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SECOND
SECTION
CASE OF AYDOĞAN AND OTHERS v. TURKEY
(Application
no. 41967/02)
JUDGMENT
STRASBOURG
2 December
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 Aydoğan and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41967/02) 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 six Turkish nationals, Mr Hasan Aydoğan,
Ms Türkan Özen, Mr Hüseyin İşeri, Mr
Süleyman Evren, Mr Ünsal Varol and Mr Hüseyin Öztürk
(“the applicants”), on 7 October 2002.
- The
applicants were represented by Mr M. Filorinali and Ms. Y. Başara,
lawyers practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
- On
16 April 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- At
the time of the lodging of the application the applicants Mr Aydoğan
and Ms Özen were in Tekirdağ and Kütahya prisons
respectively. The other applicants were residing in Istanbul.
- In
the course of an operation carried out against the activities of an
illegal armed organisation, namely DHKP/C (Turkish People's
Liberation Party/Front) the applicants were arrested and taken into
custody on 22 and 23 October 1996.
- On
5 November 1996 the applicants were brought before a judge who
remanded them in custody.
- In
an indictment dated 11 November 1996, the public prosecutor at the
Istanbul State Security Court accused Mr Aydoğan and
Ms Özen of attempting to undermine the constitutional order
of the State and requested their conviction and sentence under
Article 146 § 1 of the Criminal Code. They were accused of
taking part in armed attacks on various political party buildings and
police stations and of being responsible for the death of Mr Mehmet
Ünlü and causing bodily harm to two other persons. The
other applicants were accused of aiding and abetting an illegal armed
terrorist organisation. The prosecutor requested their conviction and
sentence under Article 169 of the Criminal Code.
- On
an unspecified date the criminal proceedings against the applicants
commenced before the Istanbul State Security Court, which was
composed of one military and two civilian judges.
- Mr
İşeri, Mr Evren, Mr Varol and Mr Öztürk were
released pending trial, on various dates, in 1996 and 1997.
- On
18 June 1999 the Constitution was amended and the military judges
sitting on the bench of State Security Courts were replaced by
civilian judges.
- At
a hearing held on 7 July 1999 the judge who had been appointed to
replace the military judge sat as a member of the trial court for the
first time. In this hearing the prosecutor maintained his earlier
submissions as regards the merits. Mr Aydoğan read out his
submissions on the merits. The court granted Ms Özen's lawyer's
requests regarding obtaining information about the outcome of other
cases pending against the accused and additional time to prepare her
submissions.
- Between
10 September 1999 and 19 October 2001 the court held eleven hearings,
during which the judges dealt with procedural matters connected with
the completion of the case file and, in particular, with the securing
of final defence statements of the accused, whose representative had
several times requested additional time to submit them. The court
warned the applicants' representative three times and in a hearing
held on 29 November 2000 held that the case was being prolonged due
to the failure of the applicants to submit their final observations
on the merits of the case. However, the court granted the applicants'
representative's request for an extension in the next hearing; since
the security forces had a widespread operation in prisons the lawyer
said he was not sure if his clients were still alive. At a hearing
held on 4 April 2001 the applicants' representative complained that
the prison authorities were making it difficult for him to prepare
his defence, for example by not admitting him to see his client if he
did not have the power of attorney on him. The court granted
leave to the applicants' lawyer to complain about this situation to
the prosecutor and Minister of Justice. During this time the
court ordered the continued detention of Mr Aydoğan and
Ms Özen at the end of each hearing.
- On
19 October 2001 the Istanbul State Security Court, after having
examined the evidence in the case file, convicted Mr Aydoğan
and Ms Özen as charged and sentenced them to death. The
evidence in the case file included verbatim records of
reconstructions of events, search and seizure protocols, forensic
reports, statements by others tried before another State Security
Court and testimony from a number of witnesses. As to the other
applicants, the court decided to defer the imposition of a final
sentence, pursuant to Law no. 4616.
- On
8 April 2002 the Court of Cassation, after having reviewed
Mr Aydoğan's and Ms Özen's case from a procedural
and a substantive point of view, upheld the judgment of the
first-instance court. The decision indicates that their lawyer,
despite having requested the court to hold a hearing, had failed to
attend it. As regards the other applicants, the court refused them
leave to appeal since the first-instance court's decision in their
respect was not open to appeal.
- On
24 September 2002 Mr Aydoğan's and Ms Özen's
sentences were commuted to life imprisonment. No information was
submitted by the parties as to further developments.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in the Öcalan v. Turkey judgment ([GC],
no. 46221/99, §§ 52-54, ECHR 2005-IV) and in
Öktem v. Turkey ((dec.), no. 74306/01, 19 October 2006).
- By
Law no. 5190 of 16 June 2004, published in the Official Journal on
30 June 2004, State Security Courts were abolished.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that they 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 Istanbul State Security
Court which tried them. They further submitted that the written
opinion of the principal public prosecutor at the Court of Cassation
had never been served on them, thus depriving them of the opportunity
to put forward their counter-arguments. Moreover, the applicants also
claimed that they had been denied the assistance of a lawyer during
the initial stages of the criminal proceedings. They relied on
Article 6 of the Convention, which, in so far as relevant, provides:
“1. 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.
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require.”
A. Admissibility
- As
regards Mr Aydoğan and Ms Özen, the Court
considers that their complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
- As to Mr İşeri, Mr Evren, Mr Varol and
Mr Öztürk, the Court reiterates that a person may not
claim to be a victim of a violation of the right to a fair hearing
under Article 6 of the Convention where the
criminal
proceedings
have been halted
by a discontinuation (see Koşti
and Others v. Turkey (dec.), no. 74321/01, 3 May 2007). The
Court finds that the applicants' situation is comparable. The Court
observes that on 19 October 2001 the Istanbul State Security Court
decided to defer the imposition of a final sentence upon the
applicants, pursuant to Law no. 4616. Consequently, the Court is not
in a position to make an examination of the proceedings as a whole,
as is usually required by complaints under Article 6 of the
Convention, because of this conditional suspension of the proceedings
(see Güneş v. Turkey (dec.), no. 38413/02, 1
September 2005). Unless the applicants were to face new criminal
charges, thereby reviving the present case, the Court finds that the
applicants cannot claim to be victims within the meaning of Article
34 of the Convention at this stage of the proceedings (see Sincar
v. Turkey (dec.), no. 46281/99, 19 September 2002, and F.A.
v. Turkey (dec.), no. 36094/97, 1 February 2005). It follows
that their complaints under this head should be rejected as being
manifestly ill founded pursuant to Article 35 §§ 3 and
4 of the Convention.
B. Merits
1. Independence and impartiality of the Istanbul State
Security Court
- The
Government maintained that, by Law no. 4388 of 18 June 1999,
amendments had been made to remove military judges from the bench of
the State Security Courts. In this connection they pointed out that,
in the present case, the military judge sitting on the bench of the
Istanbul State Security Court had already been replaced by a civilian
judge before the applicants' lawyer had put forward their submissions
on the merits of the case and that the applicants had been convicted
by a State Security Court which was composed of three civilian
judges.
- The
applicants did not specifically comment on this point.
- 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, and Çıraklar
v. Turkey, judgment of 28 October 1998, Reports 1998-VII,
§ 39). The Court also found in Öcalan v. Turkey
(cited above, §§ 114 115) that when a military
judge participated in one or more interlocutory decisions that
continued to remain in effect in the criminal proceedings concerned,
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 present case, the Court notes that, following the constitutional
amendment (see paragraph 10 above), the military judge was replaced
by a civilian judge, and Mr Aydoğan and Ms Özen were
convicted by the newly composed State Security Court. It observes,
however, that although the applicants' trial continued before the
Istanbul State Security Court, which was composed of three civilian
judges, for more than two years, the replacement of the military
judge was not capable of remedying the defect in the composition of
the court. In particular, it appears from the minutes of the hearings
submitted by the Government that the entire prosecution case against
the applicants was based on information already obtained prior to the
replacement of the military judge, which included witness testimonies
the court subsequently relied upon to convict them (see paragraph
13). In fact, the Court considers that, except for the applicants'
final defence submissions, no other statements or evidence of
importance were admitted to the case file after the military judge
was replaced by the civilian judge and that the State Security Court,
when composed of three civilian judges, did not take any decision
concerning the merits of the case. In short, most of the trial,
during which interlocutory decisions of importance were made, in
particular for the rights of defence of the applicants, had already
taken place before the military judge ceased to be a member of the
court and none of these acts were renewed after the military judge
was replaced by a civilian judge.
- In
these circumstances, taking into account the importance of the
procedural acts taken before the replacement of the military judge,
the Court considers that the replacement of the military judge did
not dispose of Mr Aydoğan's and Ms Özen's
reasonably held concern about the trial court's independence and
impartiality (see Hıdır Kaya v. Turkey,
no. 2624/02, § 37, 9 January 2007 and, a contrario,
Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01,
§ 35, 19 September 2006).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
2. Fairness of the proceedings
- Having
regard to the facts of the case, the submissions of the parties and
its finding of a violation of Article 6 § 1 of the Convention
above (paragraph 33), the Court considers that it has examined the
main legal question raised under Article 6 of the Convention. It
concludes therefore that there is no need to make a separate ruling
on Mr Aydoğan's and Ms Özen's remaining
complaints under this provision (see, for example, Benli v.
Turkey, no. 65715/01, § 40, 20 February 2007,
Getiren v. Turkey, no. 10301/03, § 132, 22 July
2008 and Juhnke v. Turkey, no. 52515/99, § 94, 13
May 2008).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
the application form the applicants further complained that their
detention had exceeded the “reasonable time” requirement
as provided in Article 5 § 3. Under Article 6 of the Convention
the applicants claimed that the length of the criminal proceedings
had been excessive. Finally, the applicants complained, in general,
about being detained far away from Istanbul, about their lawyer being
searched in prison and that they had been discriminated against due
to the differences in the criminal procedures and the execution of
sentences for offences tried before the State Security Courts. In
addition, Mr İşeri, Mr Evren, Mr Varol and Mr Öztürk
complained about the suspension of the criminal proceedings against
them, which they considered to have denied them the right to be tried
and acquitted.
- As
regards the length of the criminal proceedings against the applicants
Mr Aydoğan and Ms Özen, after examining the
overall duration of the proceedings which lasted five years and six
months, and taking into account that the case was of some complexity,
the number of accused, the fact that the case was dealt with at two
levels of jurisdiction and that no significant delay resulted at the
appeal stage, the Court does not consider that the length of the
proceedings in the present case was excessive. In this connection,
the Court takes note that the applicants were themselves partly
responsible for the prolongation of the proceedings after the
military judge was replaced by not duly submitting their final
defence submissions (see paragraph 12 above). In addition, they
have not shown any substantial periods of inactivity attributable to
the judicial authorities. It follows that this part of the
application must be rejected as being manifestly ill-founded within
the meaning of Article 35 § 3 and 4 of the Convention.
- As
regards the length of the criminal proceedings regarding Mr İşeri,
Mr Evren, Mr Varol and Mr Öztürk, the Court notes
that the criminal proceedings against these applicants were brought
to an end on 19 October 2001 when the criminal proceedings against
them were suspended (see, in particular, Koç and Tambaş
v. Turkey (dec.), no. 46947/99, 24 February 2005)
whereas this complaint was introduced to the Court on 7
October 2002, i.e. more than six months later. It follows that this
part of the application must be rejected under Article 35 §§ 1
and 4 of the Convention for failure to comply with the six-month
rule.
- Moreover,
in the light of all the material in its possession, the Court finds
that the applicants' remaining submissions above do not disclose any
appearance
of a violation
of the rights
and freedoms set out in the Convention or its Protocols. It
follows that these parts of the application must also be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. 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
- Mr Aydoğan
and Ms Özen claimed, in total, 38,000 euros (EUR) in
respect of loss of earnings during the six years they were in prison.
They also claimed, in total, EUR 40,000 in respect of non-pecuniary
damage.
- The
Government contested the amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- The
Court considers that the finding of a violation of Article 6 § 1
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by Mr Aydoğan and Ms Özen (see
Hıdır Kaya v. Turkey, no. 2624/02, cited above,
§ 43). Nevertheless, the Court observes 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, cited above, in fine, §
210).
B. Costs and expenses
- The
two applicants, Mr Aydoğan and Ms Özen, also
claimed, in total, EUR 7,000 for costs and expenses incurred before
the domestic courts and the Court.
- The
Government contested the amounts.
- The Court finds that since the applicants submitted no
justification as regards costs and expenses, as required by Rule 60
of the Rules of Court, it makes no award 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 Mr Aydoğan's
and Ms Özen'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 Mr Aydoğan's and
Ms Özen's complaint relating to the independence and
impartiality of the Istanbul State Security Court;
- Holds that it is not necessary to examine
separately these applicants' other complaints under Article 6 of the
Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by Mr Aydoğan and Ms Özen;
- Dismisses the remainder of these applicants'
claim for just satisfaction.
Done in English, and notified in writing on 2 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
