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THIRD
SECTION
CASE OF MUSTAFA KARATEPE v. TURKEY
(Application
no. 65942/01)
JUDGMENT
STRASBOURG
29
November 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 Mustafa Karatepe v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson, judges,
and Mr S. Quesada,
Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 65942/01) 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 Mustafa Karatepe
(“the applicant”), on 8 November 2000.
- The
applicant was represented by Mr M. İşeri, a lawyer
practising in Izmir. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- The
applicant alleged, in particular, that he had been denied a fair
hearing by an independent and impartial tribunal.
- On
16 September 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Gaziantep.
- On
14 January 1995 the applicant was taken into police custody by police
officers from the Anti-Terror branch of the Izmir Security
Directorate on suspicion of membership of an illegal organisation,
namely the PKK (the Kurdistan Workers' Party).
- On
23 January 1995 he was brought before a single judge of the Izmir
State Security Court who ordered his detention on remand.
- On
13 February 1995 the principal public prosecutor at the Izmir State
Security Court filed a bill of indictment with the latter charging
the applicant under Article 125 of the Criminal Code with
carrying out activities for the purpose of bringing about the
secession of part of the national territory.
- On
2 December 1998 the Izmir State Security Court convicted the
applicant as charged and sentenced him to death under Article 125 of
the Criminal Code. Taking into account the applicant's behaviour
during the trial, the death penalty was commuted to a life sentence.
- On
17 April 2000 the Court of Cassation upheld the judgment of the Izmir
State Security Court.
- On
26 April 2000 the Court of Cassation's decision was pronounced in the
absence of the applicant's representative.
- On
1 June 2000 the Court of Cassation's decision was deposited with the
registry of the First Instance Court.
- On
21 December 2000 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.
The law stipulated that parole would not be applicable to persons who
had committed offences under Article 125 of the Criminal Code. Thus,
the applicant could not benefit from Law no. 4616.
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-IV 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, the State Security Courts have been abolished.
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 sitting on the bench of the Izmir State Security Court
which tried and convicted him. He maintained that the written opinion
of the principal 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. The applicant also claimed that he
had been denied the assistance of a lawyer during the initial stages
of the criminal proceedings. He relied on Article 6 § 3 (c) 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:
(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 Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
1. Independence and impartiality of the State Security
Court
- The
Government maintained that the State Security Courts had been
established by law to deal with threats to the security and integrity
of the State. They submitted that, in the instant case, there was no
basis on which to find that the applicant could have had any
legitimate doubts about the independence of the Izmir State Security
Court. The Government further referred to the abolition of the State
Security Courts in 2004.
- The Court has examined a large number of cases raising
similar issues to those in the present case and in which it found a
violation of Article 6 § 1 of the Convention (see Özel,
cited above, §§ 33-34; 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, there has 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. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant complained under Article 14 of the Convention, in
conjunction with Article 5 of the Convention, that he had been
discriminated against on the basis of his political opinions. He
further complained of non-applicability of Law no. 4616 to persons
who had committed offences under Article 125 of the now defunct
Criminal Code.
- The
Government did not address this issue.
- The
Court considers 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.
III. 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 50,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government claimed that this amount was excessive.
- The Court considers that the finding of a violation of
Article 6 § 1 constitutes in itself sufficient compensation for
any non-pecuniary damage suffered by the applicant (see Incal v.
Turkey, judgment of 9 June 1998, Reports of Judgments and
Decisions 1998 IV, p. 1575, § 82, and Çıraklar
v. Turkey, judgment of 28 October 1998, Reports
1998 VII, § 45).
- 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).
B. Costs and expenses
- The
applicant also claimed EUR 3,000 for the costs and expenses incurred
before the Court.
- The
Government contended that the applicant's claim was unsubstantiated.
- 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 above criteria
and the applicant's failure to substantiate his claim, the Court
makes no award under this heading.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
unfairness of the proceedings before the Izmir State Security Court
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 remaining complaints under Article 6 of the Convention
relating to the fairness of the proceedings;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
