BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF OSMAN v. TURKEY
(Application
no. 4415/02)
JUDGMENT
STRASBOURG
19
December 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 Osman v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mrs A. Mularoni,
Mrs E.
Fura-Sandström,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 28 November 2006 ,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4415/02) 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 Syrian national, Mr Abdülmenaf Osman
(“the applicant”), on 2 November 2001.
- The
applicant was represented by Mr M. Vefa, a lawyer practising in
Diyarbakır. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- The
applicant alleged that he was not tried before an independent and
impartial tribunal and that the length of the proceedings exceeded
the reasonable time. He invoked Article 6 of the Convention.
- On
6 October 2005 the Court (First Section) declared the application
partly inadmissible and decided to communicate the complaints
concerning the independence and impartiality of the Diyarbakır
State Security Court and the length of the proceedings 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and he is currently detained in the
Gaziantep Prison.
- On
13 March 1993 the applicant was taken into custody by policemen from
the Anti-Terrorism Branch of the Batman Security Directorate on
suspicion of his membership of an illegal organisation, namely the
Workers' Party of Kurdistan (“the PKK”).
- On
13 April 1993 the applicant was brought before the public prosecutor
and the investigating judge where he repeated his police statements.
The judge ordered the applicant's detention on remand.
- On
26 April 1993 the Diyarbakır State Security Court Public
Prosecutor filed an indictment against 38 accused persons, including
the applicant. He accused the applicant of carrying out activities
aimed at breaking up the unity of the State and removing part of the
national territory from the State's control. He requested the court
to sentence the applicant in accordance with Article 125 of the
Criminal Code.
- Two
further indictments were submitted to the Diyarbakır State
Security Court concerning offences which the applicant had allegedly
committed in Bitlis and Tatvan. The Diyarbakır State Security
Court decided to examine these accusations jointly.
- Between
16 June 1993 and 20 April 1999, the court held 51 hearings,
during which the judges dealt with solely procedural matters. They
considered the measures that should be taken to secure the presence
of the accused persons at the hearings and examined their continued
detention. The applicant did not attend many of these hearings in
protest against the State Security Courts.
- On
18 June 1999 the constitution was amended and the military judge
sitting on the bench of the Diyarbakır State Security Court was
replaced by a civilian judge. Thereafter, the court held 18 more
hearings.
- On
12 March 2002 the Diyarbakır State Security Court, which was
composed of three civilian judges, found the applicant guilty as
charged and sentenced him to the death penalty under Article 125 of
the Criminal Code. The death penalty was commuted to a life sentence.
- On
1 October 2002 the Court of Cassation upheld the decision of the
Diyarbakır State Security Court.
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 on the bench of the Diyarbakır State Security
Court which tried him. The applicant further complained that the
length of the criminal proceedings brought against him was in breach
of the “reasonable time” requirement of Article 6 §
1 of the Convention.
Article
6 § 1 of the Convention, in so far as relevant, reads:
“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
1. Independence and impartiality of the trial court
- The
Government maintained that, by Law no. 4388 of 18 June 1999,
amendments were made to remove military judges from the bench of the
State Security Courts with a view to complying with the requirements
of the Convention.
- The
Court has consistently held that certain aspects of the status of
military judges sitting as members of the State Security Courts
rendered their independence from the executive questionable (see
Incal v. Turkey, judgment of 9 June 1998, Reports of
Judgments and Decisions 1998 IV, § 68; Çıraklar
v. Turkey, judgment of 28 October 1998, Reports 1998 VII,
§ 39). The Court also found in Öcalan v. Turkey
(no. 46221/99, ECHR 2005 , §§ 114-115) that when
a military judge participated in one or more interlocutory decisions
that remained in effect during the criminal proceedings in question,
the military judge's replacement by a civilian judge in the course of
those proceedings, before the verdict was delivered, failed to
dissipate the applicant's reasonably held concern about that trial
court's independence and impartiality, unless it was established that
the procedure subsequently followed in the State Security Court
sufficiently allayed that concern.
- In
the instant case, the Court notes that before his replacement in June
1999 the military judge was present at 51 hearings. However, it is
clear from the documents in the file that during these hearings the
Diyarbakır State Security Court took no interlocutory decisions
of importance, in particular concerning the defence rights of the
applicant. In this connection, the Court observes that, after the
military judge was replaced by a civilian judge, the domestic court
held 18 hearings on the merits and the applicant was heard by the new
court. Therefore, the Court finds that, in the particular
circumstances of the case, the replacement of the military judge
before the end of the proceedings disposed of the applicant's
reasonably held concern about the trial court's independence and
impartiality (see Kabasakal and Atar v. Turkey, nos.
70084/01 and 70085/01, §§ 33-36, 19 September 2006).
- In
the light of the foregoing, the Court concludes that the applicant's
complaint concerning the independence and impartiality of the
Diyarbakır State Security Court should be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
2. Length of the proceedings
- The
Court notes that the applicant's complaint regarding the length of
the criminal proceedings is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It finds that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government contended that the length of the proceedings in the
instant case could not be considered unreasonable in view of the
number of accused persons, the complexity of the case and the nature
of the offence with which the applicant was charged. Moreover, they
alleged that the applicant had contributed to the length of the
proceedings by not appearing before the court on several occasions.
- The
Court notes that the period to be taken into consideration began on
13 March 1993, when the applicant was taken into police custody, and
ended on 1 October 2002 with the decision of the Court of Cassation.
The proceedings therefore lasted more than nine years and six months
for two levels of jurisdiction.
- The
Court recalls that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case, 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 (see,
amongst many others, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court observes that the applicant did not appear before the court on
a number of occasions. However, it is of the opinion that the
applicant's absence from some of the hearings cannot justify the
overall length of the proceedings.
- Recalling
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 Arvelakis v. Greece, no. 41354/98, § 26, 12 April
2001), the Court considers that the trial court should have applied
stricter measures to speed up the proceedings. It therefore finds
that the instant case was unnecessarily prolonged as the State
Security Court failed to act with the necessary diligence.
- In
view of the above, the Court considers that the criminal proceedings
against the applicant cannot be considered to have complied with the
reasonable time requirement laid down in Article 6 § 1.
- There
has accordingly been a violation of this provision.
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 15,000 euros (EUR) in respect of pecuniary damage
and EUR 25,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it accepts that the applicant must have suffered some
non-pecuniary damage which cannot be sufficiently compensated by the
finding of a violation alone. Taking into account the circumstances
of the case and having regard to its case-law, the Court awards the
applicant EUR 4,500 for non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed a total of EUR 3,337 for the costs and
expenses incurred before the domestic courts and for those incurred
before the Court.
- The
Government disputed this claim.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicant EUR 1,000 in respect
of 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 complaint concerning the length of
the criminal proceedings admissible and the remainder of the
application inadmissible;
- 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 at the date of the settlement and exempt from all taxes
and duties:
(i) EUR
4,500 (four thousand five hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(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 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. COSTA Registrar President
