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SECOND
SECTION
CASE OF HIDIR KAYA v. TURKEY
(Application
no. 2624/02)
JUDGMENT
STRASBOURG
9
January 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 Hıdır Kaya v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D.
Popović, judges,
and Mr S. Naismith, Deputy Section
Registrar,
Having
deliberated in private on 5 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2624/02) 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 Hıdır Kaya
(“the applicant”), on 10 December 2001.
- The
applicant was represented by Ms Y.I. Koluaçık, a lawyer
practising in Malatya. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
21 April 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 1971 and lives in İstanbul.
- On
14 April 1998 the applicant was taken into police custody by police
officers from the Prevention of Terrorism Department of the Istanbul
Security Directorate, on suspicion of membership of an illegal
organisation, namely the TKP/ (ML) TIKKO.
- On
15 April 1998 the applicant was interrogated at the Istanbul Security
Directorate, where he confessed to being a member of the illegal
organisation and taking part in several terrorist incidents. He also
maintained that he had left the organisation in 1994.
- On
17 April 1998 the applicant was taken before the public prosecutor,
where he confirmed his previous statements. On the same day the
applicant was seen by a doctor at the Forensic Institute who noted in
his report that there were no signs of blows on his body.
- After
having been taken to the public prosecutor’s office, the
applicant was brought before a judge at the Istanbul State Security
Court. He expressed regret that he had been a member of the illegal
organisation in the past. He noted, however, that he did not wish to
become a “confessor” (itirafçı
).
The judge ordered his remand in custody.
- Following
the non-jurisdiction decision of the public prosecutor at the
Istanbul State Security Court, the case file was transferred to the
Malatya State Security Court.
- On
28 April 1998, relying on the statements of four witnesses who had
also been detained on suspicion of membership of the same
organisation, the public prosecutor at the Malatya State Security
Court filed an indictment with the court, charging the applicant
under Article 146 of the Criminal Code with attempting to undermine
the constitutional order. The applicant was accused of participating
in four different armed attacks.
- On
28 May 1998 the first hearing was held before the Malatya State
Security Court. The court issued rogatory letters, requesting the
Çemişgezek and Elbistan Criminal Courts to take the
statements of three witnesses.
- At
the hearing of 23 June 1998, the court evaluated the witness
statements as well as the autopsy and incident reports sent by the
Malatya public prosecutor.
- At
the hearings of 21 July 1998 and 25 December 1998, the court took the
statements of two witnesses who confirmed the applicant’s
involvement with the terrorist activities of the illegal
organisation. The court also included in the case file the witness
statements taken by way of rogatory letters.
- On
18 June 1999 the Constitution was amended and the military judges
sitting on the bench of State Security Courts were replaced by
civilian judges. By that time, eighteen hearings had been held by the
Malatya State Security Court.
- On
24 February 2000 the applicant, who was brought before the Malatya
State Security Court to give his statement for the first time,
claimed that, although he had been a member of the organisation for a
while, he had not participated in any of the terrorist activities. He
maintained that he had merely purchased and transported goods for the
organisation. He denied his statements given in police custody,
alleging that they had been taken under duress. Moreover, he denied
his statements taken by the public prosecutor. He accepted that, at
the public prosecutor’s office, he had confessed to being a
member of the organisation. However, he argued that the public
prosecutor had not asked him about the acts in which he had taken
part. The applicant further denied the statements of the witnesses.
He claimed that he did not even know two of the witnesses.
- At
the following six hearings, the prison authorities again failed to
bring the applicant before the court. The court rescheduled the
hearings for later dates without taking any interlocutory decisions.
- At
the hearing of 16 May 2000, the applicant’s lawyer requested
the court to confront the applicant with the witnesses. Although the
court agreed to his request, the confrontation never occurred.
- On
29 August 2000 the prosecution made their final submissions. Relying
on the statements of the witnesses, the evidence collected during the
proceedings and the incident reports, they sought the applicant’s
life imprisonment, pursuant to Article 146 of the Criminal Code.
- On
21 November 2000 the applicant was present in court. He contended
that, although he had been a member for a year, he had left the
organisation five years ago. He further maintained that he had never
participated in any of the terrorist activities.
- In a letter dated 19 December 2000, the applicant’s
lawyer requested the court to disregard his statements given during
the preliminary stage of the proceedings as he had been under
pressure during that period. Furthermore he maintained that the
statements of the witnesses should be disregarded as these were
either unsubstantiated or given in order to benefit from the law that
protected “confessors”. On the same day, relying
on the applicant’s statements given at the preliminary stage of
the proceedings as well as before the court, the statements of the
witnesses and the incident reports, the Malatya State Security Court
found the applicant guilty as charged, sentenced him to life
imprisonment for offences under Article 146 § 1 of the Criminal
Code, and permanently debarred him from employment in the civil
service.
- On
26 January 2001 the applicant lodged an appeal with the Court of
Cassation, arguing that the lower court should have considered his
acts under Article 168 of the Criminal Code which penalised
forming an armed gang to undermine the State’s independence. He
also argued that, if the court insisted on convicting him under
Article 146 of the Criminal Code, than his sentence should have been
reduced, as he had repented.
- On
28 May 2001 the Court of Cassation upheld the applicant’s
conviction. On 2 July 2001 the decision of the Court of Cassation was
submitted to the registry of the first instance court.
- On
13 August 2003 the applicant filed a request with the Malatya State
Security Court in order to benefit from Law no 4959 on the
reintegration of offenders into society, which came into force
in 6 August 2003.
- On
29 April 2004, at the end of the hearing, which was held in the
presence of three civilian judges, the Malatya State Security Court
reduced the applicant’s sentence to nine years’
imprisonment.
II. THE RELEVANT DOMESTIC LAW
- 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
Gençel v. Turkey (no. 53431/99, §§ 11 12,
23 October 2003).
- 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 he was denied a fair
trial by the Malatya State Security Court which had lacked
independence and impartiality. He also alleged that he had been
convicted on the basis of statements he had made to the police under
duress. He argued that he was deprived of his right to defend himself
as he had not been brought before the court until almost two years
after the trial had begun.
Furthermore,
the applicant complained that the courts had erroneously interpreted
domestic law as they had not considered his acts under Article 168
of the Criminal Code. He relied on Article 6 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:
(b) to have adequate time and facilities for
the preparation of his defence;
(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.”
- The
Government argued that the applicant was re-tried by a court made up
of civilian judges and his prison sentence was considerably reduced,
in accordance with Law no. 4959.
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
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 on the bench of the Malatya State Security Court.
- The Government referred to the constitutional
amendment of 1999 whereby military judges could no longer sit on such
courts, and contended that the applicant cannot therefore claim to be
a victim of a violation of the Convention in this respect. They
further informed the Court that by Law no. 5190 of 16 June 2004
the State Security Courts had been abolished.
- The
Court has consistently held in earlier cases that certain aspects of
the status of military judges sitting as members of the State
Security Courts made their independence from the Executive
questionable (see, Incal v. Turkey, judgment of 9 June 1998,
Reports of Judgments and Decisions 1998-IV, § 68;
Çiraklar v. Turkey, judgment of 28 October 1998,
Reports 1998-VII, § 39).
- In
the present case, the Court notes that, following the constitutional
amendment (see paragraph 14 above), the military judge was replaced
by a civilian judge, and the applicant was convicted by the newly
composed State Security Court. It observes, however, that although
the applicant’s trial continued before the Malatya State
Security Court which was composed of three civilian judges for more
than a year, the replacement of the military judge was not capable of
curing the defect in the composition of the court.
- In
particular, 18 hearings had already taken place prior to the
replacement of the military judge. At these hearings the court heard
the witnesses whose testimony played a key role in the applicant’s
conviction (paragraphs 10-13 above; see, a contario, Kabasakal
and Atar v. Turkey,
no. 70084/01 and 70085/01, § 34, 19 September 2006). The entire
prosecution case against the applicant was based on the information
already obtained by that stage (paragraph 18 above). In short, most
of the trial had already taken place before the military judge ceased
to be a member of the court.
- The
Court further observes that the Malatya State Security Court, when
composed of three civilian judges, did not take any decision
concerning the merits of the case. Except the applicant’s own
statements dated 24 February and 21 November 2000, no other
statements or evidence were admitted to the case file after the
military judge was replaced by the civilian judge. Despite the
objections of both the applicant and his lawyer, the witness
statements obtained while the military judge was still a member of
the court were not excluded from the case file (paragraphs 15
and 20 above). In its final decision of 24 February 2000, the State
Security Court convicted the applicant relying on his statements
given at the preliminary stage and before the court, as well as on
the documents and witness statements previously admitted to the case
file.
- Additionally,
the Court notes that, upon the applicant’s request
of 13 August 2003, the State Security Court did not
re-examine the merits of the case, but merely reviewed the sentence,
in accordance with the Law no. 4959 (paragraphs 23-24 above).
- Consequently,
taking into account the importance of the procedural acts taken
before the replacement of the military judge, in particular the
taking of key witness statements, the Court considers that the
replacement of the military judge before the end of the proceedings
did not dispose of the applicant’s reasonably held concern
about the trial court’s independence and impartiality.
- In
the light of above, the Court concludes that the Malatya State
Security Court, which convicted the applicant, was not an independent
and impartial tribunal within the meaning of Article 6 § 1 of
the Convention. Consequently, there has been a violation of this
provision.
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 separately his other complaints under Article 6 of the
Convention relating to the fairness of the proceedings before the
domestic courts (see, among other authorities, İncal,
cited above, § 74, and Işık v.
Turkey, no. 50102/99, §§ 38-39, 5 July 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 10,000 euros (EUR) in respect of pecuniary and
non-pecuniary damages.
- The
Government maintained that the amount requested by the applicant 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 İncal, 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, no. 46221/99 [GC], § 210, in fine, ECHR
2005 - ...).
B. Costs and expenses
- The
applicant also claimed EUR 2,000 for the costs and expenses incurred
both before the domestic courts and before the Court. The applicant
did not submit any receipt or documents in support of his claim.
- 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 information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and finds it reasonable to award the sum of EUR 1,000 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 complaint relating to the
independence and impartiality of the Malatya State Security Court;
- Holds that it is not necessary to examine
separately the applicant’s other complaints under Article 6 of
the Convention;
4. 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, to be converted into New Turkish liras at the rate
applicable at the day of settlement, plus any tax that may be
chargeable;
(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 9 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Naismith J.-P. Costa
Deputy Registrar President
