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EUROPEAN COURT OF HUMAN RIGHTS
GRAND CHAMBER JUDGMENT ÖCALAN v. TURKEY
Press release issued by the Registrar
12 May 2005
The European Court of Human Rights has today delivered at a public
hearing its Grand Chamber judgment in the case of Öcalan v.
Turkey (application no. 46221/99).
In its judgment the Grand Chamber made the same findings of violation
and non violation of the European Convention on Human Rights as
the Chamber in its judgment of 12 March 20031.
Detention
The Court held, unanimously, that there had been:
* a violation of Article 5 § 4 (right to have lawfulness of
detention decided speedily by a court) of the European Convention
on Human Rights, given the lack of a remedy by which the applicant
could have had the lawfulness of his detention in police custody
decided;
* no violation of Article 5 § 1 (no unlawful deprivation of
liberty) of the Convention, concerning the applicant's arrest;
* 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.
Fair trial
The Court held:
* by 11 votes to six, that there had been a violation of Article
6 § 1 (right to a fair trial) in that the applicant had not
been tried by an independent and impartial tribunal; and,
* unanimously, that there had been a violation of Article 6 §
1, 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 had not had 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 14 (prohibition
of discrimination) taken in conjunction with Article 2, concerning
the implementation of the death penalty;
* unanimously, that there had been no violation of Article 3 (prohibition
of ill-treatment), concerning the implementation of the death penalty;
* and, by 13 votes to four, 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 concerning the conditions in which
the applicant had been transferred from Kenya to Turkey or 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 34 (right of individual
application); and that
* it was not necessary to examine separately 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 violations of Articles 3, 5 and 6 constituted
in themselves sufficient just satisfaction for any damage sustained
by the applicant and awarded the applicant's lawyers 120,000 euros
(EUR) for costs and expenses.
(The judgment is available in English and French.)
1. Principal facts
The case concerns an application brought by a Turkish national,
Abdullah Öcalan, who was born in 1949. He 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.
On arrival in Turkey, 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. 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 applicant was allowed only restricted access to his lawyers
who were not authorised by the prison authorities to provide him
with a copy of the documents in the case file, other than the indictment.
It was not until the hearing on 4 June 1999 that the State Security
Court gave the applicant permission to consult the case file under
the supervision of two registrars and authorised his lawyers to
provide him with a copy of certain documents.
On 29 June 1999 Ankara State Security Court found the applicant
guilty 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. It sentenced him to death, under Article
125 of the Criminal Code. That decision was upheld by the Court
of Cassation.
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.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights
on 16 February 1999. A Chamber hearing was held on 21 November 2000
and the case was declared partly admissible on 14 December 2000.
In its Chamber judgment of 12 March 2003, the Court held, among
other things, that there had been a violation of Article 5 §§
3 and 4, Article 6 §§ 1 and 3 (b) and (c), and also of
Article 3 on account of the fact that the death penalty had been
imposed after an unfair trial.
The case was referred to the Grand Chamber2 at the request of the
applicant and the Government. A Grand Chamber hearing was held on
9 June 2004.
Judgment was given by the Grand Chamber of 17 judges, composed
as follows:
Luzius Wildhaber (Swiss), President,
Christos Rozakis (Greek),
Jean-Paul Costa (French),
Georg Ress (German),
Nicolas Bratza (British),
Elisabeth Palm (Swedish),
Lucius Caflisch (Swiss)3
Loukis Loucaides (Cypriot),
Riza Türmen (Turkish),
Viera Strážnická (Slovakian),
Peer Lorenzen (Danish),
Volodymyr Butkevych (Ukrainian),
John Hedigan (Irish),
Mindia Ugrekhelidze (Georgian),
Lech Garlicki (Polish),
Javier Borrego Borrego (Spanish),
Alvina Gyulumyan (Armenian), judges,
and also Paul Mahoney, 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;
* the conditions in which he was transferred from Kenya to Turkey
and detained on the island of Imrali - in particular that the Turkish
authorities failed to facilitate transport to and from the island,
making it difficult for his family and lawyers to visit him - 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 that the Turkish Government failed to reply
to the request of the European Court of Human Rights for them to
supply information, in violation of Article 34.
He also relied on Articles 7, 8, 9, 10, 13, 14 and 18.
Decision of the Court4
Detention
Right to have lawfulness of detention decided speedily by a court
The Government had raised a preliminary objection that the applicant
had failed to exhaust his domestic remedies under this head. However,
the Grand Chamber saw no reason to depart from the Chamber's findings
in this respect, notably as to the impossibility for the applicant
in the circumstances in which he found himself while in police custody
to have effective recourse to the remedy indicated by the Government.
Nor could the possibility of obtaining compensation satisfy the
requirement of a judicial remedy to determine the lawfulness of
detention. The applicant did not therefore have an effective remedy
available to him and there had accordingly been a violation of Article
5 § 4 of the Convention.
No unlawful deprivation of liberty
The Grand Chamber agreed with the Chamber that the applicant's
arrest on 15 February 1999 and his detention had been in accordance
with "a procedure prescribed by law" and that there had,
therefore, been no violation of Article 5 § 1.
Right to be brought promptly before a judge
The Grand Chamber found 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.
Fair trial
Whether Ankara State Security Court was independent and impartial
The Grand Chamber noted that the military judge on the bench of
Ankara State Security Court which convicted the applicant had been
replaced on 23 June 1999. However, the replacement of the military
judge before the end of the proceedings could not dispose of the
applicant's reasonably held concern about the trial court's independence
and impartiality. There had been a violation of Article 6 §
1 in this respect.
Whether the proceedings before the State Security Court were fair
The Grand Chamber agreed with the Chamber's findings that the applicant's
trial was unfair because: he had no assistance from his lawyers
during questioning in police custody; he was unable to communicate
with his lawyers out of the hearing of third parties; he was unable
to gain direct access to the case file until a very late stage in
the proceedings; restrictions were imposed on the number and length
of his lawyers' visits; and his lawyers were not given proper access
to the case file until late in the day. The Grand Chamber found
that the overall effect of those 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. This
amounted to a violation of Article 6 § 1, taken together with
Article 6 § 3 (b) and (c).
The Grand Chamber further held that it was unnecessary to examine
the other complaints under Article 6 relating to the fairness of
the proceedings.
Death Penalty
Implementation of the death penalty
The Grand Chamber noted that the death penalty had been abolished
in Turkey and the applicant's sentence had been commuted to one
of life imprisonment. Furthermore, on 12 November 2003, Turkey had
ratified Protocol No. 6 to the Convention concerning the abolition
of the death penalty. Accordingly, there had been no violation of
Articles 2, 3 or 14 on account of the implementation of the death
penalty.
Legal significance of the practice of Contracting States regarding
the death penalty
The Grand Chamber shared the Chamber's view that capital punishment
in peacetime had come to be regarded as an unacceptable form of
punishment which was no longer permissible under Article 2.
The fact that there were still a large number of States which had
yet to sign or ratify Protocol No. 13 concerning the abolition of
the death penalty in all circumstances might prevent the Court from
finding that it was the established practice of the Contracting
States to regard the implementation of the death penalty as inhuman
and degrading treatment contrary to Article 3, since no derogation
might be made from that provision, even in times of war. However,
the Grand Chamber agreed with the Chamber that it was not necessary
to reach any firm conclusion on this point since it would be contrary
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.
Death penalty following an unfair trial
The Grand Chamber agreed with the Chamber that in considering the
imposition of the death penalty under Article 3, regard had to be
had to Article 2, which precluded the implementation of the death
penalty concerning a person who had not had a fair trial.
In the Grand Chamber'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,
inevitably gave rise to a significant degree of human anguish. Such
anguish could not be dissociated from the unfairness of the proceedings
underlying the sentence which, given that human life was at stake,
became unlawful under the Convention.
The Grand Chamber noted that there had been a moratorium on the
implementation of the death penalty in Turkey since 1984 and that,
in the applicant's case, the Turkish Government had complied with
the Court's interim measure under Rule 39 of the Rules of Court
to stay the execution. It was further noted that the applicant's
file had not been sent to Parliament for approval of the death sentence
as was then required by the Turkish Constitution.
However, the Grand Chamber agreed with the Chamber that the applicant's
background as the leader and founder of the PKK, an organisation
which had been engaged in a sustained campaign of violence causing
many thousands of casualties, had made him Turkey's most wanted
person. In view of the fact that the applicant has been convicted
of the most serious crimes existing in the Turkish Criminal Code
and of the general political controversy in Turkey - prior to the
decision to abolish the death penalty - surrounding the question
of whether he should be executed, there was a real risk that the
sentence might be implemented. In practical terms, the risk remained
for more than three years of the applicant's detention in Imrali
from the date of the Court of Cassation's judgment of 25 November
1999 affirming the applicant's conviction until Ankara State Security
Court's judgment of 3 October 2002 which commuted the death penalty
to which the applicant had been sentenced to one of life imprisonment.
Consequently, the Grand Chamber concluded that the imposition of
the death sentence on the applicant following an unfair trial by
a court whose independence and impartiality were open to doubt amounted
to inhuman treatment in violation of Article 3.
Treatment and conditions
Conditions of the applicant's transfer from Kenya to Turkey
The Grand Chamber 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
to apply. Consequently, there had been no violation of Article 3
on that account.
Detention conditions on Imrali
While concurring with the Council of Europe's Committee for the
Prevention of Torture's recommendations that the long-term effects
of the applicant's relative social isolation should be attenuated
by giving him access to the same facilities as other high security
prisoners in Turkey, such as television and telephone contact with
his family, the Grand Chamber agreed with the Chamber that the general
conditions in which the applicant was being detained at Imrali Prison
had not reached the minimum level of severity required to constitute
inhuman or degrading treatment within the meaning of Article 3.
Consequently, there had been no violation of Article 3 on that account.
Other complaints
Article 34
The Grand Chamber noted that there was nothing to indicate that
the applicant had been hindered in the exercise of his right of
individual petition to any significant degree. And, while regrettable,
the Turkish Government's failure to supply information requested
by the Court earlier had not, in the special circumstances of the
case, prevented the applicant from setting out his complaints about
the criminal proceedings that had been brought against him. There
had accordingly been no violation of Article 34.
Other complaints
The Grand Chamber considered that no separate examination of the
complaints under Articles 7, 8, 9, 10, 13, 14 and 18 was necessary.
Article 46
The Grand Chamber reiterated that the Court's judgments were essentially
declaratory in nature and that, in general, it was primarily for
the State concerned to choose, subject to supervision by the Committee
of Ministers, the means to be used in its domestic legal order in
order to discharge its legal obligation under Article 46.
However, exceptionally, with a view to assisting the State concerned
to fulfil its obligations under Article 46, the Court had sought
to indicate the type of measure that might be taken in order to
put an end to a systemic situation. In such circumstances, it might
propose various options and leave the choice of measure and its
implementation to the discretion of the State concerned. In other
exceptional cases, the nature of the violation found might be such
as to leave no real choice as to the measures required to remedy
it and the Court might decide to indicate only one such measure.
In the specific context of cases against Turkey concerning the
independence and impartiality of the state security courts, Chambers
of the Court had indicated in certain judgments that were delivered
after the Chamber judgment in the applicant's case that, in principle,
the most appropriate form of redress would be for the applicant
to be given a retrial without delay if he or she so requested.
The Grand Chamber endorsed this general approach. It considered
that, where an individual, as in the applicant's case, had 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, represented in principle an appropriate way
of redressing the violation.
However, the specific remedial measures, if any, required of a
respondent State in order to discharge its obligations under Article
46 had to depend on the particular circumstances of the individual
case and be determined in the light of the terms of the Court's
judgment in that case, and with due regard to the above case-law
of the Court.
***
Judge Garlicki expressed a partly concurring, partly dissenting
opinion; Judges Wildhaber, Costa, Caflisch, Türmen, Garlicki
and Borrego Borrego expressed a joint partly dissenting opinion
and Judges Costa, Caflisch, Türmen and Borrego Borrego expressed
a further joint partly dissenting opinion, all of which are annexed
to the judgment.
***
Registry of the European Court of Human Rights
F - 67075 Strasbourg Cedex
Press contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24
92)
Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
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Fax: +00 33 (0)3 88 41 27 91
The European Court of Human Rights was set up in Strasbourg by
the Council of Europe Member States in 1959 to deal with alleged
violations of the 1950 European Convention on Human Rights. Since
1 November 1998 it has sat as a full-time Court composed of an equal
number of judges to that of the States party to the Convention.
The Court examines the admissibility and merits of applications
submitted to it. It sits in Chambers of 7 judges or, in exceptional
cases, as a Grand Chamber of 17 judges. The Committee of Ministers
of the Council of Europe supervises the execution of the Court's
judgments.
1 The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).
2 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.
3 Elected in respect of Liechtenstein.
4 This summary, produced by the Court's Registry, does not bind
the Court.
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