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SECOND
SECTION
CASE OF AKGÜL v. TURKEY
(Application
no. 65897/01)
JUDGMENT
STRASBOURG
16 January 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 Akgül 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 I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 65897/01) 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 Orhan Akgül.
- The
applicant was represented by Ms T. Aslan, a lawyer practising in
Izmir. The Turkish Government (“the Government”) did not
designate a specific Agent for the purposes of the proceedings before
the Court.
- On
4 October 2005 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 1980 and lives in Izmir.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- On
23 February 1999 the applicant was taken into custody by police
officers from the Anti-Terror branch of the Izmir Security
Directorate (Terörle Mücadele
Şubesi) on suspicion of aiding and abetting an
illegal organisation, namely the PKK (the Kurdistan Workers’
Party), contrary to Article 169 of the Criminal Code.
- On 26 February 1999 the applicant was brought before a
single judge of the Izmir State Security Court. The applicant denied
the veracity of his signed statements taken in detention, alleging
that they had been obtained under duress. On the same day, the judge
ordered his detention on remand.
- On
3 March 1999 the public prosecutor at the Izmir
State Security Court filed a bill of indictment, charging the
applicant under Article 169 of the Criminal Code with aiding and
abetting the PKK by engaging in propaganda for it.
- On
7 April 1999 the State Security Court held its first hearing in the
absence of the applicant. The court ordered that the applicant’s
detention on remand be continued as he could not be heard.
- On
11 May 1999 the State Security Court held its second hearing in the
presence of a military judge. The applicant was heard by the court.
He denied having engaged in propaganda and stated that he had been
merely watching the crowd shouting slogans. He further denied the
statements taken in police custody and before the public prosecutor.
He alleged that he had been forced to sign the impugned statements
under duress. He asked the court to dismiss the charges and release
him. Assessing the evidence against the applicant, the court
dismissed his request and ordered his continued detention on remand.
- On
18 June 1999 the Grand National Assembly amended Article 143 of the
Constitution and excluded military members from State Security
Courts. Following similar amendments made on 22 June 1999 to the Law
on the State Security Courts, the military judge hearing the
applicant’s case was replaced by a civilian judge.
- On
19 August 1999 the State Security Court
held a hearing. The applicant’s representative requested his
release. He further asked the court to hear evidence from four
witnesses. The court dismissed his requests. Considering the state of
the proceedings, the court reasoned that the evidence to be given by
the four witnesses would not help to elucidate the facts.
- On
22 September 1999 the State Security Court
held another hearing. The applicant’s representative submitted
the applicant’s written defence submissions and read them at
the hearing. The court ordered that the applicant’s detention
on remand be continued.
- On
13 October 1999 the State Security Court
composed of three civilian judges convicted the applicant as charged
and sentenced him to three years’ imprisonment under Article
169 of the Criminal Code.
- On
9 October 2000 the Court of Cassation upheld the judgment. Two days
later, this decision was pronounced in the absence of the applicant’s
representative.
- As
required by law, the decision was deposited with the registry of the
Izmir State Security Court for the
applicant’s review.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been denied a fair hearing by
an independent and impartial tribunal on account of the
presence of a military judge on the bench of the Izmir State Security
Court. He further complained that he
had been denied the assistance of a lawyer during police
custody and when he had first appeared before the prosecutor and the
judge. In addition, he submitted that the written opinion of the
public prosecutor at the Court of Cassation had never been served on
him, thus depriving him of the opportunity to put forward his
counter-arguments. He finally argued that the ruling of the Court of
Cassation was not sufficiently reasoned.
- He
relied on Article 6 of the Convention, which in 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
... by an independent and impartial tribunal established by 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
- The
Government contested these arguments. As regards the question of the
Izmir State Security Court’s independence and impartiality, the
Government maintained that the military judge had been removed from
the bench on 18 June 1999 and that the applicant had been sentenced
much later by a court entirely composed of civilian judges. Relying
on the Imrek decision (Imrek v. Turkey (dec.),
no. 57175/00, 28 January 2003), the Government argued that there
was no situation which could lead to a legitimate doubt, from the
standpoint of the applicant, on the independence and impartiality of
the court.
- With
respect to the remainder of the applicant’s allegations under
Article 6, the Government asked the Court to declare them
inadmissible, either as being manifestly ill-founded or for failure
to exhaust domestic remedies.
21. 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, the Court considers that the
applicant’s 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 notes that the applicant’s trial before the Izmir State
Security Court commenced on 3 March 1999. On 11 May 1999 the court
held a hearing on the merits and asked the applicant to give his
defence and submit evidence. In the presence of the military judge,
the applicant denied his statements in police custody and before the
public prosecutor. He stated that he had been forced to
sign the impugned statements under duress. He therefore asked the
court to dismiss the charges and release him. Nonetheless, finding
that the evidence against the applicant was considerable, the court
ordered his detention on remand to be continued.
- The
Court recalls that in the case of Öcalan v. Turkey ([GC],
no. 46221/99, § 115, ECHR 2005 ...) the Grand Chamber
held that when a military judge has participated in one or more
interlocutory decisions that continue to remain in effect in the
criminal proceedings concerned, the accused has reasonable cause for
concern about the validity of the entire proceedings, unless it is
established that the procedure subsequently followed in the State
Security Court sufficiently disposed of that concern. More
specifically, where a military judge has participated in an
interlocutory decision that forms an integral part of the proceedings
against a civilian, the whole proceedings are deprived of the
appearance of having been conducted by an independent and impartial
court.
- In
the present case, the Court observes that, following the hearing of
11 May 1999, at which the military judge was present, the State
Security Court did not take any detailed defence submissions from the
applicant. Therefore, the hearing and the ensuing ruling of the State
Security Court formed an integral part of the proceedings. In this
respect, the present case differs from that of Ceylan v. Turkey
((dec.), no. 68953/01, ECHR 2005 ...), which was declared
inadmissible on 30 August 2005, where the Court rejected a similar
complaint since the military judge in question had not participated
in any decision relating to the merits of the case or to the defence
rights of the applicant.
- In
light of the foregoing considerations, the Court finds that the State
Security Court which tried and convicted the applicant was not an
independent and impartial tribunal within the meaning of Article 6 §
1 of the Convention. Accordingly, there has been a violation of this
provision.
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 the other complaints
under Article 6 of the Convention relating to the fairness of the
proceedings (see, among other authorities, Incal v. Turkey,
judgment of 9 June 1998, Reports 1998 IV, § 74).
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant alleged that he was convicted of an act which did not
constitute a criminal offence at the relevant time. He relied on
Article 7 of the Convention, which reads:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
- The
Court observes that the State Security Court convicted the applicant
of aiding and abetting an illegal organisation by engaging in
propaganda for it. That act was clearly defined as a criminal offence
in domestic law - Article 169 of the Criminal Code - at the relevant
time (paragraphs 6 and 14 above). This
complaint should therefore be declared inadmissible as being
manifestly ill founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant further complained that his conviction and sentence
constituted discrimination on account of his political opinions. He
relied on Article 14 of the Convention, which reads:
“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 Court observes that the applicant has not
submitted any evidence in support of this allegation. He has
therefore failed to lay the basis of an arguable claim of a breach of
Article 14. Therefore, this complaint should
also be declared inadmissible as being manifestly ill founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- Finally,
the applicant contended that he had not been notified that the Court
of Cassation had delivered its judgment on his appeal until a much
later date. In the applicant’s submission, this amounted to an
interference with the exercise of his right of individual petition
guaranteed by Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Court notes that, at the time of the present application, the
practice of the Turkish judiciary was to deposit a Court of Cassation
ruling with the court of first instance from which the appeal had
originated. Then the ruling would be fully available to the parties
in that court’s registry.
- The
Court does not find that practice to be per se incompatible
with the requirements of Article 34 as nothing would hinder an
applicant from obtaining an official copy of a Court of Cassation
ruling to be used in an application before the Court.
- Furthermore,
the current application was lodged within six months of the date of
the Court of Cassation’s decision, which constituted the final
decision for the purposes of Article 35 § 1 of the Convention.
The applicant has in no way substantiated that the alleged delay in
notifying him of the Court of Cassation’s decision was designed
either directly or indirectly to frustrate his application under the
Convention. It is also to be noted that it was open to the applicant
and his lawyer to keep themselves informed of the outcome of the
appeal by contacting the registry of either the State Security Court
or the Court of Cassation.
- In
these circumstances, the Court considers that no issue arises under
Article 34 of the Convention. This complaint
should therefore be declared inadmissible 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 5,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested these amounts.
- On the question of pecuniary damage, the Court
considers that it cannot speculate as to what the outcome of
proceedings compatible with Article 6 § 1
would have been. The Court therefore makes no award in respect of
pecuniary damage.
- The
Court also considers that the finding of a violation of Article 6
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant in this respect (see Incal,
cited above, p. 1575, § 82).
- However,
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, § 210 in fine).
B. Costs and expenses
- The
applicant also claimed EUR 4,500 for the costs and expenses incurred
before both the domestic courts and the Court. He did not submit any
receipt or documents in support of his claim.
- The
Government contested this amount.
- 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, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,000 for the
proceedings before the Court.
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 complaints under Article 6 of the
Convention 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 complaint relating to the
independence and impartiality of the Izmir State Security Court;
- Holds that it is not necessary to consider the
applicant’s 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 the applicant;
- 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 1,000 (one
thousand euros) in respect of costs and expenses, to be converted
into New Turkish Liras at the rate applicable at the date of the
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
claims for just satisfaction.
Done in English, and notified in writing on 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
