European Court of Human Rights

FOURTH SECTION

 

PARTIAL DECISION

 

AS TO THE ADMISSIBILITY OF

 

Application no. 38321/97
by Selahattin ERDEM
against Germany

 

            The European Court of Human Rights (Fourth Section) sitting on 9 December 1999 as a Chamber composed of

 

            Mr  M. Pellonpää, President,
            Mr  G. Ress,
            Mr  I. Cabral Barreto,
            Mr  V. Butkevych,
            Mrs N. Vajić,
            Mr  J. Hedigan,
            Mrs S. Botoucharova, judges,

and      Mr  V. Berger, Section Registrar;

 

            Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

 

            Having regard to the application introduced on 29 July 1997 by Selahattin Erdem against Germany and registered on 27 October 1997 under file no. 38321/97;

 

            Having regard to the report provided for in Rule 49 of the Rules of Court;

 

            Having deliberated;

 

            Decides as follows:

THE FACTS

 

The applicant is a Turkish national and currently resides in the Middle East. He is represented before the Court by Mr Hans-Eberhard Schultz, a lawyer practising in Bremen, Germany.

 

The facts of the case, as submitted by the applicant, may be summarised as follows.

 

The applicant was granted refugee status under the 1951 Geneva Convention in December 1987 in France.

 

On 7 April 1988, he was arrested by the German police upon entry into the Federal Republic of Germany. He was carrying French papers identifying him as Selahattin Erdem and stating 1 January 1958 as his date of birth. By virtue of a warrant for arrest, dated 8 April 1988, issued by the Federal Court of Justice (Bundesgerichtshof), the applicant was held in pre-trial detention until 7 March 1994. The applicant’s repeated motions for release pending trial remained unsuccessful.

 

By judgment of the Düsseldorf Higher Regional Court (Oberlandesgericht), dated 7 March 1994, the applicant was sentenced to a prison term of 6 years for membership in a terrorist organisation (§ 129a of the Criminal Code). The Court stated that the applicant’s true name was Duran Kalkan and that he was born in 1954 in Adana, Turkey. Under that name he had been one of the founders of the Workers’ Party of Kurdistan (PKK) in 1978. In 1981/82, the applicant had built up PKK units in Lebanon and Syria, where he had also been in charge of the training of recruits. In 1983, he had led the PKK’s armed resistance in Turkey until his discharge from that function by Abdullah Öcalan in 1986 for lack of competence and over-authoritarian leadership. Subsequently, the applicant had been sent to the European headquarters in Cologne together with Ali Cetiner, who later became a crown witness (Kronzeuge) against him. From December 1986 until Mai 1987, the applicant had been a member of PKK’s Executive Committee and was charged, inter alia, with surveillance and intelligence activities. During meetings of the executive committee, he had proposed to identify and collect information on Öcalan-hostile groups within the PKK, to combat those opponents, and to liquidate them if necessary. Moreover, he had participated in the adoption of death lists. However, the Court found that the applicant had not been one of the Committee's leaders (Rädelsführer, cf. § 129a (2) of the Criminal Code).

 

The fifth chamber (Senat) of the Düsseldorf Higher Regional Court, which had been established expressly for the trials of several PKK agitators and had thereafter been dissolved, based its findings mainly on the testimony of Ali Cetiner who had accepted the prosecution’s offer to testify as crown witness in exchange for a limitation to five years of his prison term for murder committed in complicity, for police protection and for a new identity as well as for assistance in finding a new apartment and job. The applicant’s complaint against this allegedly illegal bargain was rejected by the court by decision of 4 April 1991 holding that  crown witness treatment was authorised by article 4d of the Crown Witnesses Act of 9 June 1989 in the absence of any financial promises to the witness.

 

During court proceedings, the court rejected numerous applications by the applicant for the taking of evidence. Thus, by decision of 29 June 1993, the court declined the applicant’s request for an expertise on the credibility of the crown witness, arguing that it had sufficient competence to assess that question. Moreover, the court, by decision of 30 August 1993, dismissed a number of applications requesting the inclusion as evidence of documents and expert reports on the organisation and structure of PKK reasoning that the applications consisted mostly of pro-PKK propaganda without any relevance for the proceedings.

 

On 6 March 1996, the Federal Court of Justice rejected the applicant’s appeal against the judgement of the Düsseldorf Higher Regional Court, dated 7 March 1994, after it had denied the applicant an extension of the one-month deadline for submitting a statement of appeal, a translation of the 900-page judgment of the Düsseldorf Higher Regional Court into Turkish language and the assignment of a second legal aid counsel of his own choosing. By decision of 23 November 1994, the Federal Court of Justice held that the replacement of Mr Michael Wilcke as the assigned second legal aid counsel by a legal aid counsel of the applicant’s own choosing was not required given that Mr Wilcke’s first-hand knowledge of the entire proceedings was of crucial importance.

 

By decision of 19 February 1997, the Federal Constitutional Court (Bundesverfassungsgericht) declined to entertain the applicant’s constitutional complaint against the decisions of the lower courts.

 

 

COMPLAINTS

 

1.         The applicant complains under Article 3 of the Convention that during part of his pre-trial detention he was held in solitary confinement.

 

2.         He alleges a violation of his right to trial within a reasonable time or to release pending trial under Article 5 § 3 of the Convention because the duration of his pre-trial detention amounted to a period of almost six years.

 

3.         The applicant alleges numerous violations of his Convention rights under Article 6.

 

a)         In particular, he alleges that the establishment of a chamber at the Düsseldorf Higher Regional Court expressly for the purpose of trying members of PKK violated the principle of an independent and impartial tribunal established by law as required by Article 6 § 1 of the Convention.

 

b)         Furthermore, the duration of his pre-trial detention constituted a breach of the presumption of innocence as guaranteed in Article 6 § 2 of the Convention since it had the character of a penal sanction or, respectively, a quasi-sanction. The presumption of innocence had also been disregarded by the prosecution which had published press releases on the investigations and had thereby nourished a presumption of his guilt by the public.

 

c)         Under Article 6 § 3 (a), the applicant complains about the refusal by the courts to order the translation into Turkish of the investigation files and the 900-page judgment of the Düsseldorf Higher Regional Court which, according to the applicant, was “the accusation against him” in the framework of the appeal proceedings. In this regard, the applicant states that he does not understand German.

 

d)         Moreover, he claims that his right under Article 6 § 3 (b) to adequate time for the preparation of his defence has been violated by the refusal of the Federal Court of Justice to extend the one-month deadline for the submission of the statement of appeal despite the complexity of the case.

 

e)         The rejection, by the Federal Court of Justice, of his request to replace his assigned second legal aid counsel by a legal aid counsel of his own choosing allegedly infringed his right to free legal assistance under Article 6 § 3 (c), taking into account the fact that the assigned counsel had not taken any defence measures throughout the entire first instance proceedings. Furthermore, the applicant alleges that the decision of the Düsseldorf Higher Regional Court, dated 20 June 1990, to exclude him from the hearings for three days for having disturbed the course of the proceedings constituted a breach of his rights under Article 6 § 3 (c).

 

f)         The applicant complains that by basing the conviction mainly on the testimony of a crown witness, who had committed a much more serious crime (murder in complicity) and now benefited from a bargain with the prosecution, the Düsseldorf Higher Regional Court had violated his right to equality of arms guaranteed in Article 6 § 3 (d) of the Convention. Furthermore, he claims that his right to cross-examine the crown witness had been curtailed by the Court’s decision to grant that witness a right to refuse self-incriminating testimony (§ 55 of the Code of Criminal Procedure), despite the fact that he had been exempted from prosecution under the crown witness treatment anyway.

 

4.         Under Article 8 of the Convention, the applicant complains about the control of his correspondence with his lawyer during pre-trial detention.

 

5.         Moreover, the applicant alleges that his conviction and sentence for PKK-membership violated his right to freedom of expression under Article 10 of the Convention.

 

 

THE LAW

 

1.         The applicant complains under Article 3 of the Convention about the solitary confinement during his detention on remand.

 

Article 3 reads as follows:

 

“No one shall be subjected to torture or to inhuman or degrading treatment...”

 

The Court recalls that Article 3 cannot be interpreted as generally prohibiting solitary confinement. Although prolonged solitary confinement is undesirable, particularly where the prisoner is on remand (see, mutatis mutandis, X v. Germany, no. 6038/73, decision of 11 July 1973, Collection of Decisions 44, p. 115), such confinement is permissible, for example, for reasons of security or discipline or to protect the segregated prisoner from other prisoners or vice versa (see, mutatis mutandis, Ensslin, Baader and Raspe v. Germany, nos 7572/76, 7586/76 and 7587/76, decision of 8 July 1978, Decisions and Reports no. 44, p. 64). In each case “regard must be had to the surrounding circumstances, including the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned” (Ensslin, Baader and Raspe v. Germany, no. 7572/76 (1978), 14 DR 64, at 109).

 

In the present case the applicant did not specify the length of the solitary confinement and the conditions of his detention.

 

            In these circumstances, the Court concludes that the applicant failed to substantiate his complaint made under Article 3 of the Convention.

 

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

 

 

2.         The applicant further complains that he was unlawfully deprived of his liberty during pre-trial detention since he was not tried within a reasonable time, nor released pending trial.

 

Article 5, so far as relevant, reads as follows:

 

“1.        Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

 

c)         the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

 

3.         Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release my be conditioned by guarantees to appear for trial.”

 

The Court notes that the applicant was held in pre-trial detention from 8 April 1988 until 7 March 1994, when the sentence of the Düsseldorf Higher Regional Court was pronounced.

 

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

 

 

3.         Under Article 6 of the Convention, the applicant complains, inter alia, about the allegedly unlawful establishment of the fifth chamber of the Düsseldorf Higher Regional Court; a violation of his right to be presumed innocent; the refusal of the German courts to translate the investigation files as well as the judgment of the Düsseldorf Higher Regional Court, dated 7 March 1994, into the Turkish language; the refusal by the Federal Court of Justice to grant him a period exceeding one month for the preparation of his statement of appeal; the refusal by the Federal Court of Justice to replace the assigned legal aid counsel by a counsel of his own choosing; his exclusion from the hearings during three days; the use of a crown witness against him; and the rejection of evidence proposed by him by the German courts.

 

 

 

 

 

Article 6, so far as relevant, reads as follows:

 

“1.        In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time 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 the law.

 

3.         Everyone charged with a criminal offence has the following minimum rights:

 

a)         to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusations against him;

 

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;

 

d)         to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

 

…”

 

a)         As regards the applicant’s complaint that the fifth chamber of the Düsseldorf Higher Regional Court was not a tribunal established by law within the meaning of Article 6 § 1 of the Convention since it had been established for the mere purpose of PKK trials and immediately dissolved thereafter, the Court notes that, according to the consistent case-law of the Convention organs (see, mutatis mutandis, X and Y v. Ireland, no. 8299/78 (1980), 22 DR 51, at p. 72 and no. 12839/87 (1988), 59 DR 212, p. 219), Article 6 § 1 cannot be read as prohibiting the establishment of special criminal courts if they have a basis in law. In X and Y v. Ireland (supra, at p. 72), the Commission considered the establishment of a special criminal court to deal with terrorist offences to be in conformity with Article 6 § 1.

 

In the present case, the fifth chamber of the Düsseldorf Higher Regional Court was composed of professional judges and was subject to the supervisory jurisdiction of the Federal Court of Justice. Moreover, the applicant failed to show that the chamber’s establishment did not have a basis in law. That being so, the Court also notes that the creation of an extra chamber within an existing court is a matter of internal administration and thus cannot be considered an establishment of a special court.

 

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

 

b)         With respect to the applicant’s claim that his right to be presumed innocent has been violated in view of the length of his pre-trial detention, the Court considers that it cannot, as this question is closely related to the length of his pre-trial detention, on the basis of the case file, determine the admissibility of this complaint. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

 

            With respect to the applicant’s claim that his right to be presumed innocent has been violated in view of the publication by the prosecution of press releases on the investigations against him, the Court recalls that, pursuant to the Conventions organs’ consistent case-law (see no. 7986/77 (1978), 13 DR 73, p. 76 and no. 10847/84 (1985), 44 DR 238, p. 245 and the Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, p. 17, § 38), the presumption of innocence does not prevent public officials from informing the public about criminal investigations as long as they refrain from formally declaring that someone is guilty.

 

It follows that the latter part of the applicant’s complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

 

c)         As regards the applicant’s complaint that the courts refused to furnish him with translations of the lengthy investigation files and the voluminous judgment of the Higher Regional Court of Düsseldorf, dated 7 March 1994, the Court stresses that, according to the consistent case-law of the Convention organs (see no. 6185/73 (1975), 2 DR 68, at para. 2 and the Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, p. 35, § 74), Article 6 § 3 (a) of the Convention does not provide for a general right of the accused to have the court files translated since the rights of the defense under Article 6 § 3 are those of the defence in general and not those of the accused considered separately. It therefore suffices that the required files are in a language that the accused or his lawyer understands.

 

            In the present case, the Court observes that the applicant’s counsel were both able to understand German.

 

            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.

 

d)         Regarding the applicant’s complaint that the refusal of the Federal Court of Justice to extend the one-month period for submitting the statement of appeal violated his right under Article 6 § 3 (b) to adequate time for the preparation of his defence, the Court finds that this decision does not disclose any appearance of arbitrariness, considering that it has a legal basis in § 345, section 1, of the Code of Criminal Procedure, the interpretation and application of which rests with the German courts.

 

            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.

 

e)         As regards the applicant’s complaint that the rejection by the Federal Court of Justice of his request to have his assigned second legal aid counsel replaced by a legal aid counsel of his own choosing amounted to a violation of his right to free legal assistance under Article 6 § 3 (c), the Court recalls that Article 6 § 3 (c) does not guarantee the right to choose a legal aid counsel who is appointed by the court (see no. 6946/75 (1976), 6 DR 114, at pp. 116-117). Nor can Article 6 § 3 (c) be interpreted as securing a right to change an official defence counsel once appointed (see no. 13572/88 (1991), 69 DR 198, at p. 204).

 

            In the present case, the Federal Court of Justice has justified its refusal to replace the assigned counsel by a legal aid counsel of the applicant’s own choosing by arguing that the appointed counsel had attended the entire first-instance proceedings and could therefore not be regarded as less qualified to represent the applicant than the counsel proposed by the applicant. The Court finds that this decision of the Federal Court’s of Justice does not show any appearance of arbitrariness.

 

            As regards the applicant’s further complaint under Article 6 § 3 (c) that he had been excluded from the hearings for several days, the Court finds that the decision of the Düsseldorf Higher Regional Court to temporarily exclude the applicant from the proceedings for improper behaviour before the court has its legal basis in § 177 of the Act on the Constitution of Courts (Gerichtsverfassungsgesetz) in conjunction with §231b, section 1, of the Code of Criminal Procedure, whose interpretation and application rests with the German courts.

 

Furthermore, the Court notes that in the present case, prior to his exclusion from the proceedings, the applicant had been warned several times by the Düsseldorf Higher Regional Court about the possible consequences of his obstructive behaviour. Moreover, he had been represented by counsel during his absence from the hearings.

 

Under these circumstances, the Court finds no indication of a violation of the applicant’s rights under Article 6 § 3 (c) of the Convention.

 

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.

 

f)         Regarding the applicant’s complaint that by basing his conviction mainly on the testimony of a crown witness, who in exchange had been granted a reduction of his prison term for murder in complicity, the German courts violated his rights under Article 6 § 3 (d), the Court observes “that the use at the trial of evidence obtained from an accomplice by granting him immunity from prosecution may put in question the fairness of the hearing granted to an accused person” (no. 7306/75 (1976), 7 DR 115, at p. 118).

 

            In the present case, the Court notes that the crown witness was not granted complete immunity but only a reduction of his prison term in exchange for testifying against the applicant. Moreover, as the Düsseldorf Higher Regional Court pointed out in its decision, dated 9 April 1991, which rejected the applicant’s complaint against the interrogation of the crown witness, the latter was not promised any financial benefits for his testimony; the benefits offered to him included police protection, a new identity, transfer to another country, assistance in searching for a new apartment and job. Furthermore, the Court takes note of the argument of the Düsseldorf Higher Regional Court that those benefits as well as the reduction of the prison term were covered by Article 4 of the Crown Witnesses Act of 1989. The Court recalls that it is for the German courts to apply and interpret the national law. Taking into account the wide margin of appreciation of the national authorities in dealing with terrorist offences, the Court finds that the use of the evidence obtained from the crown witness against the applicant falls short of constituting a violation of Article 6 §§ 1 and 3 (d) of the Convention.

 

            As regards the applicant’s further claim under Article 6 § 3 (d) that by granting the crown witness a right to refuse self-incriminating testimony, the German courts had curtailed his right to cross-examine the witness and thereby violated his right to equality of arms, the Court finds that the decision of the Higher Regional Court of Düsseldorf, dated 6 November 1991, holding that, despite the crown witness treatment, the witness ran a risk of being  prosecuted for offences not related to the murder and thus was entitled to refuse to give self-incriminating-testimony under § 55 of the Code of Criminal Procedure, does not disclose any appearance of arbitrariness. Therefore, the Court finds no indication of violation of the applicant’s right to equality of arms under Article 6 § 3 (d).

 

            As regards the applicant’s complaint about the rejection by the Düsseldorf Higher Regional Court of  his requests to include various documents and expert reports as evidence, the Court recalls that the national courts have a wide margin of discretion in assessing the relevance of proposed evidence. The Court does not find that the decisions of the Düsseldorf Higher Regional Court, dated 29 June 1993 and 30 August 1993, to reject the applicant’s requests to include documents on the credibility of the crown witness as well as on the organisation and structure of PKK, disclose any appearance of arbitrariness.

 

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.

 

4.         With respect to the applicant’s complaint about the control of his correspondence with his lawyer during pre-trial detention, the Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

 

5.         As regards the applicant’s claim that his conviction for PKK membership violated his right to freedom of expression, the Court notes first that the applicant’s conviction was based on § 129a of the Criminal Code and therefore “prescribed by law” within the meaning of Article 10 § 2 of the Convention. Furthermore, the Court notes that §129a of the Criminal Code aimed at protecting the national security and the prevention of disorder. This aim was legitimate under Article 10 § 2 of the Convention. In the absence of any appearance of arbitrariness, the Court finds that the conviction and sentence of the applicant for membership in a terrorist group falls short of constituting a violation of his rights under Article 10 of the Convention.

 

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.

 

            For these reasons, the Court, unanimously,

 

DECIDES TO ADJOURN the examination of the applicant’s complaints concerning the duration of his pre-trial detention, the presumption of innocence relating to the duration of his pre-trial detention and the control of his correspondence with his lawyer during his pre-trial detention ;

 

DECLARES INADMISSIBLE the remainder of the application.

 

 

 

       Vincent Berger                                                                                         Matti Pellonpää
            Registrar                                                                                                   President