CASE OF ÖCALAN v. TURKEY
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);No violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms;Impartial tribunal;Independent tribunal);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance;Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);No violation of Article 2 - Right to life (Article 2-1 - Death penalty) (Substantive aspect);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2-1 - Death penalty;Article 2 - Right to life);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
13. The applicant was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey). Prior to his arrest, he was the leader of the PKK (Workers' Party of Kurdistan). The facts of the case, as submitted by the parties, may be summarised as follows. 14. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities asked him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision. 15. On 12 November 1998 the applicant went to Rome, where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia, he returned to Greece, probably on 1 February 1999. The following day (2 February 1999), the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek embassy and accommodated at the ambassador's residence. He lodged an application with the Greek ambassador for political asylum in Greece, but never received a reply. 16. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed in Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. It added that the Kenyan Minister for Foreign Affairs had summoned the Greek ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the person concerned was not Mr Öcalan, on being pressed by the Kenyan authorities the Greek ambassador had gone on to acknowledge that it was in fact him. The Kenyan Minister for Foreign Affairs had been informed by the Greek ambassador that the authorities in Athens had agreed to arrange for Mr Öcalan's departure from Kenya. The Kenyan Minister for Foreign Affairs also stated that Kenyan diplomatic missions abroad had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan government was surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek ambassador's role in the events, the Kenyan government indicated that it had serious reservations about his credibility and requested his immediate recall. The Kenyan Minister for Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in the choice of his final destination. The Minister had not been informed of any operations by Turkish forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish governments on the subject. 17. On the final day of his stay in Nairobi, the applicant was informed by the Greek ambassador after the latter had returned from a meeting with the Kenyan Minister for Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands were prepared to accept him. On 15 February 1999 Kenyan officials went to the Greek embassy to take Mr Öcalan to the airport. The Greek ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport, this car left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m. 18. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice (Red Notice) had been circulated by Interpol. In each of those documents, the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the Turkish State and of instigating various terrorist acts that had resulted in loss of life. On the flight from Kenya to Turkey, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons. 19. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed as soon as the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace. The applicant was taken into custody at İmralı Prison on 16 February 1999. On the journey from the airport in Turkey to İmralı Prison, he wore a hood. In photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek embassy in Nairobi. 20. From 16 February 1999 onwards, the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed. 21. Judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999. 22. According to the applicant, on 22 February 1999 sixteen lawyers instructed by his family applied to the National Security Court for permission to see him. They were informed verbally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval. 23. As soon as the applicant's detention began, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life, and it was for security reasons that lawyers were searched. 24. On 22 February 1999 the public prosecutor at the Ankara National Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK had used violent methods against civilians, in particular from 1987 onwards, but that he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted part of their pressure on the Kurdish population; some of these warlords had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish government's estimate of the number of those killed or wounded as a result of the PKK's activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services. 25. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the National Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him as founder and leader of the organisation for final approval. In the period from 1973 to 1978, the PKK's activities had been political. In 1977 and 1978, the PKK had organised armed attacks on the ağalar (major landowners). In 1979, following a visit by the applicant to Lebanon, the PKK had begun its paramilitary preparations. Since 1984, the PKK had carried on an armed struggle within Turkey. The regional leaders decided on armed actions and the applicant confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions. 26. On the day after the applicant's arrival in Turkey, his Turkish lawyer, Mr Feridun Çelik, asked to visit him. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers. 27. At Istanbul Airport on 17 February 1999, Ms Böhler, Ms Prakken and their partner Mr Koppen were refused leave to enter Turkey to visit the applicant, on the grounds that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) created a risk of prejudice to public order in Turkey. 28. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the National Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later. 29. During the preliminary investigation between 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve meetings in private with his lawyers. The dates and duration of the meetings were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour). 30. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits, the applicant's contact with his lawyers was restricted to two visits per week, lasting an hour each. On each visit, the lawyers were searched five times and required to fill in a very detailed questionnaire. He and his advisers were not allowed to exchange documents or take notes at their meetings. The applicant's representatives were unable to give him either a copy of his case file (other than the bill of indictment, which was served by the prosecution) or any other material that would allow him to prepare his defence. 31. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their duration. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the meetings were held subject to the restrictions provided for in the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. According to the Government, no restrictions were placed on the applicant's correspondence. 32. In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Government, they indicated that the applicant was physically in good health and his cell was comfortable. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically. 33. The CPT delegates next visited İmralı Prison, where the applicant is the sole inmate, as part of their mission to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. However, he received twice daily medical checks by doctors and, in principle, was visited by his lawyers once a week. 34. On its visit of 16-17 February 2003, the CPT noted that visits to the applicant by his lawyers and members of his family were often cancelled owing to adverse weather conditions and inadequate means of transport. 35. In a bill of indictment preferred on 24 April 1999 (and joined to several others that had been drawn up in the applicant's absence by various public prosecutors' offices between 1989 and 1998), the public prosecutor at the Ankara National Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code. 36. The case file ran to 17,000 pages and had been prepared by joining the files in seven sets of proceedings that were pending against the applicant in various national security courts. The applicant's lawyers were given access to the case file and the bill of indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had omitted to include certain documents in it, such as those concerning the applicant's arrest in Kenya and his transfer to Turkey. 37. The first two hearings, held in Ankara on 24 and 30 March 1999 in the applicant's absence, were taken up with procedural matters, such as third-party applications to intervene in the proceedings or the measures to be taken in readiness for the hearings on the island of İmralı and to enable the parties to take part in and members of the public to attend the trial. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 have been the subject of a criminal investigation. 38. From 31 May to 29 June 1999, the National Security Court held eight hearings attended by the applicant on the island of İmralı. The applicant told the court, among other things, that he stood by his statements to the prosecutor and the judge. He confirmed that he was the most senior PKK agent and leader of the organisation and that he had instructed the members of the organisation to carry out certain acts. He said that he had not been ill-treated or verbally abused since his arrest. The applicant's representatives argued that the National Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction. 39. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been in reaction to the political pressure the government had exerted on the Kurdish population. When circumstances changed, he had decided on a different approach and limited his demands to autonomy or to a recognition of the Kurds' cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy, but disclaimed criminal liability for acts of violence which went beyond the PKK's stated policy. In order to highlight the rapprochement between the PKK and the government, he applied to have the government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the National Security Court. 40. The applicant's lawyers' applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics. 41. The applicant's lawyers complained to the National Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the National Security Court at a hearing on 1 June 1999. The lawyers did not appear at the hearing on 3 June 1999. At their request, transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the National Security Court for having established a dispassionate atmosphere. 42. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant under Article 125 of the Criminal Code. The applicant's advisers requested a one-month adjournment to enable them to prepare their final submissions. The National Security Court granted them fifteen days, the statutory maximum allowed. 43. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution to exclude both military judges and military prosecutors from national security courts. Similar amendments were made on 22 June 1999 to the law on national security courts. 44. At the hearing on 23 June 1999, the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The National Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and had followed the proceedings from the outset and attended the hearings. Counsel for the applicant opposed the appointment of the civilian judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the National Security Court. 45. At the same hearing, counsel for the applicant set out the applicant's substantive defence to the charges. 46. On 29 June 1999, after hearing the applicant's final representations, the Ankara National Security Court found the applicant 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. It sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of the organisation, whose aim was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed. 47. The applicant appealed on points of law against the above judgment, which, on account of the severity of the sentence, was in any event automatically subject to review by the Court of Cassation. 48. In a judgment adopted on 22 November 1999 and delivered on 25 November, the Court of Cassation upheld the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again given that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara National Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction on security grounds, among other reasons. 49. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and president of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory that Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces, industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK) and a military wing (the ARNK), which operated under its control. Its income was derived mainly from “taxes”, “fines”, donations, subscriptions, and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groups. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his supporters to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to put words into action. As a result of the acts of violence carried out by the PKK from 1978 until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings), 4,472 civilians, 3,874 soldiers, 247 police officers and 1,225 village guards had died. 50. The Court of Cassation held that the PKK, founded and led by the applicant, represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order for that provision to apply, for the applicant – the founder and president of the PKK and the instigator of the acts of violence committed by that organisation – personally to have used a weapon. 51. In October 2001, Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. By Law no. 4771, which was published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant had been accused had been committed in peacetime and constituted terrorist acts. The Nationalist Action Party (MHP – Milliyetçi Hareket Partisi), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002. 52. Before the Constitution was amended on 18 June 1999, Article 143 provided that national security courts were to be composed of a president, two other full members and two substitute members. The president of the national security court, one of the full members and one of the substitute members were to be civilian judges, and the other full member and substitute member were to be military judges. 53. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides: “... National security courts shall be composed of a president, two other full members, a substitute member, a public prosecutor and a sufficient number of assistant prosecutors. The president, two full members, a substitute member and the public prosecutor shall be appointed from among judges and public prosecutors of the first rank and assistant prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the Council of the National Legal Service, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable ...” 54. The necessary amendments concerning the appointment of the judges and public prosecutors were made to Law no. 2845 on national security courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the national security courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the national security courts on the date of publication of the Law were to continue from the stage they had reached by that date. “Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.” 55. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and, if successful, be released. 56. Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons: (1) who have been arrested or detained under conditions or in circumstances incompatible with the Constitution or statute; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; (7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...” 57. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, whether or not the latter has an authority to act. The version of Article 144 that applied to proceedings in the national security courts at the material time was the version as worded prior to the amendments of 18 November 1992. It provided that members of the national legal service were entitled to be present at meetings between the accused and their lawyers before the commencement of the criminal proceedings. 58. Protocol No. 6 to the Convention provides (Article 1): “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides: “A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.” Protocol No. 6 has been ratified by forty-four member States of the Council of Europe and signed by two others (Monaco and Russia). Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads: “The member States of the Council of Europe signatory hereto, Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings; Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as 'the Convention'); Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war; Being resolved to take the final step in order to abolish the death penalty in all circumstances, Have agreed as follows: ...” Article 1 of Protocol No. 13 states: “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Protocol No. 13 has been signed by forty-three member States of the Council of Europe and ratified by twenty-nine. It came into force on 1 July 2003 after the tenth ratification. Three member States of the Council of Europe (Armenia, Azerbaijan and Russia) have not yet signed it. In its Opinion No. 233 (2002) on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, the Parliamentary Assembly of the Council of Europe referred to: “2. ... its most recent resolutions on the subject, Resolution 1187 (1999) on Europe: a death-penalty free continent, and Resolution 1253 (2001) on the abolition of the death penalty in Council of Europe Observer states, in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law.” It further noted: “5. The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions.” 59. 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 11 July 2002, reads: “Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.” 60. In a number of cases involving the application of the death penalty, the United Nations Human Rights Committee has observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant, that sets out the circumstances in which it is permissible to give effect to the death penalty. In Reid v. Jamaica (no. 250/1987), the Committee stated as follows: “[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of Article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that 'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.” Similar observations were made by the Committee in Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, UN Doc. Supp. no. 40, [A/38/40], at 134 [1983]) and Wright v. Jamaica (Communication no. 349/1989, UN Doc. CCPR/C/45/D/349/1989 [1992]). In an 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), the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure for Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated: “134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that '[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to 'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it. 135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life. 136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.” In Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago (judgment of 21 June 2002), the Inter-American Court stated: “Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake.” (paragraph 148)