Ocalan v Turkey [European Court of Human Rights (Grand Chamber).]

• Jurisdiction: European Union
• Judge: Costa,Garlicki,Ugrekhelidze,Loucaides,Ress,Bratza,Strážnická,Caflisch,Palm,Wildhaber,Gyulumyan,Butkevych,Rozakis,Borrego Borrego,Hedigan,Lorenzen,Türmen
• Court: European Court of Justice
• Date: 12 May 2005
• Docket Number: (Application No 46221/99)

European Court of Human Rights (Grand Chamber).

(Wildhaber, President; Rozakis, Costa, Ress, Bratza, Palm, Caflisch, Loucaides, Türmen, Strážnická, Lorenzen, Butkevych, Hedigan, Ugrekhelidze, Garlicki, Borrego Borrego and Gyulumyan, Judges)

(Application No 46221/99)

Öcalan

and

Turkey1

Human rights — Right to liberty and security — European Convention on Human Rights, 1950 — Article 5(4) — Whether failure to exhaust domestic remedies — Whether lack of remedy by which applicant could have lawfulness of his detention in police custody decided — Article 5(1) — Whether applicant being deprived of liberty unlawfully — Applicant intercepted by Kenyan agents — Applicant arrested and transferred to Turkey by Turkish officials — Whether cooperation between Turkey and Kenya — Whether Turkey acting extaterritorially in manner inconsistent with Kenya's sovereignty — Whether applicant within jurisdiction of Turkey for purposes of Article 1 of European Convention — Whether applicant's arrest and detention complying with Turkish law — Article 5(3) — Whether applicant being brought promptly before — Whether Turkey violating Article 5 of European Convention on Human Rights, 1950

Jurisdiction — Extraterritorial jurisdiction — Whether Turkey acting extraterritorially in manner inconsistent with Kenya's sovereignty — Whether proof in form of concordant inferences — Applicant intercepted by Kenyan agents — Applicant arrested and transferred to Turkey by Turkish officials — Applicant under Turkish authority — Applicant within jurisdiction of Turkey for purposes of Article 1 of European Convention on Human Rights, 1950 — Whether applicant's arrest and detention complying with Turkish law — Whether cooperation between Turkey and Kenya — Balance between bringing fugitives to justice and protection of individual rights under European Convention — Whether applicant's right to security under European Convention affected — Whether violation of Article 5(1) of European Convention on Human Rights, 1950

Human rights — Right to a fair trial — European Convention on Human Rights, 1950 — Article 6(1) — Whether Ankara National Security Court independent and impartial — Whether applicant having reasonable concern regarding military judge — Whether proceedings in National Security Court fair — Legal assistance — Applicant's access to case file — Access by applicant's lawyers to case file — Whether Turkey violating Article 6 of European Convention on Human Rights, 1950

Human rights — Right to life — European Convention on Human Rights, 1950 — Article 2 — Applicant sentenced to death under Article 125 of Turkish Criminal Code — Turkey staying execution at request of European Court of Human Rights pursuant to Rule 39 — Turkey abolishing death penalty in peacetime — Whether implementation of death penalty constituting violation of Article 2 — Whether imposition of death penalty constituting violation of Article 2 — Whether Article 2 should be interpreted as no longer permitting capital punishment — Legal significance of practice of Council of Europe Contracting States as regards death penalty — Whether Turkey violating Article 2 of European Convention on Human Rights, 1950

Human rights — Prohibition of inhuman or degrading treatment or punishment — European Convention on Human Rights, 1950 — Article 3 — Whether implementation of death penalty constituting violation of Article 3 — Whether imposition of death penalty constituting violation of Article 3 — Whether imposition of death penalty following unfair trial amounting to inhuman treatment — Whether applicant's conditions of detention amounting to inhuman treatment — When transferred from Kenya to Turkey — When in Imrali prison — Whether Turkey violating Article 3 of European Convention on Human Rights, 1950

Treaties — Interpretation — European Convention on Human Rights, 1950, Article 2 — Whether Article 2 should be interpreted as no longer permitting capital punishment — Legal significance of practice of Council of Europe Contracting States as regards death penalty — Whether imposition of death penalty amounting to inhuman and degrading treatment per se — Whether imposition of death penalty violating Article 3 of European Convention on Human Rights, 1950

Terrorism — Threat from terrorism — Relevance — Applicant convicted of terrorism charges in Turkey — Whether relevant to delay in bringing applicant before judge — Whether relevant to assessment of inhuman treatment — Whether relevant to risk of implementation of death sentence — Whether relevant to applicant's conditions of detention — Balance between State and individual interests — European Convention on Human Rights, 1950

Summary:2The facts:—The applicant, Mr Öcalan, was a Turkish national who was the leader of the PKK (Workers' Party of Kurdistan), a large, armed separatist movement. He was wanted in Turkey on terrorism charges and warrants had been issued for his arrest.

Following the applicant's expulsion from Syria on 9 October 1998, where he had lived for many years, he sought political asylum in Greece, Russia and Italy but was refused. He returned to Greece whereupon he was taken to Kenya and accommodated at the Greek ambassador's residence in Nairobi. On 15 February 1999 he was transported to Nairobi Airport by Kenyan officials and arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the airport's international zone. The applicant was transferred to Turkey and detained in Imrali prison from 16 February 1999 pending trial.

In a judgment of the Ankara National Security Court of 29 June 1999, upheld by the Court of Cassation on 22 November 1999, the applicant was found guilty of carrying out acts designed to bring about the secession of part of Turkey's territory and of training and leading a gang of armed terrorists for that purpose. He was sentenced to death under Article 125 of the Criminal Code,3 a sentence which was commuted to life imprisonment upon Turkey's abolition of the death penalty in peacetime.4

The applicant lodged an application against Turkey alleging violations inter alia of Articles 5,5 6,6 2,7 3,8 149 and 3410 of the European Convention on Human Rights, 1950 (‘the Convention’). The applicant complained that he had not had an opportunity to take proceedings by which the lawfulness of his detention in police custody could be decided, that he had been deprived of his liberty unlawfully without the applicable extradition procedure being followed, and that he had not been brought promptly before a judge. He also alleged that he had not been tried by an independent and impartial tribunal, and that his trial was not fair. He maintained that the imposition of the death

penalty constituted a violation of Article 2, which should be interpreted as no longer permitting capital punishment, as well as inhuman and degrading punishment in violation of Article 3. He complained that his conditions of detention amounted to treatment contrary to Article 3. He also contended that his execution would be discriminatory and that his right of individual application had been hindered. The Turkish Government pleaded a failure to exhaust domestic remedies with regard to the complaints under Article 5(1), (3) and (4) of the Convention, contesting the applicant's submissions.

On 30 November 1999, following the confirmation of the applicant's sentence by the Court of Cassation, the Court requested that Turkey stay the execution pursuant to Rule 39.11 The Turkish Government complied with the interim measure.

On 14 December 2000 a Chamber of the First Section declared the application partly admissible. The Chamber delivered its judgment on 12 March 2003.12 The case was referred to the Grand Chamber in accordance with Article 43 of the Convention.

Held:—There had been a violation of Articles 5(4), 5(3) and 6(1) of the Convention. There had been no violation of Articles 5(1), 2 and 14 of the Convention. Although there had not been a violation of Article 3 of the Convention with respect to the implementation of the death penalty, there had been a violation of Article 3 in the other respects alleged by the applicant.

(1) (unanimously) The Government's preliminary objection concerning Article 5(1), (3) and (4) of the Convention was dismissed. There had been no failure to exhaust domestic remedies (paras. 66–72).

(2) (unanimously) There had been a violation of Article 5(4) of the Convention on account of the lack of a remedy by which the applicant could have the lawfulness of his detention in police custody decided.

(a) Article 5(4) required a judicial remedy and that the court have jurisdiction to order release if appropriate. In special circumstances the applicant might not be obliged to exhaust available domestic remedies (paras. 66–7).

(b) The domestic courts' review of the lawfulness of detention did not comply with Article 5(4). They had not ordered the applicant's release even when the statutory period of detention had expired or continued detention had not been ordered. Neither had the detainee appeared before the court (paras. 68–9).

(c) Circumstances made it impossible for the applicant to have effective recourse to the remedy. He could not challenge the lawfulness and length of his detention since he was kept in total isolation, with no recourse to a lawyer. Given the seriousness of the charges and that the custodial period did not exceed that permitted by domestic legislation, an application to a district judge had little prospect of success (para. 70).

(d) A claim for compensation under Law No 466 could not constitute relevant proceedings since the court lacked jurisdiction to order release or award reparation as appropriate (paras. 71–2).

(3) (unanimously) There had been no violation of Article 5(1) of the Convention on account of the applicant's arrest. His arrest and detention were in accordance with ‘a procedure prescribed by law’.

(a) The Convention referred to national law to ascertain...