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SECOND SECTION
CASE OF YÜKSEKTEPE v. TURKEY
(Application no. 62227/00)
JUDGMENT
STRASBOURG
24 October
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 Yüksektepe 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 R. Türmen,
Mr M.
Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D.
Jočienė,
Mr D. Popović, judges,
and Mrs
S. Dollé, Section Registrar,
Having deliberated in private on 3 October 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 62227/00)
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 a Turkish national, Mr
Yılmaz Yüksektepe (“the applicant”), on 14
October 1999.
- The applicant was represented by Mr C. Toraman, 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 8 April 2005 the Court decided to communicate the
application 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 applicant was born in 1958 and lives in Germany.
- The applicant was a civil engineer and a partner in a
company. He was also acting as an automobile commissioner in his
spare time.
- In the course of an operation carried out against the
activities of an illegal organisation, namely the Islami Hareket
Örgütü (the Islamic Movement Organisation), the
applicant was arrested and taken into custody together with Mr A.A.
while they were leaving the applicant’s house on 28 November
1995. It appears from the arrest protocol that the police officers
were following Mr A.A. who was suspected of being a member of
that organisation.
- On the same day, the applicant’s house was
searched. According to the search and seizure protocol drafted by the
police officers and signed by the applicant and his wife, the police
did not find anything illegal or incriminating.
8. Between 28 November and 11 December 1995, the applicant was
interrogated and confronted with a number of suspects. The applicant
claims that he was beaten and given electric shocks during this time.
- On 11 December 1995 the applicant was examined by a
doctor at the Bursa Forensic Medical Department who did not find any
signs of ill treatment on the applicant’s body. The report
mentioned that the applicant complained of a bruise on his left eye
and of having been given electric shocks.
- On the same day, the applicant was brought before the
prosecutor when he denied the accusations against him and claimed to
have given his statements in custody under duress. He was then
brought before a judge at the Istanbul State Security Court who
ordered his detention on remand.
- On 27 December 1995 the public prosecutor at the
Istanbul State Security Court filed a bill of indictment against the
applicant, along with two other suspects, accusing him of providing
the Islamic Movement Organisation with financial support by forging
licences and plates for stolen cars and, subsequently, selling them.
The prosecutor requested that the applicant be convicted and
sentenced for membership of an illegal organisation under Article 168
§ 2 of the Criminal Code.
- On an unspecified date the criminal proceedings
against the applicant and two other accused commenced before the
Istanbul State Security Court.
- During the proceedings the applicant refuted the
accusations against him. In particular, he challenged the
authenticity of the documents in the case file claiming that some of
them had been replaced. In support of his argument, he claimed, inter
alia, that the search and seizure protocol was torn and that
therefore the police had drafted a new one and made him sign under
his wife’s name. In his final observations on the merits, the
applicant also stated that he had been forced to sign his statements
in police custody.
- On 9 September 1996 the applicant was released pending
trial.
- On 13 February 1998 the Istanbul State Security Court
convicted the applicant of aiding and abetting an illegal
organisation, under Article 169 of the Criminal Code, and sentenced
him to five years’ imprisonment. In its decision, the court
noted, inter alia, that there was no evidence that the
applicant had taken part in any armed or unarmed activity of the
organisation in order to be considered a member of that organisation.
However, the court was not convinced that the applicant did not know
that, through his constant financial relationship with Mr A.A., he
had been helping the organisation.
- On 22 April 1998 the applicant appealed against this
judgment. In his appellate petition, the applicant submitted, in
particular, that the police documents relied upon by the prosecution
did not reflect the truth. In this regard, he stated that the
documents drafted by the police in Bursa were torn and replaced by
the police in Istanbul. The applicant further claimed that he was
coerced into signing the documents drafted by the police. Finally he
pointed out that the police had not found a single book concerning
political Islam in his house.
- On 15 April 1999 the Court of Cassation upheld the
judgment of the first-instance court in so far as it concerned the
applicant and quashed the remainder of the judgment.
- The Government informed the Court that on 9 February
2001 the Istanbul State Security Court decided to defer the sentence
of the applicant pursuant to Law no. 4616
on Conditional Release, Deferral of Procedure and Punishments.
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) and Gençel v. Turkey (no.
53431/99, §§ 11-12, 23 October 2003).
- 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 3 OF THE CONVENTION
- The applicant complained that he had been subjected to
torture while held in police custody, in breach of Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The Government maintained under Article 35 § 1 of
the Convention that this part of the application must be rejected for
non-exhaustion of domestic remedies or, alternatively, for failure to
comply with the six-month rule. In this regard, they maintained that
the applicant had failed to lodge an official complaint with the
public prosecutor. They further submitted that the applicant should
have lodged his application within six months following the date on
which he informed the public prosecutor about the alleged to
ill-treatment, i.e. on 11 December 1995.
- The applicant refuted the arguments of the Government.
In particular, he alleged that, since the domestic remedies were not
effective, he did not need to exhaust them.
- The Court considers it unnecessary to determine
whether the applicant has exhausted domestic remedies or complied
with the six months’ rule within the meaning of Article 35 of
the Convention since this part of the application is inadmissible for
the following reasons:
- The Court reiterates that allegations of ill-treatment
must be supported by appropriate evidence (see, in particular,
Tanrıkulu and Others v. Turkey
(dec.), no. 45907/99, 22 October 2002).
- The Court notes that the medical report established at
the end of the applicant’s stay in custody does not contain any
indication that he was ill treated by the police. On this point,
the Court reiterates that any ill-treatment inflicted in the way
alleged by the applicant would have left marks on his body, in
particular, beatings and electric shocks, which would have been
observed by the doctor who examined him at the end of his detention
in police custody, some twelve days later, before he was formally
detained on remand (see, in particular, Tanrıkulu and Others
v. Turkey (dec.), nos. 29918/96, 29919/96 and 30169/96, 24
February 2005). The Court is aware of the lack of details in this
report. Nevertheless, it notes that there is no material in the case
file which could call into question the findings in the report or add
probative weight to the applicant’s allegations. In particular,
it notes that the applicant did not object to its contents in the
course of the domestic proceedings and that there is no indication in
the case file that the applicant requested or was refused permission
to see another doctor at the end of the custody period.
- In view of the above, the Court is of the opinion that
the applicant has not laid the basis of an arguable claim that he was
subjected to ill treatment whilst in police custody.
It follows that this part of the application is unsubstantiated and
must be rejected as being manifestly ill founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The applicant complained that there was no reasonable
suspicion for his arrest and detention. By a letter dated 7 July
2000, the applicant complained that he had been held in police
custody for twelve days without being brought before a
judge or other officer authorised by law to exercise judicial power.
The applicant relied on Article 5 of the Convention which, in 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.”
- The Government argued under Article 35 § 1 of the
Convention that the applicant’s complaints under this head
should be rejected for failure to comply with the six-month rule.
They maintained that he should have lodged his application with the
Court within six months of the date on which his police custody
ended.
- The applicant refuted this argument.
- The Court reiterates that, according to the
established case-law of the Convention organs, where there is no
domestic remedy available, the six month period runs from the
date of the act alleged to constitute a violation of the Convention;
however, where it concerns a continuing situation, the period of six
months runs from the end of the situation concerned (see, among other
authorities, Ege v. Turkey
(dec.), no. 47117/99, 10 February 2004).
- The Court notes that the applicant’s detention
in police custody ended when he was detained on remand on 11 December
1995, whereas these complaints were lodged with the Court on 14
October 1999 and 7 July 2000 respectively, i.e. more than six months
later. In these circumstances, the Court accepts the Government’s
objection that the applicant has failed to comply with the six-month
rule. It follows that this part of the application must be rejected
under Article 35 §§ 1 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLES 6 AND 7 OF THE
CONVENTION
- The applicant first complained that he 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 İstanbul
State Security Court which tried and convicted him. Secondly, he
submitted that he was convicted on the basis of false statements
taken under duress and documents drafted by the police. Thirdly, he
alleges that he should not have been tried by a State Security Court
and that the rules of procedure before these courts are different
from the standard rules of criminal procedure. The applicant relied
on Articles 6 and 7 of the Convention.
- The Court considers that these complaints should be
examined from the standpoint of Article 6 § 1 alone, which
provides:
“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.”
A. Admissibility
- As regards the applicant’s third, general
grievance in respect of the State Security Courts, the Court
reiterates that it has already examined and rejected similar
complaints (see, amongst other authorities, Ükünç
and Güneş v. Turkey (dec.), no. 42775/98, 5 December
2000 and, mutadis mutandis, İçöz v. Turkey
(dec.), no. 54919/00, 9 January 2003). The Court finds no
particular circumstances, in the instant case, which would require it
to depart from its findings in such cases. It follows that this part
of the application is manifestly ill founded within the meaning
of Article 35 § 3 of the Convention and must be rejected
pursuant to Article 35 § 4.
- As to the applicant’s complaints that he 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 İstanbul State Security Court which tried and convicted
him and that he was convicted on the basis of false statements taken
under duress and documents drafted by the police, the Court
considers, in the light of its established case law (see, amongst
many authorities, Çıraklar v. Turkey, judgment of
28 October 1998, Reports of Judgments and Decisions 1998-VII)
and in view of the materials submitted to it, that these complaints
raise complex issues of law and fact under the Convention, the
determination of which should depend on an examination of the merits.
The Court therefore concludes that this part of the application is
not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. No other grounds for declaring it inadmissible
have been established.
B. Merits
1. Independence and impartiality of the State Security
Court
- The Court has examined a large number of cases raising
similar issues to those in the present case and found a violation of
Article 6 § 1 of the Convention (see Özel, cited
above, §§ 33-34, and Özdemir v. Turkey,
no. 59659/00, §§ 35-36, 6 February 2003).
- The Court finds no reason to reach a different
conclusion in the instant case. Accordingly, the Court
concludes that there has been a violation of Article 6 § 1.
2. Fairness of the proceedings
- Having regard to its finding of a violation of
the applicant’s right to a
fair hearing by an independent and impartial tribunal, the Court
considers that it is not necessary to examine separately the
remaining complaints under Article 6 of the Convention relating to
the fairness of the proceedings before the domestic courts
(see, among other authorities, Incal v. Turkey, judgment
of 9 June 1998, Reports 1998 IV, § 74).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained that the search conducted in
his house was unlawful, in breach of Article 8 of the Convention,
which reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The Government argued under Article 35 § 1 of the
Convention that this part of the application must be rejected for
non-exhaustion of domestic remedies or, alternatively, for failure to
comply with the six-month rule. In this regard, they maintained that
the applicant had neither raised this complaint during the
proceedings nor lodged an official complaint with the public
prosecutor. They further submitted that the applicant should have
lodged his application within six months following the date on which
his house was searched, i.e. on 28 November 1995.
- The applicant maintained that he had, during the
criminal proceedings, complained about the search conducted in his
house. He also suggested that there were no effective domestic
remedies at the time of the events.
- The Court reiterates that, under the terms of Article
35 § 1 of the Convention, it may only deal with a matter after
all domestic remedies have been exhausted, according to the generally
recognised rules of international law. This condition is not met by
the mere fact that an applicant has submitted his case to the various
competent courts. It is also necessary for the complaint brought
before the Court to have been raised, at least in substance, during
the proceedings in question (see, among others, Çakar v. Turkey,
no. 42741/98, § 30, 23 October 2003).
- In the instant case, the Court observes that at no
time, however, did the applicant allege, rely on or raise any
arguments that his house was unlawfully searched in breach of his
right to respect for his private and family life. The Court notes
that, before the domestic courts, the applicant challenged solely the
authenticity of the search and seizure protocol in support of his
general argument that certain documents were falsified by the police
(see paragraph 13). Accordingly, the Court considers that the
applicant has failed to raise his complaints under this head before
the domestic instances (see, in particular, Rüzgar v. Turkey
(dec.), no. 59246/00, 9 November 2004).
- In these circumstances, the Court accepts the
Government’s objection that the applicant has failed to exhaust
domestic remedies. It follows that this part of the application must
be rejected under Article 35 §§ 1 and 4 of
the Convention.
V. ALLEGED VIOLATION OF ARTICLES 9 AND 14 OF THE
CONVENTION
- The applicant alleged that the charges brought against
him were motivated by his religious beliefs. In this respect, he
maintained that he had been subjected to discrimination. The
applicant relied on Articles 9 and 14 of the Convention, which
provide:
Article 9
“1. Everyone has the right to freedom of
thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or
beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The Government refuted the allegations.
- The Court first observes that at no stage of the
domestic proceedings did the applicant allege, rely or raise any
arguments that the charges brought against him were motivated by his
religious or political beliefs or that he had been discriminated
against on that account. Secondly, there is nothing in the case file
disclosing elements of that nature. Charges were brought against him
not because of his religious or political beliefs but for his alleged
membership of an illegal organisation, pursuant to Article 168 of the
Criminal Code. In the subsequent criminal proceedings, on the basis
of the evidence, the domestic court found the applicant guilty of
aiding and abetting an illegal organisation pursuant to Article 169
of the Criminal Code. It follows that the applicant’s claims
are wholly unsubstantiated and must be rejected as being manifestly
ill founded in accordance with Article 35 §§ 3
and 4 of the Convention.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In his observations dated 24 June 2005 the applicant
submitted a number of new complaints. In particular, he complained
that he was not promptly informed of the reasons for his arrest, that
he had been deprived of his right to the assistance of a lawyer
during his police custody and that his right to the presumption of
innocence had been violated since the police denounced him as a
terrorist at a press conference. He invoked Articles 5 § 2
and 6 § 2 of the Convention.
- The Court finds that these complaints relate to events
or decisions which intervened more than six months before being
lodged with the Court on 24 June 2005, and it therefore rejects them
in accordance with Article 35 §§ 1 and 4 of the
Convention.
VII. 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, costs and expenses
- The applicant claimed 100,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage. This sum comprised, in
particular, the loss of earnings, costs, expenses and debts incurred
in Turkey, and the costs and expenses (travel and telephone) incurred
in Germany. This sum also included costs and expenses incurred before
the domestic courts.
- The Government contested the amount.
- On the question of pecuniary damage, the Court cannot
speculate as to what the outcome of proceedings compatible with
Article 6 § 1 would have been.
Moreover, none of the costs and expenses, including those incurred
before the domestic courts, are substantiated by appropriate
evidence. The Court accordingly dismisses this claim.
- The Court considers that the finding of a violation of
Article 6 constitutes in itself sufficient compensation for any
non-pecuniary damage suffered by the applicant (see Incal, cited
above, p. 1575, § 82).
- However, the Court further considers 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 v. Turkey [GC], no. 46221/99,
§ 210, in fine, ECHR 2005 - ...).
B. 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 complaints concerning the lack of
independence and impartiality of the İstanbul State Security
Court and the unfairness of the proceedings due to the applicant’s
conviction, allegedly on the basis of statements taken under duress
and falsified documents drafted by the police, admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the lack of independence and
impartiality of the Istanbul State Security Court;
- Holds that it is not necessary to consider
separately the applicant’s other complaints under Article 6 of
the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa Registrar President
