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FOURTH
SECTION
CASE OF ÇELİKER v. TURKEY
(Application
no. 75573/01)
JUDGMENT
STRASBOURG
2 October
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 Çeliker 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,
Mr L. Garlicki, judges,
and Mrs F.
Aracı, Deputy Section Registrar,
Having
deliberated in private on 11 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75573/01) 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, Ms Laleş Çeliker
(“the applicant”), on 25 June 2001.
- The
applicant was represented by Mr S. Kaya, a lawyer practising in
Ankara. 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 she had been denied a fair
hearing by an independent and impartial tribunal.
- On
6 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Batman.
- On
10 April 1997 the applicant was arrested and taken into police
custody on suspicion of her involvement in the activities of an
illegal organisation, namely the PKK (the Kurdistan
Workers' Party). The police officers drew up an arrest protocol
in which they noted that they had found a false identity card on the
applicant and seized it for the investigation.
- Following
the Batman public prosecutor's order, the applicant's detention
period was extended.
- On
15 April 1997 police officers took statements from the applicant. She
confessed to being a member of the PKK and stated that she had been
involved in armed clashes with the security forces.
- On
16 April 1997 the applicant's statements were taken by the Batman
public prosecutor to whom she again confessed to being a member of
the PKK and stated that she had been involved in political education
and propaganda activities for the organisation.
- On
the same day she was brought before a single judge at the Batman
Magistrates' Court who took her statement and ordered her detention
on remand.
- On
2 May 1997 the principal public prosecutor at the Diyarbakır
State Security Court filed a bill of indictment, charging the
applicant under Articles 125 and 40 of the Criminal Code with
carrying out activities for the purpose of bringing about the
secession of part of the national territory and aiding and abetting
an illegal organisation.
- Between
5 May 1997 and 18 April 2000, the Diyarbakır State Security
Court held nineteen hearings and heard a number of witnesses. During
these hearings, the applicant renounced her statements taken during
her detention in police custody. Witnesses heard by the court stated
that the applicant was an active member of the PKK and that she had
been involved in armed clashes with the security forces.
- On
18 April 2000 the Diyarbakır State Security Court convicted the
applicant as charged and sentenced her to death under Article 125 of
the Criminal Code. Taking into account her confessions before the
court, the death penalty was commuted to a life sentence of
imprisonment.
- On
19 December 2000 the Court of Cassation upheld the decision of the
first instance court. It reasoned that the decision was justified as
the evidence in the case file was capable of proving that the
applicant was an active member of the PKK, which was an armed illegal
organisation and carried out activities for
the purpose of bringing about the secession of part of the national
territory.
- On
24 January 2001 the Court of Cassation's decision was pronounced in
the absence of the applicant's representative.
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) and Öcalan
v. Turkey ([GC], (no. 46221/99, §§ 52 54,
ECHR 2005-IV).
- 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
applicant complained that she 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 Diyarbakır State
Security Court which tried and convicted her. She maintained that her
right to the presumption of innocence had also been breached since
there was no concrete evidence to secure a conviction other than her
statements obtained under duress by police officers. The applicant
further claimed that she had been denied the assistance of a lawyer
during the initial stages of the criminal proceedings and that she
had not been informed promptly of the nature and cause of the
accusation against her. She finally contended that the State Security
Court had heard the witnesses against her, but had refused to hear
the witnesses who would testify for her. She relied on Article 6 §§
1, 2 and 3 (a), (c) and (d) of the Convention, which read as follows:
“1. In the determination of ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;...
(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;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;...”
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 Diyarbakır 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 application 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 3 OF THE CONVENTION
- The
applicant complained that during the first two years of her detention
she had lived in fear of the death penalty. She relied on Article 3
of the Convention
- The
Government contested that argument.
- The
Court reiterates that, to fall within the scope of Article 3 of the
Convention, the alleged treatment must attain a minimum level of
severity (see Ireland v. the United Kingdom, judgment of 18
January 1978, Series A no. 25, p. 65, § 162).
- In
the present case there is no indication that the treatment complained
of reached the threshold of severity required to bring the matter
within the scope of Article 3 (see, Fikri Demir v. Turkey
(dec.), 55373/00, 30 August 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.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant further complained that she had not been brought promptly
before a judge or other officer authorised by law. She maintained
that she had not been informed about the decisions of the national
courts concerning the extension of her detention in police custody.
She also submitted that she had been deprived of her right to have
the lawfulness of her detention determined by a judge.
- The
Government contended that these complaints were inadmissible for
non-compliance with the six-month rule.
- The Court reiterates that, where no domestic remedy is
available, the six-month period runs from the date of the act alleged
to constitute a violation of the Convention; however, where it
concerns a continuing situation, the period of six months runs from
the end of the situation concerned (see, among other authorities, Ege
v. Turkey (dec.), no. 47117/99, 10 February 2004).
- The
Court observes that the applicant was taken into police custody on 10
April 1997 and placed in detention on remand on 16 April 1997. The
applicant, however, lodged her application with the Court on 25 June
2001, i.e. more than six months later.
- It
follows that these complaints have been introduced out of time and
must be rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
IV. ALLEGED VIOLATION OF ARTICLES 9 AND 10 OF THE
CONVENTION
- The
applicant further complained that her conviction had violated her
right to freedom of thought and expression guaranteed by Articles 9
and 10 of the Convention.
- The
Government disputed this allegation.
- The Court observes that the applicant was not
convicted for having expressed her opinion, but for carrying
out activities for the purpose of bringing about the secession
of part of the national territory, in contravention of Article 125 of
the now defunct Criminal Code. There is therefore nothing in the case
file to support her claim that there has been an interference with
her rights under Articles 9 and 10 of the Convention (see in this
respect, Kılıç v. Turkey (dec.),
no. 40498/98, 8 July 2003, and Şirin v. Turkey
(dec.), no. 47328/99, 27 April 2004).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Lastly,
the applicant complained that she had been discriminated against on
the basis of her ethnic origin.
- The
Government submitted that this complaint was unfounded.
- The
Court has examined the applicant's allegation in the light of the
evidence submitted to it, but finds it wholly unsubstantiated.
- It
follows that this complaint must also be rejected as being manifestly
ill-founded pursuant to Article 35 §§ 3 and 4 of the
Convention.
VI. 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 61,500 euros (EUR) in respect of pecuniary damage
and EUR 25,000 for non-pecuniary damage.
- The
Government claimed that these amounts were excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. It
further 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, cited above, p.
1575, § 82, and Çıraklar, cited above, § 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 v.
Turkey, § 210 in fine, cited above).
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for costs and expenses incurred
before the domestic courts and the Court. The applicant did not
submit any receipt or documents in support of her claim.
- The
Government contended that the applicant's claim was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 head. It further notes
that there is no causal link between the violation found and the
costs incurred before the domestic courts.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
unfairness of the proceedings before the Diyarbakır 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 Diyarbakır 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 and conduct 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 2 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
