CASE OF ERDEM v. GERMANY
Violation of Art. 5-3;Not necessary to examine Art. 6-2;No violation of Art. 8
Antonio Pastor Ridruejo
8. The applicant said that his name was Selahattin Erdem and that he was born in 1958 in Derik (Turkey). However, according to the Düsseldorf Court of Appeal (Oberlandesgericht), his real name was Duran Kalkan and he was born in 1954 in Adana (Turkey). 9. On 7 April 1988 the applicant, who had enjoyed political refugee status in France since December 1987, was arrested at the German border on suspicion of being a member of a terrorist organisation (Article 129a of the Criminal Code) and of forging documents (Article 267 of the Criminal Code). 10. On 8 April 1988 the investigating judge at the Federal Court of Justice (Bundesgerichtshof) issued a warrant for the applicant's detention pending trial. The applicant remained in custody until 7 March 1994. 11. On 20 October 1988 the Federal Public Prosecutor started a judicial investigation into the activities of the applicant and fifteen other leaders of the PKK (Workers' Party of Kurdistan). 12. On 31 August 1989 the Fifth Criminal Division of the Düsseldorf Court of Appeal made an order for the main proceedings, which included five other charges against members of the PKK, to begin. 13. The proceedings had been brought against eighteen accused and concerned six murders and six abductions, the structure of the terrorist organisation and a further five murders that had been committed within the organisation. 14. The trial began on 24 October 1989 and ended on 7 March 1994 after 353 days in court. 15. At the hearing on 7 December 1990 the public prosecutor asked the Court of Appeal to inform the applicant, in accordance with Article 265 of the Code of Criminal Procedure, that the charges he was facing could entail a conviction for murder (Article 211 of the Criminal Code) and for his activities as a leader (Rädelsführer) of a terrorist organisation (Article 129a § 2 of the Criminal Code). 16. By a decision of 8 March 1993, the Court of Appeal ruled that the accused, Mr Kalkan, faced convictions for being a member of a terrorist organisation and for murder, but not for his activities as a leader of that organisation. 17. Fourteen defendants were no longer involved in the proceedings: two defendants had been discharged in 1990 – one owing to the minor nature of the charges (Geringfügigkeit), the other because of unfitness to stand trial (Verhandlungsunfähigkeit) – while in 1992 ten others had fled the country and two had been convicted of separate offences. ... 23. While the applicant was in detention pending trial, his correspondence with his lawyer was monitored under powers contained in Article 148 § 2 of the Code of Criminal Procedure ... 24. In a 900-page judgment of 7 March 1994 the Düsseldorf Court of Appeal convicted the applicant of being a member of a terrorist organisation and sentenced him to six years' imprisonment (Article 129a § 1 of the Criminal Code). It found that he had been one of the founders of the PKK in 1978, had set up units in Lebanon and Syria and had been in charge of recruitment in those countries. It added that in 1983 the applicant had led armed resistance in Turkey until he was deposed by Abdullah Öcalan, after being accused of incompetence and authoritarianism. Subsequently he had been assigned to the PKK's European headquarters in Cologne with Ali Cetiner, who was later to become the main prosecution witness (Kronzeuge) against him. The Court of Appeal said that from December 1986 to December 1987 the applicant had been a member of the executive committee of the PKK, with responsibilities for, inter alia, surveillance and intelligence. At executive committee meetings he had proposed to identify and collect information on groups within the PKK that were hostile to Öcalan, to combat them, liquidating them if necessary. He had also helped to compile lists of persons to be liquidated. 25. In a judgment of 6 March 1996 the Federal Court of Justice dismissed the applicant's appeal, holding that the judgment of the Court of Appeal did not contain any errors of law that had operated to his detriment. 26. On 10 April 1996 the applicant lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht), in which he alleged in particular a violation of Article 5 § 3 of the Convention on the ground that he had not been brought to trial within a reasonable time, and that his correspondence had been monitored unlawfully. 27. On 19 February 1997 a three-member committee of the Constitutional Court refused to examine the appeal. ... 31. Article 148 § 1 of the Code of Criminal Procedure lays down that remand prisoners may communicate in writing and orally with their lawyers. 32. The first sentence of Article 148 § 2 of the Code of Criminal Procedure reads as follows: “If the accused is in custody and the investigation concerns an offence under Article 129a of the Criminal Code [membership of a terrorist organisation], access to written or other documents must be refused unless the sender agrees to their first being examined by a judge ... In cases in which correspondence has to be monitored ... adequate measures shall be taken to avoid written or other documents being handed over at meetings between prisoners and their lawyers.” 33. The purpose of the exception set out in Article 148 § 2 of the Code of Criminal Procedure is to prevent prisoners suspected of an offence under Article 129a of the Criminal Code from continuing to work for the terrorist organisation to which it is alleged they belong and contributing to its survival (Federal Court of Justice, Neue Strafrechtzeitschrift no. 84, p. 177). 34. Article 148a of the Code of Criminal Procedure provides that the judge with responsibility for such surveillance measures is the judge of the district court where the prison is located and that he or she shall not have, and may not be assigned, conduct of the investigation and shall keep the information thus obtained confidential, unless it concerns a serious or very serious offence, such as an offence under Article 138 §§ 1 or 2 of the Criminal Code.