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THIRD
SECTION
CASE OF HALİS TEKİN v. TURKEY
(Application
no. 64570/01)
JUDGMENT
STRASBOURG
19 July
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 Halis Tekin 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 28 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 64570/01) 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 Halis Tekin
(“the applicant”), on 26 September 2000.
- The
applicant was represented by Mr M. Beştaş, a lawyer
practising in Diyarbakır. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- The
applicant alleged that he had been denied a fair hearing within a
reasonable time by an independent and impartial tribunal.
- On
16 September 2005 the Court decided to give notice of the
application. 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 1971 and lives in Batman.
- On
22 May 1994 the applicant was arrested in the course of an armed
clash between members of the security forces and terrorist militants.
- On
27 May 1994 the applicant's statements were taken by police officers.
- On
30 May 1994 he was brought before the public prosecutor at the
Diyarbakır State Security Court. The public prosecutor
questioned him in relation to his involvement in terrorist acts. On
the same day, the applicant was brought before a single judge of the
Diyarbakır State Security Court who ordered his detention on
remand.
- On
13 June 1994 the Diyarbakır Public Prosecutor filed a bill of
indictment charging the applicant with carrying
out activities for the purpose of bringing about the secession
of part of the national territory. The charges were brought under
Article 125 of the now defunct Criminal Code.
- On
20 January 1995 the Diyarbakır State Security Court held a
hearing in the presence of a military judge. The applicant admitted
that he was a member of an illegal organisation, namely the ARGK.
- At
the hearing on 30 January 1995 before the Diyarbakır State
Security Court, the applicant stated that he was a “guerrilla”
of the ARGK and apologised to his people and party for not being
worthy of the organisation since he had failed to carry out the acts
that he had undertaken. He however denied the veracity of the
statements which he had given to the police officers.
- Between
3 April 1995 and 30 October 1995 the Diyarbakır State Security
Court held four hearings and issued decisions to the effect that the
case-files concerning other criminal proceedings instituted against
the applicant should be obtained from the other courts.
- On
8 December 1995 the Diyarbakır State Security Court decided to
join two cases concerning different accusations against the
applicant. It further decided to wait for the arrival of the
case-files. The number of accused who were tried together with the
applicant attained thirteen in total.
- Between
24 January 1996 and 14 May 1997 the Diyarbakır State Security
Court held eight hearings and postponed each of them with a view to
remedying certain procedural shortcomings in respect of the
applicant's co-accused.
- The
applicant attended the hearing of 3 July 1997 and claimed that he was
under pressure in the prison and that he was hindered from appearing
before the court. He did not specify who prevented him from appearing
before the court. The court again postponed the hearing with a view
to determining the address of one of the applicant's co-accused.
- The
applicant and his co-accused did not attend the hearing of 14 August
1997.
- The
Diyarbakır State Security Court postponed the hearings of
22 October 1997, 10 December 1997, 12 February 1998 and 19 March
1998 pending the arrest of one of the applicant's co-accused. The
court also asked the public prosecutor to submit his observations on
the merits.
- On
21 May 1998 the public prosecutor submitted his observations on the
merits of the case and sought the conviction of the applicant for the
offence under Article 125 of the former Criminal Code. The applicant
asked for time to prepare his defence.
- The
applicant did not attend the hearings of 16 July 1998, 10 September
1998 and 5 November 1998. At the hearing held on the latter date, the
court decided to inform the accused that their defence submissions
would be assumed to have been given if they did not attend the next
hearing scheduled for 24 December 1998.
- The
applicant did not attend the hearing of 24 December 1998 and
submitted a declaration on behalf of himself and all his co-accused
that they would not attend the hearing. The court decided to request
the prison authorities to ensure the attendance of the applicant and
his co-accused at the hearing of 4 March 1999.
- The
applicant refused to attend the hearings of 4 March 1999, 24 April
1999, 17 June 1999 and 29 July 1999 in protest against the arrest of
Abdullah Öcalan.
- Meanwhile,
on 18 June 1999 the Grand National Assembly amended Article 143
of the Constitution and excluded military members from the state
security courts. Following similar amendments made on 22 June 1999 to
the Law on the State Security Courts, the military judge sitting on
the bench of the Diyarbakır State Security Court hearing the
applicant's case was replaced by a civilian judge.
- The
applicant attended the hearing held on 23 September 1999 and read out
his defence submissions. The court informed the accused that the
final judgment would be delivered on 11 November 1999 even if they
refused to attend the hearing.
- On 11 November 1999 the Diyarbakır State Security
Court composed of three civilian judges, 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. The applicant
appealed.
- On
2 May 2000 the Court of Cassation upheld the judgment of the
Diyarbakır 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-...).
- 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 § 1 OF THE
CONVENTION
- The applicant complained that he had been denied a
fair hearing within a reasonable time by an independent and impartial
tribunal on account of the presence of the military judge on the
bench of the Diyarbakır State Security Court. He further alleged
that he had been denied a fair hearing before the domestic courts
since his conviction was not based on concrete evidence. The
applicant relied on Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal established
by law.”
- The
Government contested these allegations.
- The
applicant maintained his complaints.
A. Admissibility
- The Court notes that the application 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
1. Independence and impartiality of the State Security
Court
- The
Government submitted that the applicant had been convicted by a state
security court which had been composed of three civilian judges since
the military judge had been replaced before the end of the
proceedings.
- The
applicant maintained his 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 case (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 Diyarbakır State Security Court was replaced
only at the last hearing on the merits of the case (see paragraph 22
above). Prior to this period, the domestic court had already heard
the applicant on several occasions as well as the prosecutor's
observations on the merits. The final hearing held on 23 September
1999 consisted only of the court listening to the final submissions
of the applicant and the public prosecutor before delivering its
final judgment.
- In
these circumstances, the Court considers that the replacement of the
military judge before the end of the proceedings failed to dispose of
the applicant's reasonably held concern about the trial court's
independence and impartiality (see Aslan and Şancı
v. Turkey, no. 58055/00, 5 December 2006).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
2. Alleged unfairness of the proceedings
- Having
regard to its finding that the applicant's right to a fair hearing by
an independent and impartial tribunal has been infringed, the Court
considers that it is unnecessary to examine the applicant's remaining
complaint concerning the alleged unfairness of the proceedings (Işık
v. Turkey, no. 50102/99, § 38-39, 5 June
2003).
3. Alleged excessive length of the proceedings
- The
applicant alleged that the length of the proceedings at issue had
contravened the “reasonable time” requirement, provided
for in Article 6 § 1 of the Convention. He claimed
that the number of the accused did not render the proceedings
complex. He maintained that numerous changes in the composition of
the Diyarbakır State Security Court and its decisions to
postpone the hearings with a view to completing certain procedural
shortcomings, but in reality as a result of insufficient examination
of the case-files, had given rise to a significant delay in the
proceedings. The applicant pointed out, in particular, that there was
a period of delay between 8 December 1995 and 11 November 1999 as a
result of the domestic court's decision to join two cases and to
fulfil procedural requirements in respect of his co-accused.
- The
Government submitted that the length of the proceedings had not
exceeded a reasonable time. They argued that the case was of a
complex nature given that the national authorities had to investigate
very serious incidents involving numerous suspects. In this
connection, they noted that the proceedings against the applicant
were not of an individual nature but of a collective one since they
had concerned the establishment of guilt of members of a terrorist
organisation. They further averred that the applicant's refusal to
attend a number of hearings in an organised manner had compelled the
Diyarbakır State Security Court to postpone a number of hearings
and had therefore caused a substantial delay in the proceedings.
- The
Court notes that the proceedings began on 22 May 1994 when the
applicant was taken into police custody, and ended on 2 May 2000,
when the Court of Cassation upheld the judgment of the Diyarbakır
State Security Court. The proceedings thus lasted just under six
years.
- The
Court recalls that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the criteria established by its case-law,
particularly the complexity of the case, the conduct of the applicant
and of the relevant authorities and what was at stake for the
applicant in the dispute (see, amongst many others, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II).
- The
Court observes that the present case was of a complex nature owing in
particular to the number of suspects and the difficulties faced by
the domestic courts in establishing the facts of serious crimes and
of the involvement of each suspect in each crime.
- As
to the conduct of the national authorities, the Court reiterates that
only delays for which the State can be held responsible may justify a
finding that a “reasonable time” has been exceeded
(Papachelas v. Greece [GC], no. 31423/96, § 40, ECHR
1999 II). In this connection, it notes that although the
Diyarbakır State Security Court postponed a number of hearings
with a view to waiting for the arrest of some of the applicant's
co-accused and to making good certain procedural shortcomings, there
was no period of inactivity.
- As
regards the conduct of the applicant, the Court notes the applicant
failed or refused to attend a number of hearings, together with his
co accused, latterly in order to protest against the arrest of
Abdullah Öcalan (see paragraphs 19-21 above). This collective
refusal to attend the hearings caused a delay of more than a year in
the proceedings.
- In
the light of the foregoing, and in particular the significant delay
caused by the applicant, the proceedings before the Diyarbakır
State Security Court, do not disclose any lack of the appropriate
diligence by the national authorities. The proceedings before the
Court of Cassation, which lasted some five and a half months, cannot
be faulted.
- The
Court concludes that there has been no violation of Article 6 §
1 of the Convention in this regard.
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.”
A. Damage
- The
applicant claimed EUR 20,000 in respect of non pecuniary damage.
Without specifying any amount, the applicant also asked the Court to
make an award for pecuniary damage as a result of his conviction
following an unfair trial.
- The
Government submitted that the amount claimed was excessive. They
contended that no award should be made in respect of pecuniary
damage.
- Regarding
the question of pecuniary damage, the Court considers that it cannot
speculate as to what the outcome of the proceedings before
the State Security Court might have been had the violation
of the Convention not occurred (see Findlay v. the United Kingdom,
judgment of 25 February 1997, Reports 1997-I, § 85).
Moreover, the applicant's claim in respect of pecuniary damage was
not borne out by any evidence. It is therefore inappropriate to award
the applicant compensation for pecuniary damage.
- With
regard to non-pecuniary damage, the Court
considers that the finding of a violation constitutes in itself
sufficient compensation for any non-pecuniary damage
suffered by the applicant (see Çıraklar, cited above,
§ 49).
- Furthermore,
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 9,800 New Turkish liras (EUR 5,200) for the
costs and expenses incurred before the Court.
- The
Government submitted that no award should be made under this head
since he failed to substantiate his claims with relevant supporting
documents.
- 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 considers it
reasonable to award the sum of EUR 1,000 for costs and expenses
incurred 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 application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention as regards the applicant's
complaint concerning the alleged lack of independence and
impartiality of the Diyarbakır State Security Court;
- Holds that it is unnecessary to examine the
applicant's complaint under Article 6 § 1 of the Convention
relating to the alleged unfairness of the proceedings;
- Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the length 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;
- 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, plus any tax that may be chargeable, to be converted into
new Turkish liras at the rate applicable at the date of settlement;
(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 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupanćić Registrar President
