FOURTH SECTION

CASE OF GÖK AND GÜLER v. TURKEY

(Application no. 74307/01)

JUDGMENT

STRASBOURG

28 July 2009

FINAL

28/10/2009

This judgment may be subject to editorial revision.

 

In the case of Gök and Güler v. Turkey,

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

Nicolas Bratza, President
 Lech Garlicki, 
 Giovanni Bonello, 
 Ljiljana Mijović, 
 David Thór Björgvinsson, 
 Işıl Karakaş, 
 Mihai Poalelungi, judges
and Lawrence Early, Section Registrar,

Having deliberated in private on 7 July 2009,

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

PROCEDURE

PROCEDURE

1.  The case originated in an application (no. 74307/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Orhan Gök and Mr Mazhar Güler (“the applicants”), on 30 May 2001.

2.  The applicants were represented by Mr N. Cem, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 30 August 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the complaint concerning the alleged ill-treatment of the applicants and their right to a fair trial within a reasonable time by an independent and impartial tribunal. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1972 and 1975 respectively and live in Istanbul.

5.  On 18 November 1995 the second applicant was arrested and taken into police custody on suspicion of membership of an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan). The first applicant was arrested and detained, on 23 November 1995, on the same grounds.

6.  On 24 November 1995 the applicants and two other suspects were identified as those responsible by Mr G.T. and Mr O.T., eyewitnesses to the killing of their father, Mr M.S.T., by the PKK.

7.  On 26 November 1995 the applicants were interrogated by two police officers, in the absence of a lawyer, and they both gave detailed statements regarding their participation in, inter alia, the killing of Mr M.S.T and kidnapping of G.T., on 2 August 1995, on behalf of the PKK.

8.  On 27 November 1995 the applicants, in the absence of a lawyer, were first asked to identify from photos a deceased suspect and later confronted with other suspects. During this procedure both applicants gave details about the other detainees, such as their code names and acts undertaken by them.

9.  On 28 November 1995, at 10.25 a.m., the applicants were examined by a doctor who noted that the first applicant had a bruise of 1x1 cm on his lower lip and that the second applicant had two scratches of 2 cm on his lower right knee and pain in his back and lower back.

10.  In their application form the applicants submitted that they had been subjected to ill-treatment while in police custody. In this connection, they claimed that they had received electric shocks, falaka (beating of the soles of the feet) and Palestinian hanging.

11.  In a letter to the Court dated 5 October 2004 the first applicant submitted, inter alia, that during his arrest he and his family had been sworn at and threatened and that when they had arrived at the police station he had been blindfolded. Subsequently, he had been interrogated by five or six police officers who had kicked and punched him and hit him with sticks. One of them had hit him in the stomach and another had stood on his head. When he had denied the accusations, they had subjected him to hanging and to electric shocks on his penis and feet. Later, when he had refused to sign a statement written by the police, two police officers had punched him in the face and squeezed his penis. Because of the pain he had signed the statement. The applicant further stated that the doctor who had examined him had seen the swelling on his lips and penis and had decided to transfer him to hospital but that the relevant paper had been ripped up by the police.

12.  On the same day the applicants were brought before the public prosecutor at the Istanbul State Security Court where they refused to give any statements.

13.  Later that same day the applicants were brought before a judge at the State Security Court where they refuted the contents of their statements to the police. The second applicant claimed that some of these submissions had been written by the police and that he had made others under duress. The first applicant submitted that the police had made him sign the statement without reading it. The judge remanded them in custody.

14.  On 5 December 1995 the public prosecutor at the Istanbul State Security Court indicted the applicants under Article 125 of the Criminal Code for engaging in activities for the purpose of bringing about the secession of part of the national territory. In particular, they were accused of participating in the killing of Mr M.S.T and kidnapping of G.T. on 2 August 1995.

15.  On 19 December 1995 the Istanbul State Security Court held a preparatory hearing at which it decided on procedural matters, such as the measures to be taken for securing the presence of the eleven accused.

16.  On 28 February 1996 the first-instance court held its first hearing, in the presence of the applicants and their lawyer. Both applicants denied the veracity of their statements to the police. The second applicant claimed that he had been subjected to various forms of torture, threatened and beaten while he was in police custody, including during the re-enactment of events. In addition, he submitted that he had been taken to a forest for a mock execution. The first applicant submitted that he had given his statements to the police under torture. In this connection, he claimed that he had been sworn at, threatened and had had a gun put to his waist. The next hearing was scheduled for 5 March 1996.

17.  Between 5 March 1996 and 2 July 1999 the court held hearings on a regular basis during which it examined the accused and a number of witnesses, including those appearing for the defence. In particular, testimony was taken from the wife and sons of Mr M.S.T., including Mr G.T. All of them claimed that they would not be able to identify the perpetrators, in particular because they had been wearing masks. They further submitted that they knew the applicants because they were from the same village and were relatives but that they had never stated, during the identification procedure, that the applicants were responsible for the killing of Mr M.S.T. The court also took testimony from the police officers who had conducted the identification procedure and who stood by the content of the verbatim reports drawn up in that connection. On 12 December 1997 one of the judges, acting as rapporteur, examined the video footage of the re-enactment of events and submitted his report to the court. The applicants contested the report. On numerous occasions the applicants’ lawyer requested their release stating, in particular, that, apart from statements obtained under duress and torture, there was no evidence to convict the applicants. At a hearing on 27 March 1998 the prosecutor submitted his observations on the merits in which he requested the applicants’ conviction under Article 168 of the Criminal Code. The accused were granted time to submit their additional observations.

18.  On 18 June 1999 the Constitution was amended and the military judges on the bench of the State security courts were replaced by civilian judges.

19.  At a hearing on 2 July 1999 the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. At this hearing the court heard the additional defence submissions of three of the accused, including the second applicant. The next hearing was held on 10 September 1999, when the court heard the submissions of the applicants’ representative, the second applicant and some of the other accused.

20.  In the meantime, on 2 July 1999, the applicants submitted their final written defence submissions in which they claimed that they had been subjected to torture, as shown by their medical reports, and that instead of opening an inquiry, the prosecution and the court had relied on their statements obtained under duress.

21.  On the same day the first applicant wrote a letter to the court proclaiming his innocence. He reiterated that the police had made him sign some documents under torture.

22.  On 17 November 1999 the court held a hearing. On the same day it decided to convict the applicants under, inter alia, Article 168 of the Criminal Code and sentenced them to twelve years and six months’ imprisonment. In its decision, the court held that the applicants, in their police statements, had acknowledged their relationship to and activities within the organisation and that although they had later retracted those statements, the court, having regard to the evidence in the case file, did not find their later submissions credible.

23.  In the meantime, on 20 June 2000, the first applicant wrote to Ms Pişkinsüt, the chair of the Human Rights Commission of the Turkish Grand National Assembly, complaining about his alleged ill-treatment. On 12 June 2001 the Fatih public prosecutor’s office decided not to commit any police officer for trial on the ground that the statutory time-limit for prosecution of the offence had expired. On 22 October 2004 the applicant filed a second petition with the Human Rights Commission of the Turkish Grand National Assembly. Once again, on 11 March 2005, the prosecutor decided that, despite recent amendments to the relevant provisions, the statutory time-limit in respect of the applicant’s complaint remained the same.

24.  On 20 December 2000 the applicants appealed. In their petition they submitted, inter alia, that the first-instance court had based its conviction on their statements in police custody which had been obtained under duress. In this connection, they referred to their medical reports.

25.  On 1 February 2001 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in so far as it concerned the applicants’ conviction and sentence.

26.  On 9 November 2004 the applicants were released from prison.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

27.  The relevant domestic law and practice in force at the material time as well as recent developments can be found in the following judgments: Öcalan v. Turkey [GC], no. 46221/99, §§ 52-54, ECHR 2005-IV; Aydoğan and Others v. Turkey, no. 41967/02, § 17, 2 December 2008; Kolu v. Turkey, no. 35811/97, § 44, 2 August 2005; and Salduz v. Turkey [GC], no. 36391/02, §§ 27-31, 27 November 2008.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

28.  The applicants complained that they had been subjected to ill-treatment while being held in police custody, in breach of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

29.  The Government asked the Court to dismiss this part of the application for failure to comply with the requirement of exhaustion of domestic remedies, or, alternatively, for failure to comply with the six-month rule. In this connection, they maintained that the applicants had not raised the substance of their complaint before the domestic courts and that it was only prior to lodging their application with the Court that Mr Gök had complained to the prosecutor.

30.  The applicants disputed the Government’s arguments.

31.  The Court considers the Government’s objection above to be so closely linked to the substance of the applicants’ complaint under this head that it cannot be detached from it. Therefore, to avoid prejudging the merits of the said complaint, these questions should be examined together. As the applicants’ complaint is not inadmissible on any other grounds, it must therefore be declared admissible.

B.  Merits

1.  The responsibility of the respondent State in the light of the substantive aspect of Article 3 of the Convention

32.  The Court reiterates the basic principles laid down in its judgments concerning Article 3 (see, in particular, Erdoğan Yağız v. Turkey, no. 27473/02, §§ 35-37, ECHR 2007-... (extracts), Hacı Özen v. Turkey, no. 46286/99, §§ 44-45, 12 April 2007, Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). It will examine the present case in the light of these principles.

33.  The Court further reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrıkulu and Others v. Turkey (dec.), no. 45907/99, 22 October 2002). In assessing evidence, it has generally applied the standard of proof “beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, and Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

34.  In the instant case, the ill-treatment complained of, in very general terms, by the applicants, as provided for in the application form, consisted of being subjected to electric shocks, falaka (beating of the soles of the feet) and Palestinian hanging. In a letter submitted in 2004, that is, 3 years and 6 months after the lodging of the application with the Court, the first applicant also gave some additional details (see paragraph 11). Nonetheless, several elements cast doubt on the veracity of the applicants’ claims.

35.  Firstly, the Court considers that there exist serious inconsistencies between the above-mentioned complaints of ill-treatment made by the applicants and the complaints made before the trial court. In this connection, it notes that, before the trial court, the first applicant complained that he had been sworn at, threatened and had a gun put to his waist. The second applicant, on the other hand, complained of having being threatened, beaten and subjected to a mock execution (see paragraph 16 above). The Court was not provided with the petition submitted by the first applicant to the Human Rights Commission of the Turkish Grand National Assembly in order to assess whether his version therein matched those submitted to the Court.

36.  Secondly, the Court notes that the applicants have not produced any conclusive or convincing evidence in support of their allegations of ill-treatment. It observes, in this connection, that the applicants were examined by a doctor at the end of their police custody and the medical reports indicated that the first applicant had a small bruise on his lower lip and the second applicant two small scratches on his lower right knee and pain in his back. However, the Court considers that such indications are insufficient to substantiate the severe ill-treatment described by the applicants in very brief and general terms in the application form (see Ahmet Mete v. Turkey (no. 2), no. 30465/02, § 33, 12 December 2006, and Yıldırım v. Turkey (dec.), no. 436140/98, 22 June 2006). The Court reiterates that any ill-treatment inflicted in the way alleged by the applicants, particularly those indicated by the first applicant in his letter, would have left marks which would have been observed by the doctor who examined them on 28 November 1995, that is, five and ten days respectively after the end of their time in police custody (see Tanrıkulu and Others, cited above). The Court is aware of the lack of details in the reports. Nevertheless, it notes that the applicants do not contest the findings of the medical reports and that there is no material in the case file which could call into question the findings in this report or add probative weight to the applicants’ allegations.

37.  In sum, since the evidence before it does not enable the Court to find beyond all reasonable doubt that the applicants were subjected to treatment that attained a sufficient level of severity to come within the scope of Article 3, the Court considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 of the Convention on account of the alleged ill-treatment (see Labita v. Italy, cited above, § 129).

2.  The responsibility of the respondent State in the light of the procedural aspect of Article 3 of the Convention

38.  The Court reiterates that Article 3 of the Convention also requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-102, Reports of Judgments and Decisions 1998-VIII).

39.  In the present case, the Court has not found it proved, on account of lack of evidence, that the applicants were ill-treated. Nevertheless, as it has held in previous cases, that does not preclude their complaint in relation to Article 3 from being “arguable” for the purposes of the positive obligation to investigate (see Böke and Kandemir v. Turkey, nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 20091). In reaching this conclusion the Court has had particular regard to the findings of the medical reports established at the end of the applicants’ detention in police custody. An investigation was therefore required.

40.  The Court notes that in the first hearing held before the Istanbul State Security Court on 28 February 1996 the applicants complained that they had been subjected to torture in police custody and gave some details as to what form that treatment had taken (see paragraph 16 above). Despite the fact that the applicants did not provide any further details in the subsequent hearings, they nevertheless consistently repeated, including before the Court of Cassation, that they had been subjected to torture. Although the applicants’ medical examinations of 28 November 1995 revealed that they had sustained injuries to various parts of their bodies, and despite the seriousness of their allegations before the judicial authorities, no attempts were made, save for the examination of the video footage of the re-enactment of events on 12 December 1997 (see paragraph 17 above), to investigate their allegations. The Court reiterates that a public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged, under Article 153 of the Code of Criminal Procedure in force at the material time, to investigate the facts by conducting the inquiries necessary to identify the perpetrators. In this connection, it observes that it was not until Mr Gök applied to the Human Rights Commission of the Turkish Grand National Assembly on 20 June 2000 that an investigation was finally prompted by the Fatih public prosecutor’s office into the allegations of ill-treatment of that applicant. However, by that time, the statutory time-limit for prosecution of the offence had expired. The Court concludes therefore that the applicants’ allegations of ill-treatment were not effectively investigated by the domestic authorities as required by Article 3 of the Convention.

41.  In view of the above, the Court dismisses the Government’s objections for failure to exhaust domestic remedies. Reiterating that the six-month time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the final decision in the process of exhaustion of domestic remedies, the Court further considers that the application lodged on 30 May 2001, within six months of the decision of the Court of Cassation before which the applicants had raised their ill-treatment claims, was introduced in conformity with the six-month time-limit provided for in Article 35 § 1 of the Convention. It also rejects the Government’s objection in this connection and finds that there has been a violation of Article 3 of the Convention under its procedural limb.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

42.  The applicants complained that they 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 Istanbul State Security Court which tried them. They further maintained that they had been convicted on the basis of statements given under duress and without the assistance of a lawyer while being held in police custody. Finally, the applicants complained that the length of the criminal proceedings brought against them was excessive. They relied on Article 6 §§ 1 and 3 (d) of the Convention.

43.  The Court considers that these complaints should be examined under Article 6 §§ 1 and 3 (c) of the Convention, of which the relevant part reads as follows:

“1.  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.

3.  Everyone charged with a criminal offence has the following minimum rights:

(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.”

A.  Admissibility

44.  The Government asked the Court to dismiss this part of the application for failure to comply with the requirement of exhaustion of domestic remedies on the ground that the applicants had failed to raise their complaints before the domestic courts.

45.  The Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Pakkan v. Turkey, no. 13017/02, § 31, 31 October 2006, Taşçıgil v. Turkey, no. 16943/03, §§ 31-32, 3 March 20092, and Tamamboğa and Gül v. Turkey, no. 1636/02, § 41, 29 November 2007). The Court finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned applications.

46.  Consequently, the Court rejects the Government’s preliminary objection.

47.  As regards the applicants’ complaints regarding the alleged lack of independence and impartiality of the State Security Court and unfairness of the proceedings, the Court considers that they are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

48.  As to the length of the criminal proceedings, after examining the overall duration of the proceedings, which lasted approximately five years and two months, and taking into account the fact that the case was of some complexity, the number of accused, the fact that the case was dealt with at two levels of jurisdiction, that no substantial periods of inactivity attributable to the judicial authorities have been shown and that no significant delay resulted at the appeal stage, the Court does not consider that the length of the proceedings in the present case was excessive. It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

B.  Merits

1.  Independence and impartiality of the Istanbul State Security Court

49.  The Court has consistently held that certain aspects of the status of these judges sitting as members of State security courts rendered their independence from the executive questionable (see Incal v. Turkey, 9 June 1998, § 68, Reports 1998-IV, and Çıraklar v. Turkey, 28 October 1998, § 39, Reports 1998-VII). The Court also found in Öcalan (cited above, §§ 114-15) 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.

50.  In the instant case, the Court observes that the military judge sitting on the bench of the Istanbul State Security Court was replaced only at the very end of the proceedings (see paragraph 19 above). Prior to this period, the first-instance court had already taken testimony from the accused and witnesses for the parties and had collected evidence. In fact, the Court considers that, except for the applicants’ final defence submissions, no other statements or evidence of importance were admitted to the case file after the military judge was replaced by the civilian judge. In short, most of the trial – during which interlocutory decisions of importance were made, in particular for the applicants’ defence rights – had already taken place before the military judge ceased to be a member of the court and none of this evidence was heard again after the military judge was replaced by a civilian judge.

51.  In these circumstances, taking into account the importance of the procedural measures taken prior to the replacement of the military judge, the Court considers that this replacement did not allay the applicants’ reasonably held concern about the trial court’s independence and impartiality (see Aydoğan and Others, cited above, § 25, and Hıdır Kaya v. Turkey, no. 2624/02, § 37, 9 January 2007; and contrast Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01, § 35, 19 September 2006).

52.  There has accordingly been a violation of Article 6 § 1 of the Convention.

2.  Fairness of the proceedings

53.  The Court notes at the outset that it has already held in previous cases that a court whose lack of independence and impartiality has been established cannot in any circumstances guarantee a fair trial to the persons under its jurisdiction and that, accordingly, it is not necessary to examine complaints regarding the fairness of the proceedings before that court (see, among other authorities, Benli v. Turkey, no. 65715/01, § 40, 20 February 2007, Getiren v. Turkey, no. 10301/03, § 132, 22 July 2008, and Juhnke v. Turkey, no. 52515/99, § 94, 13 May 2008).

54.  Having regard, nonetheless, to the particular circumstances of the case and, in particular, to the fact that one of the main items of evidence which led the court to convict the applicants was disputed by the latter, the Court considers in the instant case that it must proceed with its assessment of the applicants’ complaint that their trial was unfair for reasons unrelated to the question of the status of members of the State security courts. Only in this way will it be able to examine the substance of the applicants’ main allegation that the charges against them could not have been found to have been made out if they had had a fair trial.

55.  The Court reiterates that the taking of evidence is governed primarily by the rules of domestic law and that it is in principle for the national courts to assess the evidence before them. The Court’s task under the Convention is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, among other authorities, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B). All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraph 1 of Article 6, provided that the rights of the defence have been respected. On this point, the Court relies on the basic principles laid down in its judgments concerning the notion of a fair procedure under Article 6 (see, in particular, Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275, Öcalan, cited above, § 131, Salduz, cited above, § 55, and Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-...). It will examine the present case in the light of these principles.

56.  In the instant case, the Court observes that prior to the trial the applicants had made incriminating submissions before the police in the absence of a lawyer (see paragraphs 7 and 8 above).

57.  The Court notes that the restriction imposed on the applicants’ right of access to a lawyer was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the State security courts (see Salduz, cited above, § 56). The Court further observes that the applicants had access to a lawyer after being remanded in custody and during the ensuing criminal proceedings; they had the possibility of challenging the prosecution’s arguments. Nevertheless, in convicting the applicants, the Istanbul State Security Court attached weight to the statements which they had subsequently retracted and which had been obtained during police custody in the absence of a lawyer. Thus, in the present case, the applicants were undoubtedly affected by the restrictions on their access to a lawyer. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the applicants’ custody period (see, in particular, Kolu, cited above, § 62, Salduz, cited above, § 58, and Amutgan v. Turkey, no. 5138/04, § 18, 3 February 2009).

58.  In sum, even though the applicants had the opportunity to challenge the evidence against them at the trial and subsequently on appeal, the absence of a lawyer while they were in police custody irretrievably affected their defence rights.

59.  There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

60.  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, costs and expenses

61.  The applicants each claimed 100,000 United States dollars (USD) in respect of pecuniary damage and USD 100,000 for non-pecuniary damage. In addition, referring to the Istanbul Bar Association’s scale of fees, they claimed USD 20,000 for the costs and expenses incurred before the Court.

62.  The Government contested these amounts.

63.  On the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of proceedings compatible with Article 6 §§ 1 and 3 (c) would have been. The Court therefore makes no award in respect of pecuniary damage.

64.  As regards non-pecuniary damage, ruling on an equitable basis, the Court awards the applicants EUR 6,500 each.

65.  Moreover, the Court further considers that the most appropriate form of redress would be the retrial of the applicants in accordance with the requirements of Article 6 of the Convention, should the applicants so request (see Salduz, cited above, § 72).

66.  As to costs and expenses, the Court considers that, in the absence of any relevant documents in support of these claims as required by Rule 60 of the Rules of Court, it makes no award under this head.

B.  Default interest

67.  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 complaints concerning the alleged ill-treatment of the applicants and their right to a fair hearing by an independent and impartial tribunal admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 3 of the Convention under its substantive limb;

3.  Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

4.   Holds that there has been a violation of Article 6 § 1 of the Convention as regards the lack of independence and impartiality of the Istanbul State Security Court;

5.  Holds that there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention;

6.  Holds

(a)  that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;

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

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza 
 Registrar President

1.  Judgment not yet final.


2.  Judgment not yet final.



GÖK AND GÜLER v. TURKEY JUDGMENT


GÖK AND GÜLER v. TURKEY JUDGMENT