BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF ASLAN AND ŞANCI v. TURKEY
(Application
no. 58055/00)
JUDGMENT
STRASBOURG
5
December 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 Aslan and Şancı v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Türmen,
Mr M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 14 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 58055/00) 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 two Turkish nationals, Mr Abdurrahman Aslan and
Mr Reşat Şancı (“the applicants”), on 9
May 2000.
- The
applicants were represented by Ms T. Aslan, a lawyer practising in
Izmir. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- On
4 October 2005 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the applicants’
right to a fair hearing by an independent and impartial tribunal 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
applicants were born in 1979 and 1973 respectively and were serving
prison sentences at Nazilli Prison at the time of their applications
to the Court.
- On
23 February 1999 the applicants were arrested and taken into custody
by police officers from the Anti-terror branch of the Kuşadası
Security Directorate. They were interrogated on 24 and 25 February
1999 respectively.
- On
26 February 1999 the applicants were brought before the public
prosecutor in Izmir. They were informed of their rights and in
particular their right to be assisted by a lawyer, which they waived.
The applicants confessed to having committed the offence of which
they were accused, namely throwing Molotov cocktails at buildings.
They claimed they had acted alone, that they were not involved in any
illegal organisation and that they regretted their actions.
- On
the same day, the applicants were brought before the Kuşadası
Magistrates’ Court where they reiterated their statements given
to the public prosecutor. Mr Sancı acknowledged in part the
statements he had given to the police. He alleged in this connection
that he had been subjected to ill treatment in police custody.
Mr Aslan acknowledged the contents of his statements made to the
police. However, he claimed that he had signed without reading them.
The court remanded both applicants in custody.
- On
15 March 1999 the public prosecutor at the Izmir State Security Court
filed a bill of indictment with that court accusing the applicants of
having thrown Molotov cocktails at the buildings of the Ülkü
Ocakları Association, Ziraat Bank, Halk Bank and Yaşar Bank
in Kuşadası on 22 February 1999. He requested that
they be convicted and sentenced under Articles 169 and 264 of the
Criminal Code and Article 5 of Law no. 3713.
- The
first hearing, held before the Izmir State Security Court on 10 March
1999 in the applicants’ absence, was taken up with procedural
matters such as the measures to be taken for securing the presence of
the accused.
- Between
15 April 1999 and 15 July 1999 the court held three hearings during
which it heard the applicants, who claimed that they had made their
statements in police custody under duress. The court also took
various procedural acts.
- At a hearing held on 15 July 1999 the court noted that
the testimony of the witness Mr I.E., taken by proxy, had been
submitted to it. The applicants asked the court not to take the
testimony into account. They further requested that a further on-site
inspection be conducted in order to find out whether the offence had
been committed at night time. Finally, they asked the court to hear
the bank clerks as witnesses. On the same day, the court, finding
that the evidence contained in the case file sufficiently elucidated
the events, dismissed the applicants’ requests. The prosecutor
read out his observations on the merits of the case against the
applicants. The next hearing was held on 2 September 1999.
- At
the hearing held on 14 October 1999 the
military judge sitting on the bench of the Izmir State Security Court
was replaced by a civilian judge. The court heard the applicants’
final submissions on the merits of the case. On the same day,
the Izmir State Security Court convicted the applicants as charged
and sentenced them in respect of the offences to terms of
imprisonment of three years, fifty-five months and twenty days. In
its decision, the court took into account the fact that the incident
reports drawn up after the events corresponded to the applicants’
submissions to the Magistrates’ Court. The court further stated
that it had not been convinced by the applicants’ denials,
having regard to the evidence contained in the case file
(i.e. Mr.I.E’s testimony, photographs of the events,
expert reports, incident reports and the reports drawn up following a
re construction of events) and the applicants’ submissions
to the public prosecutor and the Magistrates’ Court.
- On
24 February 2000 the Court of Cassation upheld the judgment of the
Izmir State Security Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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),
Öcalan v. Turkey ([GC], no. 46221/99, §§ 52 54,
ECHR 2005-...) and Göç v. Turkey ([GC], no.
36590/97, § 34, ECHR 2002 V).
- 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 Izmir State Security Court
which tried them. They submitted that they had been convicted on the
basis of their statements in police custody which had been taken
under duress and that they had been denied the assistance of a lawyer
at the initial stages of the proceedings. They complained that the
domestic court had refused their request for a further investigation.
Finally, they maintained that the written opinion of the principal
public prosecutor at the Court of Cassation was never served on them,
thus depriving them of the opportunity to put forward their
counter-arguments. They relied on Article 6 §§ 1 and 3 (b)
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;...”
A. Admissibility
- The Government maintained under Article 35 § 1 of
the Convention that the applicants had failed to comply with the
six-month rule as regards their complaint concerning lack of access
to a lawyer at the initial stages of the proceedings. In this regard,
they submitted that the applicants should have lodged their
application with the Court within six months from the end of the
preliminary investigation.
- The applicants denied the Government’s argument.
- The
Court reiterates that it has already examined and rejected a similar
preliminary objection made by the Government (see, in particular,
Yavuzaslan v. Turkey, no. 53586/99, § 16, 22
April 2004). The Court finds no particular circumstances in the
instant case which would require it to depart from its findings in
the above-mentioned case.
- Consequently,
the Court rejects the Government’s preliminary objection.
- Moreover, it considers that the applicants’
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 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
Government maintained, in particular, that the applicants had been
convicted by a State Security Court which was composed of three
civilian judges since the military judge had been replaced before the
end of the proceedings.
- The
applicants maintained their allegations.
- 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 instant case, the Court observes that the military judge sitting
on the bench of the Izmir State Security Court was replaced only at
the last hearing on the merits of the case (see paragraph 13 above).
Prior to this period the domestic court had already heard the
applicants on several occasions as well as the prosecutor’s
observations on the merits and, in particular, it had rejected on 15
July 1999 the applicants’ request for a further investigation
to be carried out. The final hearing held on 10 October 1999
consisted only of the court listening to the final submissions of the
applicants and the prosecutor before reading out its verdict.
- In
these circumstances, the Court considers that the replacement of the
military judge before the end of the proceedings failed to dispose of
the applicants’ reasonably held concern about the trial court’s
independence and impartiality (see, a contrario,
Ceylan v. Turkey (dec.), no. 68953/01, ECHR
2005-...; and Sevgi Yılmaz v. Turkey (dec.),
no. 62230/00, 20 September 2005).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
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, Ükünç and Güneş v. Turkey,
no. 42775/98, § 26, 18 December 2003).
II. 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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with any relevant supporting documents within the time-limit
fixed for the submission of the applicants’ observations on the
merits and that failure to comply with these requirements may result
in the Chamber’s rejection of the claim in whole or in part.
- In
the instant case, on 22 March 2006 the applicants were requested to
submit their claims for just satisfaction. They did not submit any
claims within the specified time limit and did not request an
extension of the time limit. Their Article 41 claims were
eventually filed on 18 July 2006. The Court also observes that its
practice is not to award moral damages in cases where it has found a
violation of Article 6 § 1 of the Convention on account of the
lack of independence and impartiality of the State Security Courts.
- In
view of the above, the Court makes no award under Article 41 of the
Convention.
- Nevertheless,
the Court 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, cited
above, § 210, in fine).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- 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
applicants’ other complaints under Article 6 of the Convention.
Done in English, and notified in writing on 5 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
