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THIRD SECTION
CASE OF ABDULLAH ALTUN V. TURKEY
(Application no. 66354/01)
JUDGMENT
STRASBOURG
19 October 2006
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Abdullah Altun v. Turkey,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C.
Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David
Thór Björgvinsson, judges,
and Mr V. Berger,
Section Registrar,
Having deliberated in private on 28 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 66354/01)
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 a Turkish national,
Abdullah Altun (“the applicant”), on 25 July 2000.
- The applicant was represented by Mr M.S. Enez, a lawyer
practising in Ankara. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On 24 March 2005
the Court declared the application partly inadmissible and decided to
communicate the complaints concerning the applicant's right to a fair
trial by an independent and impartial tribunal. Applying Article 29 §
3 of the Convention, it decided to rule on the admissibility and
merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1972 and lives in Diyarbakır.
- The applicant was a student in the Medical Faculty of
the Diyarbakır Dicle University at the time of the events giving
rise to the present application.
- On 23 March 1995 the applicant was notified by an
arrest warrant, which he signed, about the basis and the reasons for
his arrest. On the same day he was taken into custody by the police
officers from the Anti-Terror Branch of the Diyarbakır Security
Directorate (Terörle Mücadele Şubesi) on
suspicion of his involvement in the PKK.
- On 5 April 1995 the police officers drafted a report of
the re construction of events, which was signed by the
applicant.
- On 9 April 1995 the applicant
gave a statement to the police, where he confessed that he had been
involved in certain activities for the PKK.
- On 10 April 1995 he was brought before the judge who
ordered his detention on remand.
- On 13 April 1995 the chief
public prosecutor at the Diyarbakır State Security Court filed a
bill of indictment with the latter charging the applicant under
Article 125 of the Criminal Code with carrying out activities
for the purpose of bringing about the secession of part of the
national territory.
- On 3 June 1999 the Diyarbakır State Security
Court composed of two civilian judges and a military judge, convicted
the applicant of the charges against him and sentenced him to death
under Article 125 of the Criminal Code. Taking into account the
applicant's behaviour during the trial, the death penalty was
commuted to a life sentence. It is to be noted that the
Diyarbakır State Security Court held thirty hearings and heard
nineteen witnesses.
- On 21 February 2000 the Court of Cassation upheld the
judgment of the Diyarbakır Security Court.
- On 1 March 2000 the decision of the Court of Cassation
was pronounced in the presence of the applicant's lawyer.
- On 25 April 2000, the Court of Cassation dismissed the
applicant's request for rectification of decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A full description of the domestic law may be found in
Özel v. Turkey (no. 42739/98, §§
20-21, 7 November 2002) and Gençel v. Turkey
(no. 53431/99, §§ 11-12, 23 October 2003).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. As regards the independence and impartiality of the
Diyarbakır State Security Court and the fairness of the
proceedings
- The applicant complained in the first place that he
had not received a fair trial by an independent and impartial
tribunal due to the presence of a military judge on the bench of the
Diyarbakır State Security Court, which tried and convicted him.
He further alleged that he had been denied a fair hearing before the
domestic courts since his conviction was based on his statement
obtained under duress in the course of his detention in police
custody. Finally, he claimed that he was deprived of his right to a
lawyer during his detention in police custody. The applicant invoked
Article 6 § 1 of the Convention, which in so far as relevant
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing ... by
an independent and impartial tribunal established by law.”
- The Government contested that argument.
1. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
a) As to the independence and impartiality
of the Diyarbakır State Security Court
- The Government maintained that the State Security
Courts had been established by law to deal with threats to the
security and integrity of the State. They submitted that in the
instant case there was no basis to find that the applicant could have
any legitimate doubts about the independence of the Diyarbakır
State Security Court. The Government further referred to the
constitutional amendment of 1999 whereby military judges could no
longer sit on such courts. Finally, they stated that the State
Security Courts had been abolished as of 2004.
- The Court notes that it has examined similar cases in
the past and has found a violation of Article 6 § 1 of the
Convention (see Özel, cited above, §§ 33-34;
Özdemir v. Turkey, no. 59659/00, §§ 35-36,
6 February 2003).
- The Court sees no reason to reach a different
conclusion in this case. It is understandable that the applicant who
was prosecuted in a State Security Court for carrying out activities
for the purpose of bringing about the secession of part of the
national territory should have been apprehensive about being tried by
a bench which included a regular army officer and member of the
Military Legal Service. On that account, he could legitimately fear
that the Diyarbakır State Security Court might allow itself to
be unduly influenced by considerations which had nothing to do with
the nature of the case. In other words, the applicants' fears as to
the State Security Court's lack of independence and impartiality can
be regarded as objectively justified (see Incal v. Turkey,
judgment of 9 June 1998, Reports of Judgments and Decisions
1998-IV, p. 1573, § 72 in fine).
- In the light of the foregoing the Court finds that
there has been a violation of Article 6 § 1 of the Convention in
this respect.
b) As to the fairness of the proceedings
- Having regard to its finding that the applicant's
right to a fair hearing by an independent and impartial tribunal has
been infringed, the Court considers that it is unnecessary to examine
the applicant's complaints under Article 6 § 1 of the
Convention (Işik v. Turkey, no. 50102/99, § 38-39,
5 June 2003).
B. As regards the length of proceedings
- The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, provided in Article 6 § 1 of the Convention.
- The Government stated that the length of the
proceedings had not exceeded a reasonable time.
- The Court notes that the proceedings began on 23 March
1995 when the applicant was taken into police custody and ended on
21 February 2000 when the Court of Cassation upheld the
judgment of the Diyarbakır State Security Court. The proceedings
thus lasted approximately four years and eleven months. During this
period the Diyarbakır State Security Court held thirty hearings
and heard twenty-six witnesses.
- The Court recalls that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the criteria
established by its case-law, particularly the complexity of the case,
the conduct of the applicant and of the relevant authorities and what
was at stake for the applicant in the dispute (see, amongst many
others, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II).
- The Court considers that the present case was not
particularly complex. As regards the conduct of the applicant, the
Court observes that, it does not appear from the case-file that he
contributed to the prolongation of the proceedings.
- As to the conduct of the authorities, the Court
observes that there is a substantial delay in the proceedings before
the first-instance court. In this connection it points out that the
Diyarbakır State Security Court took more than four years to
render a decision on the case. During this period, on a number of
occasions the court requested information from the authorities and
suspended the hearings in order to wait for their replies. However,
the administrative authorities had failed to deal with the case
diligently by not submitting to the court the relevant information
within the allotted time-limit and had caused a substantial delay to
the proceedings. In the Court's opinion, four years before one
instance is an excessively long period which cannot be justified with
reference to the considerations of complexity. The Court therefore
considers that no convincing justification for these excessive delays
had been offered by the respondent Government.
- The Court reiterates in this connection that Article 6
§ 1 of the Convention imposes on the Contracting States the duty
to organise their legal systems in such a way that their courts can
meet each of the requirements of that provision, including the
obligation to decide cases within a reasonable time (see, among other
authorities, Pélissier and Sassi, cited above, §
74).
- Having regard to its case-law on the subject, the
Court considers that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
- In the light of the foregoing, the Court finds that
there has been a violation of Article 6 § 1 of the Convention in
this respect.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The applicant claimed a total of 1,813,000 euros (EUR)
in respect of pecuniary damage. He further claimed a total of EUR
100,000 for non pecuniary damage.
- The Government disputed these claims.
- As regards the alleged pecuniary damage sustained by
the applicant, the Court observes that he has not produced any
document in support of his claim. Accordingly, the Court dismisses
the applicant's claims in respect of pecuniary damage.
- With regard to the non-pecuniary damage, the Court
considers that the applicant may have suffered a certain amount of
distress as a result of the excessive length of the proceedings in
question. Taking into account the circumstances of the case and
having regard to its jurisprudence in similar cases, the Court awards
the applicant EUR 3,000 under that head.
- Nevertheless, the Court considers that where an
individual, as in the instant case, has been convicted by a court
which did not meet the Convention requirements of independence and
impartiality, a retrial or a reopening of the case, if requested,
represents, in principle an appropriate way of redressing the
violation (see Öcalan v. Turkey, no. 46221/99 [GC],
§ 210, in fine, ECHR 2005-IV)
B. Costs and expenses
- The applicant also claimed EUR 106,000 for the costs
and expenses incurred before the domestic courts and the Court.
- The Government maintained that only those expenses
which were actually and necessarily incurred could be reimbursed. In
this connection, they submitted that the applicant and his
representative had failed to submit documents showing the costs and
expenses.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far it
has been shown that these have been actually and necessarily incurred
and were reasonable as to quantum. In the present case, regard being
had to the information in its possession and the above criteria, the
Court considers it reasonable to award to EUR 1,000 covering costs
and expenses.
C. Default interest
- 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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into new Turkish
liras at the rate applicable on the date of settlement:
(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary
damage;
(ii) EUR 1,000 (one thousand euros) in respect of costs and expenses;
(iii) any taxes that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
