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THIRD
SECTION
CASE OF AKINTI AND OTHERS v. TURKEY
(Application
no. 59645/00)
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 Akıntı and Others 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 A.
Gyulumyan,
Mr E. Myjer,
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. 59645/00) 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 nine Turkish nationals, Mr Abdülaziz
Akıntı, Mr Kemal Yağış, Mr Mahmut
Düzgün, Mr Adnan Kaya, Mr Mecit Aygün, Mr Hüseyin
Yüce, Mrİmran Akyaz, Mrs Suna Albayrak and
Mr Abdullah Bağrıyanık (“the
applicants”), on 6 June 2000.
- The
applicants were represented by Mrs F. Karakaş Doğan, a
lawyer practising in Istanbul. The Turkish Government
(“the Government”) did not designate an Agent for
the purposes of the proceedings before the Court.
- On
6 February 2003 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
applicants' right to a fair trial 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 applicants (see paragraph 1 above) were born in
1961, 1953, 1954, 1962, 1960, 1967, 1956, 1971 and 1965 respectively
and live in Istanbul. Mecit Aygün was the chairman and the other
applicants were the members of district administrative board of the
Peoples' Democracy Party (Halkın Demokrasi Partisi,
hereinafter “HADEP”) in Gaziosmanpaşa, a district of
Istanbul.
- On
3 February 1998 police officers from the anti-terror branch of the
Istanbul Security Directorate conducted a search at the Gaziosmanpaşa
district office of the HADEP, where they found illegal publications.
- Subsequently,
the public prosecutor at the Istanbul State Security Court initiated
an investigation against the applicants.
- On
25 March 1998 the public prosecutor filed a bill of indictment
charging the applicants with aiding and abetting the PKK under
Article 169 of the Criminal Code and Article 5 of Law no. 3713
alleging that the publications found in the HADEP district office
contained articles supporting the activities of the PKK. He further
issued a decision of non jurisdiction in respect of the charge
concerning possession of illegal publications and referred the case
to the Istanbul public prosecutor's office.
- At
the hearing of 6 November 1998 the public prosecutor's submissions on
the merits of the case were read out. The submissions of the public
prosecutor were not served on the applicants.
- On
the same day, the Istanbul State Security Court convicted the
applicants as charged and sentenced them to three years and nine
months' imprisonment.
- On
10 November 1998 the applicants appealed against the judgment of 6
November 1998.
- On
18 October 1999 the public prosecutor at the Court of Cassation
submitted his opinion on the merits of the applicants' appeal to the
Court of Cassation. This opinion was not served on the applicants or
their representative.
- On
6 March 2000 the Court of Cassation upheld the first-instance court's
judgment.
- On
23 March 2000 the applicants applied to the
public prosecutor's office at the Court of Cassation requesting this
office to bring the case before the Court of Cassation for
rectification of decision. On 25 April 2000 their request was
dismissed.
- Subsequent
to their convictions, on an unspecified date, the applicants were
detained.
- On
21 December 2000 Law No. 4616 on Conditional Release, Deferral of
Procedure and Punishments was promulgated
- On
different dates in February 2001, the Istanbul State Security Court
ordered the applicants' conditional release pursuant to Law no. 4616.
- Meanwhile,
on 5 July 2000 the Istanbul Magistrates' Court acquitted the
applicants of the charge concerning possession of illegal
publications.
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), Gençel
v. Turkey (no. 53431/99, §§ 11-12, 23 October
2003) and Göç v. Turkey ([GC], no. 36590/97,
§ 34, ECHR 2002-V).
- By
Law no. 5190 of 16 June 2004, published in the Official Journal on 30
June 2004, the State Security Courts have been abolished.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Admissibility
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. As regards the independence and impartiality of the
Istanbul State Security Court
- The
applicants complained under Article 6 § 1 of the Convention that
they had been denied a fair hearing on account of a military judge on
the bench of the Istanbul State Security Court which had tried and
convicted them.
The
relevant parts of Article 6 provide as follows:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal established by
law.”
- The
Government submitted that there was no basis to find that the
applicants could have any legitimate doubts about the independence of
the Istanbul State Security Court. The Government further referred to
the constitutional amendment of 18 June 1999 whereby military judges
could no longer sit on such courts.
- The
Court notes that it has examined similar cases in the past and has
concluded that there was a violation of Article 6 § 1 of the
Convention (see Özel, cited above, §§ 33-34;
Özdemir v. Turkey, no. 59659/00, §§ 35 36,
6 February 2003; and Han v. Turkey, no. 50997/99, §§
23-24, 13 September 2005).
- The
Court sees no reason to reach a different conclusion in this case. It
is understandable that the applicants, who were prosecuted in a State
Security Court for aiding and abetting an illegal organisation,
should have been apprehensive about being tried by a bench which
included a regular army officer and member of the Military Legal
Service. On that account, they could legitimately fear that the
Istanbul State Security Court might allow itself to be unduly
influenced by considerations which had nothing to do with the nature
of the case. In other words, the applicants' fear as to the State
Security Court's lack of independence and impartiality can be
regarded as objectively justified (see Incal v. Turkey,
judgment of 9 June 1998, Reports of Judgments and
Decisions 1998 IV, § 72).
- In
the light of the foregoing the Court finds that there has been a
violation of Article 6 § 1 of the Convention in this respect.
2. As regards the other complaints submitted under Article 6 of
the Convention
- The
applicants maintained under Article 6 § 1 of the Convention that
the search in the HADEP Gaziosmanpaşa office had not been
conducted in accordance with law and since their conviction by the
State Security Court had been based on the evidence found there, they
did not have a fair trial. The applicants complained under
Article 6 § 3 (b) of the Convention that the
submissions of the public prosecutor at the State Security Court on
the merits of the case and the written opinion of the public
prosecutor at the Court of Cassation had been never served on them,
thus depriving them of the opportunity to put forward their
counter-arguments.
- Having
regard to its above finding that the applicants' right to a fair
hearing by an independent and impartial tribunal has been infringed,
the Court considers that it is unnecessary to examine the applicants'
remaining complaints under Article 6 of the Convention (see, among
many others, Incal, cited above, § 74; and Gümüş
and Others v. Turkey, no. 40303/98, § 24, 15 March
2005).
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
applicants claimed a total of 36,000 euros (EUR) for pecuniary and
non-pecuniary damage.
- The
Government contested the applicants' claims.
- Regarding
the question of pecuniary damage, the Court considers in the first
place that it cannot speculate as to what the outcome
of the proceedings before the State Security Court might
have been had the violation of the Convention not
occurred (see Tezcan Uzunhasanoğlu v. Turkey,
no. 35070/97, § 27, 20 April 2004). Moreover, the
applicants' claim in respect of pecuniary damage has not been
substantiated by any evidence whatsoever. It therefore makes no award
under this head.
- With
regard to non-pecuniary damage, the Court considers that
the finding of a violation constitutes in itself sufficient
compensation for any non-pecuniary damage suffered by
the applicants (see İncal, cited above, § 82).
B. Costs and expenses
- The
applicants also claimed EUR 27,000 for the costs and expenses
incurred before the Court.
- The
Government submitted that the claims were excessive and
unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum(see Sawicka v. Poland, no. 37645/97, § 54, 1
October 2002). 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 applicants, jointly, the global
sum of 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the complaint concerning the
independence and impartiality of the Istanbul State Security Court;
- Holds that it is not necessary to consider the
applicants' other complaints under Article 6 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for non-pecuniary
damage sustained by the applicants;
- Holds
(a) that
the respondent State is to pay the applicants, jointly, 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
plus any tax that may be chargeable to be converted into new Turkish
liras at the rate applicable at the date of the settlement;
(b) that
from the expiry of the abovementioned 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 applicants' claim
for just satisfaction.
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
