CASE OF ÖCALAN v. TURKEY (No. 2) [Extracts]
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Pecuniary and non-pecuniary damage - finding of violation sufficent
András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen
5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison. 6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005IV). They may be summarised as follows. 7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons. 8. 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. 9. By a judgment of 29 June 1999, 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, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan – hereafter “the PKK”). 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 reiterated that the applicant had acknowledged that the Turkish Government’s estimate of the number of those killed (almost 30,000) 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. 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 and the major, pressing threat to the country that those acts posed. 10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety. 11. 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, 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. 12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant’s death sentence to life imprisonment. 13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances. 14. The applicant’s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date (see Öcalan, cited above, §§ 192-196). 15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built. 16. In May 2007 and January 2010, that is to say after the Court’s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) visited İmralı Prison. 17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air-conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp. 18. The time granted to the applicant to leave his cell and use the exercise yard (measuring approximately 45 sq. m), which is walled in and covered with mesh, was limited to one hour daily (divided into two 30-minute periods, one in the morning and the other in the afternoon). 19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison. 20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons. 21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers (owing to the inaccessibility of the island), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored. 22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted. 23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months. 24. In order to comply with the requests put forward by the CPT and put an end to the applicant’s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities. 25. Since that date the applicant has been on his own in a cell with an area of 9.8 sq. m (living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant’s cell has a 1 m x 0.5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6-m-high wall surrounding the yard. The CPT’s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light. 26. The prison is equipped with a sports room with a pingpong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room (where no specific activities are on offer) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour’s conversation per week with the other prisoners. 27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week. 28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities: painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities (painting/handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners. 29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes’ telephone calls to the outside every fortnight. 30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day (eight hours or more) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high-security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set. 31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “poor weather conditions”, “maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions”. 32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks. 33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 (one out of six requests refused), January 2007 (two out of six requests refused) and February 2007 (all four requests granted), visit frequency once again dropped off in March 2007 (six out of eight requests refused) and April 2007 (four out of five requests refused), picking up again in May 2007 (one out of five requests refused) and June 2007 (one out of four requests refused). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers. 34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant’s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after (because of unfavourable weather conditions). 35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty-seven requested visits by his lawyers. Three lawyers’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns. In 2012 the applicant received a few visits from his brother, and none from his lawyers. 36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant’s lawyers’ visits, in practice, always took place on a Wednesday, the day of the crossing. 37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and/or confiscation of all or some of these documents by the judge. 38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post-sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination. 39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “rendered the visit and the interview pointless in terms of preparing his defence”. 40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination. 41. The applicant’s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge’s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant’s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant’s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation. 42. During the lawyers’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant’s defence before a judicial authority. The applicant’s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor’s office issued a decision not to prosecute. 43. It appears from the records of the lawyers’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK’s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party’s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK’s demands had been met. 44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics. 45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement. The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement. 46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers’ visits on the following dates: 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009. 47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language. 48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant’s words corresponded to “training and propaganda activities within a criminal organisation”, sentenced the applicant to 20 days’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant’s books and newspapers for twenty days. 49. The applicant’s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation. 50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant’s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law. 51. The applicant was subjected to a further sanction of 20 days’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant’s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected. 52. Visits by relatives of the applicant (in practice, his brothers and sisters) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “around a table” for the first time. 53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family’s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement. 54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions. 55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers. 56. By a decision of 6 June 2005, the Istanbul prosecutor’s office invited the Istanbul Assize Court to apply this measure to some of the applicant’s lawyers. 57. By a decision of 7 June 2005, the 9th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year. 58. On 20 June 2005, the 10th Assize Court of Istanbul dismissed the applicant’s appeal against that decision. 59. On 23 November 2011, on instructions from the Istanbul public prosecutor’s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders. 60. By a letter of 7 March 2007 the applicant’s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium. 61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health. ...