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SECOND
SECTION
CASE OF KARABULUT v. TURKEY
(Application
no. 56015/00)
JUDGMENT
STRASBOURG
24
January 2008
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 Karabulut v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
András
Baka,
Rıza
Türmen,
Mindia
Ugrekhelidze,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
judges,
and Sally Dollé, Section
Registrar,
Having
deliberated in private on 4 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56015/00) 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 Mr Ali Karabulut (“the applicant”)
on 3 December 1999.
- The
applicant was represented before the Court by Mr Mahmut Nedim Eldem,
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
6 September 2005 the Court decided to give notice of the application
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 1973 and is currently serving a prison sentence
in Kırşehir.
A. Introduction
- The
facts of the case as presented by the applicant and the Government
are based on a number of documents drawn up in the course of the
domestic proceedings. The following information appears from the
parties' submissions as well as from the documents submitted by them.
B. The Facts
- On
17 February 1994 a warrant was issued for the applicant's arrest on
suspicion of membership of an illegal organisation, namely the
Revolutionary People's Liberation Party/Front-Revolutionary Left
(Devrimci Halkın Kurtuluşu Partisi/Cephe-Dev Sol;
THKP/C-Dev Sol). He was arrested on 14 July 1994 and taken into
police custody.
- On
17 July 1994 a police chief at the Istanbul Security Headquarters
drafted a report which stated that the applicant had refused to
respond to the questions put to him. This report was forwarded to the
prosecutor's office at the Istanbul State Security Court. In another
report prepared by the police the same day, the applicant was quoted
as having stated that he would only talk to the prosecutor, but that
in any event the allegations against him were baseless.
- According
to a medical report drafted on 17 July 1994 by the Istanbul Forensic
Medicine Institute, the applicant had ecchymosed areas, measuring 4x2
cm and 4x7 cm, both under his armpits and on his shoulders. Another
ecchymosed area, measuring 2x2 cm, was also observed on his right
shoulder. The report stated that the injuries were of a nature which
would prevent the applicant from working for a period of three days.
- The
same day the applicant was brought before the prosecutor at the
Istanbul State Security Court, who questioned him and recorded his
statement. In this statement the applicant denied having had any
involvement in any illegal organisation. He also informed the
prosecutor that he had refused to sign a statement prepared by the
police in which the name Dev-Sol was mentioned. The applicant was
brought before the duty judge, who questioned him further and ordered
his pre-trial detention. Before the judge the applicant repeated his
denial of any involvement with any illegal organisation.
- On
27 July 1994 the public prosecutor at the Ankara State Security Court
filed an indictment, accusing the applicant of membership of the
above-mentioned illegal organisation. The prosecutor requested that
the applicant be convicted and sentenced under Article 168 § 2
of the Criminal Code and section 5 of the Prevention of Terrorism
Act. The prosecutor stated that the documents in the case files in
respect of a number of persons who were being tried for membership of
the same organisation proved that the applicant had also been a
member. The prosecutor further alleged that a handwritten
autobiography belonging to the applicant, which had been submitted to
the illegal organisation, proved that he was one of its members.
- On
1 August 1994 the criminal proceedings against the applicant were
joined to the ongoing trial of twenty-four persons accused of
offences related to the illegal organisation. Subsequently, the trial
was conducted by the Ankara State Security Court's First Chamber
(hereafter “the trial court”).
- On
19 January 1995 the applicant submitted a letter to the trial court,
stating that “pressure” had been exerted on him by the
police to force him to accept the accusations. In his letter the
applicant denied having given the organisation his autobiography, and
maintained that he did not know who had given evidence against him.
- On
21 February 1995 the applicant submitted another request to the trial
court, in which he asked to be released. In his request the applicant
stated that he was not the author of the handwritten autobiography.
In that autobiography there was a reference to the son of an uncle;
in fact he had no uncles. He maintained that a forensic examination
of the autobiography would establish that he was not the author. The
applicant also maintained that he did not know the person who had
accused him of membership of the organisation. In any event, that
person had later retracted his statement. The applicant also alleged
that he had been subjected to torture while in police custody. In
support of his allegation he referred to the above-mentioned medical
report of 17 July 1994.
- A
total of forty-six hearings were held in the course of the
applicant's trial. A number of hearings had to be postponed on
account of some of the defendants' failure to comply with the
summonses. A number of other hearings were postponed to enable the
trial court to obtain important documents and reports. At each of
these hearings the trial court decided to extend the applicant's
remand in custody.
- On
9 December 1997 the trial court, which had a military judge on its
bench, convicted the applicant as charged and sentenced him to
fifteen years' imprisonment in accordance with Article 168 § 2
of the Criminal Code. The prison sentence was increased by half,
pursuant to section 5 of the Prevention of Terrorism Act.
Consequently, the applicant was sentenced to twenty-two years and six
months' imprisonment. One of the applicants' co-accused, a certain Mr
E.K., was also convicted of the same offences and sentenced to ten
years' imprisonment. Mr E.K.'s prison sentence was also increased by
half and consequently he was sentenced to a total of fifteen years'
imprisonment.
- In
finding the applicant guilty of membership of the illegal
organisation, the trial court observed that the applicant's
autobiography had been found in the organisation's possession. It
also established that the applicant had joined the organisation with
the assistance of two of the co-accused but had escaped from it with
the help of another person.
- The
court's written judgment was 55 pages long.
- The
applicant appealed on 15 December 1997. On 27 April 1999 the
Court of Cassation upheld the applicant's conviction. The applicant
was not represented by a lawyer before the Court of Cassation.
- The
decision of the Court of Cassation was deposited with the registry of
the Ankara State Security Court on 20 May 1999. A committal
order was prepared on 24 March 2000, showing the time which the
applicant was to spend in prison. The committal order was notified to
the applicant on 30 March 2000 by the prison administration.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section 168 of the
above Code provided:
“Any person who, with the intention of committing
the offences defined in sections 125, 131, 146, 147, 149 or 156,
forms an armed gang or organisation or takes leadership ... or
command of such a gang or organisation or assumes some special
responsibility within it shall be sentenced to not less than fifteen
years' imprisonment.
The other members of the gang or organisation shall be
sentenced to not less than five and not more than fifteen years'
imprisonment.”
- Pursuant
to section 5 of the Prevention of Terrorism Act (no. 3713), the
penalties laid down in the Criminal Code as punishment for the
offences defined in sections 3 and 4 of the Act were increased by one
half.
- Pursuant
to Article 153 of the Code of Criminal Procedure, the prosecutor and
the police had a duty to investigate crimes reported to them, the
former deciding whether a prosecution should be initiated, pursuant
to Article 148 of the Code of Criminal Procedure.
- Article 33 of the Code of Criminal Procedure
stipulated that the judgments and decisions of courts were to be
served on the parties to the case.
- Article
19 of Law no. 7201 on notifications (Tebligat Kanunu) provided
as follows:
“Notifications
to detainees or convicted persons serving a sentence of imprisonment
are made by the director or other officer of the establishment in
which they are held.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that, while he was detained in police custody
between 14 and 17 July 1994, he had been subjected to ill-treatment
amounting to torture within the meaning of Article 3 of the
Convention. In support of this allegation the applicant referred to
the above-mentioned medical report of 17 July 1994. Article 3
of the Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The Government argued that the applicant had failed to
exhaust domestic remedies in relation to his allegations of
ill-treatment. In particular, they submitted that the applicant had
failed to bring the allegations to the attention of the prosecutor
and the duty judge on 17 July 1994.
- The applicant maintained that both the prosecutor and
the trial court had been aware of the existence of the medical report
detailing his injuries. These authorities were thus under an
obligation to instigate ex officio an investigation into his
allegations as required by the domestic legislation. In support of
his submissions the applicant referred to the judgment in the case of
Aksoy v. Turkey (judgment of 18 December 1996, Reports of
Judgments and Decisions 1996-VI, § 56) in which the Court
considered the following:
“...even if it were accepted that the applicant
made no complaint to the public prosecutor of ill-treatment in police
custody, the injuries he had sustained must have been clearly visible
during their meeting. However, the prosecutor chose to make no
enquiry as to the nature, extent and cause of these injuries, despite
the fact that in Turkish law he was under a duty to investigate”.
- The
Court observes, as the Government did in their observations, that the
applicant did not complain that he had been ill-treated when he was
brought before the prosecutor and the judge on his release from
police custody. However, in his request of 21 February 1995 which was
submitted to the trial court, he made this allegation.
- The
Court observes that a public prosecutor who is informed by any means
whatsoever of a situation which gives rise to a suspicion that an
offence has been committed is obliged, under Article 153 of the Code
of Criminal Procedure, to investigate the facts by conducting the
necessary inquiries to identify the perpetrators. The Court is
therefore prepared to accept that the applicant did avail himself of
a domestic remedy by submitting his allegations of ill-treatment to
the trial court.
- Nevertheless,
the Court notes that the applicant did not pursue his allegations of
ill-treatment in the course of the trial, nor did he mention them in
his appeal submitted to the Court of Cassation.
- In the light of the above, the Court considers that
the failure of the judicial authorities to investigate his
allegations of ill-treatment must have become gradually apparent to
the applicant by 9 December 1997, which was the date on which the
trial court rendered its judgment on the matter. Therefore the
applicant should have been aware of the ineffectiveness of the
remedies in domestic law by that date. Accordingly, the six-month
period prescribed by Article 35 § 1 of the Convention should be
considered to have started running not later than 9 December 1997
(see İçöz v. Turkey, (dec.),
no. 54919/00, 9 January 2003, and, mutatis mutandis,
Veznedaroğlu v. Turkey (dec.), no. 32357/96,
7 September 1999). On that account, his application should have been
introduced no later than June 1998, whereas it was not lodged until 3
December 1999.
- It
follows that this part of the application has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The applicant complained that his detention had
exceeded the “reasonable time” requirement as provided in
Article 5 § 3 of the Convention, which reads, in so
far as relevant, as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Court reiterates that, if an applicant has been detained pending
trial under Article 5 § 3, that form of custody ends
on the day on which the charge is determined, even if only by a court
of first instance (see Wemhoff v. Germany, judgment of 27
June 1968, Series A no. 7, p. 23 § 9). In the present
case the applicant was convicted on 9 December 1997, thereby ending
his pre-trial detention. However, he did not lodge his application
with the Court until 3 December 1999. He therefore failed to
observe the six-month rule laid down in Article 35 § 1 of the
Convention. Accordingly, this aspect of the case must be rejected
pursuant to Article 35 §§ 1 and 4 of the
Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had not received a fair hearing by an
independent and impartial tribunal on account of the presence of the
military judge sitting on the bench of the trial court. He also
complained that the length of the criminal proceedings against him
had been in breach of the reasonable time requirement of Article 6
§ 1 of the Convention. Finally, he claimed that the
domestic court had convicted him on the basis of a false document and
the statements of his co-accused, despite the fact that he had never
accepted the accusations against him. The relevant part of Article 6
§ 1 of the Convention provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal established
by law.”
A. Admissibility
- The
Government argued that the applicant had failed to comply with the
six-month time-limit. The applicant's conviction had been upheld by
the Court of Cassation on 27 April 1999 and the Court of Cassation's
decision had been deposited with the registry of the Ankara State
Security Court on 20 May 1999. Nevertheless, the application was
not lodged until 3 December 1999, more than six months later.
- The
applicant maintained that he had complied with the six-month rule.
- The
Court reiterates that where an applicant is entitled to be served ex
officio with a written copy of the final domestic decision, the
object and purpose of Article 35 § 1 of the Convention
are best served by counting the six-month period as running from the
date of service of the written judgment (see Worm v. Austria,
judgment of 29 August 1997, Reports 1997 V, p. 1547,
§ 33). The Court notes that, by virtue of Law no. 7201 on
notifications, the prison administration is responsible for informing
detainees of the outcome of their cases, particularly the final
determination of any sentence of imprisonment (paragraph 24 above).
Consequently, in the light of its case-law (e.g. Töre v
Turkey, no. 50744/99, final decision of 10 June 2004), the
Court finds that the aim of Article 35 § 1 of the
Convention is met by calculating the running of the six month period
from the date on which the applicant was provided with the relevant
information, namely the date on which he received the committal order
– 30 March 2000 – and thereby the result of the
Court of cassation procedure. As the application was lodged before
this date, on 3 December 1999, the Court dismisses the
Government's objection under this head.
- As
for the complaint concerning the length of the criminal proceedings,
the Court observes that the period to be taken into consideration
began on 14 July 1994, when the applicant was arrested and taken
into police custody, and ended on 27 April 1999, when the Court
of Cassation upheld the judgment of the Ankara State Security Court.
The period under consideration thus lasted four years, nine months
and thirteen days before two instances.
- The
Government submitted that a total of twenty-four defendants were
being tried in the proceedings. The trial court had held a total of
forty-six hearings. The charges against the defendants concerned the
membership of an illegal armed organisation and, as such, the subject
matter of the proceedings was complicated and required an examination
of complex questions of fact and law. There had not been any period
of inactivity attributable to the domestic authorities. In the light
of the foregoing the Government maintained that the length of the
proceedings could not be considered unreasonable.
- The applicant maintained that there had been no
justification for the trial court to hold forty-six hearings.
Furthermore, the inadequate initial investigation had also
contributed to the length of the trial. Finally, the Court of
Cassation proceedings alone had taken longer than one and a half
years.
- The
Court reiterates at the outset 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 in its
case-law, particularly the complexity of the case, as well as the
conduct of the applicant and that of the relevant authorities (see,
inter alia, Kiper v. Turkey, no. 44785/98,
§ 36, 23 May 2006).
- The
Court considers that the subject matter of the case before the Ankara
State Security Court was undoubtedly complex, as shown, inter alia,
by the number of investigations which were linked to each other, the
number of defendants and the nature of the offences with which they
were charged. The judgment adopted by the trial court was 55 pages
long.
- As
regards the conduct of the applicant, the Court observes that it does
not appear that he contributed to the prolongation of the
proceedings. The Government have not argued to the contrary.
- As
to the conduct of the domestic authorities, the Court does not
observe any period of inactivity which could be attributed to the
domestic courts during the conduct of the proceedings. It is true
that a number of hearings in the case were adjourned since some of
the accused failed to comply with the summonses. By contrast, there
is nothing in the case file which shows that the adjournments were
due to the trial court's failure to organise the proceedings
efficiently. The trial court adjourned the hearings in the interests
of the proper administration of justice as it could not have rendered
a judgment without obtaining all the defendants'
submissions. Furthermore, hearings were scheduled at regular
monthly intervals.
- Having regard to the particular circumstances of the
case, and taking into account the overall duration of the
proceedings, the Court concludes that there has been compliance with
the “reasonable time” requirement of Article 6 § 1
of the Convention (see Mehmet Yavuz v. Turkey,
no. 47043/99, §§ 46-58, 24 July 2007 and the
cases cited therein).
- It
follows that the complaint concerning the length of the criminal
proceedings is manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and must, therefore,
be declared inadmissible pursuant to Article 35 § 4.
- As to the complaint concerning the independence and
impartiality of the Ankara State Security Court which convicted the
applicant, and the complaint concerning the applicant's conviction on
the basis of a false document and the statements of other co-accused,
in the light of its established case-law (see, among many other
authorities, Çıraklar v. Turkey,
judgment of 28 October 1998, Reports 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 these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. No other grounds for declaring them inadmissible
have been established. They must therefore be declared admissible.
B. Merits
1. Independence and impartiality of the Ankara 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 on account of the
presence of a military judge on the bench of the State Security
Courts (see, inter alia, Çıraklar, cited
above, §§ 37-41; see also 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
- The
applicant claimed that the trial court had convicted him on the basis
of a false document and on the basis of statements made by his
co-accused, despite the fact that he had never accepted the
accusations against him.
- 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 separately the other complaint 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).
IV. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant complained of a violation of Article 7 of the
Convention on account of the fact that one of his co-accused, Mr
E.K., who had also been convicted under the same provisions, had
received a lighter sentence. The relevant part of Article 7 of the
Convention provides as follows:
“1. ... Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed. ...”
- The
Court observes at the outset that Mr E.K., who was also sentenced
under the same provisions, was sentenced to fifteen years'
imprisonment whereas the applicant was sentenced to twenty-two years
and six months' imprisonment.
- However,
the relevant part of Article 7 of the Convention is not concerned
with differences in sentencing, a matter of judicial discretion in
the light of the circumstances of each individual's case within the
bounds of the domestic law, but requires that no heavier penalty be
imposed than that which was applicable at the time the criminal
offence was committed. In this connection, it is to be observed that
Article 168 § 2 of the Criminal Code was in force at the time of
the commission of the offence for which the applicant was convicted
and envisaged such penalties. Indeed, the applicant did not argue to
the contrary.
- It
follows that this part of the application is incompatible
ratione materiae with the provisions of the
Convention within the meaning of Article 35 § 3 of the
Convention, and should be rejected pursuant to Article 35 § 4.
V. 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 87,569 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the applicant's claim was unsubstantiated
and that the amount claimed excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. It
is also of the view that the finding of a violation of Article 6
§ 1 constitutes in itself sufficient compensation for any
non-pecuniary damage suffered by the applicant (see Çıraklar,
cited above, § 45).
- 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 [GC],
no. 46221/99, § 210, ECHR 2005 IV).
B. Costs and expenses
- The
applicant claimed EUR 18,383 for the costs and expenses incurred
before the Court. In support of his claim he relied on the Ankara Bar
Association's recommended scale of fees and submitted a time sheet
showing the amount of time spent by his lawyer in representing him
before the Court.
- The
Government maintained that the claim was unsubstantiated and
excessive.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are 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 the applicant EUR 1,000 under this head.
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 hearing 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 Ankara State Security Court;
- Holds that it is unnecessary to examine
separately the remaining complaints under Article 6 of the
Convention;
- Holds that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant;
- 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, EUR 1,000 (one
thousand euros) in respect of costs and expenses, to be converted
into new Turkish liras at the rate applicable at the date of the
settlement and free of any taxes or charges that may be payable;
(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 24 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
