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THIRD
SECTION
CASE OF KENAR v. TURKEY
(Application
no. 67215/01)
JUDGMENT
STRASBOURG
13
December 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 Kenar 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. Naısmıth,
Deputy Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 67215/01) 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 İbrahim Kenar
(“the applicant”), on 18 September 2000.
- The
applicant was represented by Ms H. Çekiç, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
1 December 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
alleged unfairness of the proceedings 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
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The arrest and detention of the applicant
- The
applicant was born in 1972 and lives in Edirne.
- On
7 February 1996 the applicant was arrested by police officers from
the anti-terrorist branch of the Edirne Security Directorate on
suspicion of membership of an illegal armed organisation, namely the
DHKP-C (Devrimci Halk Kurtuluş Partisi-Cephesi; the
Revolutionary People's Liberation Party-Front).
- In
a letter of 8 February 1996 the Edirne Security Director asked the
Chief Public Prosecutor to grant permission to keep the applicant and
four other arrested persons in police custody until 12 February 1996.
The security director reasoned that the police needed time to
question the detainees in detail so that they could apprehend other
members of the DHKP-C. On the same day, the Chief Public Prosecutor
granted the leave requested until the end of the working day on 11
February 1996.
- On
10 February 1996 police officers took statements from A.İ. and
Ü.U. who had been victims of illegal acts committed by members
of the DHKP-C. In particular, Ü.U. named the applicant as the
perpetrator of the petrol bomb (Molotov cocktail) attack on his
lorry.
- During
his detention in police custody the applicant later alleged that he
was subjected to various forms of ill-treatment and forced to sign
certain statements under duress.
- Following
his release from police custody, on 12 February 1996, the applicant
underwent a medical examination at the Edirne Forensic Institute. The
medical report stated that there was no sign of injury or physical
violence on the applicant's body.
- On
12 February 1996 the Chief Public Prosecutor questioned the applicant
in connection with the acts allegedly committed by him and his
statements made at the Security Directorate. The applicant submitted
that the police officers had targeted him because he had previously
been convicted for a similar offence and had been kept in prison for
five months. The applicant maintained that he had been forced to sign
a prepared statement under duress in which he admitted to having
carried out illegal activities on behalf of the DHKP-C.
- On
12 February 1996 the applicant's father filed an application with the
Chief Public Prosecutor's office in Edirne inquiring into the
whereabouts of his son. He complained that he had not been able to
see or learn about the fate of his son since his detention by the
police officers on 8 February 1996 and that he was worried about his
son's life.
- On
the same day, the applicant was brought before the Edirne
Magistrates' Court (Edirne Sulh Ceza Mahkemesi), which ordered
his detention on remand. He allegedly raised his complaint concerning
the alleged ill-treatment before the court. He stated that he had
been tortured while in custody and denied the accusations during the
trial before the Istanbul State Security Court (“SSC”).
He did not, however, give details of the alleged ill-treatment, but
merely asserted that he had been threatened by the officers and had
signed documents without being aware of the contents.
2. The criminal proceedings before the Istanbul SSC
- On
11 March 1996 the Chief Public Prosecutor attached to the Istanbul
SSC filed a bill of indictment charging the applicant and four other
co accused with membership of an illegal armed organisation,
notably the DHKP-C, and aiding and abetting members of the said
organisation. The charges against the applicant were brought under
Article 168 § 2 of the Criminal Code and Article 5 of Law no.
3713 (Anti-terrorism Act). The indictment contained three counts of
crimes allegedly perpetrated by the applicant. Under count one, the
applicant was alleged to have been involved in distributing illegal
leaflets containing propaganda by the DHKP-C; count two consisted of
the allegations that the applicant had thrown a petrol bomb at a
lorry belonging to Ü.U. and that he had also put up a poster in
the entrance to a shop; and under count three, it was alleged that
the applicant had painted a slogan on the walls of a stadium.
- At
the hearing of 21 May 1996 held by the Istanbul SSC, the applicant
denied the charges against him and claimed that, following his arrest
on 6 February 1996, he had been subjected to various forms of torture
and that he had been forced to sign written statements prepared by
the police officers. He thus denied the accuracy of the statements
allegedly made by him during his detention in police custody. He
accepted that his statements before the Chief Public Prosecutor and
the investigating judge were true.
- In
his observations on the merits of the criminal proceedings against
the applicant and other co-accused, the public prosecutor submitted
that the applicant had denied the allegation that he had thrown a
petrol bomb at a cash dispenser belonging to a bank, but that other
co-accused had admitted to having committed the offence in question.
He noted, however, that there was sufficient evidence on which to
convict the applicant for having aided and abetted the illegal
organisation. Thus, the public prosecutor asked the court to apply
Article 169 of the Criminal Code and Article 5 of Law no. 3713
in respect of the applicant.
- On
20 March 1997 the applicant filed his observations on the merits of
the case and also responded to the public prosecutor's submissions.
He denied the charges against him and asserted that his statements at
the police station had been obtained under duress. He asserted that
only the statements which he had made before the judge were accurate.
- On
8 April 1997 the Istanbul SSC found the applicant guilty of the
offence under Article 169 of the Criminal Code, notably for aiding
and abetting the DHKP-C, and sentenced him to four years and six
months' imprisonment. The court noted that the applicant had earlier
been given leave to comment on the re-qualification of his acts as
constituting an offence under Article 169 rather than Article 168 §
2 of the Criminal Code. The court further reasoned that the
applicant's statements at the Security Directorate, the testimonies
of his co accused during the preliminary investigation, the
testimonies of the police officers under oath and the evidence
contained in the case-file had supported the conviction and
punishment of the applicant for the offence under Article 169 of the
Criminal Code.
- The
court also noted the applicant's allegations, as part of his defence
submissions, that he had been subjected to various forms of torture
and that he had been made to sign written statements prepared by the
police officers. However, relying on the medical report dated 12
February 1996, it found them unconvincing.
3. The appeal and subsequent proceedings
- On
21 May 1997 the applicant appealed to the Court of Cassation. He
argued that he had been convicted solely on the basis of the
statements made by him and his co-accused under duress at the police
station. He pointed out that his co-accused had already denied the
accuracy of the statements allegedly made by them in the police
station. He therefore contended that the first-instance court had
erred in its judgment in relying on the statements obtained under
duress.
- On
9 December 1997 the Court of Cassation quashed the judgment of the
first-instance court. It held that the applicant's activities were of
a varied and continuous nature. It therefore ruled that the applicant
should have been tried and convicted of the offence under Article 168
§ 2 of the Criminal Code, namely for membership of an illegal
armed organisation.
- By
a judgment of 7 July 1998 the Istanbul SSC reiterated its previous
finding that the applicant's acts constituted the offence under
Article 169 of the Criminal Code. The case was transferred to the
Grand Chamber of the Court of Cassation for Criminal Law Matters
(Yargıtay Ceza Genel Kurulu).
- On
11 May 1999 the Grand Chamber quashed the judgment of the
first-instance court. It reasoned that the evidence contained in the
case-file had clearly indicated that the applicant had been an active
member of the DHKP-C. The court therefore referred the case to the
Istanbul State Security Court for reconsideration.
- 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 Istanbul State Security Court hearing the
applicant's case was replaced by a civilian judge.
- On
22 July 1999 the applicant was examined by a medical doctor at the
Edirne Forensic Medicine Institute. The doctor noted that there was
no sign of ill-treatment or physical violence on the applicant's
body.
- By
a judgment of 4 April 2000 the Istanbul SSC, composed of three
civilian judges, adhered to the Court of Cassation's decision and
convicted the applicant for membership of an illegal armed
organisation, namely the DHKP-C, under Article 168 § 2 of the
Criminal Code. The court however acquitted the applicant of the
charges of throwing a petrol bomb at a lorry and burning down a cash
dispenser belonging to a bank. It sentenced the applicant to twelve
years and six months' imprisonment and further disbarred him from
public service.
- On
1 February 2002 the applicant was released from prison following a
decision to suspend the execution of his sentence.
- Following
the entry into force of the new Criminal Code on 1 June 2005, which
prescribed a less severe sentence under Article 314 § 2 for the
offence committed by the applicant, in a decision of 14 October 2005
the Istanbul Assize Court reviewed the applicant's sentence and
reduced it to six years and three months' imprisonment.
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).
- 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 not received a fair hearing by an
independent and impartial tribunal within the meaning of Article 6 §
1 of the Convention on account of the presence of a military judge
sitting on the bench of the Istanbul State Security Court. He alleged
further that his conviction had been based solely on the confessions
extracted from him under duress.
Article
6 § 1 of the Convention 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 this part of 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. The remainder of the application 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
İncal 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 Istanbul State Security Court was replaced only
at the last stage of the proceedings (see paragraph 24 above). Prior
to this period, the domestic court had already established the guilt
of the applicant. The only remaining issue to be decided by a bench
composed of the three civilian judges was the re-qualification of the
offence and the imposition of the final sentence subsequent to the
decision of the Grand Chamber of the Court of Cassation (see
paragraphs 21 and 26 above).
- In
this connection, the present application can be distinguished from
the Court's decision in the case of Mahmut Yaşar v. Turkey
(no. 46412/99 (dec.), 31 March 2005). In that case, in dismissing the
applicant's complaint concerning the alleged lack of independence and
impartiality of the Diyarbakır State Security Court, the Court
considered that subsequent to the decision of the 9th
Chamber of the Court of Cassation to quash its judgment, the
Diyarbakır State Security Court, composed of three civilian
judges, made a full re-examination of the facts of the case and a
re-assessment of the evidence, before once again convicting the
applicant. In the present case, however, the State Security Court was
bound by the decision of the Grand Chamber of the Court of Cassation
and has not re-examined or re-assessed the evidence.
- 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
- The
applicant maintained that the Istanbul State Security Court convicted
him on the basis of the statements obtained under torture.
- The
Government claimed that the applicant's allegations were manifestly
ill-founded. They noted in this connection that the domestic courts
examined the applicant's allegations and found that they were
unfounded having regard in particular to the medical report dated
12 February 1996 (see paragraph 10 above) and to the applicant's
failure to substantiate his claims.
- 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 in the circumstances of this case 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).
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 5,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000 for non-pecuniary damage.
- The
Government submitted that no award should be made under this heading
- 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 EUR 5,500 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 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 remainder of the application
admissible;
- Holds there has been a violation of Article 6 §
1 of the Convention as regards the complaint relating to the
independence and impartiality of the Istanbul State Security Court;
- Holds that it is not necessary to consider the
applicant's remaining complaint 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
claims for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naısmıth Boštjan M. Zupančič
Deputy
Registrar President
