Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Applications nos. 30687/05 and 45630/05
Aysel TUĞLUK and others against Turkey
and Türkan ASLAN against Turkey
The European Court of Human Rights (Second Section), sitting on 4 September 2018 as a Chamber composed of:
Robert Spano, President,
Julia Laffranque,
Işıl Karakaş,
Paul Lemmens,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Ivana Jelić, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above applications lodged on 23 August 2005 and 18 November 2005 respectively,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
3. At the time of the events, the applicants were lawyers for Abdullah Öcalan, who on 29 June 1999 was sentenced to death for carrying out acts designed to bring about the secession of part of Turkey’s territory and forming and leading an illegal armed organisation for that purpose, namely the PKK (Workers’ Party of Kurdistan). The courts had found it established that, following decisions taken by Mr Öcalan, 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. Following amendments to the Constitution and to legislation in 2001 and 2002, MrÖcalan’s sentence was commuted to life imprisonment on 3 October 2002. He is currently detained in İmralı Prison.
4. At the material time, prisoners in Turkey were generally able to meet their lawyers on working days during working hours, without any restrictions on frequency over a specified period. Since access to the island of İmralı is only possible using the sea shuttle provided by the İmralı Prison management, in practice the visits by the applicant’s lawyers took place on Wednesdays, when transport was available.
5. It appears from the reports of the lawyers’ visits to Abdullah Öcalan that the conversations very often began with an outline by the lawyers of recent developments concerning the PKK. Mr Öcalan would consult themabout changes in personnel at different levels of the organisation’s structure, the various activities and meetings organised by PKK bodies (at regional or national level or abroad), the political line followed by the party’s leaders, competition between the leaders and losses suffered by armed militants in their fight against the security forces. Presenting himself as the “leader of the Kurdish people”, Mr Öcalan would comment on all the answers given by the lawyers and tell them to pass on his ideas and instructions with a view to reshaping the policy pursued by the PKK in Turkey (in general, he supported the idea of recognition of the rights of the Kurdish minority in a fully democratic Turkey) or abroad. In addition, Mr Öcalan would approve or reject executive appointments within the various PKK bodies and give advice on the party’s internal organisation. He also advocated the abandonment of weapons by the PKK once the government had brought the hostilities to an end and satisfied the PKK’s demands.
6. The reports of the visits were published during the following days in certain newspapers, where they were presented as reflecting Mr Öcalan’sopinions on the current situation or his instructions to the PKK.
2. The criminal proceedings against the applicants
7. In an indictment filed on 22 March 2002 the Yalova public prosecutor charged the applicants. He accused them of having abused their office as lawyers by acting as Abdullah Öcalan’s spokespersons, transmitting instructions from the latter to his former organisation and disseminating them through the press. In support of the charge, the prosecutor produced articles published in several newspapers between 8 January and 3 June 2000, as well as a television news broadcast from 14 January 2000 disclosingMr Öcalan’scommentsabout the policy to be pursued by the PKK. The press articles reported Mr Öcalan’scomments as noted down by his lawyers following their visits,to the effect that a lack of progress in the government’s relations with the PKK mighttrigger renewed popular protest and a resumption of the armed struggle in the near future. The editors of the articles in question generally described suchcomments as threats against the State authorities.
8. On 6 November 2002 the Bursa Assize Court held that it did not have jurisdiction to hear the case, on the grounds that the applicants’ alleged acts could constitute the offence of aiding a criminal organisation and that the assessment of such acts fell within the jurisdiction of the National Security Court.
9. Subsequently, the criminal proceedings instituted against the applicants under section 7(2) of the Prevention of Terrorism Act 1991 (Law no. 3713) began in the Istanbul National Security Court.
10. On 3 August 2004 the Chief of the Armed Forces General Staff sent a note to the Ministry of Justice in which he stated that Abdullah Öcalan’s lawyers had committed unlawful acts, going so far as to transmit instructions to the illegal organisation by making public their conversations with their client. The note was accompanied by documents relating to the lawyers’ alleged acts and was submitted to the competent judicial authorities for assessment.
11. Following the abolition of the National Security Courts by a law of 30 June 2004, the criminal proceedings continued in the Istanbul Assize Court.
12. On 9 October 2012 the Istanbul Assize Court struck the case out following the expiry of the statutory time-limit for prosecution.
3. The applicants’disqualification from representing Abdullah Öcalan
13. Article 151 §§ 3 and 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 terrorism-related offences may be disqualified for a specified period from representing individuals who have been convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations, once convicted, from continuing to run their organisations from their places of detention through their lawyers.
14. On 6 June 2005 the Istanbul public prosecutor’s office asked the Istanbul Assize Court to impose a temporary disqualification of this kind on the applicants.
15. In a decision of 7 June 2005 the Istanbul 9th Assize Court decided to deprive twelve lawyers, including the applicants, of their status as counsel for Abdullah Öcalan for a period of one year. It observed in that connection that the applicants were currently being prosecuted for the offence punishable under section 7(2) of Law no. 3713 and their clienthad been sentenced to life imprisonment under Article 125 of the Criminal Code for a terrorism-related offence.
16. On 16 and 17 June 2005 the applicants lodged an objection against the decision of 7 June 2005. They argued before the Istanbul 9th and 10th Assize Courts that the decision complained of not only contained insufficient reasons and was based on ambiguous legal provisions, but was also contrary to the principle of equality before the law (since the measure in question was applicable solely to representatives of individuals convicted of political offences), the principle of the presumption of innocence (since it amounted to an ancillary penalty in addition to the criminal proceedings) and the principle of the non-retrospective application of rules of criminal law. The applicants also asked the Assize Court to refer the case to the Constitutional Court on the grounds that the provisions of the Code of Criminal Procedure applicable in their case were unconstitutional.
17. On 20 June 2005 the Istanbul 10th Assize Court dismissed the applicants’ objection. After noting that both offences (the one of which the applicants were accused and the one of which Abdullah Öcalan had been convicted) were explicitly related to terrorism, it held that the measure imposed was lawful. For the same reasons, the Istanbul 9th Assize Court rejected their request for the case to be referred to the Constitutional Court, finding that the request had no prospects of success.
18. In decisions delivered on 20 June 2006 and 27 December 2007 respectively, the Istanbul 9th and 11th Assize Courts decided, for the same reasons as mentioned above, to extend by six months the measure disqualifying the applicants from representing Abdullah Öcalan.
B. Relevant domestic law
1. The Prevention of Terrorism Act (Law no. 3713)
19. The first sentence of section 7(2) of Law no. 3713 provides:
“Anyone who disseminates propaganda in favour of a terrorist organisation … shall be sentenced to a term of imprisonment of one to five years. …”
2. The Code of Criminal Procedure
20. The relevant parts of Article 151 of the Code of Criminal Procedure read as follows:
“…
3. …a lawyer instructed to defend or represent individuals who have been detained or convicted in connection with offences provided for in Articles 220 and 314 of the Criminal Code or terrorism offences may be disqualified from acting as defence counsel or representative where he or she is being prosecuted for the offences listed in this paragraph.
4. The court in which the criminal proceedings against the lawyer are being conducted shall give a speedy decision on the public prosecutor’s application for disqualification. An objection may be lodged against the decision. If the decision to disqualify the lawyer is set aside following the objection, the lawyer shall resume his or her duties. A decision on disqualification from acting as defence counsel shall be limited to the offence being prosecuted and a duration of one year. However, according to the nature of the prosecution, this period may be extended no more than twice by a further six months. Where a decision other than conviction is delivered at the end of the proceedings, the decision on disqualification shall be automaticallyset aside.
5. The decision to disqualify the lawyer from performing his or her duties shall be immediately transmitted to the detainee and the Chairman of the relevant Bar Association, so that a new defence counsel can be appointed.
6. Whiledisqualified, the lawyer or representative may not visit the person he or she is defending or representingin the prison or correctional facility.”
COMPLAINTS
21. Relying on Article 6 § 1 of the Convention, the applicants complained that they had not been given a fair trial by an independent and impartial tribunal in so far as the charges of aiding a criminal organisation, brought against them under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), had been based mainly on press articles whose accuracy had not been confirmed. They also argued that the approach made by the Chief of the Armed Forces General Staff to the Ministry of Justice had been likely to influence the criminal courts dealing with their case.
22. Also under Article 6 of the Convention, the applicants submitted that they had not been given a fair trial in the proceedings resulting in their temporary disqualification. They argued that the judicial decisions in that regard had not contained sufficient reasons and that they had not received a copy of the public prosecutor’s opinion.
23. Relying on Article 6 § 2 of the Convention, the applicants alleged that their temporary disqualification from representing Abdullah Öcalan had breached the principle of the presumption of innocence, in that the measure in question had not been based on any criminal conviction indicating abuse on their part.
24. Relying on Article 7 of the Convention, the applicants complained of the retrospective application of the Code of Criminal Procedure. They noted that the law in question had come into force on 1 June 2005, whereas their alleged acts were said to have been committed in 2000.
25. Relying on Article 10 of the Convention, the applicants complained of an infringement of their right to freedom of expression in that they had been disqualified from defending and representing their client for a specified period of time because of a temporary restrictive measure based on criminal proceedings brought against them on account of statements which in their view contained no criminal element.
26. Relying on Article 13 of the Convention in conjunction with Article 6 § 1, the applicants complained that there was no effective remedy by which they could have challenged the restrictive measure imposed on them and secured a review of the constitutionality of the legal provisions on which the measure in question had been based.
27. Relying on Article 14 of the Convention, the applicants complained that they had been discriminated against, in that the measure in question had been imposed on them because of their status as lawyers for Abdullah Öcalan.
28. Relying on Article 17 of the Convention, the applicants alleged that the respondent State had imposed limitations in their case to a greater extent than was provided for in the Convention.
29. Relying onArticle 18 of the Convention, the applicants complained that the limitation of their rights had not pursued a legitimate aim and had breached the principle of good faith in a manner incompatible with the provisions of the Convention.
30. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants alleged that their temporary disqualification from representing their client had deprived them of their right to practise their profession as lawyers.
THE LAW
A. Joinder of the applications
31. Given that the two applications concern similar facts and complaints and raise identical issues under the Convention, the Court decides to join them, in accordance with Rule 42 § 1 of the Rules of Court.
B. Complaint under Article 10 of the Convention
32. The applicants alleged that their temporary disqualification from representing Abdullah Öcalan, as ordered by the judicial authorities to prevent them from disclosing statements by their client to the press, had amounted to an infringement of their right to freedom of expression under Article 10 of the Convention. This Article reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
33. Assuming that the measure complained of constituted an interference with the applicants’ freedom of expression, the Court observes that it was clearly prescribed by law (Article 151 of the Code of Criminal Procedure) and pursued the aims of preventing disorder or crime.
34. It remains to be determined whether the interference in question was necessary in a democratic society, in particular whether it corresponded to a pressing social need and was proportionate to the legitimate aim pursued.
35. First of all, the Court reiterates the principles established in its case-law as applicable to the present case, to the effect that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. They therefore play a key role in ensuring that the courts, whose role is fundamental in a democracy based on the rule of law, enjoy public confidence (see, among other authorities, Schöpfer v. Switzerland, 20 May 1998, §§ 29-30, Reports of Judgments and Decisions 1998-III; Nikula v. Finland, no. 31611/96, § 45, ECHR 2002-II; and André and Another v. France, no. 18603/03, § 42, 24 July 2008). That special role of lawyers in the administration of justice entails a number of duties, particularly with regard to their conduct (see Van der Mussele v. Belgium, 23 November 1983, Series A no. 70; Casado Coca v. Spain, 24 February 1994, § 46, Series A no. 285-A; Veraart v. the Netherlands, no. 10807/04, § 51, 30 November 2006; and Coutant v. France (dec.), no. 17155/03, 24 January 2008). While they enjoy exclusive rights and privileges that may vary from one jurisdiction to another, they are also subject to restrictions on their professional conduct, which must be discreet, honest and dignified (see, to similar effect, Morice v. France [GC], no. 29369/10, § 133, ECHR 2015).
36. Secondly, the Court observes that it has examined similar facts to those of the present case in its two previous judgments inÖcalan v. Turkey [GC] (no. 46221/99, ECHR2005‑IV) andÖcalan v. Turkey (no. 2) (nos. 24069/03and 3 others, 18 March 2014), in relation to the conditions of Abdullah Öcalan’sdetention (Article 3 of the Convention) and his communication with the outside world (Article 8 of the Convention). At the time of the events, Mr Öcalan was the client of lawyers including the present applicants. The Court held that the rules on contact with the outside world for life prisoners in a high-security prison were aimed at restricting the links between such prisoners and their criminal background, in order to minimise the risk that they might maintain personal contact with criminal organisations. The Court also considered well-founded the Government’s concerns that Mr Öcalan might take advantage of communication with the outside world to renew contact with members of the armed separatist movement of which he was leader (see Öcalan [GC], cited above, §§ 192 and 195, and Öcalan (no. 2), cited above, §§ 132 and 160).
37. These considerations also apply in the present case. The Court considers that the role played by the applicants as lawyers and intermediaries between their client Abdullah Öcalan and the criminal courts imposed a number of duties on them as regards their conduct. However, it observes that the press conferences given by the applicants after their visits to their client did not concern his defence, and nor did they form part of the exercise of the right to inform the public about the functioning of the justice system; rather, they could be seen as conveying Mr Öcalan’s views on such matters as the strategy to be adopted by his former armed organisation, the PKK (see paragraphs 5 and 6 above, and contrast Morice, cited above, § 153). The Court considers that the measures taken by the national authorities sought to prevent the applicants from taking advantage of their visits to Mr Öcalan in order to establish contact between him and his former armed organisation, and that they met a pressing social need, namely the prevention of recourse to violence and terrorist acts.
38. The Court further considers that the imposition of a temporary procedural measure on the applicants was proportionate to the aim pursued, especially as, although the period for which they were suspended from representing one of their clients cannot be viewed as insignificant, it cannot be regarded as excessive either. In the Court’s view, this moderate sanction, which moreover had no repercussions on the applicants’ professional activities concerning clients other than Mr Öcalan, did not constitute a disproportionate response to their actions, given that their conduct contravened the rules governing their office.
39. It follows that this part of the application discloses no appearance of a violation of Article 10 of the Convention and must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. The applicants’ other complaints
40. In so far as the applicants complained that the criminal proceedings brought against them for abusing the office of lawyer and aiding a criminal organisation had been unfair, the Court notes that the prosecution was eventually time-barred. In the absence of a conviction and thus of interference with the applicants’ exercise of their defence rights referred to in the complaints set out above, the Court rejects this part of the application as being manifestly ill-founded, pursuant to Article 35 §§ 1 and 4 of the Convention (see Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998; Stamoulakatos v. Greece (dec.), no. 42155/98, 9 November 1999; and Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003).
41. As regards the proceedings resulting in their temporary disqualification from acting as Abdullah Öcalan’s lawyers for one year (one and a half years in the case of Ms HaticeKorkut), the applicants alleged, in general and in addition to their complaints under Article 10, that there had been a violation of Articles 1, 6, 7, 13, 14, 17 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention.
42. The Court has examined those complaints as submitted by the applicants. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine these allegations, it has not found any appearance of a violation of the rights and freedoms guaranteed by the Convention or the Protocols thereto.
43. In particular, without going into the question whether Article 6 of the Convention applies to those proceedings, the Court reiterates that the right to adversarial proceedings means in principle the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations presented with a view to influencing the court’s decision(see, among many other authorities, Meftah and Others v. France[GC], nos. 32911/96, 35237/97 and 34595/97, § 51, ECHR 2002-VII). However, such a right is not absolute and its scope may vary, in particular according to the specific features of the proceedings in question (see, for example, Baccichetti v. France, no. 22584/06, § 30, 18 February 2010). The Court further reiterates that the principle of equality of arms, for the purposes of the same Article, requires each party to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage in relation to the opposing party (see, among other authorities, Regner v. the Czech Republic [GC], no. 35289/11, §§ 146-49, 19 September 2017).
In the present case, the Court notes that the proceedings in question consisted of two phases which were inextricably linked: an urgent preliminary phase, in which the court concerned, at the request of the public prosecutor, gave a “speedy” decision on the applicants’ temporary disqualification, and an adversarial phase, in which the competent court examined the applicants’ arguments against the measure in issue. In the latter phase, the Istanbul 10th Assize Court examined the arguments put forward by the applicants concerning the lawfulness of the measures taken against them, before addressing them, stating reasons. The Court therefore considers that the domestic proceedings were fair as a whole, in particular as the applicants were able to submitarguments in their defence in adversarial proceedings.
44. In addition, the Court considers in particular that the applicants’complaints thatinsufficient reasons were given for the judicial decisions concerning the temporary measures in issue must be rejected, seeing that in so far asthose decisionscould be read in the light of the relatively detailed arguments put forward in the indictment of 22 March 2002 to which the decisions referred, they contained extensive reasoning.
45. It follows that these complaints must likewise be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in French and notified in writing on 27 September 2018.
Stanley Naismith Robert Spano
Registrar President
Appendix
Application no.30687/05
1. Aysel TUĞLUK is a Turkish national who was born in 1965, lives in Istanbul and was represented by Ö. KILIÇ
2. İrfan DÜNDAR is a Turkish national who was born in 1972, lives in Istanbul and was represented by Ö. KILIÇ
3. Doğan ERBAŞ is a Turkish national who was born in 1964, lives in Istanbul and was represented by Ö. KILIÇ
4. Hatice KORKUT is a Turkish national who was born in 1966, lives in Istanbul and was represented by Ö. KILIÇ
5. Aydın ORUÇ is a Turkish national who was born in 1974, lives in Denizli and was represented by Ö. KILIÇ
6. Mahmut ŞAKAR is a Turkish national who lives in Diyarbakır and was represented by Ö. KILIÇ
Application no. 45630/05
Türkan ASLAN is a Turkish national who was born in 1972 and lives in İzmir.
Leave a Reply