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FOURTH
SECTION
CASE OF ÖNGÜN v. TURKEY
(Application
no. 15737/02)
JUDGMENT
STRASBOURG
23 June 2009
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 Öngün v.
Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David
Thór Björgvinsson,
Işıl Karakaş,
Mihai
Poalelungi, judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15737/02) 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 Ahmet Öngün
(“the applicant”), on 3 December 2001.
- The
applicant was represented by Mr S. Çetinkaya, a lawyer
practising in Izmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
10 October 2006 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
applicant's right to a fair hearing by an independent and impartial
tribunal to the Government. It also decided to examine the merits of
the application at the same time as its admissibility (Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Izmir.
- On
18 March 1999 the applicant was arrested and taken into police
custody on suspicion of involvement in various acts of arson with a
view to protesting against the arrest of Abdullah Öcalan, the
former leader of the PKK (Workers' Party of Kurdistan), an illegal
armed organisation.
- On
21 March 1999 the applicant was questioned by two police officers in
the absence of a lawyer. In the verbatim records, signed by the
applicant, the latter admitted, inter alia, to taking part in
three separate acts of arson together with Mr M.K. and Mr F.D. in
order to protest against the arrest of Abdullah Öcalan.
- On
22 March 1999 the applicant, Mr M.K. and Mr F.D. were first brought
before the prosecutor and later before a judge at the Izmir State
Security Court. On both occasions the applicant, who was not
represented by a lawyer, repeated his earlier statements and gave
details about each set of events. He also accepted the contents of
his police statement and verbatim records of a reconstruction of
events that had been carried out, and admitted that after each act
they had called the television station MED TV to claim responsibility
under the name of “Apo's tigers of revenge”.
- On
5 April 1999 the public prosecutor at the Izmir State Security Court
filed a bill of indictment with the latter, charging the applicant,
Mr M.K. and Mr F.D. under Article 168 § 2 of the Criminal
Code with membership of an illegal organisation and under
Articles 516 § 7, 517, 522 of the Criminal Code with, inter
alia, damaging other persons' property. They were accused of
setting fire to a car on 19 February 1999 and setting fire to
two buildings on 13 and 14 March 1999.
- On
7 April 1999 the Izmir State Security Court held a preparatory
hearing where it decided on procedural matters, such as the measures
to be taken for securing the presence of the accused.
- On
11 May 1999 the first-instance court held its first hearing, in the
presence of the applicant and his lawyer. It heard evidence from the
accused and three complainants, Mr A.Ş., Mr I.Ö. and Mr
H.K, who had not witnessed the incidents. It also read out the
evidence compiled at the pre trial investigation stage,
including witness statements and the verbatim records of the
reconstruction of events. Before the court the applicant retracted
his earlier submissions, claiming that he had made them under duress.
The co-accused also retracted their earlier statements on the same
grounds. He further contested the veracity of the verbatim records of
the reconstruction of events and other evidence which incriminated
him. The court did not respond to the applicant's lawyer's request to
make additional defence submissions under Article 169 of the Criminal
Code.
- On
18 June 1999 the Constitution was amended and the military judges
sitting on the bench of the State Security Courts were replaced by
civilian judges.
- At
the second hearing held on 19 August 1999 the judge who had been
appointed to replace the military judge sat as a member of the trial
court for the first time. The court heard another complainant, Mr
A.A., and gave a number of procedural decisions. The next hearing was
held on 7 October 1999 where the court heard evidence from one
complainant, Mr R.G., who had not witnessed the incidents, Ms
F.K., the sister of one of the accused who maintained that she and
her brother had been subjected to torture in custody, and Ms S.G., an
eye-witness to one act of arson who testified that the man she had
seen that night might have been one of the accused, namely, Mr M.K.
The court further asked the accused whether they had any additional
submissions to make under Article 169 of the Criminal Code. The
applicant and his lawyer submitted that they repeated their earlier
submissions. On the same day, following the parties' statement that
they did not wish any additional investigation (soruşturmanın
genişletilmesi) to be carried out, the prosecutor submitted
his observations on the merits and the accused were given time to
prepare their defence submissions.
- At
the hearing held on 11 November 1999 the court read out the defence
submissions of the accused and heard evidence from them. On the same
day, the court, referring particularly to the admissions the
applicant made at the pre trial stage, convicted the applicant
under Articles 169, 516 § 7, 517 and 522 of the
Criminal Code.
- On
17 August 2000 the Court of Cassation upheld the judgment as regards
the applicant's conviction for arson. It, however, quashed the
judgment as regards his conviction under Article 169 of the Criminal
Code on the ground that, in view of the statements of the accused,
partially accepted before a judge, obtained at the preliminary
investigation stage, he should have been tried under Article 168 of
the Criminal Code.
- On
9 November 2000 the Izmir State Security Court, taking into account
the evidence in the case file, in particular, the statements made by
the accused, including the applicant, at the pre-trial stage, held
that the applicant had acted in the name of an organisation when he
took part in arson, convicted him under Article 168 of the Criminal
Code and sentenced him to 12 years and six months' imprisonment.
- On
13 June 2001 the applicant appealed. In his petition, he submitted
that, apart from evidence obtained under duress at the pre-trial
stage, there was no evidence to demonstrate that he had taken part in
these acts. He further complained that there was nothing to indicate
that he was part of an illegal organisation and that therefore
Article 168 should not have been applied to him.
- On
29 June 2001 the Court of Cassation upheld the judgment of the
first-instance court.
- By
letter dated 16 June 2008 the applicant's representative informed the
Court that the applicant was no longer in prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time as
well as recent developments can be found in the following judgments:
Öcalan v. Turkey [GC], no. 46221/99, §§ 52-54,
ECHR 2005 IV, Aydoğan and Others v.
Turkey, no. 41967/02, § 17,
2 December 2008, Kolu v. Turkey, no. 35811/97, § 44,
2 August 2005, and Salduz v. Turkey [GC], no. 36391/02,
§§ 27-31, 27 November 2008.
THE LAW
- The
applicant complained, under Article 6 § 1 of the Convention,
that he had been denied a fair hearing on account of the presence of
a military judge on the bench of the Izmir State Security Court which
tried him.
- On
communication of the application to the respondent Government, a
question was raised ex officio concerning compliance with
Article 6 § 1 of the Convention with regard to the trial, on
account of the applicant's conviction on the basis of statements
which he had later retracted and which had been obtained during the
preliminary investigation.
- The
Government asked the Court to dismiss the application for failure to
comply with the requirement of exhaustion of domestic remedies, or,
alternatively, for failure to comply with the six-month rule. Under
the first limb of their objection, the Government argued, in general
terms, that the applicant had failed to raise his complaints before
the domestic courts. As regards the second limb of their objection,
the Government submitted that the applicant had failed to lodge his
application, as regards his complaint pertaining to the independence
and impartiality of the State Security Court, within six months
following the date on which the Court of Cassation had rendered its
first judgment on 17 August 2000.
- As
regards the applicant's complaint regarding the lack of independence
and impartiality of the Izmir State Security Court, the Court
considers it unnecessary to determine whether the applicant has
exhausted domestic remedies or complied with the six-month rule
within the meaning of Article 35 of the Convention because this
complaint is inadmissible for the following reasons.
- 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,
9 June 1998, § 68, Reports
of Judgments and Decisions
1998-IV, and Çıraklar
v. Turkey,
28 October 1998, § 39, Reports
1998-VII). The Court also found in
Öcalan
(cited above, §§ 114-115) that when a military judge
participated in one or more interlocutory decisions that
remained in effect during the criminal proceedings in question, 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 present case, the Court observes that the applicant's trial
commenced before the Izmir State Security Court, whose composition
included a military judge. On 19 August 1999, at the second hearing,
the military judge sitting on the bench of this court was replaced by
a civil judge. Consequently, when the applicant was convicted, inter
alia, of damaging other persons' property on 11 November 1999
and, later, of membership of an illegal organisation on 9 November
2000, the Izmir State Security Court was composed of three civilian
judges.
- The
Court notes that before his replacement, the military judge sat on
the bench of the State Security Court at the preparatory hearing and
at the first hearing. During this time, the court heard the accused
and three complainants, whose testimonies did not have any bearing on
the applicant's case (see Kabasakal and Atar v. Turkey,
nos. 70084/01 and 70085/01, § 34, 19 September 2006).
Although at the first hearing the court failed to respond to the
applicant's request to make additional submissions under Article 169
of the Criminal Code, this matter was remedied at the hearing held on
7 October 1999 (see paragraph 12 above). Therefore, no interlocutory
decisions of importance, in particular for the defence rights of the
applicant, were taken by the domestic court during these hearings. In
this connection, the Court notes that after the military judge was
replaced by a civilian judge, the domestic court went on to hold a
number of hearings, during which it heard the accused, including the
applicant, the prosecutor, two complainants and two witnesses. It
also took various decisions of minor importance. Furthermore, the
final submissions of both the public prosecutor and the applicant
were read out before the court, which was composed of three civilian
judges.
- The
Court has examined the respective importance of the procedural acts
which were carried out before and after the replacement of the
military judge. It finds that in the instant case none of the acts
which were carried out with the participation of the military judge
required immediate renewal after his replacement by a civilian judge
(see, among other authorities, Kabasakal and Atar, cited
above, § 34, and Tamamboğa and Gül v. Turkey,
no. 1636/02, § 47, 29 November 2007).
- In view of the overall proceedings, the Court finds
that, in the particular circumstances of the case, the replacement of
the military judge in the course of the proceedings allayed the
applicant's reasonably held concern about the trial court's
independence and impartiality (see, among other authorities, Osman
v. Turkey,
no. 4415/02, § 17, 19 December 2006). In the light of the
foregoing, the Court concludes that the applicant's complaint
concerning the independence and impartiality of the Izmir State
Security Court should be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
- As
to the fairness of the proceedings, the Court points out that this
matter was raised by it of its own motion and that it is not clear
whether the Government's preliminary objection regarding the
exhaustion of domestic remedies was duly raised under this head.
However, assuming that this was the case, the Court considers that
the applicant did raise the substance of the issue before the
judicial authorities (see paragraph 16 above) and, consequently, it
rejects the Government's preliminary objection under this head.
- The
Court notes 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.
- As
to the merits, the Court maintains that the taking of evidence is
governed primarily by the rules of domestic law and that it is in
principle for the national courts to assess the evidence before them.
The Court's task under the Convention is to ascertain whether the
proceedings in their entirety, including the way in which evidence
was taken, were fair (see, among other authorities, Edwards v. the
United Kingdom, 16 December 1992, § 34, Series A no.
247-B). All the evidence must normally be produced in the presence of
the accused at a public hearing with a view to adversarial argument.
However, the use as evidence of statements obtained at the stage of
the police inquiry and the judicial investigation is not in itself
inconsistent with paragraph 1 of Article 6, provided that the rights
of the defence have been respected. On this point, the Court relies
on the basic principles laid down in its judgments concerning the
notion of a fair procedure under Article 6 (see, in particular,
Imbrioscia v. Switzerland, 24 November 1993, § 36,
Series A no. 275, Öcalan, cited above, § 131;
Salduz, cited above, § 55, and Jalloh v. Germany
[GC], no. 54810/00, § 100, ECHR 2006-...). It will
examine the present case in the light of these principles.
- In
the instant case, the Court observes that prior to the trial the
applicant made self-incriminating statements to the police, the
public prosecutor and a judge at the State Security Court. On each of
these occasions the applicant did not have access to a lawyer and
there is no indication in the official documents that he was told
that he had the right to remain silent. Since there is nothing in the
case file to suggest that the applicant was subjected to
ill treatment or was otherwise coerced into making these
statements, particularly before the prosecutor and the judge on
22 March 1999, the Court considers that the examination of this
part of the application should be confined to the use by the trial
court of statements made at the pre-trial stage in the absence of a
lawyer.
- The
Court observes that the restriction imposed on the applicant's right
of access to a lawyer was systemic and applied to anyone held in
custody in connection with an offence falling under the jurisdiction
of the State Security Courts. In the Salduz judgment, the
Court found that this in itself falls short of the requirements of
Article 6 of the Convention (§ 56).
- The
Court further observes that the applicant had access to a lawyer
following his pre-trial detention and during the ensuing criminal
proceedings, when he had the possibility of challenging the
prosecution's arguments. Nevertheless, in convicting the applicant,
the Izmir State Security Court gave weight to statements the
applicant had later retracted and which had been obtained during the
pre-trial investigation in the absence of a lawyer. Thus, in the
present case, the applicant was undoubtedly affected by the
restrictions on his access to a lawyer. Neither the assistance
provided subsequently by a lawyer nor the adversarial nature of the
ensuing proceedings could cure the defects which had occurred while
the applicant was in custody (see, in particular,
Kolu, cited above, § 62, Salduz, cited
above, § 58, and Amutgan v. Turkey,
no. 5138/04, § 18, 3 February 2009).
- In
sum, even though the applicant had the opportunity to challenge the
evidence against him at the trial and subsequently on appeal, the
absence of a lawyer while he was in police custody irretrievably
damaged his defence rights.
- There
has therefore been a violation of Article 6 § 1 in the present
case.
- As
regards just satisfaction under Article 41 of the Convention, the
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 3,000 for the costs and expenses incurred both before
the domestic courts and before the Court. The Government contested
the amounts.
- As
regards non-pecuniary damage, ruling on an equitable basis, the Court
awards the applicant EUR 1,500.
- The Court further considers that the most appropriate
form of redress would be the retrial of the applicant in accordance
with the requirements of Article 6 of the Convention, should the
applicant so request (see Salduz,
cited above, § 72).
- As
to costs and expenses, in the absence of any documentary
justification for his claims under this head, as required by Rule 60
of the Rules of Court, the Court makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of
independence and impartiality of the Izmir State Security Court
inadmissible and the remainder of the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the applicant's conviction
on the basis of statements which had been obtained during the
pre-trial stage in the absence of a lawyer;
- 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 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non pecuniary damage, to be converted into 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 23 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
