CASE OF DİCLE AND SADAK v. TURKEY [Extracts]
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections;Stand for election);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
5. Mr Hatip Dicle and Mr Selim Sadak were born in 1955 and 1954 and live in Diyarbakir and Şırnak, respectively. 6. Mr Hatip Dicle and Mr Selim Sadak, who were MPs in the Grand National Assembly of Turkey and members of the DEP political party (Democracy Party), which has since been dissolved by the Constitutional Court, were arrested on 2 March 1994 and 1 July 1994 respectively. 7. On 8 December 1994 they were sentenced by the Ankara State Security Court to fifteen years’ imprisonment for belonging to an illegal organisation, pursuant to Article 168 § 2 of the Penal Code. 8. By judgment of 26 October 1995 the Court of Cassation upheld that judicial decision. 9. On 17 July 2001, adjudicating on an application lodged by the applicants and two other persons, the European Court of Human Rights found, in its judgment in the case of Sadak and Others v. Turkey (no. 1) (nos. 29900/96, 29901/96, 29902/96 and 29903/96, ECHR 2001VIII), a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the State Security Court, as well as a violation of Article 6 § 3 (a), (b) and (d) of the Convention in conjunction with Article 6 § 1 on the grounds that the applicants had not received timely information on the reclassification of the charges against them and had been unable to question the prosecution witnesses or to have them questioned. 10. On 9 December 2004, at the 906th meeting of the Ministers’ Deputies at the Council of Europe, the Committee of Ministers adopted a Final Resolution (ResDH(2004)86) on the judgment of the Court in the case of Sadak and Others, cited above. The relevant passages of that Resolution read as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as ‘the Convention’), Having regard to the final judgment of the European Court of Human Rights in the Sadak and others case delivered on 17 July 2001 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention; Recalling that the case originated in several applications (nos. 29900/96, 29901/96, 29902/96 and 29903/96) against Turkey, lodged with the European Commission of Human Rights on 17 January 1996 under former Article 25 of the Convention by Mr Selim Sadak, Ms Leyla Zana, Mr Hatip Dicle and Mr Orhan Doğan, four Turkish nationals, and that the Commission declared admissible the complaints relating to the lack of fairness of the criminal proceedings conducted against them, to the lack of independence and impartiality of the State Security Court which convicted them, in 1994, to 15 years’ imprisonment for belonging to an armed organisation, as well as to the discriminatory violation of their right of freedom of expression and freedom of association; Whereas in its judgment of 17 July 2001 the Court unanimously: - held that there had been a violation of Article 6 of the Convention on account of the lack of independence and impartiality of the Ankara State Security Court; - held that there had been a violation of Article 6, paragraphs 3 (a), (b) and (d), of the Convention, taken together with paragraph 1, on account of the fact that the applicants were not notified in good time that the charges against them had been altered and that they were unable to examine or have examined the witnesses against them; - held that it was not necessary to examine the other complaints under Article 6 of the Convention; - held that it was not necessary to examine the complaints under Articles 10, 11 and 14 of the Convention; - held that the government of the respondent state was to pay, within three months, USD 25 000 to each of the four applicants in respect of all heads of damage taken together; USD 10 000 to all the applicants together in respect of costs and expenses, and that simple interest at an annual rate of 6% would be payable on those sums from the expiry of the above-mentioned three months until settlement; - dismissed the remainder of the applicants’ claim for just satisfaction; Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the Government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 17 July 2001, having regard to Turkey’s obligation under Article 46, paragraph 1, of the Convention to abide by it; Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken in order to erase the consequences for the applicants of the violations found by the Court and to prevent new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution; Having satisfied itself that, on 16 October 2001, within the time-limit set, the government of the respondent state paid the applicants the sums provided for in the judgment of 17 July 2001; Recalling, as far as individual measures are concerned, Interim Resolution ResDH(2002)59 of 30 April 2002 in which the Committee requested the reopening of the criminal proceedings against the applicants or the adoption of other ad hoc measures to erase the consequences of their unfair conviction, as well as Interim Resolution ResDH(2004)31 of 6 April 2004 by which the Committee, stressing the importance of the presumption of innocence, requested that the applicants be released pending the outcome of their new trial in the absence of any compelling reasons justifying their continued detention; Having noted with satisfaction that, on 14 July 2004, the Court of Cassation quashed the judgment of 21 April 2004 of the Ankara State Security Court confirming the applicants’ previous conviction, that, since June 2004, the applicants are no longer in detention following the suspension of the execution of their sentence, that restrictions on their travel abroad were removed on 16 September 2004, that the applicants are no longer deemed to be convicted and that a new trial is currently pending before the Ankara 11th Criminal Court; Considering that, since the violation found by the European Court concerned the fairness of the incriminated proceedings and not their outcome, it is not necessary to await the outcome of the new trial; Declares, after having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.” 11. Meanwhile, on 3 February 2003, Act No. 4793 reforming a number of previous Acts came into force. It added to Article 327 of the Code of Criminal Procedure (CPP) a new paragraph 6 providing for the reopening of criminal proceedings following a finding of a violation by the European Court of Human Rights. 12. On 4 February 2003 the applicants requested the reopening of proceedings on the basis of the judgment delivered by the Court in their case. 13. On 21 April 2004, having ordered the reopening of the proceedings against the applicants pursuant to Article 327 § 6 CPP, the Ankara State Security Court reiterated its judgment of 8 December 1994. In the grounds for the judgment it mainly used the words “accused (convicted)” with reference to the applicants. Occasionally it used the words “convicted (accused)” with reference to Mr Selim Sadak and the word “convicted” with reference to Mr Hatip Dicle. 14. On 8 June 2004 the applicants lodged an appeal on points of law against the 21 April 2004 judgment of the State Security Court. In that appeal they requested their release under Article 38 of the Constitution, relying on their right to the presumption of innocence. They argued that under Article 338 CPP the acceptance of the reopening of proceedings had invalidated the finality of their first conviction. They pointed out that in the event of an application for reopening of proceedings the law was silent on the issue of the execution of the initial sentence and on the conduct of the future proceedings. The applicants submitted that the absence of provisions in that regard did not mean that there was a legal vacuum provided that any proceedings reopened returned to the trial phase. They added that persons being retried no longer had the status of convicted persons, which meant that the restriction on their liberty could no longer be considered as being in “execution” of the sentence initially imposed on them. Consequently, they concluded that the reopening of the proceedings had given them prisoner status, and that they had therefore lost their “convict” status. 15. Subsequently the applicants submitted another brief memorial to the Court of Cassation, arguing, in particular, that by referring to them as “convicted persons” the State Security Court had flouted their right to the presumption of innocence. Indeed, they took the view that since proceedings had been reopened their conviction was no longer res judicata and therefore that they should no longer have been considered as convicted persons and their right to the presumption of innocence should have been respected, pursuant to Article 38 of the Constitution and Article 6 § 2 of the Convention. 16. On 9 June 2004 the Court of Cassation ordered the applicants’ release. 17. By judgment du 13 July 2004 the Court of Cassation quashed the judgment of 21 April 2004, stating that the violations found by the European Court of Human Rights in its judgment of 17 July 2001 had not been remedied. The relevant part of the judgment read as follows: “III. The procedural phase following the reopening of the proceedings It is accepted, in both legal practice and legal theory, that where an application for a reopening of proceedings pursuant to the ... Code of Criminal Procedure is accepted, the investigation which must be conducted [after the reopening of proceedings] is independent and distinct from the previous investigation, and the decision to reopen the proceedings provides the basis for that fresh investigation. As stated in the judgment of the Plenary Assembly of the Court of Cassation of 5. 11. 1990 (E. 8/220 and K. 258), the hearings to be organised [in the framework of the new trial] are not the continuation of those held previously, and all the procedural rules must be applied to those hearings as if the case were being tried for the first time. The assessment of new evidence, of the nature of the offence and of the sentencing in the framework of the hearings to be held when the proceedings are reopened must be conducted quite independently and separately from the assessment during the initial proceedings, and new pieces of evidence ... may be gathered and examined. IV. Conclusion ... 2 – The proceedings as reopened under the relevant decision is completely independent from the previous proceedings; in accordance with that principle, all the legal rules of procedure must be applied to the new hearings, the indictment must be read out, the reclassification of charges must be notified and fresh interrogations must be conducted ...” 18. The State Security Courts having in the meantime been abolished under Act No. 5190, the Court of Cassation referred the case to the Ankara Assize Court (“the Assize Court”). 19. On 1 June 2005 the new Turkish Penal Code came into force. The offence of belonging to an armed band formerly set out in Article 168 is now governed by Article 314 of the new Penal Code. 20. On 9 March 2007, having taken note, in particular, of the Court of Cassation’s argument that the procedure for reopening the trial was completely independent from the initial one, the Assize Court upheld the conviction of 8 December 1994. It nevertheless reduced the applicants’ sentence to a prison term of seven years and six months pursuant to Article 314 § 2 of the Penal Code. In the reasoning of its decision the court used the words “accused (convicted person)” with reference to the applicants. 21. On 27 February 2008 the Court of Cassation upheld that judgment. 22. Meanwhile, on 19 May 2007, the Higher Electoral Council had issued a decision setting out the conditions to be met by candidates – including independent candidates with no party political affiliation – standing for the parliamentary elections of 22 July 2007. The relevant part of that decision read as follows: “1. ... After serving final sentences ... [the candidate] must, pursuant to section 13/A of the Law on the register of police records, provide, for each conviction, a document certifying that he has recovered his civil rights and that the conviction has become res judicata. ... 3. Pursuant to the Penal Code ... save in cases of negligence, persons who have been sentenced to a prison term of twelve months or more or who have been convicted of an offence, pursuant to section 11 (f) of Act No. 2839 on the election of members of parliament and whose prison sentence has become res judicata, must provide a document certifying that they have, or are deemed to have, served their sentence.” 23. On 10 May 2007, Mr Hatip Dicle applied to the Ankara Assize Court for a document establishing that he had indeed served his full prison term. 24. In its 15 May 2007 decision the Assize Court held as follows: “In applying to the convicted person the provisions of Act No. 5237 on the entry into force of [the Penal Code] of 1 June 2005, it was decided to sentence Mehmet Hatip Dicle to a prison term of seven years and six months, to apply section 53 of Act No. 5237 and to deduct from that sentence the period which he had served in detention. The State Prosecutor has filed an appeal on points of law against that judgment, but the latter has not yet become final. The convicted person Mehmet Hatip Dicle, whose sentence was commuted to seven years and six months pursuant to the provisions [of the Penal Code], was remanded in custody from 2 March 1994 to 17 March 1994, and imprisoned from 17 March 1994 to 9 June 2004 as a detainee and then as a convicted person. In the light of the foregoing considerations, the final sentence to be imposed on Mehmet Hatip Dicle for belonging to an illegal armed organisation is a prison term of fifteen years ... In order to serve that sentence, he was held in prison for the aforementioned periods. Pursuant to the provisions of the Penal Code [in respect of the applicant], this court delivered judgment on 9 March 2007 (E. 2004/343 and K. 2007/67) reducing the fifteen-year prison sentence to a term of seven years and six months. Since that judgment is not yet final it has not become res judicata. Consequently, it is impossible to indicate the date on which the sentence was completed. However, [it may be said that] the sentence served by the convicted person up to the date of his release corresponds to a sentence of seven years and six months... On those grounds: This court cannot lawfully adjudicate on the application lodged by the convicted person Mehmet Hatip Dicle for a document certifying that he has served the full sentence imposed on him, firstly because the decision to reduce his sentence to seven years and six months has not yet become final, and secondly because the [initial] judgment sentencing him to a fifteen-year term did become res judicata and he was released on account of the stay of execution of that sentence.” 25. On 1 and 4 June 2007 Mr Hatip Dicle and Mr Selim Sadak submitted their names as independent candidates for the parliamentary elections of 22 July 2007 in the constituencies of Diyarbakır and Şırnak respectively. They provided, inter alia, copies of their police records mentioning their 8 December 1994 conviction by the State Security Court and the decision given by the Assize Court on 15 May 2007. 26. By decision of 9 June 2007 the Higher Electoral Council rejected the applicants’ candidacies on the grounds that their criminal convictions had rendered them ineligible.