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FOURTH
SECTION
CASE OF KARAOĞLAN v. TURKEY
(Application
no. 60161/00)
JUDGMENT
STRASBOURG
31
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 Karaoğlan v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Türmen,
Mr M. Pellonpää,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 10 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 60161/00) 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, Mr Fikret Karaoğlan
(“the applicant”), on 23 December 1999.
- The
applicant was represented by Mr M. Muller, Mr T. Otty, Ms L. K. N.
Claridge, and Mr K. Yıldız of the Kurdish Human Rights
Project in London. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
10 May 2005 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the applicant's
right to a fair hearing by an independent and impartial tribunal to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Belgium.
- On
20 March 1998 the applicant was arrested and taken into custody by
police officers at the Diyarbakır Security Directorate on
suspicion of his involvement in the activities of an illegal
organisation.
- On
22 March 1998 the applicant was brought before a judge at the
Diyarbakır State Security Court who ordered his release pending
trial.
- On
4 May 1998 the public prosecutor at the İzmir State Security
Court filed a bill of indictment accusing the applicant of membership
of an illegal organisation, namely the PKK. He requested that the
applicant be convicted and sentenced under Article 168 § 2 of
the Criminal Code and Article 5 of Law no. 3713.
- On
15 September 1998 the İzmir State Security Court joined the
trial of the applicant to the ongoing trial of four other accused.
Throughout the proceedings the applicant was represented by a lawyer.
- On
15 December 1998 the İzmir State Security Court, relying on the
applicant's statement to the police, the witness testimonies of other
suspects as well as other evidence, convicted the applicant as
charged and sentenced him to twelve years and six months'
imprisonment. This judgment was upheld by the Court of Cassation on
1 July 1999.
- Following
the decision of the Court of Cassation the applicant fled to Belgium
where he successfully applied for asylum.
- The
applicant submitted that on 17 August 2005 he was arrested and taken
into custody in Spain on the basis of a Red Notice issued by Turkey
via Interpol on the ground of his original indictment in July 1999
and his subsequent case before the Court. He was released the next
day since he had been granted asylum by Belgium. The Government
denied the existence of any such notice.
- The
Government further submitted that the applicant's sentence had been
reduced to six years and three months' imprisonment in accordance
with the provisions of the new Criminal Code.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments: Özel v. Turkey
(no. 42739/98, §§ 20-21, 7 November 2002) and
Gençel v. Turkey (no. 53431/99, §§ 11-12,
23 October 2003).
- By
Law no. 5190 of 16 June 2004, published in the Official Journal on 30
June 2004, the State Security Courts were abolished.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been denied a fair hearing by an
independent and impartial tribunal on account of the presence of a
military judge sitting on the bench of the İzmir State Security
Court which tried and convicted him. He alleged that his statement,
taken under duress in police custody, was admitted in evidence and
that the İzmir State Security Court relied heavily on the
statements of the co-defendants without giving him an adequate
opportunity to cross-examine them. Finally, he complained that he had
been tried in absentia. The applicant relied on Article 6 §§
1 and 3 (d) of the Convention, which in so far as relevant reads as
follows:
“1. 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.
...
3. Everyone charged with a criminal offence
has the following minimum rights:
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him...”
A. Admissibility
- In
the light of its established case law (see, among many other
authorities, Çıraklar v. Turkey, judgment of 28
October 1998, Reports of Judgments and Decisions 1998-VII),
and in view of the materials submitted to it, the Court considers
that the applicant's complaints raise complex issues of law and fact
under the Convention, the determination of which should depend on an
examination of the merits. The Court therefore concludes that this
part of the application is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. No other
grounds for declaring it inadmissible have been established.
B. Merits
1. Independence and impartiality of the State Security
Court
- The
Court has examined a large number of cases raising similar issues to
those in the present case and found a violation of Article 6 § 1
of the Convention (see Özel, cited above, §§
33-34, and Özdemir v. Turkey, no. 59659/00,
§§ 35-36, 6 February 2003).
- The
Court finds no reason to reach a different conclusion in the instant
case. Accordingly, the Court concludes that there has been a
violation of Article 6 § 1.
2. Fairness of the proceedings
- Having
regard to its finding of a violation of the
applicant's right to a fair hearing by an independent and
impartial tribunal, the Court considers that it is not necessary to
examine the other complaints under Article 6 of the Convention
relating to the fairness of the proceedings before it (see, among
other authorities, Incal v. Turkey, judgment of 9 June 1998,
Reports 1998 IV, p. 1573, § 74, and Ükünç
and Güneş v. Turkey, no. 42775/98, § 26, 18
December 2003).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his observations dated 28 February 2006 the applicant complained that
the issuing of a Red Notice by Turkey was a method of intimidation
and persecution in relation to his case before the Court, which was
in breach of Article 34 of the Convention. The applicant
further complained of a continued breach of his rights under Articles
3, 5, 6, 8, 11 and 13 and Article 2 of Protocol No. 4 and Article 4
of Protocol No. 7 on account of the illegitimate and continued use of
the Red Notice by Turkey.
- The
Government argued that the applicant's complaint under Article 34
of the Convention should be rejected for failure to comply with the
six months rule. They further refuted the applicant's
allegations.
- The
Court considers it unnecessary to determine whether the complaint
under Article 34 of the Convention was introduced outside the
time-limit laid down by Article 35 § 1 of the Convention, since
this part of the application is, in any event, inadmissible for the
reasons set out below.
- As
regards the applicant's complaint under Article 34, the Court
observes, firstly, that he failed to submit any cogent evidence to
support his allegations that he had been arrested in Spain on the
basis of a Red Notice issued by Turkey and that this was used by the
latter as a means to hinder the exercise of his right of individual
petition. The Court also notes that the applicant was able to lodge
his application with the Court and submit a number of observations.
He has also continued to correspond with the Court without any
obstacles being placed in his way by the authorities (see, in
particular, Toğcu v. Turkey, no. 27601/95,
§ 148, 31 May 2005). It follows that this part of the
application is manifestly ill founded within the meaning of
Article 35 § 3 of the Convention and must be rejected pursuant
to Article 35 § 4.
- As
to the remaining complaints, the Court finds no reason to depart from
its aforementioned finding that the applicant's allegations are
unsubstantiated and consequently manifestly ill-founded within the
meaning of Article 35 § 3 and 4 of the Convention.
III. 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 requested compensation for pecuniary and non pecuniary
damage. He relied on the case-law of the Court and left the amount to
the discretion of the Court.
- The
Government invited the Court to follow its established case-law and
not to make any award.
- 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 would have been. The Court therefore makes no award
in respect of pecuniary damage.
- The
Court further considers that the finding of a violation of Article 6
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant (see Incal, cited above, §
82).
B. Costs and expenses
- The
applicant also claimed 6,460.82 pounds sterling (GBP) (approximately
9,240 euros (EUR)) for fees and costs incurred by his British lawyers
and the Kurdish Human Rights Project (KHRP) in assisting with the
application.
- The
Government contested the amount.
- The
Court may make an award in respect of costs and expenses in so far as
these were actually and necessarily incurred and were reasonable as
to quantum (see, for example, Sawicka v. Poland, no. 37645/97,
§ 54, 1 October 2002). Making its own estimate based
on the information available, and having regard to the criteria laid
down in its case-law (see, among other authorities, Özüpek
and Others v. Turkey, no. 60177/00, § 31, 15 March 2005),
the Court awards the applicant EUR 1,000 for the costs and
expenses claimed, such sum to be converted into pounds sterling at
the date of settlement and to be paid into the bank account in the
United Kingdom indicated by the applicant.
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 complaint concerning the
applicant's right to a fair trial by an independent and impartial
tribunal admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the lack of independence and
impartiality of the İzmir State Security Court;
- Holds that it is not necessary to consider the
applicant's other complaints under Article 6 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000
(one thousand euros) in respect of costs and expenses, such sum
to be converted into pounds sterling at the rate applicable at the
date of settlement and to be paid into the bank account in the United
Kingdom as indicated by the applicant, plus any tax that may be
chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
