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FOURTH
SECTION
CASE OF FEHMİ KOÇ v. TURKEY
(Application
no. 71354/01)
JUDGMENT
STRASBOURG
27 March
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 Fehmi Koç 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 6 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 71354/01) 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 Fehmi Koç (“the
applicant”), on 28 October 2000.
- The
applicant was represented by Mr F. Gümüş, a lawyer
practising in Diyarbakır. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
8 July 2005 the Court
decided to communicate the application. Applying Article 29 § 3
of the Convention, it decided to rule on the admissibility and merits
of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and he is currently detained in the
Diyarbakır Prison.
- On 12 March 1995 the applicant was taken into police
custody on suspicion of membership of an illegal organisation.
- On 10 April 1995 he was brought before a single judge
of the Diyarbakır State Security Court who ordered his detention
on remand. In the course of the proceedings before the court, the
applicant denied the statements that he had signed while he was in
police custody.
- On
13 April 1995 the chief public prosecutor at the Diyarbakır
State Security Court filed a bill of indictment with the latter
charging the applicant and sixteen other suspects, 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.
- In
the course of the criminal proceedings, the Diyarbakır State
Security Court held thirty hearings and heard seventeen witnesses.
- On 3 June 1999 the Diyarbakır State Security Court
composed of two civilian judges and a military judge, convicted the
applicant as charged and sentenced him to death under Article 125 of
the Criminal Code. Taking into account the applicant's conduct during
the trial, the death penalty was commuted to a life sentence.
- On 4 June 1999 the applicant appealed against the
judgment of the State Security Court.
- On 21 February 2000 the Court of Cassation upheld the
judgment of the State Security Court.
- On 5 May 2000 the Court of Cassation's decision was
deposited with the registry of the Diyarbakır State Security
Court.
II. RELEVANT DOMESTIC LAW
- A
full description of the domestic law may be found in Özel
v. Turkey (no. 42739/98, §§ 20-21, 7 November
2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. As regards the independence and impartiality of the
Diyarbakır State Security Court and the fairness of the
proceedings
- The
applicant complained that he had not received a fair trial by an
independent and impartial tribunal due to the presence of a military
judge on the bench of the Diyarbakır State Security Court, which
tried and convicted him. 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 invoked Article 6 § 1
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.
1. Admissibility
- The
Government argued under Article 35 of the Convention that the
applicant's complaint in respect of the independence and impartiality
of the Diyarbakır State Security Court must be rejected for
failure to comply with the six-month rule. They maintained that since
the applicant complained of the lack of independence and impartiality
of the Diyarbakır State Security Court, he should have lodged
his application with the Court within six months of the date on which
that court rendered its judgment, namely on 3 June 1999.
- They
further argued that this complaint must anyhow be rejected for
non-exhaustion of domestic remedies. They maintained that the
applicant had not raised this complaint before the domestic courts.
In this respect, they referred to the case-law of the Court (in
particular, Remli v. France, judgment of 23 April 1996,
Reports of Judgments and Decisions 1996 II, p. 571,
§ 33).
- As
to the Government's preliminary objection concerning the alleged
non compliance with the six-month rule, the Court reiterates
that it has already examined similar preliminary objections of the
Government in the past and has rejected them (see Özdemir v.
Turkey, no. 59659/00, § 29, 6 February 2003;
Doğan and Keser v. Turkey, nos. 50193/99 and 50197/99, §
17, 24 June 2004). The Court finds no particular circumstances in the
instant case which would require it to depart from its findings in
the above-mentioned cases.
- As
to the objection concerning the alleged non exhaustion of
domestic remedies, the Court finds no basis for departing in this
particular application from its findings in similar cases (see Vural
v. Turkey, no. 56007/00, § 22, 21 December 2004;
Çolak v. Turkey (no. 1), no. 52898/99, § 24,
15 July 2004; Özel, cited above, § 25).
- Accordingly,
the Court rejects the Government's preliminary objections.
- In
the light of its established case-law (see, amongst many authorities,
Çıraklar v. Turkey, judgment of 28 October 1998,
Reports 1998-VII), and in view of the materials submitted to
it, the Court considers that the applicant's 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 this part of 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. It must therefore be declared admissible.
2. Merits
a) As to the independence and impartiality
of the Diyarbakır 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 to find that the applicant could have any legitimate doubts
about the independence of the Diyarbakır State Security Court.
The Government further referred to the constitutional amendment of
1999 whereby military judges could no longer sit on such courts. In
this connection, they noted that the state security courts had been
abolished as of 2004.
- The
Court notes that it has examined similar cases in the past and has
found a violation of Article 6 § 1 of the Convention (see Özel,
cited above, §§ 33-34; Özdemir, cited above, §§
35-36). The Court finds no reason to reach a different conclusion in
the instant case. Accordingly, the Court concludes that there has
been a violation of Article 6 § 1 in this respect.
b) As to the fairness 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).
B. As regards the length of 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.
- The
Government disputed the applicant's allegation and 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
seventeen suspects, including the applicant. In this connection, they
noted that the prosecuting authorities had to establish the
involvement of the applicant in a number of illegal acts, namely the
burning of a bus in Diyarbakır on 25 February 1995, a bomb
attack on a stadium during a football game on 5 March 1995 and
another bomb attack on a transformer on 20 March 1995.
- Furthermore,
the Government averred that the applicant had caused a substantial
delay of almost three years in the course of the proceedings. They
pointed out that the applicant had failed to appear at the State
Security Court hearings of 27 June 1998, 1 July 1998, 3 September
1998, 22 October 1998, 10 December 1998, 11 February 1999, 11 March
1999, and 15 April 1999. Nor did the applicant and his counsel appear
at the hearings of 20 May 1999 and 3 June 1999 in order to make
concluding submissions. The applicant refused to attend these
hearings because he did not want to be searched by the security
forces.
- The
Court notes that the proceedings began on 12 March 1995 when the
applicant was taken into police custody, and ended on 21 February
2000, when the Court of Cassation upheld the judgment of the
Diyarbakır State Security Court. The proceedings thus lasted
four years and eleven months.
- 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, the Court notes that the applicant
failed to indicate any period of inactivity attributable to the
national authorities.
- As
regards the conduct of the applicant, it appears from the
Government's submissions that the applicant and his counsel failed to
attend ten hearings which caused a substantial delay in the
proceedings (see paragraph 26 above). These submissions were not
challenged by the applicant.
- In
the light of the foregoing, the Court considers that the national
authorities cannot be faulted for the length of the proceedings
before the Diyarbakır State Security Court which lasted four
years, one month and twenty days. The proceedings before the Court of
Cassation lasted approximately eight and a half months, which period
cannot be considered excessive.
- It
follows that there has been no violation of Article 6 § 1 of the
Convention.
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
applicant did not submit any claims for just satisfaction, although
he was requested to do so in the Registry's letter of 8 November
2005. In the absence of any quantified claim, the Court makes no
award under this heading (see Rule 60 §§ 1 and 2 of the
Rules of Court).
- Even
though the applicant submits no claims for just satisfaction, where
the Court finds that an applicant has been convicted by a tribunal
which is not independent and impartial within the meaning of Article
6 § 1, it considers that, in principle, the most appropriate
form of relief would be to ensure that the applicant is granted in
due course a retrial by an independent and impartial tribunal (Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003).
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;
- Makes no award in respect of just satisfaction.
Done in English, and notified in writing on 27 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
