The European Court of Human Rights has today notified in writing a judgment [fn] in the case of Öcalan v. Turkey (application no. 46221/99) concerning the applicant’s complaints relating, in particular, to the death penalty, alleged ill-treatment and his detention and trial.

The Court held, unanimously, that there had been:

• no violation of Article 5 § 1 (no unlawful deprivation of liberty) of the European Convention on Human Rights in that the applicant’s arrest and detention had not been
• unlawful under the Convention;
• a violation of Article 5 § 3 (right to be brought promptly before a judge) given the failure to bring the applicant before a judge promptly after his arrest;
• a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) given the lack of a remedy by which the applicant could have the lawfulness of his detention in police custody decided.

The Court held:

• by six votes to one, that there had been a violation of Article 6 § 1 in that the applicant was not tried by an independent and impartial tribunal;
• and unanimously that there had been a violation of Article 6 § 1 (right to a fair trial), taken together with Article 6 § 3 (b) (right to adequate time and facilities for preparation of defence) and (c) (right to legal assistance), in that the applicant did not have a fair trial.

The Court held:

• unanimously, that there had been no violation of Article 2 (right to life);
• unanimously, that there had been no violation of Article 3 (prohibition of ill-treatment) of the Convention, concerning the implementation of the death penalty;
• and, by six votes to one, that there had been a violation of Article 3 concerning the imposition of the death penalty following an unfair trial.

The Court held, unanimously, that there had been:

• no violation of Article 3 of the Convention, concerning the conditions in which the applicant was transferred from Kenya to Turkey and the conditions of his detention on the island of İmralı.

• no violation of Article 14 of the Convention (prohibition of discrimination), taken together with Article 2 as regards the implementation of the death penalty;
• no violation of Article 34 of the Convention (right of individual application).

Finally the Court held, unanimously, that no separate examination was necessary of the applicant’s remaining complaints under Articles 7 (no punishment without law), 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 13 (right to an effective remedy), 14 and 18 (limitation on use of restrictions on rights).

Under Article 41 (just satisfaction), the Court held unanimously that its findings of a violation of Articles 3, 5 and 6 of the Convention constituted in themselves sufficient just satisfaction for any damage sustained by the applicant and awarded the applicant’s lawyers 100,000 euros (EUR) for costs and expenses.

Abdullah Öcalan, a Turkish national born in 1949 and former leader of the Kurdistan Workers’ Party (PKK), is currently incarcerated in İmralı Prison (Bursa, Turkey).

At the time of the events in question, the Turkish courts had issued seven warrants for Mr Öcalan’s arrest and a wanted notice (red notice) had been circulated by Interpol. He was accused of founding an armed gang in order to destroy the integrity of the Turkish State and of instigating terrorist acts resulting in loss of life.

On 9 October 1998 he was expelled from Syria, where he had been living for many years. From there he went to Greece, Russia, Italy and then again Russia and Greece before going to Kenya, where, on the evening of 15 February 1999, in disputed circumstances he was taken on board an aircraft at Nairobi airport and arrested by Turkish officials. He was then flown to Turkey, being kept blindfolded for most of the flight.

On arrival in Turkey, a hood was placed over his head while he was taken to İmralı Prison, where he was held in police custody from 16 to 23 February 1999 and questioned by the security forces. He received no legal assistance during that period and made several self-incriminating statements which contributed to his conviction. His lawyer in Turkey was prevented from travelling to visit him by members of the security forces. 16 other lawyers were also refused permission to visit on 23 February 1999.

On 23 February 1999 the applicant appeared before an Ankara State Security Court judge, who ordered him to be placed in pre-trial detention.

The first visit from his lawyers was restricted to 20 minutes and took place with members of the security forces and a judge present in the same room. Subsequent meetings between the applicant and his lawyers took place within the hearing of members of the security forces. After the first two visits from his lawyers, the applicant’s contact with them was restricted to two one-hour visits a week. The prison authorities did not authorise the applicant’s lawyers to provide him with a copy of the documents in the case file, other than the indictment. It was not until the hearing on 2 June 1999 that the State Security Court gave the applicant permission to consult the case file under the supervision of two registrars and his lawyers permission to provide him with a copy of certain documents.

In an indictment filed on 24 April 1999 the Public Prosecutor at Ankara State Security Court accused the applicant of carrying out actions calculated to bring about the separation of a part of Turkish territory and of forming and leading an armed gang to achieve that end. The Public Prosecutor asked the court to sentence the applicant to death under Article 125 of the Criminal Code. On 29 June 1999 the applicant was found guilty as charged and sentenced to death under Article 125. The Court of Cassation upheld the judgment.

On 30 November 1999 the European Court of Human Rights, applying Rule 39 of the Rules of Court (interim measures), requested the Turkish authorities "to take all necessary steps to ensure that the death penalty [was] not carried out so as to enable the Court to proceed effectively with the examination of the admissibility and merits of the applicant’s complaints under the Convention".

In October 2001 Article 38 of the Turkish Constitution was amended, abolishing the death penalty except in time of war or of imminent threat of war or for acts of terrorism. Under Law no. 4771, published on 9 August 2002, the Turkish Assembly resolved to abolish the death penalty in peacetime. On 3 October 2002 Ankara State Security Court commuted the applicant’s death sentence to life imprisonment.

An application to set aside the provision abolishing the death penalty in peacetime for persons convicted of terrorist offences was dismissed by the Constitutional Court on 27 December 2002. On 9 October 2002 two trade unions which had intervened in the criminal proceedings lodged an appeal on points of law against the decision to commute Mr Öcalan’s death sentence to life imprisonment. These proceedings are still pending.

The application was lodged with the European Court of Human Rights on 16 February 1999. A hearing was held on 21 November 2000 and the case was declared partly admissible on 14 December 2000.

Judgment was given by a Chamber of seven judges, composed as follows:

Elisabeth Palm (Swedish), President,
Wilhelmina Thomassen (Netherlands),
Gaukur Jörundsson (Icelandic),
Riza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Josep Casadevall (Andorran),
Rait Maruste (Estonian), judges,

and also Michael O’Boyle, Section Registrar.

The applicant complained, in particular, that:

• The imposition and/or execution of the death penalty was or would be in violation of Articles 2, 3 and 14 of the Convention; and that the conditions in which he was transferred from Kenya to Turkey and detained on the island of İmralı amounted to inhuman treatment in breach of Article 3;
• He was deprived of his liberty unlawfully; that he was not brought promptly before a judge; and that he did not have access to proceedings to challenge the lawfulness of his detention, in breach of Article 5 §§ 1, 3 and 4;
• He did not have a fair trial because he was not tried by an independent and impartial tribunal, given the presence of a military judge on the bench of the State Security Court; that the judges were influenced by hostile media reports; and that his lawyers were not given sufficient access to the court file to enable them to prepare his defence properly, in breach of Article 6 § 1;
• His legal representatives in Amsterdam were prevented from contacting him after his arrest and/or that the Turkish Government failed to reply to the European Court of Human Right’s request for them to supply information, in violation of Article 34.

He also relied on Articles 7, 8, 9, 10, 13, 14  and 18 of the Convention.

The Government, by way of preliminary objection, had argued that the applicant’s complaints under Article 5 §§ 1, 3 and 4 should be rejected for failure to exhaust domestic remedies. In its admissibility decision of 14 December 2000, the Court had noted that this question was so closely related to the merits of the complaints under Article 5 § 4 that it could not be detached from that complaint. Accordingly, the Court examined the Government’s preliminary objections in the context of the applicant’s claim under Article 5 § 4 and addressed that complaint first.

Article 5 § 4 of the Convention (right to have lawfulness of detention decided speedily by a court)

The Court observed that, despite a 1997 amendment to Article 128 of the Turkish Code of Criminal Procedure which clearly established a right under Turkish law to challenge in the courts decisions to hold a suspect in police custody, the Government had not furnished any example of a judicial decision in which an order by the public prosecutor’s office at a State Security Court for a suspect to be held in police custody had been quashed before the end of the fourth day (the statutory maximum period for which the public prosecutor’s office may order suspects to be held).

The Court considered that in any event the special circumstances of the case, notably the fact that he had been kept in isolation and that his lawyers had been obstructed by the police, made it impossible for the applicant to have effective recourse to this remedy.

The Court therefore dismissed the Government’s preliminary objection in respect of Article 5 § 4 and held that there had been a violation of that provision. For the same reasons, it rejected the preliminary objection in respect of the complaints under Article 5 §§ 1 and 3.

Article 5 § 1 of the Convention (no unlawful deprivation of liberty)

The Court found that the applicant’s arrest and detention had complied with orders that had been issued by the Turkish courts "for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence" within the meaning of Article 5 § 1 (c).

Moreover, it had not been established beyond all reasonable doubt that the operation carried out in the instant case partly by Turkish officials and partly by Kenyan officials amounted to a violation by Turkey of Kenyan sovereignty and, consequently, of international law.

It followed that the applicant’s arrest on 15 February 1999 and his detention were to be regarded as having been in accordance with "a procedure prescribed by law" for the purposes of Article 5 § 1 of the Convention. Consequently, there had been no violation of that provision.

Article 5 § 3 of the Convention (right to be brought promptly before a judge)

The Court noted that the total period spent by the applicant in police custody before being brought before a judge came to a minimum of seven days. It could not accept that it was necessary for the applicant to be detained for such a period without being brought before a judge. There had accordingly been a violation of Article 5 § 3.

The Court had found in earlier judgments that certain aspects of the status of military judges sitting in the State Security Courts raised doubts as to the independence and impartiality of the courts concerned. In the Court’s view, the last-minute replacement of the military judge was not capable of curing the defect in the composition of the court which had led it to find a violation on this point in previous judgments.

In the exceptional circumstances of the case, moreover, the presence of a military judge could only have served to raise doubts in the accused’s mind as to the independence and impartiality of the court.

The Court concluded that the Ankara State Security Court, which had convicted the applicant, had not been an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention. Consequently, there had been a violation of that provision on that point.

The Court noted that the applicant had not been assisted by his lawyers when questioned in police custody, had been unable to communicate with them out of hearing of third parties and had been unable to gain direct access to the case file until a very late stage in the proceedings. Furthermore, restrictions had been imposed on the number and length of his lawyers’ visits and his lawyers had not been given proper access to the case file until late in the day.

The overall effect of these difficulties taken as a whole had so restricted the rights of the defence that the principle of a fair trial, as set out in Article 6, had been contravened. There had therefore been a violation of Article 6 § 1, taken together with Article 6 § 3 (b) and (c).

As regards the other complaints under Article 6 of the Convention, the Court took the view that it had already dealt with the applicant’s main grievances arising out of the proceedings against him in the domestic courts. It was therefore unnecessary to examine the other complaints under Article 6 relating to the fairness of the proceedings.

Articles 2, 3 and 14 of the Convention (death penalty)

The applicant maintained that the imposition and/or execution of the death penalty constituted a violation of Article 2 – which should be interpreted as no longer permitting capital punishment – as well as an inhuman and degrading punishment in violation of Article 3 of the Convention. He also claimed that his execution would be discriminatory in breach of Article 14.

The Government had submitted that the allegations raised by the applicant under Article 2 of the Convention should be rejected as inadmissible on the grounds that the death penalty had now been abolished in Turkey. The Court observed that in the present case the applicant had been sentenced to death and had spent more than three years detained in isolation awaiting a determination of his fate. Up until recently there had been reason to fear that the death sentence would be implemented. In addition, his complaint related not only to the question of the implementation of the sentence but also to that of its imposition. Accordingly, it was more appropriate to examine the issues raised by the death penalty on the merits.

The Court therefore rejected the Government’s plea.

The Court considered that the threat of implementation of the death sentence had been effectively removed. It could no longer be said that there were substantial grounds for fearing that the applicant would be executed, notwithstanding the appeal which was still pending.

In those circumstances, the applicant’s complaints under Articles 2, 3 and 14 based on the implementation of the death penalty were to be rejected.

It remained to be determined whether the imposition of the death penalty, in itself, gave rise to a breach of the Convention.

(i) Article 2

At the outset the Court considered that no separate issue arose under the present head as regards Article 2 and preferred to examine this question under Article 3.

(ii) Article 3 read against the background of Article 2

(a) Legal significance of the practice of the Contracting States as regards the death penalty

The Court reiterated that the Convention was to be read as a whole and that Article 3 was to be construed in harmony with the provisions of Article 2. If Article 2 was to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 could not be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1. Accordingly, the Court had first to address the applicant’s submission that the practice of the Contracting States in this area could be taken as establishing an agreement to abrogate the exception provided for in the second sentence of Article 2 § 1, which explicitly permitted capital punishment under certain conditions.

In the Court’s view, it could not now be excluded, in the light of the developments that had taken place in this area, that the States had agreed through their practice to modify the second sentence in Article 2 § 1 in so far as it permitted capital punishment in peacetime. Against this background it could also be argued that the implementation of the death penalty could be regarded as inhuman and degrading treatment contrary to Article 3. However, it was not necessary to reach any firm conclusion on this point since it would run counter to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.

(b) Unfair proceedings and the death penalty

Even if the death penalty were still permissible under Article 2, an arbitrary deprivation of life pursuant to capital punishment would be prohibited. This flowed from the requirement that "Everyone’s right to life shall be protected by law". An arbitrary act could not be lawful under the Convention.

It also followed from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the "execution of a sentence of a court", that the "court" which imposed the penalty must be an independent and impartial tribunal within the meaning of the Court’s case-law and that the most rigorous standards of fairness had to be observed in the criminal proceedings both at first instance and on appeal. Since the execution of the death penalty was irreversible, it could only be through the application of such standards that an arbitrary and unlawful taking of life could be avoided.

The Court had then to examine the implications for the issue under Article 3 concerning the imposition of the death penalty.

In the Court’s view, to impose a death sentence on a person after an unfair trial was to subject that person wrongfully to the fear that he would be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there existed a real possibility that the sentence would be enforced, as was the case for the applicant in view of his high profile and the fact that he had been convicted of the most serious crimes, must give rise to a significant degree of human anguish. Such anguish could not be dissociated from the unfairness of the proceedings underlying the sentence. Having regard to the rejection by the Contracting Parties of capital punishment, which was no longer seen as having any legitimate place in a democratic society, the imposition of a capital sentence in such circumstances had to be considered, in itself, to amount to a form of inhuman treatment.

The imposition of the death sentence on the applicant following an unfair trial had therefore amounted to inhuman treatment in violation of Article 3.

Article 3 of the Convention (conditions of detention)

The Court considered that it had not been established "beyond all reasonable doubt" that the applicant’s arrest and the conditions in which he was transferred from Kenya to Turkey exceeded the usual degree of humiliation that was inherent in every arrest and detention or attained the minimum level of severity required for Article 3 of the Convention to apply. Consequently, there had been no violation of that provision on this point.

The Court found that the general conditions in which the applicant was being detained at İmralı Prison had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there had been no violation of that provision on that account.

Article 34 of the Convention (right of individual petition)

The applicant complained of being hindered in the exercise of his right of individual application in that his legal representatives in Amsterdam had not been permitted to contact him after his arrest and/or the Government had failed to reply to the Court’s request for them to supply information. He alleged a violation of Article 34 of the Convention.

As regards the applicant’s inability to communicate with his lawyers in Amsterdam following his arrest, there was nothing to indicate that the exercise of the applicant’s right to individual application was impeded to any significant extent.

Moreover the Court found, without prejudice to its views on the binding nature of interim measures under Rule 39, that in the special circumstances of the case the refusal of the Turkish Government to provide certain information did not amount to a violation of the applicant’s right of individual application.

Finally, the Court considered that no separate examination of the complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken alone or together with the aforementioned provisions of the Convention, was necessary.

The Court took the view that any pecuniary or non-pecuniary damage that the applicant might have sustained had been sufficiently compensated by its findings of a violation of Articles 3, 5 and 6 of the Convention.

As regards costs and expenses, the Court considered it reasonable to award the applicant a total of EUR 100,000 in respect of the claims made by all his legal representatives.

Judge Türmen expressed a partly dissenting opinion, which is annexed to the judgment.

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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).