ECHR

In the case of Osman v. Turkey,

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

          Mr     J.-P. Costa, President,
          Mr     A.B. Baka,
          Mr     I. Cabral Barreto,
          Mr     R. Türmen,
          Mrs   A. Mularoni,
          Mrs   E. Fura-Sandström,
          Ms     D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 28 November 2006 ,

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

PROCEDURE

1. The case originated in an application (no. 4415/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Syrian national, Mr Abdülmenaf Osman (“the applicant”), on 2 November 2001.

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

3. The applicant alleged that he was not tried before an independent and impartial tribunal and that the length of the proceedings exceeded the reasonable time. He invoked Article 6 of the Convention.

4. On 6 October 2005 the Court (First Section) declared the application partly inadmissible and decided to communicate the complaints concerning the independence and impartiality of the Diyarbakır State Security Court and the length of the proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1965 and he is currently detained in the Gaziantep Prison.

6. On 13 March 1993 the applicant was taken into custody by policemen from the Anti-Terrorism Branch of the Batman Security Directorate on suspicion of his membership of an illegal organisation, namely the Workers' Party of Kurdistan (“the PKK”).

7. On 13 April 1993 the applicant was brought before the public prosecutor and the investigating judge where he repeated his police statements. The judge ordered the applicant's detention on remand.

8. On 26 April 1993 the Diyarbakır State Security Court Public Prosecutor filed an indictment against 38 accused persons, including the applicant. He accused the applicant of carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State's control. He requested the court to sentence the applicant in accordance with Article 125 of the Criminal Code.

9. Two further indictments were submitted to the Diyarbakır State Security Court concerning offences which the applicant had allegedly committed in Bitlis and Tatvan. The Diyarbakır State Security Court decided to examine these accusations jointly.

10. Between 16 June 1993 and 20 April 1999, the court held 51 hearings, during which the judges dealt with solely procedural matters. They considered the measures that should be taken to secure the presence of the accused persons at the hearings and examined their continued detention. The applicant did not attend many of these hearings in protest against the State Security Courts.

11. On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge. Thereafter, the court held 18 more hearings.

12. On 12 March 2002 the Diyarbakır State Security Court, which was composed of three civilian judges, found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Criminal Code. The death penalty was commuted to a life sentence.

13. On 1 October 2002 the Court of Cassation upheld the decision of the Diyarbakır State Security Court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

14. The applicant complained that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Diyarbakır State Security Court which tried him. The applicant further complained that the length of the criminal proceedings brought against him was in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention.

Article 6 § 1 of the Convention, in so far as relevant, reads:

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

A. Admissibility

1. Independence and impartiality of the trial court

15. The Government maintained that, by Law no. 4388 of 18 June 1999, amendments were made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention.

16. The Court has consistently held that certain aspects of the status of military judges sitting as members of the State Security Courts rendered their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998‑IV, § 68; Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998‑VII, § 39). The Court also found in Öcalan v. Turkey (no. 46221/99, ECHR 2005‑, §§ 114-115) that when a military judge participated in one or more interlocutory decisions that remained in effect during the criminal proceedings in question, the military judge's replacement by a civilian judge in the course of those proceedings, before the verdict was delivered, failed to dissipate the applicant's reasonably held concern about that trial court's independence and impartiality, unless it was established that the procedure subsequently followed in the State Security Court sufficiently allayed that concern.

17. In the instant case, the Court notes that before his replacement in June 1999 the military judge was present at 51 hearings. However, it is clear from the documents in the file that during these hearings the Diyarbakır State Security Court took no interlocutory decisions of importance, in particular concerning the defence rights of the applicant. In this connection, the Court observes that, after the military judge was replaced by a civilian judge, the domestic court held 18 hearings on the merits and the applicant was heard by the new court. Therefore, the Court finds that, in the particular circumstances of the case, the replacement of the military judge before the end of the proceedings disposed of the applicant's reasonably held concern about the trial court's independence and impartiality (see Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01, §§ 33-36, 19 September 2006).

18. In the light of the foregoing, the Court concludes that the applicant's complaint concerning the independence and impartiality of the Diyarbakır State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Length of the proceedings

19. The Court notes that the applicant's complaint regarding the length of the criminal proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

20. The Government contended that the length of the proceedings in the instant case could not be considered unreasonable in view of the number of accused persons, the complexity of the case and the nature of the offence with which the applicant was charged. Moreover, they alleged that the applicant had contributed to the length of the proceedings by not appearing before the court on several occasions.

21. The Court notes that the period to be taken into consideration began on 13 March 1993, when the applicant was taken into police custody, and ended on 1 October 2002 with the decision of the Court of Cassation. The proceedings therefore lasted more than nine years and six months for two levels of jurisdiction.

22. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant (see, amongst many others, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

23. The Court observes that the applicant did not appear before the court on a number of occasions. However, it is of the opinion that the applicant's absence from some of the hearings cannot justify the overall length of the proceedings.

24. Recalling that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to decide cases within a reasonable time (see Arvelakis v. Greece, no. 41354/98, § 26, 12 April 2001), the Court considers that the trial court should have applied stricter measures to speed up the proceedings. It therefore finds that the instant case was unnecessarily prolonged as the State Security Court failed to act with the necessary diligence.

25. In view of the above, the Court considers that the criminal proceedings against the applicant cannot be considered to have complied with the reasonable time requirement laid down in Article 6 § 1.

26. There has accordingly been a violation of this provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

28. The applicant claimed 15,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage.

29. The Government contested these claims.

30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it accepts that the applicant must have suffered some non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 4,500 for non-pecuniary damage.

B. Costs and expenses

31. The applicant also claimed a total of EUR 3,337 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

32. The Government disputed this claim.

33. On the basis of the material in its possession and ruling on an equitable basis, the Court awards the applicant EUR 1,000 in respect of costs and expenses.

C. Default interest

34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the length of the criminal proceedings admissible and the remainder of the application inadmissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into New Turkish Liras at the rate applicable at the date of the settlement and exempt from all taxes and duties:

(i) EUR 4,500 (four thousand five hundred euros) in respect of non-pecuniary damage;

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

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

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

S. Dollé J.-P. COSTA Registrar President