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FOURTH
SECTION
CASE OF BÜLBÜL v. TURKEY
(Application
no. 47297/99)
JUDGMENT
STRASBOURG
22 May
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 Bülbül v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr S. Pavlovschi,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 3 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 47297/99) 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 Kemal Bülbül
(“the applicant”), on 22 December 1998.
- The
applicant was represented by Mr L. Kanat, a lawyer practising in
Ankara. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- On
4 March 2006 the Court decided to give notice of 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Ankara. At the time of the
events, he was the provincial leader of HADEP (Halkın
Demokrasi Partisi - People's Democracy Party) in Ankara.
- On
18 November 1998 the military judge sitting on the bench of the
Ankara State Security Court ordered the applicant's detention in
absentia. According to the detention order, the applicant was
suspected of aiding and abetting an illegal organisation, the PKK
(the Kurdistan Workers' Party).
- On
19 November 1998 police officers conducted a search in the Ankara
office of HADEP and the applicant was taken into police custody. In
the search and arrest protocol, which was signed by the applicant, it
was explained that the applicant was taken into custody pursuant to
the detention order issued the day before by the Ankara State
Security Court. Following his arrest, the applicant was brought
before the military judge of the Ankara State Security Court and, on
his order, was placed in detention on remand.
- On
26 November 1998 the applicant filed an appeal against the detention
order and requested his release.
- On 27 November 1998, having regard to the nature of the
offence and the state of the evidence, the Ankara State Security
Court -composed of three judges including a military judge- dismissed
the applicant's appeal.
- On
8 December 1998 the public prosecutor at the Ankara State Security
Court filed a bill of indictment against the applicant, charging him
with aiding and abetting the PKK under Article 169 of the Criminal
Code.
- On
12 July 1999 the applicant was released pending trial.
-
On 24 February 2000 the Ankara State Security Court convicted the
applicant of aiding and abetting the PKK and sentenced him to three
years and nine months' imprisonment.
- While
the proceedings were pending before the Court of Cassation, on 21
December 2000 new legislation (Law No. 4616), which governed the
conditional release, suspension of proceedings or execution of
sentences in respect of offences committed before 23 April 1999, came
into force. Accordingly, on 23 January 2001 the Court of Cassation
quashed the judgment of the first-instance court.
- On
2 May 2001 the Ankara State Security Court suspended the proceedings
against the applicant. According to Law No. 4616, these proceedings
would be resumed only if the applicant were to commit an offence of
the same or more serious kind within five years of the court's
decision to suspend the proceedings.
- It
appears from the documents in the file that no charges have been
brought against the applicant during the period of suspension.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 3 and 4 OF
THE CONVENTION
- The
applicant maintained that the military judge who ordered his
detention on remand and the court which decided on his appeal against
the detention order were not independent and impartial. In this
connection, he invoked Article 5 §§ 3 and 4 of the
Convention, which in so far as relevant read as follows.
“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...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
- The
Government referred to the constitutional amendment of 1999 whereby
military judges could no longer sit on state security courts. They
also stated that the state security courts had been abolished as of
2004.
A. Admissibility
- The
Government argued that this part of the application should be
rejected for non-exhaustion of domestic remedies. In this respect,
they referred to Article 112 § 3 of the Code of Criminal
Procedure,
now repealed, according to which the criminal
court had to review the applicant's continued detention on its own
motion at regular intervals. In the Government's view, as the
applicant had lodged his application with the Court without awaiting
the outcome of the criminal proceedings, he had failed to exhaust the
domestic remedies in respect of his complaint.
- The
Court observes that, when the applicant was placed in detention on
remand on 19 November 1998, he sought to have the decision ordering
his detention on remand set aside by filing an appeal pursuant to
Article 298 of the Code of Criminal Procedure. It further observes
that the applicant's only complaints under Article 5 §§ 3
and 4 concern the alleged lack of independence and impartiality of
the military judge who ordered his detention on remand and of the
state security court which rejected his appeal against the detention
order. The Court reiterates that Article 35 of the Convention only
requires the exhaustion of such remedies which relate to the breaches
of the Convention alleged and at the same time provide effective and
sufficient redress. An applicant does not need to exercise remedies
which do not in reality offer any chance of redressing the alleged
breach (Şen v. Turkey (dec.), no. 41478/98, 30 April
2002). In the present case, as the presence of a military judge on
the bench of the state security courts was in accordance with the
domestic law at the material time and as such a judge was empowered
to make detention orders, the Court finds that the applicant did not
have any domestic remedy whereby he could seek redress for his
complaints.
- In
view of the above, the Court dismisses the Government's preliminary
objection.
- The
Court further notes that this complaint 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
Article
5 § 3 of the Convention
- The
applicant alleged that the military judge, who ordered his detention
on remand, could not be considered independent and impartial.
- The
Court recalls that one of the essential features embodied in Article
5 § 3 is judicial control, which is intended to minimise the
risk of arbitrariness and to secure the rule of law. It is for the
judicial authorities to develop forms of judicial control which are
adapted to the circumstances but they have to be compatible with the
Convention (Estrikh v. Latvia, no. 73819/01, § 115,
18 January 2007).
- Judicial
control has to be performed by, according to the wording of Article 5
§ 3 of the Convention, a “judge” or “other
officer authorised by law to exercise judicial power”. The
judge referred to in Article 5 § 3 must satisfy certain
conditions each of which constitutes a guarantee for the person
arrested. One of the most important of such conditions is
independence of the executive and the parties (Schiesser v.
Switzerland, judgment of 4 December 1979, Series A no. 34,
§ 31).
- In
the instant case, the applicant was placed in detention on remand on
the order of a military judge, who was a member of the Ankara State
Security Court. At this point, the Court recalls that it has, in the
past, already examined the status of the military judges sitting on
the bench of the state security courts. In systematically finding a
violation under Article 6 § 1 of the Convention,
the Court had regard to the fact that the military member of the
state security court was a serviceman who still belonged to the army,
which in turn took orders from the executive. Secondly, he remained
subject to military discipline and assessment reports were compiled
on him by the army for that purpose. Furthermore, decisions
pertaining to the military judge's appointment were to a great extent
taken by the administrative authorities and the army (see Incal v.
Turkey, judgment of 9 June 1998, Reports of Judgments and
Decisions 1998 IV, §
68). The Court considers that these findings which raise a
problem under Article 6 § 1 are also applicable in respect of
Article 5 § 3.
- In
sum, the Court finds that there has been a violation of Article 5 § 3
of the Convention since the military judge who ordered the
applicant's detention on remand could not be regarded as independent
of the executive.
Article
5 § 4 of the Convention
- The
applicant further maintained that the court, which decided on his
appeal against the detention order, was not independent and
impartial.
- The
Court reiterates at this point that Article 5 § 4 of the
Convention, which enshrines the right “to take proceedings [in]
a court”, does not stipulate the requirement of that court's
independence and impartiality and thus differs from Article 6 §
1 which refers, inter alia, to an “independent and
impartial tribunal”. However, the Court has held in several
judgments that independence of the executive is one of the most
important constitutive elements of the notion of a “court”
(see Neumeister v. Austria, judgment of 27 June
1968, Series A no. 8, § 24 and D.N. v. Switzerland [GC],
no. 27154/95, § 42, ECHR 2001 III).
In the Court's opinion, it would be inconceivable that Article 5 §
4 of the Convention, relating, inter alia, to such a sensitive
issue as the deprivation of liberty of a person, should not equally
envisage, as a fundamental requisite, the impartiality of that court.
- In
the present case, the applicant's appeal against the detention order
was examined and rejected by the Ankara State Security Court, which
was composed of three members, including a military judge. The Court
recalls that it has in the past examined the independence and
impartiality of the state security courts from the standpoint of
Article 6 § 1 of the Convention and has found that the presence
of a military judge on the bench constituted a breach of that
provision. (see Incal, cited above, §§ 65-73 and
Özel v. Turkey, no. 42739/98, §§ 31-34,
7 November 2002). The Court's concerns about the status of the
military judge have been summarised in paragraph 23 above. In the
present case, this time the Court is called upon to examine this
question under Article 5 § 4 of the Convention. However, in the
Court's view, the concerns about the status of the military judges
expressed in the Incal judgment in the context of Article 6
are equally valid in the context of Article 5 § 4, and the term
“court” referred to in that provision must be construed
as a body which enjoys the same qualities of independence and
impartiality as are required of the “tribunal” mentioned
in Article 6. It follows that, as with Mr Incal, the present
applicant, charged with membership of an illegal organisation, could
legitimately fear that because one of the judges of the Ankara State
Security Court was a military judge it might allow itself to be
unduly influenced by considerations which had nothing to do with the
nature of his case. As a result, the Ankara State Security Court,
which decided on the applicant's appeal against the detention order,
lacked the necessary independence and impartiality for the
purposes of Article 5 § 4 of the Convention.
- In
the light of the foregoing, the Court finds that there has also been
a violation of Article 5 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION
- The
applicant alleged under Article 5 § 2 of the Convention that he
was not informed of the reasons for his arrest.
- The
Court observes that the search and arrest report, which was signed by
the applicant, clearly indicated that the applicant had been taken
into custody on the basis of a detention order delivered by the
Ankara State Security Court on 18 November 1998. It concludes
therefore that the applicant must be deemed to have been aware of the
reasons of his arrest.
- It
follows that this part of the application should be rejected as being
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he was not tried by an independent and impartial court on account of
the presence of a military judge on the bench of the Ankara State
Security Court. He further alleged that he had not been informed
promptly of the accusations against him. In respect of his
complaints, the applicant invoked Article 6 §§ 1 and 3 (a)
and (c) of the Convention.
- The
Government contended that this part of the application was premature
as the trial against the applicant was still pending before the
Ankara State Security Court when the application was introduced.
- The
Court does not consider it necessary to decide whether the applicant
may be considered to have complied with the requirements of Article
35 § 1 of the Convention since this complaint should in any case
be declared inadmissible for the following reasons.
- The
Court reiterates that a person may not claim to be a victim of a
violation of his right to a fair trial under Article 6 of the
Convention which, according to him, took place in the course of
proceedings in which he was acquitted or which were discontinued
(see, in this respect, I.I. v. Bulgaria (dec.), no.
44082/98, 25 March 2004).
- It
observes that, in the instant case, the criminal proceedings against
the applicant were suspended pursuant to Law No. 4616. As a result,
he was not convicted by the State Security Court. Since the
proceedings would only resume if the applicant were to commit another
offence of the same or more serious kind within five years of the
court's decision, the decision to suspend them may be regarded as
bringing the case to a close (see Withey v. the United
Kingdom (dec.), no. 59493/00, ECHR 2003 X, Koç et
Tambaş v. Turkey (dec.), no. 46947/99, 24 February 2005 and
Güzel v. Turkey (dec.), no. 65849/01, 18 October 2005).
Further it does not appear from the file that the applicant has been
the object of any other charges during the period of suspension.
- In
the light of the foregoing, the Court concludes that the applicant
cannot claim to be a victim within the meaning of Article 34 of the
Convention (see F.A. v. Turkey (dec.), no. 36094/97, 1
February 2005 and Güneş v. Turkey (dec.), no.
38413/02, 1 September 2005).
- It
follows that this part of the application should be rejected as being
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant complained under Article 14 of the Convention, in
conjunction with Articles 5 and 6 of the Convention, that he had been
discriminated against on the basis of his ethnic origin and political
opinions.
- The
Government did not address this issue.
- The
Court notes that the applicant has not substantiated his complaints.
- It
follows that this part of the application should be rejected as being
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of
the Convention.
V. 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 10,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000 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. On
the other hand it awards the applicant EUR 1,500 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 4,350 for the costs and expenses incurred
before the Court.
- The
Government contested this claim.
- 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. In the present case, the Court notes that the applicant
failed to submit any supporting documents in support of his claim.
The Court therefore rejects this claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
independence and impartiality of the military judge who ordered the
applicant's detention on remand and the court which decided on his
appeal against the detention order admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
3. Holds that there has been a violation of Article 5 § 4
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, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, to
be converted into New Turkish liras at the rate applicable at the
date of settlement and free of any taxes or charges that may be
payable;
(b) that
from the expiry of the above-mentioned 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
