AS TO THE ADMISSIBILITY OF
Application no. 46221/99
by Abdullah ÖCALAN
The European Court of Human Rights (First Section), having sat on 21 November and 14 December 2000 as a Chamber composed of
Mrs E. Palm, President,
Mrs W. Thomassen,
Mr Gaukur Jörundsson,
Mr R. Türmen,
Mr C. Bîrsan,
Mr J. Casadevall,
Mr R. Maruste, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application introduced on 16 February 1999 and registered on 17 February 1999,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the parties’ oral submissions at the hearing on 21 November 2000,
Having deliberated, decides as follows:
The applicant is a Turkish national who was born in 1949 and is currently in custody in İmralı Prison (Mudanya, Bursa, Turkey). He is represented before the Court by Mr Ahmet Avşar, Mr Doğan Erbaş, Mr İrfan Dündar, Mr Hasip Kaplan, Ms Aysel Tuğluk, Mr İmihan Yaşar, Mr Mükrime Tepe and Mr Filiz Köstak, of the Istanbul Bar, Mr Hatice Korkut and Mr Kemal Bilgiç, of the İzmir Bar, Mr Mahmut Şakar and Mr Reyhan Yalçındağ, of the Diyarbakır Bar, Mr Niyazi Bulgan, of the Gaziantep Bar, Mr Aydın Oruç, of the Denizli Bar and Mr Mark Muller, a London barrister. Until 27 October 2000 the applicant was also represented by Ms Ties Prakken and Ms Britta Böhler, of the Amsterdam Bar.
I. THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The applicant’s arrest and transfer to Turkey
On 9 October 1998, the applicant, the leader of the Workers’ Party of Kurdistan (“the PKK”), was expelled from Syria, where he had been living for many years. On 12 November 1998 he went to Rome via Moscow. Although the Italian authorities refused to extradite him to Turkey, they refused his application for political asylum. He therefore left Italy. According to the respondent Government (“the Government”), seven warrants for his arrest had been issued by the Turkish courts and a wanted notice (“red notice”) had been issued by Interpol.
Later, after a stay at the Greek ambassador’s residence in Nairobi, Kenya, the applicant was arrested. According to him, the arrest took place in Nairobi on 15 February 1999, before 11 p.m., during an operation carried out in disputed circumstances. He was transferred to Turkey and taken into police custody at İmralı Prison on 16 February 1999.
According to the Turkish authorities, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs of the applicant taken during the journey to his place of detention in Turkey were published in the press. In the meantime, the other inmates of İmralı Prison were transferred to other prisons.
During his transfer from Kenya to the island of İmralı the applicant was blindfolded. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace. According to the applicant, he was also given tranquillisers.
B. Police custody on the island of İmralı
From 16 February 1999 the applicant was interrogated by members of the security forces. On 20 February 1999 his police custody was extended by three days by decision of a judge (taken on the basis of the file) on the ground that the interrogation had not been completed.
The judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999.
According to the applicant, sixteen lawyers instructed by his family sought leave from the National Security Court on 22 February 1999 to visit their client. They were told orally that only a single lawyer would be allowed to see him. The lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit their client. Likewise according to the applicant, his lawyers were harassed by a crowd encouraged or at least tolerated by plain-clothes policemen.
As soon as the applicant’s detention began, the island of İmralı was decreed to be 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 this “desk” which was responsible for granting the 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 made an attempt on his life. Likewise according to the Government, the lawyers were searched as part of those security measures.
On 22 February 1999 the public prosecutor at the Ankara National Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. At the outset, his and the PKK’s aim had been to found an independent Kurdish State, but over time they had changed their objective and aimed at securing a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK used violent methods against the civil population, in particular from 1987 onwards; he himself was personally opposed to such methods and had tried in vain to prevent recourse to them. He indicated to the prosecutor that the warlords who wanted to seize power within the PKK had exerted some of their pressure on the Kurdish population; some of them had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish Government’s estimate of the number of those killed or wounded as a result of the PKK’s activities was fairly accurate; that the actual number might even be higher; and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services.
C. Appearance before a judge and pre-trial detention
On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the National Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were ultimately submitted to him for his approval as founder and leader of the organisation. In 1973-78 the PKK’s activities had been political. In 1977 and 1978 the PKK had organised armed attacks on the ağalar (major landowners). In 1979, after the applicant had gone to Lebanon, the PKK had begun its paramilitary preparations. Since 1984 the PKK had carried on an armed struggle within Turkey. The persons in charge in each province decided on armed actions and the applicant had confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions.
D. Contacts with the outside world during the judicial investigation
According to the applicant, on the day after he arrived in Turkey his Turkish lawyer, Mr Feridun Çelik, asked to visit his client. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Assocation and was subsequently arrested together with seven other lawyers.
On 17 February 1999 the Turkish authorities at Istanbul Airport refused Ms Böhler, Ms Prakken and their partner Mr Koppen leave to enter Turkey on the ground that these lawyers could not represent the applicant 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) gave rise to the risk of prejudice to public order in Turkey.
On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the National Security Court. The applicant’s other representatives were given leave to have their authority to act before the Court signed and to see their client later.
During the preliminary investigation from 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve interviews with his lawyers. The dates and duration of those interviews were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour, 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour).
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 a week, lasting an hour each. On each visit the lawyers were searched five times and required to fill in a very detailed questionnaire. Likewise according to the applicant, he and his advisers were not allowed to exchange documents or take notes during these interviews. The applicants’ representatives were unable to give him either a copy of his case file (other than the indictment, which was notified by the prosecution) or any other material which would allow the applicant to prepare his defence.
According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or the length of such visits. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the interviews were held in private. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat from a private quay. Hotel rooms were booked for them near the embarkation point. Likewise according to the Government, no restrictions were placed on the applicant’s correspondence.
In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Turkish Government they indicated that the applicant was physically in good health and that he had said that he had not suffered any ill-treatment since his arrest. His cell was of a high standard. The CPT drew the Government’s attention to the fact that the applicant’s solitary confinement and his limited access to the open air could affect his psychological health.
E. The media
According to the applicant, even before his trial began he was portrayed by a section of the media as a “baby-killer”. His statements made as an accused during the preliminary investigation were disclosed to the press even before they were available to his lawyers.
According to the Government, the media and journalists showed avid interest in the Öcalan case and all sorts of comments were made as to whether the applicant should or should not be found guilty. The applicant’s lawyers brought an action against a journalist who they considered had libelled the applicant.
F. Trial at the National Security Court
In an indictment submitted on 24 April 1999 (and joined to several others 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.
The case file ran to 17,000 pages and had been prepared by joining the files of seven sets of proceedings already instituted against the applicant by the various National Security Courts. According to the applicant, that file was communicated to his lawyers sixteen days before the trial began and the prosecution failed to place certain documents in it, such as those concerning the applicant’s arrest in Kenya and the records of the lawyers’ visits to the applicant on the island of İmralı.
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 and the measures to be taken for the hearings to be held on the island of İmralı and for the attendance of the parties and the public at those hearings. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 are currently the subject of a criminal investigation.
The National Security Court held eight hearings on the island of İmralı from 31 May to 29 June 1999 and these were attended by the applicant. The applicant told the court, among other things, that he reiterated the statements he had made to the prosecutor and the judge. He confirmed that he was the most senior PKK official, that he led the organisation and that he had instructed the members of the organisation to carry out a number of acts. He stated that he had not been ill-treated or insulted since his arrest. Furthermore, the applicant’s representatives argued that the National Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court’s jurisdiction.
The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and promised to halt the PKK’s armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey”. He observed, in particular, that he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, as a reaction to the Government’s political pressure on that population. When circumstances changed, he had altered his aim and limited his claims to autonomy or a recognition of the Kurds’ cultural rights within a democratic society. He accepted political responsibility for the PKK’s general strategy but disclaimed criminal liability for the acts of violence which went beyond the PKK’s declared policy. In order to highlight the rapprochement between the PKK and the Government, he applied to have the Government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the National Security Court.
According to the applicant, his lawyers’ applications for the communication of additional documents or further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics.
According to the Government, the applicant’s lawyers’ request to be able to confer with him during the lunch breaks was accepted by the National Security Court at the hearing on 1 June 1999. The lawyers did not appear at the hearing on 3 June 1999. At their request, the transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant’s counsel thanked the National Security Court for creating an atmosphere of calm.
On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members (whether of the bench or of the prosecutor’s office) from National Security Courts. Following similar amendments made on 22 June 1999 to the Law on the National Security Courts, the military judge sitting on the Ankara National Security Court hearing the Öcalan case was replaced by a civilian judge. This substitution took place after the prosecution had made their closing address and before the applicant presented his defence on the merits of the charges. The judge who replaced the military judge sat on the National Security Court for the first time at the hearing on 23 June 1999. The court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure.
According to the applicant, the military judge, an army colonel, was replaced after all the interlocutory rulings had been made by the National Security Court, including the one whereby the applicant’s application for further witnesses to be heard was refused.
According to the Government, the military judge’s replacement had followed the proceedings from the beginning and had attended the hearings, without being entitled to vote. He replaced the military judge before the end of the stage relating to the taking of evidence. Likewise according to the Government, he had the right to vote against the completion of that stage if he felt that the court needed to investigate the case more thoroughly.
On 29 June 1999 the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey’s territory and of training and leading a gang of armed terrorists for that purpose. It sentenced him to death, pursuant to Article 125 of the Criminal Code. The National Security Court held that the applicant was the founder and principal leader of the unlawful organisation the PKK. The aim of the latter was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The court held that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, policemen, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard to, among other things, the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed.
G. Appeal on points of law
The applicant’s lawyers appealed on points of law against that judgment, which, on account of the gravity of the sentence, was in any event subject to review by the Court of Cassation automatically.
In a judgment adopted on 22 November 1999 and delivered on the 25th the Court of Cassation affirmed the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again seeing that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara National Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction, among other reasons on security grounds.
As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and chairman 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 which Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces and 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”, gifts, 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 groupings. 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 men to resort to violence, had indicated combat tactics, had imposed penalties on those who did not obey his instructions and had incited the civilian population to translate words into deeds. As a result of the acts of violence carried out by the PKK from 1978 up 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 policemen and 1,225 village guards had died.
The Court of Cassation held that the PKK, founded and led by the applicant, had represented a substantial, serious and pressing threat to the country’s integrity. It ruled that the acts of which the applicant was accused matched those which constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order that that provision should apply, for the applicant – the founder and chairman of the PKK and the instigator of the acts of violence committed by that organisation – to have used a weapon himself.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions on National Security Courts
Before the Constitution was amended on 18 June 1999, Article 143 provided that National Security Courts were composed of a president, two other regular members and two substitute members. The President of the National Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges.
As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:
National Security Courts shall be composed of a president, two other regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors.
The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and Public Prosecutors of the first rank, according to procedures laid down in special legislation, and the Public Prosecutors from among other Public Prosecutors by the National Legal Service Council, for four years. Their term of office shall be renewable…”
The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the National Security Courts by means of Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the National Security Courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the National Security Courts on the date of publication of the Law were to continue from the stage they had reached by that date.
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
The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person arrested and/or whose police custody has been extended on the orders of a prosecutor may challenge the measure in question before the appropriate district judge and, if successful, be released. In proceedings in National Security Courts (governed by Law no. 2845 of 16 June 1983) Article 128 of the Code of Criminal Procedure applies only as it was worded before the amendments of 18 November 1982, when it did not provide for any appeal by persons arrested and/or kept in police custody on the orders of a prosecutor.
Section 1 of Law no. 466 “on the award of compensation to persons arrested unlawfully or held in detention without due cause” provides that the State shall compensate any person who, inter alia, is “arrested or taken into detention in conditions and circumstances incompatible with the Constitution and legislation” in force.
Furthermore, Article 144 of the Code of Criminal Procedure provides that anyone arrested or detained pending trial may speak with his legal representative in private and without the need for the latter to have an authority to act.
1. The applicant submitted in the first place that the practice of the member States taken as a whole showed that a death sentence (and/or its execution) amounted to an infringement of the right to life guaranteed by the first sentence of Article 2 of the Convention and inhuman punishment within the meaning of Article 3 of the Convention. He further submitted in that connection that execution by hanging was a particularly cruel punishment, on account of the acute suffering it caused.
Likewise under the head of Article 2 of the Convention, the applicant complained that he had been sentenced to death by a body which could not be regarded as a “court” within the meaning of that provision and at the end of criminal proceedings which had breached Articles 5 and 6 of the Convention in several respects.
The applicant further alleged a potential violation of Article 2 of the Convention taken together with Article 14 in that execution of the death sentence imposed on him would be discriminatory given that it was clearly Government policy no longer to carry out such sentences.
2. Relying on Article 3 of the Convention, the applicant further complained that agents of the State had abducted him in Kenya, and had blindfolded, handcuffed and drugged him during his transfer to prison in Turkey. The applicant’s representatives alleged that his guards had taunted him in the aircraft during the flight from Kenya to Turkey in order to humiliate him in the video recording made during the journey. In addition, exhibiting the applicant to the press and the television cameras after his arrest had been intended to degrade him in the eyes of the public. Still under the head of Article 3, the applicant further complained of the isolation he was being held in at İmralı Prison.
3. Relying on Article 5 of the Convention, the applicant complained, in particular,
- that he had been deprived of his liberty unlawfully, that is to say without the formalities required for extradition being complied with (Article 5 § 1);
- that he had been the victim of an abduction which could not be regarded as a lawful arrest (Article 5 § 1 (c) and (f));
- that he had not been brought “before a judge or other officer” within the meaning of Article 5 § 3 (that is, before one who was independent and impartial);
- that he had not been informed of the reasons for his arrest (Article 5 § 2);
- that he had not been “brought promptly” before a judge (Article 5 § 3);
- that he had not been able to take proceedings by which the lawfulness of his detention in police custody could be decided (Article 5 § 4); and
- that he had had no right to compensation for the excessive length of the time he had spent in police custody (Article 5 § 5).
4. Under Article 6 of the Convention, the applicant alleged in particular
- that his unlawful arrest had prejudiced the fairness of his trial (Article 6 § 1);
- that his case had not been heard by an independent and impartial tribunal, given that a military judge had participated in part of the proceedings and that the replacement judge had already taken part in the proceedings which had led to the order for his detention pending trial (Article 6 § 1);
- that the replacement of the military judge by a civilian judge one week before judgment was given had meant that the court was unlawfully constituted (Article 6 § 1);
- that the circumstances in which his trial had been conducted had deprived him of the benefit of the presumption of innocence and of a fair trial, particularly because he had been portrayed as a “baby-killer” in the media (which had published daily accounts of the statements he had made during the secret preliminary investigation) and on account of pronouncements about his guilt made by politicians even before he had been tried (Article 6 § 1 and/or Article 6 § 2);
- that he had not been informed, promptly and in detail, of the nature and cause of the accusation against him (Article 6 § 3 (a));
- that he had not had adequate time and facilities for the preparation of his defence (Article 6 § 3 (b)), for the following reasons: (i) his lawyers had not been able to contact him until 25 February 1999, after he had made statements to the public prosecutor and the judge; (ii) his lawyers had been verbally intimidated by the crowd when they attempted to visit their client; (iii) before his lawyers spoke to him they had been searched, their fingerprints had been taken and their documents and files had been seized; (iv) during meetings with him his representatives had been accompanied by prison warders, he had not been permitted to give documents to his lawyers and the latter had not been able to give him the case file; (v) his representatives had had only fifteen days in which to prepare his defence and to study the file, which ran to seventeen thousand pages, and the applicant had not had access to these documents at all; (vi) the applicant’s lawyers had not had access to all the documents which might have assisted the defence case, including those concerning the applicant’s arrest; (vii) the applicant’s trial had been conducted with too much haste;
- that his right to legal assistance of his own choosing had been infringed on account of the delay before he was permitted to contact his lawyers, the restrictions on his meetings with his lawyers and the intimidation his lawyers had been subjected to (Article 6 § 3 (c)); and
- that he had been unable to make a satisfactory choice of witnesses to appear on his behalf because of the restrictions on his contacts with his lawyers and the Government’s reluctance to supply the documents concerning his arrest (Article 6 § 3 (d)).
5. In addition, the applicant alleged a violation of Article 7 of the Convention in that he had been sentenced by a court which was not established by law, nor independent and impartial, to a penalty which it was no longer the practice of the Contracting State to enforce.
6. The applicant further alleged that the conditions of his arrest and detention had entailed an unjustified interference in his private and family life within the meaning of Article 8 of the Convention. He further submitted that the statement made to the press on 9 March 1999 had also breached that provision.
7. Relying on Articles 9 and 10 of the Convention, the applicant alleged that he had been arrested and sentenced to death on account of his political opinions on the Kurdish question in Turkey. He submitted that such measures, taken in order to penalise his political activities, were not “necessary” within the meaning of the second paragraphs of those provisions.
8. The applicant, referring to his complaints set out above, taken together with Article 13 of the Convention, alleged that the National Security Court had neither examined nor allowed his applications to have the restrictions on his defence removed and defence witnesses examined.
9. The applicant alleged that he had been the victim of a violation of Article 14 of the Convention taken together with the other Articles mentioned above, given that his detention and conviction had been measures taken only on account of his political opinions and ethnic origins.
10. The applicant further alleged a violation of Article 18 of the Convention in that the Contracting State had prosecuted him and convicted him in the context of its campaign against the PKK, but not in pursuance of one of the objectives set out in the Convention.
11. Lastly, the applicant alleged that his right to submit an application to the Court under Article 34 of the Convention had been infringed because his representatives in Amsterdam had not been able to contact him after his arrest and the Government had failed to reply to the Court’s request for information.
PROCEDURE BEFORE THE COURT
On 16 February 1999 the applicant’s representatives lodged an application concerning his arrest in Kenya and his detention by the Turkish authorities in Turkey. The application also included a request for application of Rule 39 of the Rules of Court.
On 23 February 1999 the Court (First Section) requested the respondent Government to supply information about the possibility of the applicant being assisted by lawyers and about the conditions of his arrest and detention.
The Government replied to the Court on 26 February 1999. On 2 March 1999 one of the applicant’s representatives, Ms Prakken of Amsterdam, submitted her observations. On 3 March 1999 the Government submitted further information.
On 4 March 1999 the Court asked the respondent Government to take interim measures within the meaning of Rule 39 of the Rules of Court, with particular regard to compliance with the requirements of Article 6 in the proceedings brought against the applicant in the National Security Court and the effective use by the applicant of his right to lodge an individual petition with the Court through lawyers of his choice.
On 8 March 1999 the respondent Government submitted their observations. On 12 March 1999 the applicant’s representatives also filed their observations.
On 23 March 1999 the Court requested the Government to supply further information on particular points concerning the measures taken in application of Rule 39 of the Rules of Court.
On 9 April 1999 the legal adviser to the Turkish Permanent Delegation indicated that the Government were not prepared to answer the Court’s questions on the ground that these went well beyond the scope of interim measures within the meaning of Rule 39.
On 29 April 1999 the Court decided to communicate the application to the Government for their observations on its admissibility and merits. It asked questions in particular about the rights of the defence (Article 6 of the Convention), the independence and impartiality of the National Security Court, whether the applicant’s arrest had complied with the requirements of Article 5, whether the applicant’s treatment had been compatible with Article 3 and about the right of individual petition before the Court (Article 34).
The Government submitted their observations on 31 August 1999. The applicant filed his observations in reply on 27 September 1999 (through Mr Kaplan) and on 29 October 1999 (through Ms Prakken and Ms Böhler).
On 2 July 1999 one of the applicant’s representatives, Ms Böhler, asked the Court to request the Government “to suspend execution of the death sentence imposed on 29 June 1999 until the Court [had] decided on the merits of his complaints”.
On 6 July 1999 the Court decided that the request for application of Rule 39 could be allowed if the applicant’s sentence were to be upheld by the Court of Cassation.
By a judgment of 25 November 1999 the Court of Cassation dismissed the applicant’s appeal on points of law and upheld the judgment of 29 June 1999. On the same day (25 November 1999) one of the applicant’s representatives, Mr Kaplan, asked the Court to apply Rule 39 of its Rules of Court and to request the Government to stay execution of the death sentence imposed on the applicant until the end of the proceedings concerning his application to the Court.
On 30 November 1999 the Court decided to indicate to the Government the following interim measure:
“The Court requests the respondent Government 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”.
On 12 January 2000 the Turkish Prime Minister announced that the applicant’s file was to be transmitted to the Turkish Grand National Assembly (which is empowered to approve or disapprove enforcement of the death penalty) when the proceedings before the Court were over.
On 19 May 2000 the applicant submitted further observations. On 20 June 2000 the Government submitted comments on the applicant’s observations of 27 September and 20 October 1999. By the President’s decision, these observations were added to the file.
A hearing was held in public in the Human Rights Building, Strasbourg, on 21 November 2000 (Rule 59 § 2).
There appeared before Court:
(a) for the Government
Mr Francis Szpiner and Mr Şükrü Alpaslan, Co-Agents;
Mr Yunus Belet, Mr Orhan Nalcıoğlu, Mr Ergin Ergül,
Mr Gülhan Akyüz, Mr Bilal Çalışkan, Mr Özer Zeyrek,
Mr Recep Kaplan, Mr Cengiz Aydın, Mr Tuncay Çınar,
Mr Kaya Tambasar, Mr Münci Özmen, Ms Deniz Akçay,
Ms Didem Bulutlar and Ms Banur Özaydın, Advisers.
(b) for the Applicant
Mr Hasip Kaplan, Sir Sydney Kentridge, Mr Mark Muller
and Mr Timothy Otty, Counsel;
Mr Kerim Yildız, Mr İrfan Dündar, Mr Doğan Erbaş,
Ms Gareth Pierce, Mr Louis Charalambous
and Mr Philip Leach, Advisers.
The Court heard addresses by Mr Szpiner and Mr Alpaslan for the Government and by Mr Kaplan, Sir Sydney Kentridge, Mr Muller and Mr Otty for the applicant.
I. THE APPLICATION (PRELIMINARY OBJECTION)
The Government raised an objection to the admissibility of the application. Firstly, relying on expert reports, they asserted that the signature on Ms Böhler’s authority to act as the applicant’s representative before the various institutions, annexed to the application form lodged with the Court on 16 February 1999, was a forgery. At the hearing in the National Security Court on 6 June 1999 the applicant himself had stated that Ms Böhler was not his representative. Secondly, the Government argued that Mr Muller had not signed the observations he had submitted to the Court on 19 May 2000 in his capacity as President of the KHRP (Kurdish Human Rights Project) and asked the Court to exclude them from the proceedings in the present case.
The applicant’s representatives replied that to their knowledge the disputed signature was the applicant’s. They further observed that on 16 February 1999 Ms Böhler and Ms Prakken had been prevented from contacting the applicant and obtaining a specific authority to act for him in the proceedings before the Court. Those two lawyers had later been appointed as the applicant’s representatives either directly by the applicant or through his other lawyers.
The Court notes that it is not disputed that the applicant had just been arrested when his application was lodged with the Court on 16 February 1999 and that neither Ms Böhler nor any other lawyers were able to contact him on that date. The Court notes that the applicant subsequently confirmed his intention of taking part in the proceedings before it. The counsel appointed for that purpose, either directly or through the other representatives, included Ms Böhler. Lastly, whatever the outcome of the discussion about the authenticity of the signature on the disputed authority to act, the file contains no evidence that the applicant wished to abandon or withdraw his application or alter the effect and/or the substance of the allegations and observations submitted by his counsel (see, mutatis mutandis, the Ergi v. Turkey judgment, Reports of Judgments and Decisions 1994, §§ 60-64).
With regard to the observations submitted by Mr Muller on 19 May 2000 on paper bearing the letterhead of the Kurdish Human Rights Project, the Court notes that these have already been added to the file by the President’s decision. Having regard to the fact that Mr Muller was named as the applicant’s representative in the authority to act which was valid at that time, the Court sees no reason to depart from its initial decision.
The Court therefore dismisses the preliminary objection to the admissibility of the application.
II. DEATH PENALTY (ARTICLE 2 OF THE CONVENTION TAKEN ALONE, ARTICLE 3 TAKEN ALONE AND ARTICLE 2 TAKEN TOGETHER WITH ARTICLES 5, 6 AND 14)
The applicant submitted in particular that the practice of the Contracting States taken as a whole showed that at the present day a death sentence (and/or its execution) amounted to an infringement of the right to life guaranteed by the first paragraph of Article 2 of the Convention as well as inhuman punishment within the meaning of Article 3 of the Convention. He further alleged the violation of the first paragraph of Article 2 of the Convention taken together with Articles 5 (protection against arbitrary detention), 6 (right to a fair trial) and 14 (prohibition of discrimination) of the Convention. The relevant part of Article 2 of the Convention provides:
“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...”
The Government’s arguments
The Government observed that the death penalty was clearly provided for, under certain conditions, in Article 2 of the Convention. They submitted that, contrary to the applicant’s assertion, and irrespective of whether the death penalty ought to be abolished, Article 3 of the Convention could not through legal interpretation be made to include a prohibition of that penalty. They observed that Article 3 did not allow of any derogation, whereas Article 2 of Protocol No. 6 made provision for the death penalty to be kept in time of war or of imminent threat of war. It was obvious that the signatories to Protocol No. 6 did not consider the death penalty a degrading or inhuman punishment within the meaning of Article 3 of the Convention. The existence or imminence of a war could not make a punishment less inhuman or degrading. The Government therefore submitted that on this point the applicant’s interpretation was untenable. They further observed that abolition of the death penalty was the subject of a debate being conducted freely and independently in Turkey in the light of the international texts Turkey had signed and the obligations arising from them. They maintained that the decisions of a country’s courts in favour of or against the death penalty should be considered in the national context.
While asserting that the applicant’s arrest had been lawful within the meaning of Article 5, and that his trial had been conducted fairly by an independent and impartial tribunal within the meaning of Article 6, the Government argued that the question whether the death penalty imposed on the applicant should be enforced depended on the Turkish parliament’s power to pardon him. In any event, the enforcement of a judgment given by the courts in accordance with a procedure prescribed by law could not be regarded as a violation of the Convention.
The Government also rejected any allegation of discrimination against the applicant, arguing that he had not been convicted either for his ethnic origin or for his political opinions but because he was the instigator of a number of murders and bomb attacks carried out by the armed organisation he led. The Turkish parliament looked into the case of every person condemned to death, without taking into account the distinctions mentioned in Article 14 of the Convention, when deciding whether to exercise its discretionary power of pardon. That power did not establish any rule in favour of this or that condemned person. The Government pointed out that on 6 April 1972 the Constitutional Court had set aside parliament’s authorisation of an execution on the ground that parliament was not entitled to examine one specific case before approving or rejecting the execution of other capital sentences which had been imposed earlier.
The applicant’s arguments
The applicant asserted that a death sentence (and/or its execution) constituted an infringement of the right to life guaranteed by the first sentence of Article 2 § 1 of the Convention as well as a violation of Article 3 of the Convention, since the Contracting States, through the practice they had been following for fifty years, had abolished the exception provided for in the second sentence of Article 2 § 1. Pointing out that there could be no exception under Article 3, the applicant argued that the second sentence of Article 2 § 1 of the Convention could not be regarded as a derogation from Article 3. He submitted that when the Convention was signed in 1950 the death penalty was not perceived as a degrading and inhuman penalty in Europe and was provided for in the legislation of a number of States. He maintained in that connection that since that time the European States had reached a consensus that the death penalty was an inhuman and degrading penalty within the meaning of Article 3 of the Convention. At present 40 member States of the Council of Europe out of 41 had either formally abolished the death penalty or signed Protocol No. 6 on its abolition. Until the present case Turkey had seemed to form part of this consensus, having applied a moratorium on executions since 1984. It had given the impression, through statements made by the Turkish authorities at international level, that it was determined to abolish the death penalty de facto and that it would soon abolish it de jure also. The applicant added that public opinion in Europe was in favour of this consensus, whereas public opinion in the United States had showed support for keeping the death penalty.
In the alternative, the applicant submitted that, although the terms of the first paragraph of Article 2 of the Convention were applicable in the case, the expression “sentence of a court” should be construed as a sentence imposed by a tribunal in accordance with the requirements of Articles 5 and 6 of the Convention. He argued in particular that this complaint should be examined together with his complaints that he had been sentenced to death at the end of proceedings that had begun with an unlawful arrest and had been conducted unfairly before a tribunal that was not independent and impartial.
In the further alternative, the applicant submitted that enforcement of the death penalty imposed on him would be discriminatory given that since 1984 the Government had been following a clearly stated policy of no longer carrying out such executions. He asserted that the Government had not put forward any reasonable and objective justification for such a difference in treatment in the present case. No justification based on the applicant’s ethnic origin or political opinions could be regarded as legitimate under Article 14 of the Convention taken together with Article 2.
The Court’s assessment
The Court has conducted a preliminary examination of all these complaints and the arguments of the parties. It considers that the complaints raise complex legal and factual issues which cannot be determined at this stage of the examination of the application but require an examination of the merits. Consequently, this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that this part of the application is not inadmissible on any other grounds.
III. ARTICLE 3 OF THE CONVENTION
The applicant further complained that the conditions in which he had been transferred from Kenya to Turkey and detained on the island of İmralı constituted treatment contrary to Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government’s arguments
The Government contested these allegations, submitting that the applicant had not suffered any ill-treatment either when being transferred to Turkey or while detained on İmralı. They observed that the applicant had stated, firstly to the CPT delegates who had had a meeting with him just after the time he spent in police custody, and secondly to the National Security Court, that he had not suffered any ill-treatment since his arrest.
The Government submitted that while the applicant was being transferred from Kenya to Turkey he had been blindfolded for a short time in order to prevent him from identifying the escorting police officers or seeing secret military zones and to prevent him from doing himself an injury. The blindfold had been removed as soon as the aircraft entered Turkish airspace. The applicant’s state of health had been monitored constantly by a doctor on board the aircraft.
With regard to the conditions of detention on the island of İmralı, the Government observed at the outset that the applicant had never been in solitary confinement. He had been visited by doctors, his lawyers and members of his family. The Government produced photographs which, they asserted, showed that the applicant had a cell of a high standard. Secondly, they referred to the Court’s case-law in the Guzzardi v. Italy case (judgment of 6 November 1980 Series A no. 39) to the effect that the detention of a person suspected of involvement in organised crime in a limited part of an isolated island did not constitute inhuman treatment. They also referred to the Commission’s decision in the Baader, Meins, Meinhof and Grundmann v. the Federal Republic of Germany case (application no. 6166/73, Commission’s decision of 30 May 1975, Decisions and Reports 2, p. 58) in support of the assertion that solitary confinement for security or disciplinary reasons or to protect the prisoner concerned was not contrary to Article 3.
The applicant’s arguments
The applicant submitted that he had been “abducted” in Kenya by Turkish agents and that this had necessarily constituted a physical assault on his person. In addition, the circumstances in which the arrest had been carried out (being blindfolded and handcuffed, having drugs administered to him, having a video film recorded in the aircraft, being exhibited to the press and the television cameras blindfolded in front of Turkish flags) also amounted to degrading and inhuman treatment. According to the applicant, the political motivation behind his abduction had in itself been capable of breaching Article 3.
Likewise under Article 3, the applicant maintained that the conditions of his detention on the island of İmralı were inhuman. He observed in particular in that connection that his solitary confinement, the severe restrictions on contact with his lawyers and members of his family, the deterioration in his health since he had been in prison, the very limited opportunities for physical exercise in the place where he was detained and the restrictions on access to the media constituted treatment contrary to that provision of the Convention.
The Court’s assessment
The Court has conducted a preliminary examination of all these complaints and the arguments of the parties. It considers that the complaints raise complex legal and factual issues which cannot be determined at this stage of the examination of the application but require an examination of the merits. Consequently, this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that this part of the application is not inadmissible on any other grounds.
IV. ARTICLE 5 OF THE CONVENTION
A. Article 5 §§ 1, 3 and 4
The applicant complained that he had been deprived of his liberty without the procedures prescribed by law or the formal extradition process being followed. He alleged in that regard a violation of Article 5 § 1 of the Convention. The applicant also complained that he had not been “brought promptly” after his arrest before “a judge or other officer” within the meaning of Article 5 § 3 of the Convention. Lastly, he complained that in breach of Article 5 § 4 of the Convention he had been denied an opportunity of taking proceedings by which the lawfulness of his detention by the police could be decided.
The relevant parts of Article 5 §§ 1, 3 and 4 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’s arguments
The Government raised a preliminary objection of failure to exhaust domestic remedies. The objection had two limbs and also included the Government’s observations on the merits of the complaints under Article 5 § 4. Firstly, it was submitted that 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 Ankara National Security Court to challenge the arrest, the fact that the applicant had been taken into police custody, the length of that custody or the order for his pre-trial detention. The Government referred to Article 128 § 4 of the Code of Criminal Procedure, which entitled suspects to apply to the district judge to have the lawfulness of their detention decided or to challenge an order by the public prosecutor’s office that they should remain in custody. If the district judge considered that the application was well-founded, he could order the police to cease questioning the person concerned (the suspect) and to bring him forthwith before the public prosecutor. The Government added that by virtue of Article 144 of the Code of Criminal Procedure, the applicant’s representatives had not required a written authority to make such an application. Secondly, the Government referred to Law no. 466 of 15 May 1964 on the award of compensation to persons arrested unlawfully or held in detention without due cause. They said that the applicant could have submitted his allegations that he had been detained unlawfully to the appropriate assize court.
As regards the merits of the complaints concerning the lawfulness of the applicant’s deprivation of liberty, the Government maintained that the applicant had been arrested and detained in accordance with a procedure prescribed by law, following cooperation between two States, Turkey and Kenya. They said that the applicant had entered Kenya not as an asylum-seeker, but on false identity papers, adding that since Kenya was a sovereign State, Turkey had no means of exercising its sovereignty there. The Government also pointed to the fact that there no was extradition treaty between Kenya and Turkey. The applicant had been apprehended by the Kenyan authorities and handed over to the Turkish authorities under arrangements for cooperation between the two States. On arriving in Turkey, the applicant had been taken into custody under arrest warrants issued by the proper and lawful judicial authorities in Turkey, so that he could be brought before a judge (the Turkish courts had issued seven warrants for the applicant’s arrest before he was arrested and Interpol had issued a wanted notice (“red notice”) for his arrest). The Government emphasised that the cooperation did not amount to extradition in disguise, as Turkey had accepted the Kenyan authorities’ offer to hand over the applicant, who was in any event an illegal immigrant in Kenya.
The Government referred in that connection to the case of Illich Ramirez Sanchez v. France which the Commission had declared inadmissible (no. 28780/95, Commission decision of 24 June 1996, DR 86, p. 155). They maintained that there were major similarities between the cooperation of France and Sudan in that case to apprehend the fugitive concerned and the cooperation of Turkey and Kenya that had led to the successful arrest of Mr Öcalan. They submitted that the Commission’s approach should be followed, namely that cooperation between States confronted with terrorism was normal in such cases and did not infringe the Convention. The Government maintained, therefore, that the applicant had been brought before a Turkish judicial authority at the end of a lawful procedure, in conformity with customary international law and as part of the strategy of cooperation between sovereign States in the prevention of terrorism.
With regard to the merits of the complaints under Article 5 § 3 of the Convention, the Government observed that under Turkish rules of criminal procedure, the length of police custody could be extended to seven days where the person detained was suspected of crimes linked with terrorism. They maintained that in the instant case the applicant had been arrested on 16 February 1999 and taken into police custody for an initial period of four days ending on 20 February 1999. On the latter date a judicial order had been made extending the period to be spent in police custody by three days, that is to say until 23 February 1999. Owing to adverse weather conditions (there was a storm in the region), the representatives of members of the public prosecutor’s office and the judge of the National Security Court had been unable to reach the island of İmralı until 22 February 1999. The public prosecutor had been able to question the applicant that same day. The applicant had appeared before the judge the following day (23 February 1999). After hearing the applicant, the judge had ordered his detention pending trial on the basis of three warrants that had already been issued for his arrest.
The applicant’s arguments
The applicant contested the Government’s submissions. With regard to the lawfulness of his arrest, he maintained, firstly, that there was prima facie evidence that he had been abducted by the Turkish authorities operating overseas, 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 issued by Interpol did not give agents of the Turkish State jurisdiction to operate overseas. The Turkish authorities had not brought any proceedings for the applicant’s extradition from Kenya, whose authorities had denied all responsibility for his transfer to Turkey. Mere collusion between unauthorised Kenyan officials and the Turkish Government could not constitute State cooperation.
The applicant stressed the need to protect the individual’s liberty and security from arbitrariness. He said that in the instant case, his forced expulsion had amounted to extradition in disguise and had deprived him of all procedural and substantive protection. He also pointed out in that connection that the requirement of lawfulness under Article 5 § 1 referred to international as well as domestic law. Contracting States were not just under an obligation to apply their laws in a non-arbitrary manner, but also to ensure that their laws complied with public international law. The applicant added that certainty of guilt could not remove the guarantees to which each individual had to be entitled against wrongful deprivation of liberty.
With regard to his complaints under Article 5 § 3, the applicant said that he had been arrested before 11 p.m. on 15 February 1999 and brought before the judge eight days later, on 23 February 1999. He asserted that the Government had not provided any plausible explanation for that gap between his arrest and his first appearance before a judge. The weather report produced by the Government concerned only the afternoon of 23 February 1999, whereas the public prosecutor and the judge had been on the island of İmralı since 22 February 1999. The applicant said that he had been held incommunicado in the meantime and that his lawyers’ request to visit him on 22 February 1999 had been turned down not by the judicial authorities but by the “crisis desk”, an entity which, in theory, had no judicial powers. The applicant went on to say that he had not been assisted by counsel when he appeared before the judge on 23 February 1999. He added that the judge could not be regarded as “a judge or other officer” within the meaning of Article 5 § 3, since he was a member of the National Security Court, whose independence and impartiality were contested.
As regards the possibility of challenging the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention and the Government’s objection that domestic remedies had not been exhausted, the applicant said that during the first ten days of his detention he had been held incommunicado and had been unable to contact his lawyers. He had no legal training that would have enabled him to lodge an appeal without assistance from his lawyers. Nor had he been given access to the documents concerning his arrest that would have enabled him to prepare such a challenge. The applicant noted in that connection that the procedural guarantees provided by Article 6 of the Convention applied by analogy to proceedings for a review of the lawfulness of the detention within the meaning of Article 5 § 4. He added that persons who were detained had to be given access to documents in the possession of the authorities concerning their arrest in order to prepare an application for release and that they required assistance by a lawyer if they were to prepare their application efficiently. The applicant maintained that in his case an application to a district judge or a judge of the National Security Court would have been inadequate and illusory and bound to fail.
The Court’s assessment
The Court notes that the basis of the Government’s argument that domestic remedies were not exhausted as required by Article 35 § 1 of the Convention is that the applicant failed to lodge an application with the appropriate courts under Article 128 § 4 of the Code of Criminal Procedure or to seek compensation as he was entitled to do under Law no. 466. The applicant strongly denied the Government’s assertions as to the existence of either possibility and sought to show that the legal remedies referred to by the Government could not be regarded as relevant in the circumstances of the instant case.
The Government argued that the applicant’s complaints under Article 5 §§ 1, 3 and 4 should be rejected for failure to exhaust domestic remedies. However, in the Court’s view the applicant’s complaint of a violation of Article 5 § 4 – that no remedy was available to him in order to challenge the lawfulness of his detention – raises a question on the merits under this provision which cannot be resolved at the admissibility stage. Accordingly, it should be joined to the merits.
In so far as the Government argue that the applicant has failed to exhaust domestic remedies in relation to his complaints under Article 5 §§ 1 and 3, the Court notes that in the circumstances of the case this question is so closely related to the merits of the complaint under Article 5 § 4 that it cannot, at this stage of the proceedings, be detached from that complaint. The question of exhaustion of domestic remedies in relation to these complaints should therefore be reserved for examination of the merits of the case.
The Court has carried out a preliminary examination of all these complaints and of the parties’ arguments. It considers that the complaints raise complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. Accordingly, this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further finds that there are no other grounds for declaring this part of the application inadmissible.
B. Article 5 § 2
The applicant complained that he had not been informed of the reasons for his arrest and alleged a violation of Article 5 § 2 of the Convention, which reads as follows:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
The Government denied that allegation. Referring to the warrants of arrest and the wanted notice that had been issued in respect of the applicant and to the grounds stated in the requests for his extradition, the Government maintained that the applicant had been sufficiently informed of the reasons for his arrest by the time he was arrested.
The applicants observed that in the absence of any information regarding the legal and factual basis for his arrest in Kenya, he had been unable to bring any proceedings to challenge the lawfulness of his detention. The fact that the offences for which he was wanted had been set out in the extradition request which Turkey had made to Italy did not release the Turkish judicial authorities from their positive obligation to inform him of the reasons at the time of his arrest.
The Court reiterates that the relevant principles governing the interpretation and application of Article 5 § 2 in comparable cases are set out in the Fox, Campell and Hartley v. the United Kingdom judgment (of 30 August 1990, Series A no. 182, p. 19, § 40).
“Paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5. By virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4... Whilst this information must be conveyed ‘promptly’ (in French: ‘dans le plus court délai’), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.”
In the instant case, the Court notes that the applicant had been wanted by the police for a considerable time as the leader of the PKK, a body which the judicial authorities regarded as being an armed criminal organisation which sought to bring about the secession of part of Turkey’s national territory. That accusation had been clearly and even publicly set out in the warrants issued for the applicant’s arrest by various prosecuting authorities (of which the applicant’s counsel in Turkey received notification), on the red notice issued by Interpol, and lastly on the extradition request made by the Turkish Ministry of Justice to the Italian authorities when the applicant was in Italy. The Court considers that those documents, which the applicant does not deny having been aware of, contained precise details of the offences of which he was suspected. Having regard to that fact and to the illegal nature under Turkish law of the organisation referred to, the Court considers that the applicant must or should already have been aware at that juncture that he was being arrested for his activities as the leader of a banned organisation, the PKK.
It follows that this part of the application is manifestly ill-founded and must be dismissed pursuant to Article 35 § 4 of the Convention.
C. Article 5 § 5
The applicant complained in a letter of 19 May 2000 lodged by one of his representatives that, contrary to the provisions of Article 5 § 5 of the Convention, he had had no right to compensation for the inordinate length of time he had been kept in police custody. Article 5 § 5 provides:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
However, the Court notes that the applicant ceased to be in police custody on 23 February 1999. On the premiss that he had no effective means of complaining about the length of time he had spent in police custody or, therefore, of claiming compensation for it, he was required by Article 35 § 1 of the Convention to lodge his application with the Court within a period of six months after the act complained of (see, mutatis mutandis, no. 19601/92 Çiraklar v. Turkey, Commission decision of 19 January 1995, DR 80, p. 46; no. 23654/94, Laçin v. Turkey, Commission decision of 15 May 1995, DR 81, p. 76). In the present case the six-month period started to run on 23 February 1999, when the applicant ceased to be in police custody, that is to say more than six months before the date of the letter in which the complaint was first lodged with the Court.
It follows that this part of the application was lodged out of time for the purposes of Article 35 § 1 of the Convention and must be dismissed pursuant to Article 35 § 4.
V. ARTICLE 6 OF THE CONVENTION
The applicant complained that the provisions of Article 6 §§ 1, 2, 3(a), (b), (c) and (d) of the Convention had been infringed, notably in that (i) the courts had been subjected to media pressure, (ii) he had experienced difficulties in communicating with his lawyers and those had had repercussions on the rights of the defence and (iii) the preparation of the defence had been hampered by the extreme rapidity with which the criminal proceedings had been conducted and it had been impossible for the defence to have effective access to all the documents in the case file and to study them. He further alleged that his unlawful arrest had had an adverse effect on the fairness of his trial and that he had not been informed at the proper time of the accusations against him. He had not been tried by an independent and impartial court as a military judge had been on the bench during part of the proceedings. The relevant part of Article 6 of the Convention reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...
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;
The Government’s arguments
The Government maintained that the applicant had had a fair trial. In that connection, they observed firstly that the applicant had been convicted under Article 125 of the Criminal Code, whose aim was to protect the democratic values of the Republic. A full court of the criminal divisions of the Turkish Court of Cassation had held that the PKK was an organisation whose aim was to detach part of Turkish territory, by force and acts of violence, in order to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The Government said that the acts of violence perpetrated by the PKK, which the applicant had acknowledged at his trial had involved some 6,036 armed attacks on civilians, 8,257 armed confrontations with the security forces, 3,071 bomb attacks, 388 cases of armed robbery and 1,046 kidnappings. Those acts exactly matched the offences included in the list of terrorist acts set out in Articles 1 and 2 of the European Convention on the Suppression of Terrorism. The Government maintained that the applicant had admitted before the courts that he had played a role in the creation and organisation of the PKK and in the planning and perpetration of acts of violence committed by members of that organisation.
With respect to the impact of the media on the Öcalan trial, the Government said that the newspapers and various television channels concerned were private companies which enjoyed press freedom when covering judicial proceedings. In the instant case the applicant’s arrest and trial were of major news value to the media and journalists had shown great interest in the case. A wide range of comments, critical of the applicant or favourable to him, had appeared in the Turkish media. It was not impossible that the media had exploited statements about the case by politicians, but such comments were only political utterances that had had no impact on the professional judges who had sat in the applicant’s case.
The Government further maintained that the applicant had been fully aware of the accusations against him. The Turkish courts had issued seven warrants for his arrest and Interpol had issued a wanted notice (red notice) for him. In his applications for political asylum in other countries the applicant had relied on the argument that he was the leader of the PKK. It was his occupation of that position that was subsequently to constitute the main charge against him. The Government added that on his transfer to Turkey the applicant had been reminded of the accusations against him.
As regards his defence rights, the Government noted that the applicant had had a public hearing; had been able to participate fully in the hearings as special measures had been taken to ensure his safety; had addressed the court without being interrupted; and had said everything he wished to say in his defence. They maintained that the applicant had been provided with every facility for the preparation of his defence, since he had been able to consult the lawyers of his choice during both the preliminary investigation and the trial, and no restrictions had been imposed on the number or length of their visits. All but the first visit had taken place in private. There had been no restrictions on the applicant’s correspondence and he had been able to submit to the National Security Court an eighty-page defence which he had drafted himself.
The Government emphasised that even before the hearings on the island of İmralı, the applicant’s lawyers had been given an opportunity to take full photocopies of all the documents in the case file. In fact, the 17,000-page case file had been compiled from the case files in seven sets of criminal proceedings that had already been started in various national security courts. Those proceedings had been pending for several years before the applicant’s arrest and he had been aware of them. In any event, very few new documents had been added to the case file. The Government explained that the National Security Court had communicated all the relevant documents to the applicant and allowed him to study the case file and any annexes which he wished to see under the supervision of two officials. The National Security Court had also informed the applicant that it would provide him with a copy of any document which he believed would assist him with his defence.
Among the other facilities that had been made available to assist the applicant with his defence, the Government said that, on the instructions of the President of the National Security Court, a photocopier had been installed in the hearing room for the use of the lawyers. Furthermore, the lawyers had been taken to the island of İmralı by boat and had embarked at a private quay to ensure their safety. Hotel rooms had been reserved for them near the embarkation point. When the lawyers had not been present at a hearing, the records of that hearing and copies of the documents produced for the case file had been delivered to them the following day. Counsel for the applicant had thanked the President of the National Security Court for creating an atmosphere of calm.
The Government observed, furthermore, that the statements which the applicant had made in the absence of his lawyers when he was in police custody had not been relied on in the judgment delivered by the National Security Court. In any event, the applicant had repeated all those statements before the National Security Court and had indicated that his earlier statements had been made of his own free will.
The Government stated that the applicant’s application to have defence witnesses examined had been dismissed by the National Security Court in a properly reasoned decision. The witnesses concerned, who were mediators between the Government and the PKK, were not likely to shed any further light on the main allegation against the applicant, namely that he was the PKK’s principal leader. The Government noted in that connection that the applicant had already admitted that main accusation.
As regards the independence and impartiality of the National Security Court and the presence of a military judge on its bench, the Government observed that that judge had left the court following amendments to the legislation. The civilian substitute judge had been following the proceedings since the outset and had attended the hearings, without being entitled to vote. The substitute judge had replaced the military judge before the end of the stage concerning the taking of evidence. Had he considered that the National Security Court needed to investigate the case more thoroughly, he would have voted against ordering that that stage had been completed. The Government said that the attendance of substitute judges at hearings was not a measure that had been peculiar to the Öcalan case. Provision for their attendance was made in the rules of criminal procedure.
The applicant’s arguments
The applicant repeated his complaints under Article 6 of the Convention and began by setting out the legal principles on which he relied in the case. Firstly, in a case in which the accused was liable to the death penalty, the standards concerning the fairness of the proceedings had to be applied more strictly than in non-capital cases. Secondly, fair proceedings entailed the right of the defence to participate fully and without restriction in all the stages of the proceedings from their beginning (in the present case, the applicant’s arrest) through to the carrying out of the sentence. Thirdly, the national judicial authorities had positive obligations to ensure equality of arms between the prosecution and the defence at the trial. Lastly, the fairness of the trial was a question both of substance and of form.
The applicant went on to set out the main reasons why he considered that his trial had not met the standards required by Article 6.
As to whether the National Security Court had been independent and impartial, the applicant pointed out that both subjective and objective tests had to be satisfied. He said that a military judge with the rank of colonel had sat on the bench of the National Security Court for part of the proceedings. The military judge had been replaced by a civilian judge just a week before the applicant’s conviction and two months after the hearings before the National Security Court had started. In the meantime, in a case that concerned a conflict between the organisation led by the applicant and the army in which the military judge was an officer, the military judge had heard the evidence and the oral submissions, had contributed to important interlocutory rulings and discussed the case with the other judges, thereby potentially influencing the conduct and outcome of the proceedings. The military judge had sat in all the hearings in which interlocutory rulings had been made, including the hearing at which the applicant’s application to have additional witnesses examined had been refused. The applicant added that the substitute judge who had replaced the military judge had earlier acted in the case and ordered the applicant’s pre-trial detention.
The applicant also noted that unfettered, confidential and prompt access to counsel of one’s choice from the moment of detention and at all stages of the proceedings was one of the fundamental requirements of a fair hearing in a democratic society. He considered, however, that in the instant case he had experienced a number of difficulties in contacting his lawyers and that those had had repercussions on his defence rights. The applicant observed in that connection that his lawyers had not been allowed to visit him until ten days after his arrest and that he had in the meantime made statements to the judicial authorities. The applicant had also encountered difficulties and delays in appointing lawyers of his choice. He noted further that 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 supervised and listened to by the authorities and filmed with a video recorder. Ultimately, the applicant had not been able to confer in private with his lawyers, despite the mandatory provisions of the Code of Criminal Procedure. After two short initial visits, his contact with his lawyers had been limited to two weekly visits of one and a half hours each. In proceedings which had been conducted with extreme rapidity and in which the case file ran to 17,000 pages, the total duration of those visits had been manifestly insufficient for him to prepare his defence. The applicant said that lawyers wishing to enter or leave the island of İmralı, which had been decreed a prohibited military zone, required the permission of a “crisis desk”, a body that was not a judicial authority.
Furthermore, the applicant maintained that when travelling in connection with the proceedings his lawyers had been subjected to harassment by a crowd encouraged or at least tolerated by plain-clothes policemen. They had not enjoyed facilities similar to those available to members of the prosecution when travelling to the place of detention and trial.
The applicant stressed the importance to his lawyers and himself, for the purposes of preparing the defence, of full and effective access to all the documents in the case file, including ones that were only potentially relevant to the establishment of guilt and the issue of sentencing. In that connection, he said that he had not been permitted to receive a copy of the case file for the trial from his lawyers, or any other item that would assist him in the preparation of his defence. He had been obliged to write out his defence by hand without being able to see any of the documents in the case file other than the indictment which had already been furnished to him. Furthermore, because of the speed with which the proceedings had been conducted, his lawyers had had difficulty in obtaining access to all the documents in the case file.
The applicant’s lawyers had been given access to the case file, comprising 17,000 pages, just sixteen days before the hearings started. The defence’s ability to assess those documents had been made even more difficult by, inter alia, the restrictions imposed throughout the investigation on communications between the applicant and his lawyers. The National Security Court had nonetheless dismissed the application by the applicant’s lawyers to take additional evidence. While before the National Security Court he had accepted political responsibility for the PKK’s general policy, he had denied criminal liability for acts of violence going beyond the PKK’s stated policy. It had been with a view to highlighting the fact that there had been a rapprochement between the PKK and the Government that the applicant had requested that the members of the Government team that had led the negotiations with the PKK be heard as witnesses.
The applicant submitted that the prosecution had failed to disclose documents which could have assisted the applicant with his defence, in breach of its positive obligation to do so. For example, although he had requested them, the documents concerning his transfer from Kenya to Turkey had not been produced.
The applicant contended that the authorities had taken no action to prevent the defamatory campaign against him by politicians and the media. Yet his statements as a suspect in police custody had been divulged to the press, even before they had been made available to his lawyers.
In conclusion, the applicant said that he had not enjoyed equality of arms with the prosecution in his defence, notably owing to the difficulties which had prevented him and his lawyers from having sufficient time to confer in private, from obtaining effective access to the case file and from putting forward his defence in a secure environment.
The Court’s assessment
The Court has carried out a preliminary examination of all these complaints and the parties’ arguments. It considers that the complaints raise complex issues of fact and law which cannot be resolved at this stage of the examination of the application, but require examination on the merits. Accordingly, this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further finds that there is no other ground for declaring this part of the application inadmissible.
VI. ARTICLE 34 OF THE CONVENTION
The applicant complained that he had been hindered in the exercise of his right of individual application in that his representatives in Amsterdam had not been permitted to contact him after his arrest and the Government had failed to reply to the Court’s request for them to supply information. He alleged a violation of Article 34 of the Convention, which reads as follows:
“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.”
The Government maintained that the refusal to grant Ms Prakken and Ms Böhler access to Turkish territory had been based on an administrative decision in which account had been taken of the fact that Ms Böhler had campaigned against Turkey’s interests and taken part in meetings organised by the PKK. The Government added that at the date of the refusal neither Ms Prakken nor Ms Böhler had a special authority to represent the applicant before the Court. The only authority they possessed was one whose authenticity the Government contested.
The applicant, on the other hand, maintained that the restrictions on his access to his lawyers had also hindered the exercise of his right to apply to the Court. Ms Prakken and Ms Böhler, his representatives based in Amsterdam, had been denied permission to enter Turkey on 16 February 1999. The applicant said that he had never been given permission to contact his non-Turkish representatives, even in writing.
The Court has carried out a preliminary examination of all these complaints and the parties’ arguments. It considers that the complaints raise complex issues of fact and law which cannot be resolved at this stage in the examination of the application but require examination on the merits. Accordingly, this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further finds that there is no other ground for declaring this part of the application inadmissible.
VII. OTHER COMPLAINTS
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 alone or together with the aforementioned provisions of the Convention.
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.
The applicants wished to pursue his complaints.
Having examined the complaints, which the parties did not expand upon in their oral submissions, the Court notes that the applicant has based them on virtually the same facts as those relied on in support of the complaints examined in the preceding parts of this decision. Consequently, it considers that the examination of this part of the application cannot be detached from the examination of the complaints that it has already declared admissible. It accordingly considers that these complaints too raise complex issues of fact and law which cannot be resolved at this stage in the examination of the application but require examination on the merits. Accordingly, this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further finds that there is no other ground for declaring this part of the application inadmissible.
FOR THESE REASONS, THE COURT,
Joins to the merits the Government’s preliminary objection of failure to exhaust domestic remedies with regard to the complaints under Article 5 §§ 1, 3 and 4 of the Convention;
Declares inadmissible, the applicant’s complaints of a breach of his right to be informed of the reasons for his arrest (Article 5 § 2 of the Convention) and of his right to compensation for unlawful detention (Article 5 § 5 of the Convention);
Declares admissible, by a majority, the remainder of the application, without prejudging the merits.
Michael O’Boyle Elisabeth Palm
ABDULLAH ÖCALAN v. TURKEY DECISION
ABDULLAH ÖCALAN v. TURKEY DECISION