ECtHR - Öcalan v Turkey, Application no. 46221/99, 12 March 2003

Facts:

The applicant was the leader of the PKK (Workers’ Party of Kurdistan), considered to be a terrorist organisation by the Turkish Government. When he was expelled from Syria he sought political asylum in several countries before being arrested in Kenya by Turkish authorities and detained in Turkey. His access to legal assistance was restricted and his meetings with lawyers monitored by Turkish authorities. A military judge made up the panel of the national court which tried him for the majority of his trial. He was sentenced to the death penalty and his appeal failed. However, a change in Turkish law with regard to the death penalty meant his sentence was then commuted to a life sentence. The applicant brought a claim against Turkey for violations of Articles 2, 3, 5, 6, 7, 8, 9, 10, 13, 14, 18 and 34.

Decision & reasoning:

Firstly, there was found to be a violation of Article 5 § 4. Although a remedy existed in theory under Turkish law, there was no evidence that it had ever worked in practice. Moreover, with regard to the special circumstances of the case (e.g. he had no legal training and no access to his lawyers) it was found the applicant could not be thought to have effective recourse with which to challenge his detention.

Article 5 § 1 was not held to have been violated. The seven arrest warrants issued by Turkey and the wanted notice circulated by Interpol provided a legal basis for the arrest and there was found to be enough evidence of cooperation between Kenya and Turkey to show that the abduction did not result from a violation of Kenyan sovereignty. Therefore the arrest was in accordance with domestic law and the court held that a fugitive being handed over as a result of cooperation did not itself constitute an unlawful act. Thus the applicant’s arrest must be seen as in accordance with a ‘procedure prescribed by law’.

There was held to be a violation of Article 5 § 3. Although terrorists pose a special problem for authorities the Court held that, in light of case law, this did not justify the applicant being detained for 7 days before being brought before a judge.

Article 6 § 1 was found to have been violated with regard to whether Ankara State Security Court was independent and impartial. The applicant’s doubts with regard to the impartiality and independence of the court were found to be objectively justified in respect of the presence of a military judge on the panel. Although this was changed at the last minute before the end of the trial to a civilian judge, this could not have removed the effect that the presence of a military judge may have had on this high profile case.

There was held to be violation of Article 6 § 1 taken with Article 6 § 3 (b) and (c) due to various unjustified restrictions on his rights as the defence. This included restrictions on the number and length of legal visits, being unable to communicate with his lawyers out of the hearing of third parties and delays/restrictions regarding access of his case file.

With regard to the implementation of the death penalty, Articles 2, 3 and 4 were not held to have been violated because there were no longer any substantial grounds for fearing that the applicant would be subjected to it, notwithstanding the appeal regarding his sentence.

With regard to the imposition of the death penalty, Article 3 was held to have been violated. It was held that imposing the death penalty following an unfair trial ran counter to the Convention and constituted inhuman treatment considering the irreversible nature of the death penalty. Moreover, the high profile nature of the case and the applicant’s status as the most wanted person in Turkey meant that the risk it would be implemented was real. This risk lasted more than three years.

With regard to the conditions of arrest and transfer, Article 3 was not held to have been violated. The arrest was lawful under Turkish law. Moreover, the humiliation suffered must be beyond the usual degree of that inherent in arrest and the factors mentioned such as blindfolding were considered to be justifiable security measures.

With regard to the conditions of detention, Article 3 was also held not to have been breached considering the difficulties posed to the authorities by his detention. Furthermore, the standard of his cell could not be criticised and he was not in sensory isolation.

Article 34 was not found to have been violated in fine. Although his legal representatives were unable to contact him following his arrest the applicant was still able to lodge complaints with the Court, suggesting he was not significantly impeded from making an individual application. The Government failed to comply with the request for information initially but then eventually provided the information and the applicant was not left unable to make his case.

The Court held there was no need for a separate examination of the violation of Articles 7, 8, 9, 10, 13, 14 and 18 on the same facts.

Finally, with regard to Article 41 it was held that damages were not necessary and satisfaction with the findings of violations was enough. 100,000 EUR was awarded for costs and expenses.

Outcome:

Application granted with regard to the violation of Articles 5 § 4, 5 § 3, 6 § 1, 6 § 1 taken with Article 6 § 3 (b) and (c) and 3 (re: imposition of death penalty following an unfair trial) of the Convention and denied with regard to the violation of Articles 5 § 1, 2, 14 taken together with Article 2, 3 (re: implementation of death penalty and conditions of transfer and detention) and 34 in fine of the Convention.

Observations/comments:

This case summary was written by Tabatha Pinto, GDL student at BPP University. 

Other sources:

Further cases cited:

Reid v Jamaica (no. 250/1987) UNHRC, 20 July 1990

Daniel Mbenge v Zaire (Communication no. 16/1977, 8 September 1977, U.N. Doc. Supp. no. 40, [A/38/40], at 134 [1983])

Wright v Jamaica (Communication no. 349/1989, U.N. Doc. CCPR/C/45/D/349/1989 [1992])

Hilaire, Constantine and Benjamin et al v Trinidad and Tobago, Inter-American Court of Human Rights, 21 June 2002

Reg. v Hartley, New Zealand Court of Appeal, New Zealand Law Reports 1978, vol. 2, p. 199

United States v Toscanino, United States Court of Appeal for the Second Circuit (1974) 555 F. 2d. 267, 268

Mohammed and Dalvie v The President of the Republic of South Africa and others, Constitutional Court of South Africa (CCT 17/01, 2001 (3) SA 893 CC)

S v Makwanyane, Constitutional Court of South Africa (1995) (6) Butterworths Constitutional Law Reports 665

US v Burns, Canadian Supreme Court (2001) SCC 7

Further sources cited:

European Court of Human Rights interim measure of 30 November 1999

Statement by the Kenyan Minister of Foreign Affairs on 16 February 1999

Turkish Government letter to the Court of 19 September 2002

Opinion No. 233 (2002) of the Parliamentary Assembly of the Council of Europe on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances

Resolution 1187 (1999) on Europe: a death penalty free continent

Resolution 1253 (2001) on the Abolition of the death penalty in Council of Europe Observer states

Article X § 2 of the ‘Guidelines on Human Rights and the Fight Against Terrorism’ issued by the Committee of Ministers of the Council of Europe on 15 July 2002

Article 5 of the Resolution 1984/50 of 25 May 1984 on Safeguards guaranteeing protection of the rights of those facing the death penalty of the Economic and Social Council of the United Nations

Inter-American Court of Human Rights Advisory Opinion on ‘The right to information on consular assistance in the framework of the guarantees of due process of law’ (Advisory Opinion OC-16/99 of 1 October 1999)

Advisory Opinion on ‘Restrictions to the Death Penalty’ (Advisory Opinion OC-3/83 of 8 September 1983, Series A No. 3)

Article 5 of ECOSOC Resolution 1984/50