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THIRD
SECTION
CASE OF CANSEVEN v. TURKEY
(Application
no. 70317/01)
JUDGMENT
STRASBOURG
15
February 2007
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 Canseven 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,
Mrs E. Fura-Sandström,
Mrs A.
Gyulumyan,
Mr David Thór Björgvinsson,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 70317/01) 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, Mr Bektaş Canseven
(“the applicant”), on 9 May 2000.
- The
applicant was represented by Mr S. Şahin, a lawyer practising in
Izmir. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- On
1 September 2005 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaint concerning the alleged ill-treatment of the applicant
during police custody and his right to a fair hearing by an
independent and impartial tribunal. 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 1975 and was serving his prison sentence in
Gebze prison at the time of his application to the Court.
- The
applicant was arrested and taken into police custody on 26 December
1993 on suspicion of membership in an illegal organisation, namely
the DEV-SOL (Revolutionary Left).
- The
applicant claims that he was subjected to ill-treatment while in
police custody. In particular, he claims to have been beaten, given
electric shocks, deprived of food and water, immersed in cold water
and subjected to falaka (beating of the soles of the feet).
- On
7 January 1994 the applicant, together with twelve other suspects,
was taken to the Istanbul Forensic Institute for a medical
examination. The doctor noted that there were no physical signs of
ill-treatment on the applicant's body.
- On
the same day the applicant was brought before the public prosecutor
at the Istanbul State Security Court where he denied the statements
he gave to the police and alleged that he had been subjected to
torture whilst in custody. Later that day the applicant was brought
before a judge who ordered his remand in custody.
- The
public prosecutor, in view of the complaints of ill-treatment of the
applicant and other suspects arrested in the course of an
investigation into DEV-SOL, forwarded the case file to the Istanbul
public prosecutor's office. The latter, after having instigated an
investigation into the complaints, issued a decision of
non-prosecution against two police officers for lack of evidence on
10 May 1994.
- On
an unspecified date the public prosecutor at the Istanbul State
Security Court filed a bill of indictment against the applicant
accusing him of membership in an illegal organisation and committing
arson under Articles 168 § 2 and 369 of the Criminal Code.
- The
proceedings against the applicant were subsequently joined with the
criminal proceedings against nineteen other persons who had been
charged with membership of the same organisation.
- On
8 April 1997 the Istanbul State Security Court convicted the
applicant of membership in an illegal organisation and of throwing
Molotov cocktails at various banks. This judgment was quashed by the
Court of Cassation on 21 May 1998.
- In
the course of the proceedings the applicant repeated several times
that he had been ill-treated whilst in custody.
- On
24 December 1998 the Istanbul State Security Court convicted the
applicant of membership in an illegal organisation and of throwing
Molotov cocktails at various banks in 1991. The applicant was
sentenced to a total of twenty-one years, one month and fourteen
days' imprisonment and to a fine.
- On
18 January 1999 the applicant appealed. He maintained in his
petition, inter alia, that the first-instance court had based
its judgment on his statements which had been given to the police
under duress.
- On
30 September 1999 the Court of Cassation upheld the judgment. This
decision was deposited with the registry of the first-instance court.
- On
10 April 2003 the execution of the applicant's sentence was suspended
for six months on health grounds. The applicant was released. On 27
December 2005 the Izmir Assize Court suspended the execution of the
applicant's sentence in light of 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 and decision: Batı and
Others v. Turkey (nos. 33097/96 and 57834/00,
§§ 96 100, 3 June 2004), Özel v. Turkey
(no. 42739/98, §§ 20-21, 7 November 2002),
Gençel v. Turkey (no. 53431/99, §§
11-12, 23 October 2003) and Nuray Şen v. Turkey
((dec.), no. 41478/98, 30 April 2002).
- Law
no. 5190 of 16 June 2004, published in the Official Journal on 30
June 2004, abolished the State Security Courts.
THE LAW
I. PRELIMINARY REMARKS
- The
Government suggested that an error had occurred in the date of
introduction of the application. They pointed out that the
application had been introduced on 5 September 2000 and not on 9 May
2000.
- The
applicant submitted that he had introduced his application on 20 June
2000.
- In
accordance with the Court's established practice, the date of
introduction of an application is the date of the first letter
indicating an intention to lodge an application and giving some
indication of the nature of the complaint. However, when a
substantial interval follows before an applicant submits further
information as to his proposed application, the Court examines the
particular circumstances of the case in order to decide what date
shall be regarded as the date of introduction and from which to
calculate the running of the six-month period set out in Article 35
§1 of the Convention (see, among others, Alzery v. Sweeden,
(dec.), no. 10786/04, 26 October 2004, and Gaillard v.
France, (dec.), no. 47337/99, 11 July 2000).
- In
the instant case the Court notes that, by a letter dated 20 June
2000, the applicant gave a brief description of the events and
complained about the alleged ill-treatment in police custody and his
right to a fair trial by an independent and impartial tribunal. The
full application form was submitted on 5 September 2000, i.e. two
months and sixteen days later. The Court considers this delay to be
reasonable. It therefore concludes the date of introduction of the
application to be 20 June 2000.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to torture while held
in police custody, in breach of Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government asked the Court to dismiss this part of the application as
being inadmissible for failure to comply with the requirement of
exhaustion of domestic remedies under Article 35 § 1
of the Convention. They argued that the applicant failed to object to
the decision of non prosecution of the public prosecutor.
- The
applicant claimed that he was never served with the public
prosecutor's decision. He maintained that, in any event, since the
domestic remedies were not effective, lodging an objection against it
would have been unsuccessful.
- The
Court considers it unnecessary to determine whether the applicant has
exhausted domestic remedies within the meaning of Article 35 of the
Convention since this part of the application is inadmissible for the
following reasons:
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence (see, in particular, Tanrıkulu and
Others v. Turkey (dec.), no.
45907/99, 22 October 2002).
- The
Court notes that the medical report established at the end of the
applicant's stay in custody does not contain any indication that he
was ill treated by the police. On this point, the Court
reiterates that any ill treatment inflicted in the manner
alleged by the applicant would have left marks on his body, in
particular, beatings, falaka and electric shocks, which would
have been observed by the doctor who examined him at the end of his
detention in police custody, some twelve days later, before he was
formally detained on remand (see, in particular, Tanrıkulu
and Others v. Turkey (dec.), nos. 29918/96, 29919/96 and
30169/96, 24 February 2005). The Court is aware of the lack of
details in this report. Nevertheless, it notes that there is no
material in the case file which could call into question the findings
in the report or add probative weight to the applicant's allegations.
In particular, it notes that the applicant did not object to its
contents in the course of the domestic proceedings and that there is
no indication in the case file that the applicant requested and was
refused permission to see another doctor at the end of the custody
period.
- In view of the above, the Court is of the opinion that
the applicant has not laid the basis of an arguable claim that he was
subjected to ill treatment whilst in police custody.
It follows that this part of the application is unsubstantiated and
must be rejected as being manifestly ill founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 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 State Security Court which
tried and convicted him. He further submitted that he was convicted
on the basis of his statements extracted under torture. Finally, the
applicant maintained that the written opinion of the principal public
prosecutor at the Court of Cassation was never served on him, thus
depriving him of the opportunity to put forward his
counter-arguments. The applicant relied on Article 6 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.”
A. Admissibility
- The
Government argued under Article 35 § 1 of the Convention that
the applicant's complaints under this head should be rejected for
failure to comply with the six-month rule. They maintained that he
should have lodged his application with the Court within six months
of the date on which the decision of the Court of Cassation was
deposited with the registry of the first-instance court. Instead,
they noted that the applicant had lodged his application with the
Court on 5 September 2000.
- The
applicant refuted the Government's allegations.
- The
Court observes that in the instant case the judgment of the State
Security Court was upheld by the Court of Cassation on 30 September
1999 and deposited with the registry of the Istanbul State Security
Court on 27 December 1999. The Court further observes that the
application was lodged with the Court on 20 June 2000 (see paragraph
23 above). The application was therefore introduced in time.
- In
view of the above, the Court rejects the Government's preliminary
objection.
- However,
as regards the applicant's complaint concerning his conviction on the
basis of his submissions extracted allegedly under torture, the Court
recalls that it has examined the applicant's complaint under Article
3 of the Convention and found it unsubstantiated. It follows that
this part of the application is also inadmissible as being manifestly
ill-founded within the meaning of Article 35 § 3 and 4 of the
Convention.
- As
to the applicant's remaining complaints under this head, in the light
of its established case law (see, amongst many 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 they 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 (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).
IV. 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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part.”
- In
the instant case, on 21 February 2006 the Court invited the applicant
to submit his claims for just satisfaction by 10 May 2006. However,
he did not submit any such claims within the specified time-limit.
- In
view of the above, the Court makes no award under Article 41 of the
Convention.
- 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 - ...).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant's right to a fair hearing by an independent and impartial
tribunal and the non-communication of the written opinion of the
principal public prosecutor at the Court of Cassation 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 complaint relating to the
independence and impartiality of the Istanbul State Security Court;
- Holds that it is not necessary to consider the
applicant's remaining complaints under Article 6 § 1 of the
Convention relating to fairness of the proceedings.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
