JOINT PARTLY DISSENTING OPINION OF JUDGE S COSTA, CAFLISCH, TÃœRMEN AND BORREGO BORREGO

In paragraph 175 of the judgment , the majority expresses the opinion that “the imposition of the death sentence ... following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment ...”.

First of all, we do not agree with the majority that the Court which sentenced Mr Öcalan was not independent and impartial. However, even if it had been , we do not believe that this constitutes a breach of Article 3.

The majority accepts that Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 (paragraph 162 of the judgment). In other words, according to the majority, while the death penalty itself does not constitute a violation of Article 3, a procedural defect in respect of impartiality and independence of the court which imposes the death penalty constitutes a violation of Article 3.

According to our case-law, fear and anguish due to the impartiality and independence of a c ourt is a question to be examined under Article 6 of the Convention rather than under Article 3.

“ ... In deciding w hether there is a legitimate reason to fear that a particular court lacks independence and impartiality, the standpoint of the accused is important without being decisive” ( see Incal v. Turkey , judgment of 9 June 1998, Reports of Judgments and Decisions 1998 ‑ IV, p p . 1572-73 , § 71). “ ... [T] he applicant could legitimately fear ... because one of the judges ... was a military judge” (ibid., p. 1573, § 72). Similar sentences are contained in Çıraklar v. Turkey ( judgment of 28 October 1998 , Reports 1998- VII, pp. 3072-7 4 , § § 38 and 40) and numerous other judgments. In all these judgments , the Court found a violation of Article 6 due to the fear created by the presence of a military judge.

Moreover, inhuman treatment within the meaning of Article 3 must attain a minimum level of severity. The applicant must show beyond reasonable doubt that he has suffered fear and anguish that reaches the threshold level required by Article 3 (see, mutatis mutandis , V. v. the United Kingdom [GC], no. 24888/94, ECHR 1999 ‑ IX ) . In the present case , there is no evidence that the applicant has suffered fear and anguish that reaches the necessary threshold due to a lack of impartiality and independence on the part of the national security c ourt. As stated in paragraph 39 of the judgment, during the trial the applicant accepted the main charge against him under Article 125 of the Turkish Criminal Code, that is to say having accomplished act s aimed at separating a part of the State ' s territory. He also accepted political responsibility for the PKK ' s general strategy as its leader and admitted having envisaged the establishment of a separate State on the territory of the Turkish State . He knew what the charge against him was and what the penalty would be ( t here is only one penalty provided for in Article 125 of the Turkish Criminal Code). He also stated expressly that he accepted the National Security Court ' s jurisdiction.

Under such circumstances, the presence of a military judge at an early stage of the trial can hardly have caused fear and anguish reach ing a threshold constitut ing a violation of Article 3.

Furthermore, for a threat to amount to inhuman treatment there must be a “real risk”. A mere possibility is not in itself sufficient ( see Vilvarajah and Others v. the United Kingdom , judgment of 30 October 1991 , Series A no. 215, p. 37, § 111). The threat should be “sufficiently real and immediate” ( see Campbell and Cosans v. the United Kingdom , judgment of 25 February 1982, Series A no. 48, p. 12, § 26). “It must be shown that the risk is real” ( H.L.R. v. France , judgment of 29 April 1997, Reports 1997-III, p. 758, § 40).

In the present case, there is no ground to believe that there was a real and immediate risk that the applicant would be executed, for the following reasons .

(a) In Turkey , the death penalty has not been executed since 1984.

(b) The Government , by an official communication sent to the Court, accepted the Rule 39 decision of former Section 1 and stayed Mr Öcalan ' s execution (see paragraph 5 of the judgment).

(c) In compliance with the Rule 39 decision, the Government did not send the applicant ' s file to Parliament for the death sentence to be approved (under the Turkish Constitution, the death penalty may be executed only after Parliament adopts a law approving the sentence). In other words, the process of execution never started. Under such circumstances, it is not possible to conclude that a real threat of execution existed for Mr Öcalan in the period between the Turkish c ourt ' s decision and the abolition of the death penalty in Turkey .

In Soering v. the United Kingdom (judgment of 7 July 1989 , Series A no. 161) , the Court ruled, mutatis mutandis , that there was no inhuman treatment as long as the Government complied with the interim measure indicated by the Strasbourg institu t ions ( ibid. , pp. 44-45, § 111). The same considerations apply in the present case. Since the Government agreed to comply with the Rule 39 decision, there has never been a “sufficiently real and immediate” threat of execution for the applicant.

In Çınar v. Turkey (no. 178 64/91, Commission decision of 5 September 1994, D ecisions and R eports 79- B , p. 5), the applicant claimed that there had been a violation of Article 3 because his death sentence , which became definitive on 20 October 1987, was submitted to the Grand National Assembly for approval and the Grand National Assembly did not take any decision until 1991. He was therefore exposed to the death-row phenomenon.

The Commission rejected this claim on the ground that the death penalty ha d not been executed in Turkey since 1984 and the risk of the penalty being implemented w as illusory.

We cannot accept that in the present case the risk of execution for the applicant was more real than that in Çınar .

The applicant ' s political background did not increase the risk of execution, as is suggested in the judgment (paragraph 1 72). On the contrary, it made him less vulnerable because of the political consequences his execution would have had . The fact that there has been a quasi consensus among all political parties in Parliament not to execute confirms this view. Th is political consensus is evident from the fact that Parliament abolished the death penalty by Law n o. 4771, which was passed with a large majority and published on 9 August 2002 ( see paragraph 51 of the judgment). Furthermore, on 12 November 2003 Turkey ratified Protocol No. 6.

For all these reasons , we conclude that there has been no violation of Article 3 on account of the death sentence imposed by the National Security Court .

[1] 1. A t the date of the Chamber’s judgment of 12 March 2003 . Protocol No. 6 has now been ratified by forty- four member States of the Council of Europe (including Turkey ) and signed by two others, Monaco and Russia (see paragraph 58 above).