrorist offences
undoubtedly presents the authorities with special problems (see Brogan and Others v. the United Kingdom,
judgment of 29 November 1988, Series A no. 145-B, p. 33, § 61; Murray v. the United Kingdom, judgment
of 28 October 1994, Series A no. 300-A, p. 27, § 58; and Aksoy v. Turkey, [judgment of 18 December 1996, Reports 1996-VI], p. 2282, § 78). This
does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest
suspects for questioning, free from effective control by the domestic courts
and, ultimately, by the Convention supervisory institutions, whenever they
choose to assert that terrorism is involved (see Sakık and Others v. Turkey, [judgment of 26 November 1997, Reports 1997-VII], pp. 2623-24, § 44).
107. The Court notes that the
police custody in issue commenced with the applicant's arrest either very late
on
108. The Court notes that in Brogan and Others it held that a period
of four days and six hours in police custody without judicial supervision fell
outside the strict constraints as to time permitted by Article 5 § 3, even when
the aim was to protect the community as a whole from terrorism (see Brogan and Others, cited above, p. 33, § 62).
109. The Court cannot accept the Government's argument that adverse weather conditions were largely responsible for the period of seven days it took for the applicant to be brought before a judge. No evidence has been adduced before the Court that establishes that the judge attempted to reach the island on which the applicant was being held so that the latter could be brought before him within the total statutory period of seven days allowed for police custody. The Court observes in that connection that the police custody ran its ordinary course under the domestic rules. In addition to the four days ordered by the public prosecutor's office itself, the judge granted an additional period of three days after examining the case on the basis of the file. It seems unlikely that the judge would have granted the additional time had he intended to have the applicant brought before him before it expired.
110. The Court cannot, therefore,
accept that it was necessary for the applicant to be detained for seven days
without being brought before a judge.”
105. In the light of all the foregoing considerations, the Court holds
that there has been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE
6 OF THE CONVENTION
A. Whether the Ankara National
Security Court, which convicted the applicant, was independent and impartial
106. The
applicant alleged that he had not been tried by an independent and impartial
tribunal, since a military judge had sat on the bench during part of the
proceedings in the
“In the determination of ... any criminal
charge against him, everyone is entitled to a ... hearing ... by an independent
and impartial tribunal ...”
1. The applicant's submissions
107. The
applicant asked the Grand Chamber to uphold the Chamber's finding of a
violation on this issue. He said that a judge holding the rank of colonel in
the army had sat on the bench of the
2. The Government's submissions
108. The Government contested the Chamber's finding that the last-minute replacement of the military judge was incapable of curing the defect in the composition of the court or of remedying the resulting violation of Article 6.
They pointed out that the
military judge had left the
109. The Government invited
the Grand Chamber to follow the Court's decision in İmrek v. Turkey ((dec.), no. 57175/00, 28 January 2003), in
which it held that the replacement of a military judge by a civilian judge in
the course of criminal proceedings had solved the problem regarding the
independence and impartiality of the national security court concerned.
110. They objected in
particular to the Chamber's use of the “last minute” criterion in its judgment
in the present case. That criterion would have been valid had the new judge not
been given sufficient time to examine the interlocutory decisions taken up to
that point or been precluded from issuing new ones. However, in the Government's
submission, the replacement judge had been given both the time and the means
necessary to play an active role in the decision-making process.
111. The Government further
maintained that the applicant himself had had no doubts about the independence
and impartiality of the
3. The Court's assessment
112. The Court has consistently held that certain aspects of the status of military judges sitting as members of the national security courts made their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1572, § 68, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, p. 3073, § 39).
113. It is understandable
that the applicant – prosecuted in a national security court for serious
offences relating to national security – should have been apprehensive about
being tried by a bench that included a regular army officer belonging to the
military legal service. On that account he could legitimately fear that the
114. As to whether the
military judge's replacement by a civilian judge in the course of the
proceedings before the verdict was delivered remedied the situation, the Court
considers, firstly, that the question whether a court is seen to be independent
does not depend solely on its composition when it delivers its verdict. In
order to comply with the requirements of Article 6 regarding independence, the
court concerned must be seen to be independent of the executive and the
legislature at each of the three stages of the proceedings, namely the
investigation, the trial and the verdict (those being the three stages in
Turkish criminal proceedings according to the Government).
115. Secondly, when a
military judge has participated in one or more interlocutory decisions that
continue to remain in effect in the criminal proceedings concerned, the accused
has reasonable cause for concern about the validity of the entire proceedings,
unless it is established that the procedure subsequently followed in the national
security court sufficiently dispelled that concern. More specifically, where a
military judge has participated in an interlocutory decision that forms an
integral part of proceedings against a civilian, the whole proceedings are
deprived of the appearance of having been conducted by an independent and
impartial court.
116. In
its previous judgments, the Court attached importance to the fact that a civilian
had to appear before a court composed, even if only in part, of members of the
armed forces (see, among other authorities, Incal,
cited above, p. 1573, § 72). Such a situation seriously affects the confidence
the courts must inspire in a democratic society (see, mutatis mutandis, Piersack v.
Belgium, judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30).
117. In the instant case, the
Court notes that before his replacement on
118. In these circumstances,
the Court cannot accept that the replacement of the military judge before the
end of the proceedings dispelled the applicant's reasonably held concern about
the trial court's independence and impartiality. In so far as the decision or reasoning in İmrek, cited above, may be regarded as inconsistent with this conclusion, the Grand
Chamber will not follow the decision and the reasoning in that case.
Consequently, there has been a violation of Article 6 § 1 of the Convention on this point.
B. Whether the proceedings in the
119. The
applicant complained that the provisions of Article 6 §§ 1, 2 and 3 of the
Convention had been infringed owing to the restrictions and difficulties he had
encountered in securing assistance from his lawyers, gaining access – for both
himself and his lawyers – to the case file, calling defence witnesses and
securing access for his lawyers to all the information held by the prosecution.
He also alleged that the media had influenced the judges to his detriment.
120. The relevant part of Article 6 of the Convention reads as follows:
“1. ... everyone is entitled to a
fair ... hearing within a reasonable time ...
2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal
offence has the following minimum rights:
(a) to be informed promptly, in a
language which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and
facilities for the preparation of his defence;
(c) to defend himself in person or
through legal assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the interests of justice
so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
1. The applicant's submissions
121. The
applicant asked the Grand Chamber to uphold the Chamber's finding that he had
not had a fair trial. He set out the principal reasons why he considered that
his trial failed to satisfy the requirements of Article 6.
He observed that unfettered,
confidential and prompt access to legal assistance of one's choosing at all
stages of the proceedings from the instant a person is detained was one of the
fundamental requirements of a fair hearing in a democratic society. In the
present case, however, he had had difficulty contacting his lawyers and that
had affected his defence rights. In that connection, he explained that his
lawyers had not been allowed to visit him until ten days after his arrest, by
which time he had already made statements to the judicial authorities. He had
also encountered difficulties in appointing lawyers of his choice, and that
process had taken some time. His first meeting with his lawyers had taken place
in the presence of members of the security forces. The other visits by his
lawyers had been overseen and listened in to by the authorities and filmed with
a video camera. Ultimately, the applicant considered that he had not been able
to confer in private with his lawyers, in breach of the mandatory provisions of
the Code of Criminal Procedure. After two short initial visits, contact with
his lawyers had been limited to two weekly visits of an hour each. In
proceedings that had been conducted extremely quickly and had produced an
enormous case file, the total duration of the visits had been manifestly
insufficient for him to prepare his defence. In any event, the applicant's
lawyers had not enjoyed the same facilities as the members of the prosecution
for travelling to the place of detention and the trial centre.
122. The
applicant stressed that for the purposes of preparing the defence it had been
vital for him and his lawyers to be given full, effective access to all the
documents in the case file, including documents whose relevance to the issues
of guilt and sentencing was only potential. However, his lawyers had not been
permitted to provide him with a copy of the trial papers or any other material
that would assist him in the preparation of his defence. He had been obliged to
write out his defence by hand, without having access to any of the documents in
the case file other than the bill of indictment, with which he had already been
provided.
123. Furthermore,
because of the speed with which the proceedings had been conducted, his lawyers
had had difficulty in consulting all the documents in the file. They were given
access to the case file, which ran to 17,000 pages, just sixteen days before
the hearings started. The defence's ability to analyse the documents had been
further hampered by, inter alia, the
restrictions imposed throughout the investigation on communications between the
applicant and his lawyers. The
124. In
conclusion, the applicant said that he had not enjoyed equality of arms with
the prosecution in preparing his defence, in particular as a result of the difficulties
that had prevented him and his lawyers from having sufficient time to confer in
private, obtaining effective access to the case file and putting forward his
defence in a secure environment.
2. The Government's submissions
125. The
Government disagreed with the Chamber's findings regarding the fairness of the
applicant's trial; in their submission, it had been fair. In that connection,
they observed firstly that the applicant had been convicted under Article 125
of the Criminal Code, the aim of which was to protect the democratic values of
the Republic. The Criminal Divisions of the Turkish Court of Cassation, sitting
in plenary session, had held that the PKK was an organisation that resorted to
force and acts of violence with a view to bringing about the secession of part
of Turkish territory to form a
126. As
regards the rights of the defence, the Government noted that the applicant had
had a public hearing, had been able to participate fully in the hearings with
the help of the special measures taken to ensure his safety, had addressed the
court without being interrupted, and had said everything he wished to say in
his defence. They said that the applicant had been provided with every facility
for the preparation of his defence: he had been able to consult the lawyers of
his choice during both the preliminary investigation and the trial and, with
the exception of the first visit, the only restrictions to which his lawyers'
visits had been subject were those set out in the Code of Criminal Procedure.
Furthermore, the applicant's lawyers had made no request to see their client at
more frequent intervals. There had been no restrictions on the applicant's
correspondence and he had been able to lodge with the
127. As
regards the applicant's access to the case file, the Government maintained that
even before the hearings on the island of İmralı the applicant's
lawyers had been given an opportunity to photocopy all the documents in the
case file. The 17,000-page case file had, in fact, been compiled from the case
files in seven sets of criminal proceedings that had already been instituted in
various national security courts several years before the applicant's arrest,
and the applicant was already familiar with the papers. In any event, very few
new documents had been added to the case file. The Government asserted that the
128. On this point, the
Government also argued that, contrary to what the Chamber had found, the Court's
case-law in Kremzow v. Austria
(judgment of 21 September 1993, Series A no. 268-B, p. 42, § 52) and Kamasinski v. Austria (judgment of 19
December 1989, Series A no. 168, pp. 39-40, § 88) was applicable in the instant
case. There was no requirement under that case-law for the accused to be given
direct access to the case file. It was sufficient for him to be apprised of its
content by his representatives. Requiring such access to be afforded in the
prosecution of organised crime would discriminate against those accused of
ordinary offences.
Furthermore, the applicant had
acknowledged his responsibility for the acts of the PKK, the organisation he
had led before his arrest. Even if he had examined the acts of the other PKK
members in greater detail, he would not have found any evidence to assist him
in his defence.
129. Among
the other facilities that had been made available to assist the applicant with
his defence, a photocopier had been installed in the hearing room for the use
of the lawyers, on the instructions of the President of the
3. The Court's assessment
130. The
Court considers that in order to determine whether the rights of the defence
were respected in the criminal proceedings against the applicant, it is
necessary to examine the legal assistance available to him and the access he
and his lawyers were given to the case file.
(a) Legal assistance
(i) The applicant's lack of access to
a lawyer while in police custody
131. The Grand Chamber sees no reason to disagree with the Chamber's finding that the applicant's lack of access to a lawyer while in police custody adversely affected his defence rights. The Grand Chamber agrees with the reasoning of the Chamber, which was as follows:
“... The Court reiterates that Article 6 may
also be relevant before a case is sent for trial if and in so far as the
fairness of the trial is likely to be seriously prejudiced by an initial
failure to comply with it (see Imbrioscia
v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13,
§ 36). The manner in which Article 6 §§ 1 and 3 (c) are applied during the
investigation depends on the special features of the proceedings and the facts
of the case. Article 6 will normally require that the accused be allowed to
benefit from the assistance of a lawyer from the initial stages of police
interrogation. However, this right, which is not explicitly set out in the
Convention, may be subject to restrictions for good cause. The question, in
each case, is whether the restriction, in the light of the entirety of the
proceedings, has deprived the accused of a fair hearing (see John Murray v. the United Kingdom,
judgment of
... In the present case, the applicant was
questioned by the security forces, a public prosecutor and a judge of the
... As to whether the applicant had waived his
right to consult a lawyer, the Court notes that on the day after his arrest, his
lawyer in
... In these circumstances, the Court is of the view that to deny access to a lawyer for such a long period and in a situation where the rights of the defence might well be irretrievably prejudiced is detrimental to the rights of the defence to which the accused is entitled by virtue of Article 6 (see, mutatis mutandis, Magee [v. the United Kingdom, no. 28135/95], §§ 44-45[, ECHR 2000-VI]).”
(ii) Consultation with his lawyers out of the hearing of third parties
132. In the absence of any
specific observations by the parties on this point in the proceedings before
it, the Grand Chamber endorses the Chamber's findings:
“... the applicant's first visit from his
lawyers took place under the supervision and within sight and hearing of
members of the security forces and a judge, all of whom were present in the
same room as the applicant and his lawyers. The security forces restricted the
visit to twenty minutes. The record of the visit was sent to the
... As regards subsequent visits, ... the Court accepts that meetings between the applicant and his lawyers after the initial visit took place within hearing of members of the security forces, even though the security officers concerned were not in the room where the meetings took place.”
133. The
Grand Chamber agrees with the Chamber's assessment of the effects of the
applicant's inability to consult his lawyers out of the hearing of third
parties:
“... an accused's right to communicate with his legal representative out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see S. v. Switzerland, judgment of 28 November 1991, Series A no. 220, pp. 15-16, § 48). The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European instruments (see Brennan v. the United Kingdom, no. 39846/98, §§ 38-40, ECHR 2001-X). However, as stated above ... restrictions may be imposed on an accused's access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing.
... In the present case, the Court accepts ...
that the applicant and his lawyers were unable to consult out of the hearing of
the authorities at any stage. It considers that the inevitable consequence of
that restriction, which was imposed during both the preliminary investigation
and the trial, was to prevent the applicant from conversing openly with his
lawyers and asking them questions that might prove important to the preparation
of his defence. The rights of the defence were thus significantly affected.
... The Court observes in that connection that
the applicant had already made statements by the time he conferred with his
lawyers and made further statements at hearings before the
... As to the Government's contention that the
supervision of the meetings between the applicant and his lawyers was necessary
to ensure the applicant's security, the Court observes that the lawyers had
been retained by the applicant himself and that there was no reason to suspect
that they threatened their client's life. They were not permitted to see the
applicant until they had undergone a series of searches. Mere visual
surveillance by the prison officials, accompanied by other measures, would have
sufficed to ensure the applicant's security.”
Consequently, the Court holds
that the fact that it was impossible for the applicant to confer with his
lawyers out of the hearing of members of the security forces infringed the
rights of the defence.
(iii) Number and length of the visits
by the applicant's lawyers
134. After
the first two visits by his lawyers, which were approximately two weeks apart,
contact between the applicant and his lawyers was restricted to two one-hour
visits per week.
135. Having examined the
parties' arguments, the Grand Chamber sees no good reason to disagree with the
following findings of the Chamber:
“... while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to 'defend himself in person or through legal assistance ...', it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, judgment of 24 May 1991, Series A no. 205, p. 16, § 30). In this respect, it must be remembered that the Convention is designed to 'guarantee not rights that are theoretical or illusory but rights that are practical and effective' and that assigning a counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33). The Court also points out that the manner in which Article 6 §§ 1 and 3 (c) are to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (see Imbrioscia, cited above, pp. 13-14, § 38).
... The Court observes that, in the instant
case, the charges against the applicant included numerous acts of violence
perpetrated by an illegal armed organisation and that he was alleged to be the
leader of that organisation and the principal instigator of its acts. The Court
further notes that the presentation of those highly complex charges generated
an exceptionally voluminous case file ... It considers that in order to prepare
his defence to those charges the applicant required skilled legal assistance
equal to the complex nature of the case. It finds that the special
circumstances of the case did not justify restricting the applicant to a rhythm
of two one-hour meetings per week with his lawyers in order to prepare for a
trial of that magnitude.
... With respect to the Government's argument
that visits took place in accordance with the frequency and departure times of
the ferries between the island of İmralı and the coast, the Court
considers that, while the Government's decision to hold the applicant in an
island prison far from the coast is understandable in view of the exceptional
security considerations in the case, restricting visits to two one-hour visits
a week is less easily justified. It notes that the Government have not
explained why the authorities did not permit the lawyers to visit their client
more often or why they failed to provide more adequate means of transport,
thereby increasing the length of each individual visit, when such measures were
called for as part of the 'diligence' the Contracting States must exercise in
order to ensure that the rights guaranteed by Article 6 are enjoyed in an
effective manner (see Colozza [v. Italy, judgment of 12 February
1985, Series A no. 89], pp. 14-15, § 28).
... As to the Government's argument that the
applicant's lawyers organised press conferences after each visit and acted as
spokespersons for the PKK, the Court holds that any such conduct on their part
could not justify the restrictions in issue, since restrictions cannot be
placed on the rights of the defence for reasons that are not directly related
to the trial. In addition, there is no evidence before the Court that any
complaint was lodged in
136. The Government's argument
before the Grand Chamber that the applicant's lawyers had not asked to see him
at more frequent intervals must also be rejected. The Court reiterates that
waiver of the exercise of a right guaranteed by the Convention must be
established in an unequivocal manner (see, mutatis mutandis, Pfeifer
and Plankl v. Austria, judgment of 25 February 1992, Series A no.
227, pp. 16-17, § 37). It notes that there was in fact
a complaint by the applicant's lawyers to the
137. Consequently,
the Court considers that the restriction on the number and length of the
applicant's meetings with his lawyers was one of the factors that made the preparation
of his defence difficult.
(b) The applicant's access to the
case file
138. The
Court must next examine whether the fact that the applicant was prevented from
obtaining communication of the documents in the case file (apart from the bill
of indictment) until 4 June 1999 violated the rights of the defence, as
guaranteed by Article 6 § 1, taken together with the rights guaranteed by
Article 6 § 3, as it was not until the hearing on that date that the National
Security Court gave the applicant permission to consult the case file under the
supervision of two registrars and gave his lawyers permission to provide him
with copies of certain documents.
139. The
Court will first examine the submission made by the Government before the Grand
Chamber that the decisions in Kremzow
and Kamasinski, both cited above, are
applicable in the instant case. These authorities establish that an accused
does not have to be given direct access to the case file, it being sufficient
for him to be informed of the material in the file by his representatives. The
Court also notes that, relying on those same authorities, the Government have
already argued before the Chamber that restricting the right to inspect the
court file to an accused's lawyer is not incompatible with the rights of the
defence.
140. When examining these issues, the Court will have regard to its case-law to the effect that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, among other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, § 47). The Court further considers that respect for the rights of the defence requires that limitations on access by an accused or his lawyer to the court file must not prevent the evidence being made available to the accused before the trial and the accused being given an opportunity to comment on it through his lawyer in oral submissions (see, mutatis mutandis, Kremzow, cited above, p. 44, § 63).
141. As regards the relevant
facts in the present case, the Grand Chamber agrees with the following findings
of the Chamber:
“... in the instant case, the applicant was not
permitted to inspect the evidence produced by the prosecution personally before
the hearings. When the applicant's lawyers made their comments on that
evidence, they had yet to obtain the applicant's observations following a
direct inspection of the documentation. The fact that the applicant was given
permission on
142. The Grand Chamber
therefore considers that the present case is distinguishable from Kremzow, in which the applicant had
twenty-one days in which to examine forty-nine pages, in contrast to Mr Öcalan,
who had twenty days in which to examine a case file containing some 17,000
pages. The present case is also distinguishable from Kamasinski, in which the
applicant's lawyer was able to pass on to his client copies of all the
documents he considered relevant. Mr Öcalan's lawyers were not able to provide
him with any documents before submitting their comments on the prosecution
evidence.
143. The Government's
argument that a more detailed examination by the applicant of the material relating
to the acts of the other members of the PKK would not have permitted him to
find evidence to assist him in his defence as he had already acknowledged
responsibility for the acts of the PKK also warrants examination by the Court.
It should be noted that while the applicant admitted before the National
Security Court that he was the leader of the PKK, an armed separatist
organisation, and responsible for the general policy of that organisation, he
did not specifically comment on each act of violence committed by PKK members.
He did say in his defence, however, that certain acts of violence had been
committed against his will or beyond his control.
It is thus reasonable to
assume that, had he been permitted to study the prosecution evidence directly
for a sufficient period, the applicant would have been able to identify
arguments relevant to his defence other than those his lawyers advanced without
the benefit of his instructions.
144. The Court therefore holds that the fact that the applicant was not given proper access to any documents in the case file other than the bill of indictment also served to compound the difficulties encountered in the preparation of his defence.
(c) Access by the applicant's
lawyers to the court file
145. Together with the issue of the applicant's access to his case file, the Court must also determine whether, in the instant case, the lawyers' access to the documents in the case file was restricted, either formally or in practice, and, if so, whether the restrictions affected the fairness of the proceedings.
146. The principle of
equality of arms is only one feature of the wider concept of a fair trial,
which also includes the fundamental right that criminal proceedings should be
adversarial. The right to an adversarial trial means, in a criminal case, that
both prosecution and defence must be given the opportunity to have knowledge of
and comment on the observations filed and the evidence adduced by the other
party. Various ways are conceivable in which national law may meet this
requirement. However, whatever method is chosen, it should ensure that the
other party will be aware that observations have been filed and will get a real
opportunity to comment on them (see Brandstetter v. Austria, judgment of 28 August 1991, Series
A no. 211, pp. 27-28, §§ 66-67).
147. In
the present case, the bill of indictment was served on the applicant and his
lawyers on
In these circumstances, the Grand Chamber
agrees with the Chamber's findings regarding the difficulties the applicant's lawyers
encountered in gaining access to the court file, which were exacerbated by the
same kinds of problem the applicant had experienced:
“... the applicant's lawyers received a
17,000-page file approximately two weeks before the beginning of the trial in
the
(d) The Court's conclusion regarding
the fairness of the trial
148. Accordingly,
the applicant's trial was unfair for the following reasons: he had no assistance
from his lawyers during questioning in police custody; he was unable to
communicate with his lawyers out of the hearing of third parties; he was unable
to gain direct access to the case file until a very late stage in the proceedings;
restrictions were imposed on the number and length of his lawyers' visits; and,
lastly, his lawyers were given proper access to the case file belatedly. The
Court finds that the overall effect of these difficulties taken as a whole so
restricted the rights of the defence that the principle of a fair trial, as set
out in Article 6, was contravened. There has therefore been a violation of
Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b)
and (c).
149. As
regards the other complaints under Article 6 of the Convention, the Court
considers that it has already dealt with the applicant's main grievances
arising out of the proceedings against him in the domestic courts. It therefore
holds that it is unnecessary to examine the other complaints under Article 6
relating to the fairness of the proceedings.
III. DEATH PENALTY: ALLEGED VIOLATION OF ARTICLES 2, 3 AND 14 OF THE CONVENTION
150. The
applicant maintained that the imposition and/or execution of the death penalty
constituted a violation of Article 2 of the Convention – which should be
interpreted as no longer permitting capital punishment – as well as an inhuman
and degrading punishment in violation of Article 3. He also claimed that his
execution would be discriminatory and, therefore, in breach of Article 14. The
relevant parts of these provisions provide:
Article 2
“1. Everyone's right to life shall
be protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
...”
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status.”
A. Implementation of the death
penalty
151. In his initial
application, the applicant complained that any recourse to the death penalty
would violate both Articles 2 and 3 of the Convention.
152. In its judgment, the
Chamber said that it considered that the threat of implementation of the death
sentence had been effectively removed (see paragraphs 184-85 of the Chamber
judgment).
153. The parties did not
comment on this issue in the subsequent proceedings.
154. In this connection, the
Court notes that the death penalty has been abolished in
155. In these circumstances,
the complaints the applicant made in his initial application of violations of
Articles 2, 3 and 14 on account of the implementation of the death penalty must
be dismissed. Accordingly, there has been no violation of those provisions on
that account.
B. Imposition of the death penalty
156. The Grand Chamber agrees
with the Chamber that no separate issue arises under Article 2 with respect to
the imposition of the death penalty. It will therefore examine this point under
Article 3.
1. The parties' submissions
(a) The applicant
157. The
applicant asked the Grand Chamber to pursue the reasoning of the Chamber as
regards the abolitionist trend established by the practice of the Contracting
States and to take it a stage further by concluding that the States had, by
their practice, abrogated the exception set out in the second sentence of
Article 2 § 1 of the Convention and that the death penalty constituted inhuman
and degrading treatment within the meaning of Article 3. In that
connection, he repeated the observations he had submitted to the Chamber (see paragraphs
175-79 of the Chamber judgment).
When the Convention was signed
in 1950, the death penalty was not perceived as a degrading and inhuman punishment
in
158. No
construction of Article 2 should permit a State to inflict inhuman and degrading
treatment since the death penalty per se
constituted such treatment in breach of Article 3 of the Convention. In that
latter respect, the following submissions were made.
159. Developments
in international and comparative law showed that the death penalty could also
be seen to be contrary to international law. In that respect, reference was
made, inter alia, to a judgment of
the South African Constitutional Court in which it was held that the death
penalty was contrary to the South African Constitution's prohibition of cruel,
inhuman or degrading treatment (see S. v.
Makwanyane (1995) (6) Butterworths Constitutional Law Reports 665), and to
the judgment of the Canadian Supreme Court in United States v. Burns [2001] Supreme Court Reports 283, where that
court, in a case concerning the extradition of a fugitive to the United States
of America, considered capital punishment to amount to cruel and unusual
punishment. The United Nations Human Rights Committee had also held that execution
of a death sentence constituted cruel and inhuman treatment contrary to Article
6 of the International Covenant on Civil and Political Rights (see paragraph 60
above). Reference was also made to similar statements by the
160. Finally, the applicant maintained that the imposition of the death penalty by a court that failed to satisfy the requisite standards of the Convention and permitted violations of the applicant's rights under Article 6 also violated Articles 2 and 3.
(b) The Government
161. The Government disagreed with the Chamber's finding that the imposition of the death penalty following an unfair trial constituted a violation of Article 3.
They observed, firstly, that neither the
applicant nor his lawyers had presented any argument on this point. Secondly,
even assuming that the Court had decided of its own motion to examine the case
under Article 3, it would be difficult if not impossible to do so in view of
the nature of Article 3. Inhuman treatment within the meaning of Article 3
was based on a subjective concept, that is to say fear and anguish felt by the
applicant that reached the level proscribed by Article 3. In the absence of
such a complaint, it was not possible for the Court to put itself in the
applicant's position.
In the Government's submission, the conclusion
reached by the Chamber was contrary to an earlier admissibility decision of the
Commission in Çınar v. Turkey (no. 17864/91,
Commission decision of
The applicant's situation was identical to
that of Mr Çınar and Mr Sertkaya,
and the guarantees that the death penalty would not be carried out were, if
anything, firmer in his case: as the applicant's case file had never been sent
to Parliament, the procedure allowing the death penalty to be implemented was
never set in motion. In addition, the Turkish government's moratorium on the
implementation of the death penalty was unconditional and no offences or
individuals were excluded from its scope. The Government had complied with the
interim measure ordered by the Court under Rule 39 requiring them to stay the
applicant's execution. There was a broad consensus in Parliament in
The Government submitted that there was no
evidential basis for the Chamber's finding, nor could it be justified by the
Court's request for a stay of execution of the death penalty.
Lastly, the Turkish government's
decision to comply with the European norms on capital punishment had eliminated
all risk that the applicant would be executed.
2. The Court's assessment
(a) Legal significance of the
practice of the Contracting States as regards the death penalty
162. The Court must first address the applicant's submission that the practice of the Contracting States in this area can be taken as establishing an agreement to abrogate the exception provided for in the second sentence of Article 2 § 1, which explicitly permits capital punishment under certain conditions. In practice, if Article 2 is to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1 (see Soering, cited above, pp. 40-41, § 103).
163. The
Grand Chamber agrees with the following conclusions of the Chamber on this
point (see paragraphs 190-96 of the Chamber judgment):
“... The Court reiterates that it must be
mindful of the Convention's special character as a human rights treaty and that
the Convention cannot be interpreted in a vacuum. It should so far as possible
be interpreted in harmony with other rules of public international law of which
it forms part (see, mutatis mutandis,
Al-Adsani v. the United Kingdom [GC],
no. 35763/97, § 55, ECHR 2001-XI, and Loizidou
v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2231, § 43). It must, however, confine its
primary attention to the issues of interpretation and application of the
provisions of the Convention that arise in the present case.
... It is recalled that the Court accepted in Soering that an established practice
within the member States could give rise to an amendment of the Convention. In
that case the Court accepted that subsequent practice in national penal policy,
in the form of a generalised abolition of capital punishment, could be taken as
establishing the agreement of the Contracting States to abrogate the exception
provided for under Article 2 § 1 and hence remove a textual limit on the scope
for evolutive interpretation of Article 3 (ibid., pp. 40-41, § 103). It was
found, however, that Protocol No. 6 showed that the intention of the States was
to adopt the normal method of amendment of the text in order to introduce a new
obligation to abolish capital punishment in time of peace and to do so by an
optional instrument allowing each State to choose the moment when to undertake
such an engagement. The Court accordingly concluded that Article 3 could not be
interpreted as generally prohibiting the death penalty (ibid., pp. 40-41, §§
103-04).
... The applicant takes issue with the Court's
approach in Soering. His principal
submission was that the reasoning is flawed since Protocol No. 6 represents
merely one yardstick by which the practice of the States may be measured and
that the evidence shows that all member States of the Council of Europe have,
either de facto or de jure, effected total abolition of the
death penalty for all crimes and in all circumstances. He contended that as a
matter of legal theory there was no reason why the States should not be capable
of abolishing the death penalty both by abrogating the right to rely on the
second sentence of Article 2 § 1 through their practice and by formal
recognition of that process in the ratification of Protocol No. 6.
... The Court reiterates that the Convention
is a living instrument which must be interpreted in the light of present-day
conditions and that the increasingly high standard being required in the area of
the protection of human rights and fundamental liberties correspondingly and
inevitably requires greater firmness in assessing breaches of the fundamental
values of democratic societies (see Selmouni
v. France [GC], no. 25803/94, § 101, ECHR 1999-V).
... It reiterates that in assessing whether a
given treatment or punishment is to be regarded as inhuman or degrading for the
purposes of Article 3 it cannot but be influenced by the developments and
commonly accepted standards in the penal policy of the member States of the
Council of Europe in this field (see Soering,
cited above, p. 40, § 102). Moreover, the concepts of inhuman and degrading
treatment and punishment have evolved considerably since the Convention came
into force in 1953 and indeed since the Court's judgment in Soering in 1989.
... Equally the Court observes that the legal
position as regards the death penalty has undergone a considerable evolution
since Soering was decided. The de facto abolition noted in that case in
respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the
forty-four Contracting States and a moratorium in the remaining State that has
not yet abolished the penalty, namely Russia. This almost complete abandonment
of the death penalty in times of peace in
... Such a marked development could now be
taken as signalling the agreement of the Contracting States to abrogate, or at
the very least to modify, the second sentence of Article 2 § 1, particularly
when regard is had to the fact that all Contracting States have now signed
Protocol No. 6 and that it has been ratified by forty-one States. It may be
questioned whether it is necessary to await ratification of Protocol No. 6 by
the three remaining States before concluding that the death penalty exception
in Article 2 § 1 has been significantly modified. Against such a consistent
background, it can be said that capital punishment in peacetime has come to be
regarded as an unacceptable ... form of punishment that is no longer
permissible under Article 2.”
164. The
Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty
in all circumstances, the Contracting States have chosen the traditional
method of amendment of the text of the Convention in pursuit of their policy of
abolition. At the date of this judgment, three member States have not signed
this Protocol and sixteen have yet to ratify it. However, this final step
towards complete abolition of the death penalty – that is to say both in times
of peace and in times of war – can be seen as confirmation of the abolitionist
trend in the practice of the Contracting States. It does not necessarily run
counter to the view that Article 2 has been amended in so far as it permits the
death penalty in times of peace.
165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.
(b) Unfair proceedings and the death
penalty
(i) Under Article 2
166. As regards the reference
in Article 2 of the Convention to “the execution of a sentence of a court”, the
Grand Chamber agrees with the Chamber's reasoning (see paragraphs 201-04 of the
Chamber judgment):
“... Since the right to life in Article 2 of
the Convention ranks as one of the most fundamental provisions of the
Convention – one from which there can be no derogation in peacetime under
Article 15 – and enshrines one of the basic values of the democratic societies
making up the Council of Europe, its provisions must be strictly construed
(see, mutatis mutandis, McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), a fortiori the second sentence of
Article 2 § 1.
... Even if the death penalty were still permissible under Article 2, the Court considers that an arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the requirement that '[e]veryone's right to life shall be protected by law'. An arbitrary act cannot be lawful under the Convention (see Bozano, cited above, p. 23, § 54, and pp. 25-26, § 59).
... It also follows from the requirement in
Article 2 § 1 that the deprivation of life be pursuant to the 'execution of a
sentence of a court', that the 'court' which imposes the penalty be an
independent and impartial tribunal within the meaning of the Court's case-law (see
Incal, cited above; Çıraklar, cited above; Findlay v. the United Kingdom, judgment
of 25 February 1997, Reports 1997-I; and
Hauschildt v. Denmark, judgment of 24
May 1989, Series A no. 154), and that the most rigorous standards of fairness be
observed in the criminal proceedings both at first instance and on appeal.
Since the execution of the death penalty is irreversible, it can only be
through the application of such standards that an arbitrary and unlawful taking
of life can be avoided (see, in this connection, Article 5 of ECOSOC Resolution
1984/50 and the decisions of the United Nations Human Rights Committee ...;
also Advisory Opinion OC-16/99 of 1 October 1999 of the Inter-American Court of
Human Rights on 'The right to information on consular assistance in the
framework of the guarantee of due process of law', §§ 135‑36, and Hilaire, Constantine and Benjamin et al. v.
Trinidad and Tobago, § 148 ...). Lastly, the requirement in Article 2 § 1
that the penalty be 'provided by law' means not only that there must exist a
basis for the penalty in domestic law but that the requirement of the quality
of the law be fully respected, namely that the legal basis be 'accessible' and 'foreseeable'
as those terms are understood in the case-law of the Court (see Amann v. Switzerland [GC], no. 27798/95,
§ 56, ECHR 2000-II, and Rotaru v. Romania
[GC], no. 28341/95, § 52, ECHR 2000-V).
... It follows from the above construction of
Article 2 that the implementation of the death penalty in respect of a person
who has not had a fair trial would not be permissible.”
(ii) Under Article 3
167. The
above conclusion concerning the interpretation of Article 2 where there has
been an unfair trial must inform the opinion of the Court when it considers
under Article 3 the question of the imposition of the death penalty in such
circumstances.
168. As the Court has
previously noted in connection with Article 3, the manner in which the death
penalty is imposed or executed, the personal circumstances of the condemned
person and a disproportionality to the gravity of the crime committed, as well
as the conditions of detention awaiting execution, are examples of factors
capable of bringing the treatment or punishment received by the condemned
person within the proscription under Article 3 (see Soering, cited above, p. 41, § 104).
169. In the Court's view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention.
(iii) Application of these principles
to the present case
170. The
Court notes that there has been a moratorium on the implementation of the death
penalty in
171. The
Court has also had regard, in this context, to Çınar (cited above) in which the Commission rejected a claim
that Article 3 had been violated in the case of an applicant who had been
sentenced to death in
172. The
Grand Chamber agrees with the Chamber that the special circumstances of the
instant case prevent it from reaching the same conclusion as that reached in Çınar. The applicant's background
as the founder and leader of the PKK, an organisation that had been engaged in
a sustained campaign of violence causing many thousands of casualties, had made
him Turkey's most wanted person. In view of the fact that the applicant had
been convicted of the most serious crimes existing in the Turkish Criminal Code
and of the general political controversy in Turkey – prior to the decision to
abolish the death penalty – surrounding the question of whether he should be
executed, it is not possible to rule out the possibility that the risk that the
sentence would be implemented was a real one. In practical terms, the risk
remained for more than three years of the applicant's detention in
İmralı, from the date of the Court of Cassation's judgment of
173. As
to the nature of the applicant's trial, the Court refers to its conclusions on
the applicant's complaints under Article 6 of the Convention. It has found that
the applicant was not tried by an independent and impartial tribunal within the
meaning of Article 6 § 1 and that there has been a breach of the rights of the
defence under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and
(c), as the applicant had no access to a lawyer while in police custody and was
unable to communicate with his lawyers out of the hearing of officials,
restrictions had been imposed on the number and length of his lawyers' visits
to him, he was unable to consult the case file until an advanced stage of the proceedings,
and his lawyers did not have sufficient time to consult the file properly.
174. The
death penalty has thus been imposed on the applicant following an unfair
procedure which cannot be considered to conform to the strict standards of
fairness required in cases involving a capital sentence. Moreover, he had to
suffer the consequences of the imposition of that sentence for nearly three
years.
175. Consequently,
the Court concludes that the imposition of the death sentence on the applicant
following an unfair trial by a court whose independence and impartiality were
open to doubt amounted to inhuman treatment in violation of Article 3 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE
3 OF THE CONVENTION: CONDITIONS OF DETENTION
176. The
applicant further complained that the conditions in which he had been
transferred from
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Conditions in which the applicant
was transferred from
1. The applicant's submissions
177. The
applicant said that he had been “abducted” in
2. The Government's submissions
178. The Government asked the
Grand Chamber to uphold the Chamber's finding that the conditions in which the
applicant was transferred from
3. The Court's assessment
(a) General principles
179. Article 3 of the Convention enshrines one of the fundamental values of democratic societies (see Soering, cited above, pp. 34-35, § 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their populations from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Article 3 makes no provision for exceptions and no derogation from it is permissible even under Article 15 of the Convention in time of war or other national emergency (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79).
180. Ill-treatment
must attain a minimum level of severity if it is to fall within the scope of
Article 3. The assessment of this minimum depends on all the circumstances of
the case, such as the duration of the treatment, its physical or mental effects
and, in some cases, the sex, age and state of health of the victim (see, for
example, Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, § 162). In assessing the
evidence on which to base the decision whether there has been a violation of
Article 3, the Court adopts the standard of proof “beyond reasonable doubt” but
adds that such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions of fact.
In this context, the conduct of the parties when evidence is being obtained has
to be taken into account (ibid., pp. 64‑65, § 161).
181. Treatment will be considered to be “inhuman” within the meaning of Article 3 where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 13, § 22). In order for an arrest or detention in connection with court proceedings to be degrading within the meaning of Article 3, the humiliation or debasement to which it gives rise must be of a special level and in any event different from the usual degree of humiliation inherent in arrest or detention (see, mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).
182. Handcuffing, one of the forms of treatment complained of in the present case, does not normally give rise to an issue under Article 3 of the Convention where it has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage. In addition, the public nature of the treatment or the mere fact that the victim is humiliated in his own eyes may be a relevant consideration (see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 16, § 32, and Raninen, cited above, p. 2822, § 56).
183. Artificially depriving prisoners of their sight by blindfolding them for lengthy periods spread over several days may, when combined with other ill-treatment, subject them to strong psychological and physical pressure. The Court must examine the effect of such treatment in the special circumstances of each case (see, mutatis mutandis, Salman v. Turkey [GC], no. 21986/93, § 132, ECHR 2000-VII).
(b) Application of the above principles to the instant case
184. The Grand Chamber has examined the Chamber's findings and, in the absence of any additional arguments by the parties in support of their views, adopts them:
“... the applicant was forced to wear
handcuffs from the moment of his arrest by the Turkish security forces on the
aircraft until his arrival at the prison on the island of İmralı.
[The Court] also notes that he was suspected of being the leader of an armed
separatist movement that was engaged in an armed struggle against the Turkish
security forces and that he was considered dangerous. The Court accepts the
Government's submission that the sole purpose of requiring the applicant to
wear handcuffs as one of the security measures taken during the arrest phase
was to prevent him from attempting to abscond or causing injury or damage to
himself or others.
... As regards the blindfolding of the
applicant during his journey from
... The Court's view on this point is not
altered by the fact that the applicant was photographed wearing a blindfold in
the aircraft that took him back to
... The applicant said that he was under
sedation when he was transferred from
... Furthermore, at the hearing on 31 May 1999
the applicant stated in the
... Lastly, since the applicant's arrest was
lawful under Turkish law, the Court cannot accept the applicant's submission
that his 'abduction' abroad on account of his political opinions constituted
inhuman or degrading treatment within the meaning of Article 3.
... That being so, the Court considers that it
has not been established 'beyond all reasonable doubt' that the applicant's
arrest and the conditions in which he was transferred from Kenya to Turkey
exceeded the usual degree of humiliation that is inherent in every arrest and
detention or attained the minimum level of severity required for Article 3 of
the Convention to apply.”
185. Consequently, there has
been no violation of Article 3 on that account.
B. Conditions of detention on the island of İmralı
1. The applicant's submissions
186. The applicant disagreed
with the Chamber's finding that the conditions of his detention on the island
of İmralı did not infringe Article 3. He submitted that the
conditions were inhuman within the meaning of Article 3 or at the very least
entailed disproportionate interference with the exercise of his rights under
Article 8. He had been the sole inmate in the prison for more than five years
and his social isolation was made worse by the ban on his having a television
set or communicating by telephone, and by the practical obstacle inadequate sea
transport facilities posed to visits by his lawyers and members of his family.
The applicant pointed out that the CPT's recommendations for reduced social
isolation had not been followed by the prison authorities. His prison
conditions were, in his submission, harsher than those of other prisoners.
The applicant said that his health had deteriorated as a result of the particular weather conditions that prevailed on the island of İmralı and that the Government's insistence on keeping him in that prison had more to do with their repressive attitude than security. There was no justification for the Government's refusal to transfer him to an ordinary prison or to allow visitors to travel to the island by helicopter.
2. The Government's submissions
187. The
Government invited the Grand Chamber to endorse the Chamber's finding that the
conditions of the applicant's detention on the island of İmralı
did not infringe Article 3. They pointed out that the
applicant had at no stage been held in cellular confinement. He received visits
from his lawyers and members of his family every week. The adverse maritime
weather conditions in the winter of 2002-03 that had been responsible for the
cancellation of some visits were highly unusual.
188. The
Government produced photographs which in their submission showed that the
applicant's cell was suitably furnished. They pointed out that the applicant
had been tried and convicted of being the head of a major armed separatist
organisation that continued to regard him as its leader. All the restrictions
imposed on his telephone communications were intended to prevent the applicant
from continuing to run the organisation from his prison cell, and that was a
national security issue. However, he was able to read books and daily
newspapers of his choice and to listen to the radio. No restrictions had been
placed on his written communications with the outside world. As to the
applicant's health, he was examined frequently by doctors and psychologists,
whose daily medical reports were sent to the Court on a regular basis.
189. The Government asserted
that the applicant was treated in strict conformity with European standards
governing conditions of detention. In the cases in which the Court had found a
violation of Article 3, the conditions of detention were far worse than in Mr
Öcalan's case (for instance, Poltoratskiy v. Ukraine, no. 38812/97, ECHR 2003-V, and Kuznetsov
v. Ukraine, no. 39042/97,
3. The Court's assessment
190. The Court must first
determine the period of the applicant's detention to be taken into
consideration when examining his complaints under Article 3. It points out that
the “case” referred to the Grand Chamber embraces in principle all aspects of
the application previously examined by the Chamber in its judgment, the scope
of its jurisdiction in the “case” being limited only by the Chamber's decision
on admissibility (see, mutatis mutandis, K. and T. v. Finland
[GC], no. 25702/94, §§ 139-41, ECHR 2001-VII; Kingsley v. the United Kingdom
[GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC],
no. 36590/97, §§ 35-37, ECHR 2002-V; and Refah
Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 56, ECHR
2003-II). More specifically, within the compass delimited by the decision on
the admissibility of the application, the Court may deal with any issue of fact
or law that arises during the proceedings before it (see, among many other
authorities, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 223, § 44; Chahal, cited above, p. 1856, § 86; and Ahmed v. Austria, judgment of 17 December
1996, Reports 1996-VI, p. 2207,
§ 43). There is no justification for excluding from the scope of that
general jurisdiction events that took place up to the date of the Grand Chamber's
judgment, provided that they are directly related to the complaints declared
admissible.
Furthermore, in the instant case, the
applicant has already made submissions in the proceedings before the Chamber
outlining his arguments on the effects his prolonged social isolation while in
custody were likely to have.
The Court will therefore take
into consideration the conditions of the applicant's detention between
191. Complete
sensory isolation coupled with total social isolation can destroy the
personality and constitutes a form of inhuman treatment that cannot be
justified by the requirements of security or any other reason. On the other
hand, the prohibition of contact with other prisoners for security,
disciplinary or protective reasons does not in itself amount to inhuman
treatment or punishment (see, among other authorities,
192. In
the present case, it is true that the applicant's detention posed exceptional
difficulties for the Turkish authorities. The applicant, as the leader of a
large, armed separatist movement, is considered in
193. The
applicant's prison cell is indisputably furnished to a standard that is beyond
reproach. From the photographs in its possession and the findings of the
delegates of the CPT, who inspected the applicant's prison during their visit
to
194. Further, the Court
considers that the applicant cannot be regarded as being kept in sensory
isolation or cellular confinement. It is true that, as the sole inmate, his
only contact is with prison staff. He has books, newspapers and a radio at his
disposal. He does not have access to television programmes or a telephone. He
does, however, communicate with the outside world by letter. He sees a doctor
every day and his lawyers and members of his family once a week (his lawyers
were allowed to see him twice a week during the trial). The difficulties in
gaining access to İmralı Prison in adverse weather conditions appear
to have been resolved, as the prison authorities were provided with a suitable
craft at the end of 2004.
195. The
Court notes the CPT's recommendations that the applicant's relative social
isolation should not be allowed to continue for too long and that its effects
should be attenuated by giving him access to a television and to telephone
communications with his lawyers and close relatives. However, like the Chamber,
the Grand Chamber is also mindful of the Government's concerns that the
applicant may seek to take advantage of communications with the outside world
to renew contact with members of the armed separatist movement of which he was
leader. These concerns cannot be said to be unfounded. An added consideration
is the Government's fear that it would be difficult to protect the applicant's
life in an ordinary prison.
196. While
concurring with the CPT's recommendations that the long‑term effects of
the applicant's relative social isolation should be attenuated by giving him
access to the same facilities as other high security prisoners in Turkey, such
as television and telephone contact with his family, the Grand Chamber agrees
with the Chamber that the general conditions in which he is being detained at
İmralı Prison have not thus far reached the minimum level of severity
required to constitute inhuman or degrading treatment within the meaning of
Article 3 of the Convention. Consequently, there has been no violation of that
provision on that account.
V. ALLEGED VIOLATION OF ARTICLE
34 OF THE CONVENTION
197. The
applicant complained that he had been hindered in the exercise of his right of
individual application in that his lawyers in
“The Court may receive applications from any
person, non-governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties of the rights
set forth in the Convention or the Protocols thereto. The High Contracting
Parties undertake not to hinder in any way the effective exercise of this
right.”
198. The
Government asked the Court to dismiss those complaints.
199. The Court is called upon
to decide whether the two matters raised by the applicant genuinely hindered
him in the effective exercise of his right of application.
200. As regards his inability
to communicate with his lawyers in
201. As to the Government's delay in replying to the Chamber's second request for information, the Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005-I). However, though regrettable, the Government's failure to supply the information requested by the Court earlier did not, in the special circumstances of the case, prevent the applicant from setting out his complaints about the criminal proceedings that had been brought against him. Accordingly, the applicant has not been obstructed in the exercise of his right of individual application.
202. In conclusion, there has been no violation of Article 34 in fine of the Convention.
VI. OTHER COMPLAINTS
203. Relying
on the same facts, the applicant also alleged a violation of Articles 7, 8, 9,
10, 13, 14 and 18 of the Convention, taken individually or in conjunction with
the aforementioned provisions of the Convention.
204. Repeating the arguments set out above with regard to the other complaints, the Government submitted that those complaints too were ill‑founded and had to be dismissed.
205. The
applicant wished to pursue his complaints.
206. Having
examined the complaints, which, incidentally, are not set out in any detail in
the applicant's submissions, the Court notes that they have virtually the same
factual basis as the complaints it has examined in previous sections of this
judgment.
Consequently, it considers that no separate examination of the complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with Articles 2, 3, 5 and 6, is necessary.
VII. ARTICLES 46 AND 41 OF THE
CONVENTION
A. Article 46 of the Convention
207. Article 46 of the
Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
208. In the event of the
Court finding a violation of Article 6, the applicant requested a retrial by an
independent and impartial court in which he would enjoy full defence rights. In
the event of the Court finding a violation of Article 3 on account of the
conditions of his detention, he requested a transfer to a prison on the
mainland, and the facilitation of contact with other prisoners, members of his
family and his lawyers.
209. While reaffirming their view that there had been no violation of the Convention provisions relied on by the applicant, the Government submitted, in the alternative, that a finding of a violation could constitute in itself sufficient just satisfaction for the applicant.
210. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).
However, exceptionally, with a view to helping
the respondent State to fulfil its obligations under Article 46, the Court will
seek to indicate the type of measure that might be taken in order to put an end
to a systemic situation it has found to exist. In such circumstances, it may
propose various options and leave the choice of measure and its implementation
to the discretion of the State concerned (see Broniowski v. Poland [GC],
no. 31443/96, § 194, ECHR 2004-V).
In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, cited above, § 202).
In the specific context of cases against Turkey concerning the independence and impartiality of the national security courts, Chambers of the Court have indicated in certain judgments that were delivered after the Chamber judgment in the present case that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requests (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). It is also to be noted that a Chamber of the Court has adopted a similar stance in a case against Italy where the finding of a breach of the fairness guarantees contained in Article 6 was not related to the lack of independence or impartiality of the domestic courts (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV).
The Grand
Chamber endorses the general approach adopted in the above‑mentioned
case-law. It considers that where an individual, as in the instant case, has
been convicted by a court that 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. However, the specific remedial measures, if any, required of a
respondent State in order to discharge its obligations under Article 46 of the
Convention must depend on the particular circumstances of the individual case
and be determined in the light of the terms of the Court's judgment in that
case, and with due regard to the above case-law of
the Court.
B. Article 41 of the Convention
211. 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.”
1. Damage
212. The Court notes that the
applicant has not put forward any claim in respect of pecuniary or
non-pecuniary damage and concludes that any damage the applicant may have
sustained has been sufficiently compensated for by its findings of a violation
of Articles 3 (as regards the imposition of the death penalty following an
unfair trial), 5 and 6 of the Convention.
2. Costs and expenses
213. During the proceedings
before the Chamber, the applicant had claimed compensation of 1,123,933.96
euros (EUR) for the costs and expenses he had incurred for the seven lawyers
and three trainee lawyers who had acted for him outside
The Chamber awarded him EUR 100,000 under that
head.
The applicant claimed an additional EUR 75,559.32 in respect of the proceedings under Article 43 of the Convention. He explained that that sum was broken down into EUR 65,978.60 for the fees of his lawyers and their assistants and EUR 9,580.72 for sundry expenses, such as translation costs and travel expenses.
214. The
Government submitted that those claims were manifestly unreasonable, in
particular as regards the amount of the lawyers' fees.
215. According
to the Court's established case-law, costs and expenses will not be awarded
under Article 41 unless it is established that they were actually incurred,
were necessarily incurred and are also reasonable as to quantum (see The Sunday
Times v. the United Kingdom (Article
50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore,
legal costs are only recoverable in so far as they relate to the violation
found (see Beyeler v. Italy (just
satisfaction) [GC], no. 33202/96, § 27,
216. In
the present case, the Court notes that it has upheld only some of the applicant's
complaints under the Convention. It therefore notes that not all the time or
all the meetings for which the applicant's main lawyers claimed remuneration
were spent solely on the complaints in respect of which a violation has been
found.
217. The
Court considers that the applicant should only be reimbursed part of his costs
incurred before the Court. Having regard to the circumstances of the case, the
fee scales applicable in the
3. Default interest
218. 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
1. Dismisses unanimously the Government's preliminary objection concerning Article 5 §§ 1, 3 and 4 of the Convention;
2. Holds unanimously that there has been a violation of Article 5 § 4
of the Convention on account of the lack of a remedy by which the applicant
could have the lawfulness of his detention in police custody decided;
3. Holds unanimously that there has been no violation of Article 5 § 1
of the Convention on account of the applicant's arrest;
4. Holds unanimously that there has been a violation of Article 5 § 3
of the Convention on account of the failure to bring the applicant before a
judge promptly after his arrest;
5. Holds by eleven votes to six that there has been a violation of
Article 6 § 1 of the Convention in that the applicant was not tried by an
independent and impartial tribunal;
6. Holds unanimously that there has been a violation of Article 6 § 1 of
the Convention, taken in conjunction with Article 6 § 3 (b) and (c), in that
the applicant did not have a fair trial;
7. Holds unanimously that there has been no violation of Article 2 of
the Convention;
8. Holds unanimously that there has been no violation of Article 14 of
the Convention, taken in conjunction with Article 2, as regards the
implementation of the death penalty;
9. Holds unanimously that there has been no violation of Article 3 of
the Convention as regards the complaint concerning the implementation of the
death penalty;
10. Holds by thirteen votes to four that there has been a violation of
Article 3 of the Convention as regards the imposition of the death penalty
following an unfair trial;
11. Holds unanimously that there has been no violation of Article 3 of
the Convention as regards the conditions in which the applicant was transferred
from
12. Holds unanimously that there has been no violation of Article 3 of
the Convention, as regards the conditions of the applicant's detention on the
island of İmralı;
13. Holds unanimously that no separate examination is necessary of the
applicant's remaining complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of
the Convention, taken individually or in conjunction with the aforementioned
provisions of the Convention;
14. Holds unanimously that there has been no violation of Article 34 in fine of the Convention;
15. Holds unanimously that its findings of a violation of Articles 3, 5
and 6 of the Convention constitute in themselves sufficient just satisfaction
for any damage sustained by the applicant;
16. Holds unanimously
(a) that the respondent State is
to pay the applicant's lawyers in the manner set out in paragraph 217 of the
present judgment, within three months, for costs and expenses, the sum of EUR 120,000
(one hundred and twenty thousand euros) to be converted into new Turkish liras or
pounds sterling, depending on where payment is made, at the rate applicable at
the date of settlement, plus any value-added tax that may be chargeable;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
17. Dismisses unanimously the remainder of the applicant's claim for
just satisfaction.
Done in English and in French, and delivered
at a public hearing in the Human Rights Building,
Luzius
Wildhaber
President
Paul Mahoney
Registrar
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions
are annexed to this judgment:
(a) partly concurring, partly
dissenting opinion of Mr Garlicki;
(b) joint partly dissenting opinion of Mr Wildhaber, Mr Costa, Mr Caflisch, Mr Türmen, Mr Garlicki and Mr Borrego Borrego;
(c) joint partly dissenting opinion
of Mr Costa, Mr Caflisch, Mr Türmen and Mr Borrego Borrego.
L.W.
P.J.M.
PARTLY CONCURRING, PARTLY DISSENTING OPINION
OF JUDGE GARLICKI
I. Article 3
1. I am writing this separate opinion because I feel that, in this case, the Court should have decided, in the operative provisions of its judgment, that Article 3 had been violated because any imposition of the death penalty represents per se inhuman and degrading treatment prohibited by the Convention. Thus, while correct, the majority's conclusion that the imposition of the death penalty following an unfair trial represents a violation of Article 3 seems to me to stop short of addressing the real problem.
2. It is true that the majority's conclusion was sufficient to establish a violation in the instant case and that it was not absolutely necessary to produce any firm conclusion on the – more general – point of whether the implementation of the death penalty should now be regarded as inhuman and degrading treatment contrary to Article 3 in all circumstances. I accept that there are many virtues in judicial self-restraint, but am not persuaded that this was the best occasion to exercise it.
I am fully aware that the original text of the Convention allowed capital punishment provided the guarantees referred to in Article 2 § 1 were in place. I am also aware that in Soering v. the United Kingdom (judgment of 7 July 1989, Series A no. 161) this Court declined to hold that the new international context permitted it to conclude that the exception provided for in the second sentence of Article 2 § 1 had been abrogated. Today the Court, while agreeing that “it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment which is no longer permissible under Article 2” (see paragraph 163 of the judgment), seems to be convinced that there is no room for the death penalty even within the original text of the Convention. But, at the same time, it has chosen not to express that position in a universally binding manner. In my opinion, there are some arguments suggesting that the Court could and should have gone further in this case.
3. First of all, there seems to be no dispute over the substance of the problem. The Court was clearly right in observing that, over the past fifteen years, the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment and that such a development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1. It is not necessary to recapitulate here all the relevant developments in Europe; it seems sufficient to quote the 2002 opinion of the Parliamentary Assembly of the Council of Europe in which it recalled that in its most recent resolutions “it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law”. Thus, today, in 2005, condemnation of the death penalty has become absolute and even fairness of the highest order at trial cannot legitimate the imposition of such a penalty. In other words, it is possible to conclude that the member States have agreed through their practice to modify the second sentence of Article 2 § 1. The only problem is: who shall have the power to declare, in a binding manner, that such modification has taken place? So, this is a problem not of substance, but of jurisdiction (competence). In consequence, the only question that remains is whether the Court has the power to state the obvious truth, namely that capital punishment has now become an inhuman and degrading punishment per se.
4. In answering this question, it is necessary to bear in mind that the Convention, as an international treaty, should be applied and interpreted in accordance with general rules of international law, in particular Article 39 of the Vienna Convention. This suggests that the only way to modify the Convention is to follow the “normal procedure of amendment” (see paragraphs 103-04 of Soering, cited above, and paragraphs 164-65 of the present judgment).
But the Convention represents a very distinct
form of international instrument and – in many respects – its substance and process
of application are more akin to those of national constitutions than to those
of “typical” international treaties. The Court has always accepted that the
Convention is a living instrument and must be interpreted in the light of
present-day conditions. This may result (and, in fact, has on numerous
occasions resulted) in judicial modifications of the original meaning of the
Convention. From this perspective, the role of our Court is not very different
from the role of national Constitutional Courts, whose mandate is not only to
defend constitutional provisions on human rights, but also to develop them. The
5. This Court has never denied that the “living-instrument approach” may lead to a judicial imposition of new, higher standards of human rights protection. However, with respect to capital punishment, it adopted – in Soering – “a doctrine of pre-emption”. As I have mentioned above, the Court found that, since the member States had decided to address the problem of capital punishment by way of formal amendments to the Convention, this matter became the “preserve” of the States and the Court was prevented from applying its living-instrument doctrine.
I am not sure whether such an interpretation was correct in Soering or applicable to the present judgment.
The judgment in Soering was based on the fact that, although Protocol No. 6 had provided for the abolition of the death penalty, several member States had yet to ratify it in 1989. Thus, it would have been premature for the Court to take any general position as to the compatibility of capital punishment with the Convention. Now, the majority raises basically the same argument with respect to Protocol No. 13, which, it is true, remains in the process of ratification.
But this may only demonstrate a hesitation on the part of certain member States over the best moment to irrevocably abolish the death penalty. At the same time, it can no longer be disputed that – on the European level – there is a consensus as to the inhuman nature of the death penalty. Therefore, the fact that governments and politicians are preparing a formal amendment to the Convention may be understood more as a signal that capital punishment should no longer exist than as a decision pre-empting the Court from acting on its own initiative.
That is why I am not convinced by the majority's replication of the Soering approach. I do not think that there are any legal obstacles to this Court taking a decision with respect to the nature of capital punishment.
6. Such a decision would have
universal applicability; in particular, it would prohibit any imposition of the
death penalty, not only in times of peace but also in wartime or other warlike
situations. But it should not stop the Court from taking this decision today.
It may be true that the history of Europe demonstrates that there have been
wars, like the Second World War, during which (or after which) there was
justification for capital punishment. I do not think, however, that the present
interpretation of the Convention should provide for such exceptions: it would
be rather naïve to believe that, if a war of a similar magnitude were to break
out again, the Convention as a whole would be able to survive, even if
concessions were made with regard to the interpretation of capital punishment.
On the other hand, if there is a war or armed conflict of a local dimension
only – and this has been the experience of the last five decades in
Furthermore, it is notable that, as the Statute of the recently established International Criminal Court shows, the international community is of the opinion that even the most dreadful crimes can be dealt with without resorting to capital punishment.
7. In the last fifteen years,
several Constitutional Courts in
I am firmly convinced that the European Court of Human Rights should have followed the same path in the present judgment.
II. Article 6 § 1
To my regret, I cannot join the majority in finding a violation of Article 6 § 1 of the Convention on the ground that the applicant was not tried by an independent and impartial tribunal. In this respect, my views are set out in the joint partly dissenting opinion I have expressed with Mr Wildhaber, Mr Costa, Mr Caflisch, Mr Türmen and Mr Borrego Borrego.
JOINT PARTLY DISSENTING OPINION
OF JUDGES WILDHABER, COSTA, CAFLISCH, TÜRMEN, GARLICKI AND BORREGO BORREGO
(Translation)
1. The majority of the Court found
that in the present case the
2. It is true that since Incal v. Turkey (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV)
the principle followed by the Court in this type of case is that an applicant
has legitimate cause to doubt the independence and impartiality of a national
security court when a military judge sits alongside two civilian judges. The
Court was divided in Incal and
decided the point by a majority of
3. It is equally true that the Incal precedent has since been followed
in a number of judgments (including Sürek v.
4. However, things have changed. Within
a very short space of time, Turkey took remedial action following the judgment
in Incal and did not hesitate to
amend its Constitution (and subsequently its legislation) so that only civilian
judges would sit in the national security courts (which have since been
abolished). By
5. The amended legislation was immediately applied to the applicant's trial, with the third civilian judge replacing the military judge the day after it came into force. It should be noted that the replacement judge had been present throughout the proceedings and had attended all the hearings of the National Security Court from the start of the trial, that the National Security Court noted that he had read the file and the transcripts (see paragraph 44 of the judgment) and, lastly, that he was at liberty to request additional evidence or investigations.
6. Thus the National Security
Court's verdict and sentence were handed down by a court composed entirely of civilian
judges, all three of whom had taken part in the entire trial. To say that the
presence of a military judge, who was replaced under new rules (that were
introduced to comply with the case-law of the European Court of Human Rights)
made the
7. For this reason we consider
that the Court's approach in İmrek
v.
8. In addition, in Mr Öcalan's case, and without departing from the principles established in Incal itself, it is hard to agree with what is said in paragraph 116 of the judgment. The applicant is there described as a civilian (or equated to a civilian). However, he was accused of instigating serious terrorist crimes leading to thousands of deaths, charges which he admitted at least in part. He could equally well be described as a warlord, which goes a long way to putting into perspective the fact that at the start of his trial one of the three members of the court before which he appeared was himself from the military.
9. Inherent in a system based on the principle of subsidiarity is loyal cooperation between a supranational judicial body, such as this Court, and the States which have adhered to the system. Imposing standards that are too high does not appear to us to be the best way of encouraging such cooperation or of expressing satisfaction to the States that provide it.
JOINT PARTLY DISSENTING OPINION
OF JUDGES COSTA, CAFLISCH, TÜRMEN
AND BORREGO BORREGO
In paragraph 175 of the judgment, the
majority expresses the opinion that “the imposition of the death sentence ...
following an unfair trial by a court whose independence and impartiality were
open to doubt amounted to inhuman treatment ...”.
First of all, we do not agree with the majority that the Court which sentenced Mr Öcalan was not independent and impartial. However, even if it had been, we do not believe that this constitutes a breach of Article 3.
The majority accepts that Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 (paragraph 162 of the judgment). In other words, according to the majority, while the death penalty itself does not constitute a violation of Article 3, a procedural defect in respect of impartiality and independence of the court which imposes the death penalty constitutes a violation of Article 3.
According to our case-law, fear and anguish due to the impartiality and independence of a court is a question to be examined under Article 6 of the Convention rather than under Article 3.
“... In deciding whether there is a legitimate
reason to fear that a particular court lacks independence and impartiality, the
standpoint of the accused is important without being decisive” (see Incal v. Turkey, judgment of 9 June 1998, Reports
of Judgments and Decisions 1998‑IV, pp. 1572-73, § 71). “... [T]he applicant could legitimately fear ... because one of
the judges ... was a military judge” (ibid., p. 1573, § 72). Similar
sentences are contained in Çıraklar v. Turkey
(judgment of
Moreover, inhuman treatment within the meaning
of Article 3 must attain a minimum level of severity. The applicant must show
beyond reasonable doubt that he has suffered fear and anguish that reaches the
threshold level required by Article 3 (see,
mutatis mutandis, V. v.
the United Kingdom [GC], no. 24888/94, ECHR 1999‑IX). In the
present case, there is no evidence that the applicant has suffered fear and
anguish that reaches the necessary threshold due to a lack of impartiality and
independence on the part of the national security court. As stated in paragraph
39 of the judgment, during the trial the applicant accepted the main charge
against him under Article 125 of the Turkish Criminal Code, that is to say having
accomplished acts aimed at separating a part of the State's territory. He also
accepted political responsibility for the PKK's general strategy as its leader
and admitted having envisaged the establishment of a separate State on the
territory of the
Under such circumstances, the presence of a military judge at an early stage of the trial can hardly have caused fear and anguish reaching a threshold constituting a violation of Article 3.
Furthermore, for a threat to amount to inhuman
treatment there must be a “real risk”. A mere possibility is not in itself
sufficient (see Vilvarajah and Others v. the United Kingdom, judgment of
In the present case, there is no ground to believe that there was a real and immediate risk that the applicant would be executed, for the following reasons.
(a) In
(b) The Government, by an official communication sent to the Court, accepted the Rule 39 decision of former Section 1 and stayed Mr Öcalan's execution (see paragraph 5 of the judgment).
(c) In compliance with the Rule 39
decision, the Government did not send the applicant's file to Parliament for
the death sentence to be approved (under the Turkish Constitution, the death
penalty may be executed only after Parliament adopts a law approving the
sentence). In other words, the process of execution never started. Under such
circumstances, it is not possible to conclude that a real threat of execution
existed for Mr Öcalan in the period between the Turkish court's decision and
the abolition of the death penalty in
In Soering
v. the United Kingdom (judgment of
In Çınar v. Turkey (no. 17864/91, Commission decision of 5 September 1994, Decisions and Reports 79-B, p. 5), the applicant claimed that there had been a violation of Article 3 because his death sentence, which became definitive on 20 October 1987, was submitted to the Grand National Assembly for approval and the Grand National Assembly did not take any decision until 1991. He was therefore exposed to the death-row phenomenon.
The Commission rejected this claim on the
ground that the death penalty had not been executed in
We cannot accept that in the present case the risk of execution for the applicant was more real than that in Çınar.
The applicant's political background did not
increase the risk of execution, as is suggested in the judgment (paragraph 172).
On the contrary, it made him less vulnerable because of the political consequences
his execution would have had. The fact that there has been a quasi consensus
among all political parties in Parliament not to execute confirms this view. This
political consensus is evident from the fact that Parliament abolished the
death penalty by Law no. 4771, which
was passed with a large majority and published on
For all these reasons, we conclude that there
has been no violation of Article 3 on account of the death sentence imposed by
the