Information Note on the Court’s case-law 51

March 2003

Öcalan v. Turkey - 46221/99

Judgment 12.3.2003 [Section I]

Article 3

Inhuman treatment

Imposition of death sentence following proceedings considered to be unfair: violation

Conditions of transfer by plane following arrest, and detention in solitary confinement: no violation

Article 2

Article 2-1

Death penalty

Death sentence imposed but not c arried out, and subsequent removal of risk: no violation

Article 5

Article 5-1

Lawful arrest or detention

Arrest by Turkish agents on a plane in the international zone of an airport in Kenya: no violation

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Independence and impartiality of a State Security Court – presence of a military judge throughout most of the trial: violation

Article 6-3-b

Adequate facilities

Adequate time

Restrictions on detainee’s access to criminal file, and late d isclosure to lawyers, obliging them to respond hurriedly to a very extensive file: violation

Article 6-3-c

Defence through legal assistance

Denial of access to a lawyer for almost 7 days during custody, followed by restrictions on the number and length of consultations; lack of possibility for detainee to speak with lawyers outwith hearing of guards: violation

Facts : In October 1998 the applicant, a Turkish national and the former leader of the Workers’ Party of Kurdistan (“the PKK”), was expelled from Syri a. After staying in various countries, he was put up at the Greek Ambassador’s residence in Nairobi, Kenya. Following a meeting with the Kenyan Minister of Foreign Affairs, the Greek Ambassador informed the applicant that he was free to leave and that the Netherlands was prepared to accept him. Finally, the applicant was taken to the airport in a car driven by a Kenyan official on 15 February 1999. The car took him to an aircraft in the international transit area of Nairobi Airport in which Turkish official s were waiting. The applicant was arrested after boarding the aircraft. The Turkish courts had issued seven warrants for his arrest and a wanted notice had been circulated by Interpol. The applicant was transferred by aircraft to Turkey and taken into cust ody in a prison on the island of İmralı on 16 February 1999. From that date onwards he was interrogated by members of the security forces. On 22 February 1999 the Public Prosecutor at the Ankara State Security Court questioned him. On 23 February 1999 the applicant appeared before a judge of the State Security Court, who ordered his detention pending trial. In an indictment submitted on 24 April 1999 the Public Prosecutor at the Ankara State Security Court accused the applicant of carrying on activities wit h a view to bringing about the secession of part of the national territory and of having formed and led an armed organisation for that purpose. He sought the death penalty pursuant to Article 125 of the Criminal Code. During the course of the trial the Con stitution was amended so as to exclude military members from the composition of the state security courts. A civilian judge was therefore appointed to replace the military judge as aa member of the State Security Court hearing the case. On 29 June 1999 the Ankara State Security Court found the applicant guilty of the offences as charged and sentenced him to death, pursuant to Article 125 of the Criminal Code. In a judgment delivered on 25 November 1999 the Court of Cassation upheld that decision in its enti rety.

On 13 November 1999 the European Court of Human Rights decided to apply Rule 39 of the Rules of Court and requested the Turkish government to take all necessary steps to ensure that the death penalty was not carried out, so as to enable the Court to proceed effectively with the examination of the admissibility of the applicant’s application. In September 2001 Delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the prison wher e the applicant was being held.

The death penalty was abolished in peacetime in Turkey by legislation introduced in August 2002. Consequential amendments were made to the Criminal Code. An action that had been brought in the Constitutional Court to challen ge the constitutionality of the legislation abolishing the death penalty was dismissed. In a letter of 19 September 2002 to the Court, the Turkish Government declared that the applicant’s sentence could no longer be executed. By a judgment of 3 October 200 2 the Ankara State Security Court commuted the applicant’s sentence to one of life imprisonment. Appeals were lodged against that judgment by two trade unions which had intervened in the criminal proceedings on behalf of their deceased members. The appeals were still pending when the Court delivered its judgment.

Law : The Court unanimously dismissed the Government’s preliminary objection to the applicant’s complaints under Articles 5 § 1, 5 § 3 and  § 4 of a failure to exhaust domestic remedies and held tha t there had been a violation of Articles 5 § 3 and 5 § 4.

Article 5 § 1: The applicant had been arrested by members of the Turkish security forces inside an aircraft in the international zone at Nairobi Airport. Directly after being handed over by the Ken yan officials to the Turkish officials he had come under effective Turkish authority and had therefore been brought within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in the case before the Court, Turkey ha d exercised its authority outside its territory. The applicant’s arrest and detention had been carried out in accordance with arrest warrants issued by the Turkish criminal courts with a view to bringing him before “the competent legal authority on reasona ble suspicion” of having committed an offence. The arrest and detention had therefore been in accordance with Turkish domestic law. Moreover, it had not been established beyond all reasonable doubt that the operation carried out partly by Turkish officials and partly by Kenyan officials amounted to a violation by Turkey of Kenyan sovereignty and, consequently, of international law. Lastly, the fact that the arrest warrants had not been shown to the applicant until he was detained by members of the Turkish s ecurity forces in an aircraft at Nairobi Airport did not deprive his subsequent arrest of a legal basis under Turkish law.

Consequently, the applicant’s arrest in February 1999 and his detention had to be regarded as having been in accordance with “a proce dure prescribed by law” for the purposes of Article 5 § 1 (c) of the Convention.

Conclusion : no violation (unanimously).

Article 6 § 1 (independent and impartial tribunal): It was true that the State Security Court was composed of three civilian judges whe n the applicant was convicted, as, following a constitutional amendment, the military judge who had initially been a member of the court had been replaced by a civilian judge before the applicant’s lawyers had made their submissions on the merits of the ca se. The civilian judge had sat as a substitute judge and had followed the trial proceedings from the beginning. However the last-minute replacement of the military judge was not capable of curing the defect in the composition of the state security court th at had led the Court to find a violation on that point in its İncal and Çiraklar judgments, as most of the trial had already taken place before the military judge ceased to be a member of the trial court. It was the presence of the military judge for most of the trial that had given rise to the problem and not the change in the court’s composition. A further factor was the exceptional nature of the trial itself, which concerned a high-profile accused who had been engaged in a lengthy armed conflict with the Turkish military authorities and sentenced to death. The presence of the military judge could only have served to raise doubts in the accused’s mind as to the independence and impartiality of the trial court.

Conclusion : violation (six votes to three).

Th e Court held unanimously that there had been a violation of Article 6 § 1, taken together with Article 6 § 3 (b) and (c) as the applicant had not had a fair trial.

The Court unanimously dismissed the Government’s preliminary objections to the applicant’s c omplaints concerning the death penalty.

Article 2, Article 14 taken together with Article 2, and Article 3 concerning the application of the death penalty: All threat of implementation of the death sentence had disappeared in the case before the Court. Whi le it was true that a legal action against the commutation of the sentence was pending in the Turkish courts, in view of the Turkish Government’s declaration to the Court in their letter of 19 September 2002, there were no longer substantial grounds for fe aring that the applicant would be executed, notwithstanding the appeal.

Conclusion : no violation (unanimously).

Article 3 read against the background of Article 2 – imposition of the death penalty: Imposing a death sentence on a person after an unfair tria l was to subject that person wrongfully to the fear that he would be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there existed a real possibility that the sentence would be enforced, had to g ive rise to a significant degree of human anguish. Such anguish could not be dissociated from the unfairness of the proceedings underlining the sentence which, given that human life was at stake, became unlawful under the Convention. Regard being had to th e rejection by the Contracting Parties of capital punishment, which was no longer seen as having any place in a democratic society, the imposition of a capital sentence in such circumstances had to be considered, in itself, to amount to a form of inhuman t reatment. In the case before the Court, the risk that the death sentence imposed on the applicant would be executed was a real one and had continued for more than three years, even though there had been a moratorium on the implementation of the death penal ty in Turkey since 1984, the Turkish Government had complied with the Court’s interim measure pursuant to Rule 39 to stay the applicant’s execution and the applicant’s file had not been sent to Parliament for approval of the death sentence as was then requ ired by the Turkish Constitution.

The Court found that the applicant had not been tried by an independent and impartial tribunal and that there had been a breach of the rights of the defence under Article 6 § 1, taken together with Article 6 § 3 ( b) and (c), since the applicant had had no access to a lawyer during his period in police custody and had been unable to communicate with his lawyers out of the hearing of officials, restrictions had been imposed on the number and length of his lawyers’ vi sits, he had been unable to consult the case-file until a late stage in the procedure and his lawyers had not had sufficient time to consult the file properly. The death penalty had thus been imposed on the applicant following an unfair procedure which cou ld not be considered compatible with the strict standards of fairness required in cases involving a capital sentence. Moreover, he had had to suffer the consequences for more than three years. The imposition of the death sentence following an unfair trial amounted to inhuman treatment.

Conclusion : violation (six votes to one).

Article 3 – conditions of detention: (a) Transfer by aircraft from Kenya to Turkey: the applicant had been handcuffed, blindfolded, filmed by a video camera and presented to the press wearing a blindfold. It had not been established “beyond all reasonable doubt” that the applicant’s arrest and the conditions in which he was transferred from Kenya to Turkey had exceeded the usual degree of humiliation that was inherent in every arrest a nd detention or attained the minimum level of severity required for Article 3 to apply. (b) Conditions of detention on the island of İmralı: The Court shared the CPT’s concerns about the long-term effects of the applicant’s social isolation, but found tha t the general conditions in which he was being held had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3.

Conclusion : no violation (unanimously).

The Court held unanimously th at there had been no violation of Article 34 (effective exercise of the right to individual application).

Article 41: The Court considered that the findings of a violation of Articles 3, 5 and 6 constituted sufficient just satisfaction for any damage that had been sustained by the applicant. It awarded 100,000 euros to cover part of the costs he had incurred in the proceedings before the Court.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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