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International Initiative
Freedom for Ocalan – Peace in Kurdistan
P.O. Box 100511, D-50445 Koeln
E-Mail: info@freedom-for-ocalan.com
Url: www.freedom-for-ocalan.com
Cologne, 12 March 2003
INTERNATIONAL INITAITIVE BRIEFINGS:
European rights court condemns Turkey in
Ocalan case
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135
12.3.2003
Press release issued by the Registrar
CHAMBER JUDGMENT IN THE CASE OF ÖCALAN v. TURKEY
The European Court of Human Rights has today notified in writing
a judgment [fn] in the case of Öcalan v. Turkey (application
no. 46221/99) concerning the applicant’s complaints relating,
in particular, to the death penalty, alleged ill-treatment and his
detention and trial.
Detention
The Court held, unanimously, that there had been:
no violation of Article 5 § 1
(no unlawful deprivation of liberty) of the European Convention
on Human Rights in that the applicant’s arrest and detention
had not been
unlawful under the Convention;
a violation of Article 5 § 3
(right to be brought promptly before a judge) given the failure
to bring the applicant before a judge promptly after his arrest;
a violation of Article 5 § 4
(right to have lawfulness of detention decided speedily by a court)
given the lack of a remedy by which the applicant could have the
lawfulness of his detention in police custody decided.
Fair trial
The Court held:
by six votes to one, that there had been a violation of Article
6 § 1 in that the applicant was not tried by an independent
and impartial tribunal;
and unanimously that there had been a violation of Article 6 §
1 (right to a fair trial), taken together with Article 6 §
3 (b) (right to adequate time and facilities for preparation of
defence) and (c) (right to legal assistance), in that the applicant
did not have a fair trial.
Death penalty
The Court held:
unanimously, that there had been no violation of Article 2 (right
to life);
unanimously, that there had been no violation of Article 3 (prohibition
of ill-treatment) of the Convention, concerning the implementation
of the death penalty;
and, by six votes to one, that there had been a violation of Article
3 concerning the imposition of the death penalty following an unfair
trial.
Treatment and conditions
The Court held, unanimously, that there had been:
no violation of Article 3
of the Convention, concerning the conditions in which the applicant
was transferred from Kenya to Turkey and the conditions of his detention
on the island of Imrali.
Other complaints
The Court also held, unanimously, that there had been:
no violation of Article 14
of the Convention (prohibition of discrimination), taken together
with Article 2 as regards the implementation of the death penalty;
no violation of Article 34
of the Convention (right of individual application).
Finally the Court held, unanimously, that no separate examination
was necessary of the applicant’s remaining complaints under
Articles 7 (no punishment without law), 8 (right to respect for
private and family life), 9 (freedom of thought, conscience and
religion), 10 (freedom of expression), 13 (right to an effective
remedy), 14 and 18 (limitation on use of restrictions on rights).
Under Article 41 (just satisfaction), the Court held unanimously
that its findings of a violation of Articles 3, 5 and 6 of the Convention
constituted in themselves sufficient just satisfaction for any damage
sustained by the applicant and awarded the applicant’s lawyers
100,000 euros (EUR) for costs and expenses.
1. Principal facts
Abdullah Öcalan, a Turkish national born in 1949 and former
leader of the Kurdistan Workers’ Party (PKK), is currently
incarcerated in Imrali Prison (Bursa, Turkey).
At the time of the events in question, the Turkish courts had issued
seven warrants for Mr Öcalan’s arrest and a wanted notice
(red notice) had been circulated by Interpol. He was accused of
founding an armed gang in order to destroy the integrity of the
Turkish State and of instigating terrorist acts resulting in loss
of life.
On 9 October 1998 he was expelled from Syria, where he had been
living for many years. From there he went to Greece, Russia, Italy
and then again Russia and Greece before going to Kenya, where, on
the evening of 15 February 1999, in disputed circumstances he was
taken on board an aircraft at Nairobi airport and arrested by Turkish
officials. He was then flown to Turkey, being kept blindfolded for
most of the flight.
On arrival in Turkey, a hood was placed over his head while he
was taken to Imrali Prison, where he was held in police custody
from 16 to 23 February 1999 and questioned by the security forces.
He received no legal assistance during that period and made several
self-incriminating statements which contributed to his conviction.
His lawyer in Turkey was prevented from travelling to visit him
by members of the security forces. 16 other lawyers were also refused
permission to visit on 23 February 1999.
On 23 February 1999 the applicant appeared before an Ankara State
Security Court judge, who ordered him to be placed in pre-trial
detention.
The first visit from his lawyers was restricted to 20 minutes and
took place with members of the security forces and a judge present
in the same room. Subsequent meetings between the applicant and
his lawyers took place within the hearing of members of the security
forces. After the first two visits from his lawyers, the applicant’s
contact with them was restricted to two one-hour visits a week.
The prison authorities did not authorise the applicant’s lawyers
to provide him with a copy of the documents in the case file, other
than the indictment. It was not until the hearing on 2 June 1999
that the State Security Court gave the applicant permission to consult
the case file under the supervision of two registrars and his lawyers
permission to provide him with a copy of certain documents.
In an indictment filed on 24 April 1999 the Public Prosecutor at
Ankara State Security Court accused the applicant of carrying out
actions calculated to bring about the separation of a part of Turkish
territory and of forming and leading an armed gang to achieve that
end. The Public Prosecutor asked the court to sentence the applicant
to death under Article 125 of the Criminal Code. On 29 June 1999
the applicant was found guilty as charged and sentenced to death
under Article 125. The Court of Cassation upheld the judgment.
On 30 November 1999 the European Court of Human Rights, applying
Rule 39 of the Rules of Court (interim measures), requested the
Turkish authorities "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
and merits of the applicant’s complaints under the Convention".
In October 2001 Article 38 of the Turkish Constitution was amended,
abolishing the death penalty except in time of war or of imminent
threat of war or for acts of terrorism. Under Law no. 4771, published
on 9 August 2002, the Turkish Assembly resolved to abolish the death
penalty in peacetime. On 3 October 2002 Ankara State Security Court
commuted the applicant’s death sentence to life imprisonment.
An application to set aside the provision abolishing the death
penalty in peacetime for persons convicted of terrorist offences
was dismissed by the Constitutional Court on 27 December 2002. On
9 October 2002 two trade unions which had intervened in the criminal
proceedings lodged an appeal on points of law against the decision
to commute Mr Öcalan’s death sentence to life imprisonment.
These proceedings are still pending.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights
on 16 February 1999. A hearing was held on 21 November 2000 and
the case was declared partly admissible on 14 December 2000.
Judgment was given by a Chamber of seven judges, composed as follows:
Elisabeth Palm (Swedish), President,
Wilhelmina Thomassen (Netherlands),
Gaukur Jörundsson (Icelandic),
Riza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Josep Casadevall (Andorran),
Rait Maruste (Estonian), judges,
and also Michael O’Boyle, Section Registrar.
3. Summary of the judgment
Complaints
The applicant complained, in particular, that:
The imposition and/or execution of the death penalty was or would
be in violation of Articles 2, 3 and 14 of the Convention; and that
the conditions in which he was transferred from Kenya to Turkey
and detained on the island of Imrali amounted to inhuman treatment
in breach of Article 3;
He was deprived of his liberty unlawfully; that he was not brought
promptly before a judge; and that he did not have access to proceedings
to challenge the lawfulness of his detention, in breach of Article
5 §§ 1, 3 and 4;
He did not have a fair trial because he was not tried by an independent
and impartial tribunal, given the presence of a military judge on
the bench of the State Security Court; that the judges were influenced
by hostile media reports; and that his lawyers were not given sufficient
access to the court file to enable them to prepare his defence properly,
in breach of Article 6 § 1;
His legal representatives in Amsterdam were prevented from contacting
him after his arrest and/or that the Turkish Government failed to
reply to the European Court of Human Right’s request for them
to supply information, in violation of Article 34.
He also relied on Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention.
Decision of the Court
Article 5 of the Convention
The Government, by way of preliminary objection, had argued that
the applicant’s complaints under Article 5 §§ 1,
3 and 4 should be rejected for failure to exhaust domestic remedies.
In its admissibility decision of 14 December 2000, the Court had
noted that this question was so closely related to the merits of
the complaints under Article 5 § 4 that it could not be detached
from that complaint. Accordingly, the Court examined the Government’s
preliminary objections in the context of the applicant’s claim
under Article 5 § 4 and addressed that complaint first.
Article 5 § 4 of the Convention (right to have lawfulness
of detention decided speedily by a court)
The Court observed that, despite a 1997 amendment to Article 128
of the Turkish Code of Criminal Procedure which clearly established
a right under Turkish law to challenge in the courts decisions to
hold a suspect in police custody, the Government had not furnished
any example of a judicial decision in which an order by the public
prosecutor’s office at a State Security Court for a suspect
to be held in police custody had been quashed before the end of
the fourth day (the statutory maximum period for which the public
prosecutor’s office may order suspects to be held).
The Court considered that in any event the special circumstances
of the case, notably the fact that he had been kept in isolation
and that his lawyers had been obstructed by the police, made it
impossible for the applicant to have effective recourse to this
remedy.
The Court therefore dismissed the Government’s preliminary
objection in respect of Article 5 § 4 and held that there had
been a violation of that provision. For the same reasons, it rejected
the preliminary objection in respect of the complaints under Article
5 §§ 1 and 3.
Article 5 § 1 of the Convention (no unlawful deprivation of
liberty)
The Court found that the applicant’s arrest and detention
had complied with orders that had been issued by the Turkish courts
"for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence"
within the meaning of Article 5 § 1 (c).
Moreover, it had not been established beyond all reasonable doubt
that the operation carried out in the instant case partly by Turkish
officials and partly by Kenyan officials amounted to a violation
by Turkey of Kenyan sovereignty and, consequently, of international
law.
It followed that the applicant’s arrest on 15 February 1999
and his detention were to be regarded as having been in accordance
with "a procedure prescribed by law" for the purposes
of Article 5 § 1 of the Convention. Consequently, there had
been no violation of that provision.
Article 5 § 3 of the Convention (right to be brought promptly
before a judge)
The Court noted that the total period spent by the applicant in
police custody before being brought before a judge came to a minimum
of seven days. It could not accept that it was necessary for the
applicant to be detained for such a period without being brought
before a judge. There had accordingly been a violation of Article
5 § 3.
Article 6 of the Convention
Whether the Ankara State Security Court, which convicted the applicant,
was independent and impartial
The Court had found in earlier judgments that certain aspects of
the status of military judges sitting in the State Security Courts
raised doubts as to the independence and impartiality of the courts
concerned. In the Court’s view, the last-minute replacement
of the military judge was not capable of curing the defect in the
composition of the court which had led it to find a violation on
this point in previous judgments.
In the exceptional circumstances of the case, moreover, the presence
of a military judge could only have served to raise doubts in the
accused’s mind as to the independence and impartiality of the
court.
The Court concluded that the Ankara State Security Court, which
had convicted the applicant, had not been an independent and impartial
tribunal within the meaning of Article 6 § 1 of the Convention.
Consequently, there had been a violation of that provision on that
point.
Whether the proceedings before the State Security Court were fair
The Court noted that the applicant had not been assisted by his
lawyers when questioned in police custody, had been unable to communicate
with them out of hearing of third parties and had been unable to
gain direct access to the case file until a very late stage in the
proceedings. Furthermore, restrictions had been imposed on the number
and length of his lawyers’ visits and his lawyers had not been
given proper access to the case file until late in the day.
The overall effect of these difficulties taken as a whole had so
restricted the rights of the defence that the principle of a fair
trial, as set out in Article 6, had been contravened. There had
therefore been a violation of Article 6 § 1, taken together
with Article 6 § 3 (b) and (c).
As regards the other complaints under Article 6 of the Convention,
the Court took the view that it had already dealt with the applicant’s
main grievances arising out of the proceedings against him in the
domestic courts. It was therefore unnecessary to examine the other
complaints under Article 6 relating to the fairness of the proceedings.
Articles 2, 3 and 14 of the Convention (death penalty)
The applicant maintained that the imposition and/or execution of
the death penalty constituted a violation of Article 2 – which
should be interpreted as no longer permitting capital punishment
– as well as an inhuman and degrading punishment in violation
of Article 3 of the Convention. He also claimed that his execution
would be discriminatory in breach of Article 14.
Preliminary issue
The Government had submitted that the allegations raised by the
applicant under Article 2 of the Convention should be rejected as
inadmissible on the grounds that the death penalty had now been
abolished in Turkey. The Court observed that in the present case
the applicant had been sentenced to death and had spent more than
three years detained in isolation awaiting a determination of his
fate. Up until recently there had been reason to fear that the death
sentence would be implemented. In addition, his complaint related
not only to the question of the implementation of the sentence but
also to that of its imposition. Accordingly, it was more appropriate
to examine the issues raised by the death penalty on the merits.
The Court therefore rejected the Government’s plea.
Merits
As regards the implementation of the death penalty
The Court considered that the threat of implementation of the death
sentence had been effectively removed. It could no longer be said
that there were substantial grounds for fearing that the applicant
would be executed, notwithstanding the appeal which was still pending.
In those circumstances, the applicant’s complaints under Articles
2, 3 and 14 based on the implementation of the death penalty were
to be rejected.
As regards the imposition of the death penalty
It remained to be determined whether the imposition of the death
penalty, in itself, gave rise to a breach of the Convention.
(i) Article 2
At the outset the Court considered that no separate issue arose
under the present head as regards Article 2 and preferred to examine
this question under Article 3.
(ii) Article 3 read against the background of Article 2
(a) Legal significance of the practice of the Contracting States
as regards the death penalty
The Court reiterated that the Convention was to be read as a whole
and that Article 3 was to be construed in harmony with the provisions
of Article 2. If Article 2 was to be read as permitting capital
punishment, notwithstanding the almost universal abolition of the
death penalty in Europe, Article 3 could not be interpreted as prohibiting
the death penalty since that would nullify the clear wording of
Article 2 § 1. Accordingly, the Court had first to address
the applicant’s submission that the practice of the Contracting
States in this area could be taken as establishing an agreement
to abrogate the exception provided for in the second sentence of
Article 2 § 1, which explicitly permitted capital punishment
under certain conditions.
In the Court’s view, it could not now be excluded, in the
light of the developments that had taken place in this area, that
the States had agreed through their practice to modify the second
sentence in Article 2 § 1 in so far as it permitted capital
punishment in peacetime. Against this background it could also be
argued that the implementation of the death penalty could be regarded
as inhuman and degrading treatment contrary to Article 3. However,
it was not necessary to reach any firm conclusion on this point
since it would run counter to the Convention, even if Article 2
were to be construed as still permitting the death penalty, to implement
a death sentence following an unfair trial.
(b) Unfair proceedings and the death penalty
Even if the death penalty were still permissible under Article
2, an arbitrary deprivation of life pursuant to capital punishment
would be prohibited. This flowed from the requirement that "Everyone’s
right to life shall be protected by law". An arbitrary act
could not be lawful under the Convention.
It also followed from the requirement in Article 2 § 1 that
the deprivation of life be pursuant to the "execution of a
sentence of a court", that the "court" which imposed
the penalty must be an independent and impartial tribunal within
the meaning of the Court’s case-law and that the most rigorous
standards of fairness had to be observed in the criminal proceedings
both at first instance and on appeal. Since the execution of the
death penalty was irreversible, it could only be through the application
of such standards that an arbitrary and unlawful taking of life
could be avoided.
The Court had then to examine the implications for the issue under
Article 3 concerning the imposition of the death penalty.
In the Court’s view, to impose a death sentence on a person
after an unfair trial 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,
as was the case for the applicant in view of his high profile and
the fact that he had been convicted of the most serious crimes,
must give rise to a significant degree of human anguish. Such anguish
could not be dissociated from the unfairness of the proceedings
underlying the sentence. Having regard to the rejection by the Contracting
Parties of capital punishment, which was no longer seen as having
any legitimate 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 treatment.
The imposition of the death sentence on the applicant following
an unfair trial had therefore amounted to inhuman treatment in violation
of Article 3.
Article 3 of the Convention (conditions of detention)
Conditions in which the applicant was transferred from Kenya to
Turkey
The Court considered that 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
exceeded the usual degree of humiliation that was inherent in every
arrest and detention or attained the minimum level of severity required
for Article 3 of the Convention to apply. Consequently, there had
been no violation of that provision on this point.
Conditions of detention on the island of Imrali
The Court found that the general conditions in which the applicant
was being detained at Imrali Prison had not reached the minimum
level of severity necessary to constitute inhuman or degrading treatment
within the meaning of Article 3 of the Convention. Consequently,
there had been no violation of that provision on that account.
Article 34 of the Convention (right of individual petition)
The applicant complained of being hindered in the exercise of his
right of individual application in that his legal representatives
in Amsterdam had not been permitted to contact him after his arrest
and/or 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.
As regards the applicant’s inability to communicate with his
lawyers in Amsterdam following his arrest, there was nothing to
indicate that the exercise of the applicant’s right to individual
application was impeded to any significant extent.
Moreover the Court found, without prejudice to its views on the
binding nature of interim measures under Rule 39, that in the special
circumstances of the case the refusal of the Turkish Government
to provide certain information did not amount to a violation of
the applicant’s right of individual application.
Remaining complaints
Finally, the Court considered that no separate examination of the
complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention,
taken alone or together with the aforementioned provisions of the
Convention, was necessary.
Article 41 of the Convention
The Court took the view that any pecuniary or non-pecuniary damage
that the applicant might have sustained had been sufficiently compensated
by its findings of a violation of Articles 3, 5 and 6 of the Convention.
As regards costs and expenses, the Court considered it reasonable
to award the applicant a total of EUR 100,000 in respect of the
claims made by all his legal representatives.
Judge Türmen expressed a partly dissenting opinion, which
is annexed to the judgment.
***
The Court’s judgments are accessible on its Internet site
(http://www.echr.coe.int).
Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91
The European Court of Human Rights was set up in Strasbourg in
1959 to deal with alleged violations of the 1950 European Convention
on Human Rights. On
1 November 1998 a full-time Court was established, replacing the
original two-tier system of a part-time Commission and Court.
[fn] Under Article 43 of the European Convention on Human Rights,
within three months from the date of a Chamber judgment, any party
to the case may, in exceptional cases, request that the case be
referred to the 17-member Grand Chamber of the Court. In that event,
a panel of five judges considers whether the case raises a serious
question affecting the interpretation or application of the Convention
or its Protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such
question or issue arises, the panel will reject the request, at
which point the judgment becomes final. Otherwise Chamber judgments
become final on the expiry of the three-month period or earlier
if the parties declare that they do not intend to make a request
to refer.
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