CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 décembre 2000

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margin-bottom:0pt; text-indent:-17pt } .s889E57A { margin-top:0pt; margin-left:17pt; margin-bottom:36pt; text-indent:-17pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sCDBDE2A5 { width:213pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } FIRST SECTION DECISION [*] AS TO THE ADMISSIBILITY OF Application no. 46221/99 by Abdullah ÖCALAN against Turkey The European Court of Human Rights (First Section), having sat on 21   November and 14 December 2000 as a Chamber composed of   Mrs   E. Palm , President ,   Mrs   W. Thomassen ,   Mr   Gaukur Jörundsson ,   Mr   R. Türmen ,   Mr   C. Bîrsan ,   Mr   J. Casadevall ,   Mr   R. Maruste , judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application introduced on 16 February 1999 and registered on 17 February 1999, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the parties’ oral submissions at the hearing on 21   November 2000, Having deliberated, decides as follows: THE FACTS The applicant is a Turkish national who was born in 1949 and is currently in custody in İmralı Prison (Mudanya, Bursa, Turkey). He is represented before the Court by Mr Ahmet Avşar, Mr Doğan Erbaş, Mr   İrfan Dündar, Mr Hasip Kaplan, Ms Aysel Tuğluk, Mr İmihan Yaşar, Mr Mükrime Tepe and Mr Filiz Köstak, of the Istanbul Bar, Mr Hatice Korkut and Mr Kemal Bilgiç, of the İzmir Bar, Mr Mahmut Şakar and Mr   Reyhan Yalçındağ, of the Diyarbakır Bar, Mr Niyazi Bulgan, of the Gaziantep Bar, Mr Aydın Oruç, of the Denizli Bar and Mr Mark Muller, a London barrister. Until 27 October 2000 the applicant was also represented by Ms Ties Prakken and Ms Britta Böhler, of the Amsterdam Bar. I.   THE CIRCUMSTANCES OF THE CASE The facts of the case, as submitted by the parties, may be summarised as follows. A.     The applicant’s arrest and transfer to Turkey On 9 October 1998, the applicant, the leader of the Workers’ Party of Kurdistan (“the PKK”), was expelled from Syria, where he had been living for many years. On 12   November 1998 he went to Rome via Moscow. Although the Italian authorities refused to extradite him to Turkey, they refused his application for political asylum. He therefore left Italy. According to the respondent Government (“the Government”), seven warrants for his arrest had been issued by the Turkish courts and a wanted notice (“red notice”) had been issued by Interpol. Later, after a stay at the Greek ambassador’s residence in Nairobi, Kenya, the applicant was arrested. According to him, the arrest took place in Nairobi on 15   February 1999, before 11 p.m., during an operation carried out in disputed circumstances. He was transferred to Turkey and taken into police custody at İmralı Prison on 16 February 1999. According to the Turkish authorities, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs of the applicant taken during the journey to his place of detention in Turkey were published in the press. In the meantime, the other inmates of İmralı Prison were transferred to other prisons. During his transfer from Kenya to the island of İmralı the applicant was blindfolded. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace. According to the applicant, he was also given tranquillisers. B.     Police custody on the island of İmralı From 16 February 1999 the applicant was interrogated by members of the security forces. On 20 February 1999 his police custody was extended by three days by decision of a judge (taken on the basis of the file) on the ground that the interrogation had not been completed. The judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999. According to the applicant, sixteen lawyers instructed by his family sought leave from the National Security Court on 22 February 1999 to visit their client. They were told orally that only a single lawyer would be allowed to see him. The 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 their client. Likewise according to the applicant, his lawyers were harassed by a crowd encouraged or at least tolerated by plain-clothes policemen. As soon as the applicant’s detention began, the island of İmralı was decreed to be 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 this “desk” which was responsible for granting the 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 made an attempt on his life. Likewise according to the Government, the lawyers were searched as part of those security measures. 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. At the outset, his and the PKK’s aim had been to found an independent Kurdish State, but over time they had changed their objective and aimed at securing 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 used violent methods against the civil population, in particular from 1987 onwards; he himself was personally opposed to such methods and had tried in vain to prevent recourse to them. He indicated to the prosecutor that the warlords who wanted to seize power within the PKK had exerted some of their pressure on the Kurdish population; some of them 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. C.     Appearance before a judge and pre-trial detention 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 ultimately submitted to him for his approval as founder and leader of the organisation. In 1973-78 the PKK’s activities had been political. In 1977 and 1978 the PKK had organised armed attacks on the ağalar (major landowners). In 1979, after the applicant had gone to Lebanon, the PKK had begun its paramilitary preparations. Since 1984 the PKK had carried on an armed struggle within Turkey. The persons in charge in each province decided on armed actions and the applicant had 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. D.     Contacts with the outside world during the judicial investigation According to the applicant, on the day after he arrived in Turkey his Turkish lawyer, Mr Feridun Çelik, asked to visit his client. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Assocation and was subsequently arrested together with seven other lawyers. On 17 February 1999 the Turkish authorities at Istanbul Airport refused Ms Böhler, Ms Prakken and their partner Mr Koppen leave to enter Turkey on the ground that these lawyers could not represent the applicant 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) gave rise to the risk of prejudice to public order in Turkey. 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. During the preliminary investigation from 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve interviews with his lawyers. The dates and duration of those interviews 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). 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 a week, lasting an hour each. On each visit the lawyers were searched five times and required to fill in a very detailed questionnaire. Likewise according to the applicant, he and his advisers were not allowed to exchange documents or take notes during these interviews. The applicants’ representatives were unable to give him either a copy of his case file (other than the indictment, which was notified by the prosecution) or any other material which would allow the applicant to prepare his defence. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or the length of such visits. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the interviews were held in private. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat from a private quay. Hotel rooms were booked for them near the embarkation point. Likewise according to the Government, no restrictions were placed on the applicant’s correspondence. In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) visited İmralı Prison. In a letter of 22   March 1999 to the representatives of the Turkish Government they indicated that the applicant was physically in good health and that he had said that he had not suffered any ill-treatment since his arrest. His cell was of a high standard. 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 his psychological health. E.     The media According to the applicant, even before his trial began he was portrayed by a section of the media as a “baby-killer”. His statements made as an accused during the preliminary investigation were disclosed to the press even before they were available to his lawyers. According to the Government, the media and journalists showed avid interest in the Öcalan case and all sorts of comments were made as to whether the applicant should or should not be found guilty. The applicant’s lawyers brought an action against a journalist who they considered had libelled the applicant. F.     Trial at the National Security Court In an indictment submitted on 24 April 1999 (and joined to several others 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. The case file ran to 17,000 pages and had been prepared by joining the files of seven sets of proceedings already instituted against the applicant by the various National Security Courts. According to the applicant, that file was communicated to his lawyers sixteen days before the trial began and the prosecution failed to place certain documents in it, such as those concerning the applicant’s arrest in Kenya and the records of the lawyers’ visits to the applicant on the island of İmralı. 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 and the measures to be taken for the hearings to be held on the island of İmralı and for the attendance of the parties and the public at those hearings. 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 are currently the subject of a criminal investigation. The National Security Court held eight hearings on the island of İmralı from 31 May to 29 June 1999 and these were attended by the applicant. The applicant told the court, among other things, that he reiterated the statements he had made to the prosecutor and the judge. He confirmed that he was the most senior PKK official, that he led the organisation and that he had instructed the members of the organisation to carry out a number of acts. He stated that he had not been ill-treated or insulted since his arrest. Furthermore, 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. 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, in particular, that he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, as a reaction to the Government’s political pressure on that population. When circumstances changed, he had altered his aim and limited his claims to autonomy or 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 the acts of violence which went beyond the PKK’s declared 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. According to the applicant, his lawyers’ applications for the communication of additional documents or further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics. According to the Government, the applicant’s lawyers’ request to be able to confer with him during the lunch breaks was accepted by the National Security Court at the hearing on 1 June 1999. The lawyers did not appear at the hearing on 3 June 1999. At their request, the 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 creating an atmosphere of calm. On 18 June 1999 Turkey’s Grand National Assembly amended Article   143 of the Constitution and excluded military members (whether of the bench or of the prosecutor’s office) from National Security Courts. Following similar amendments made on 22 June 1999 to the Law on the National Security Courts, the military judge sitting on the Ankara National Security Court hearing the Öcalan case was replaced by a civilian judge. This substitution took place after the prosecution had made their closing address and before the applicant presented his defence on the merits of the charges. The judge who replaced the military judge sat on the National Security Court for the first time at the hearing on 23 June 1999. The 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. According to the applicant, the military judge, an army colonel, was replaced after all the interlocutory rulings had been made by the National Security Court, including the one whereby the applicant’s application for further witnesses to be heard was refused. According to the Government, the military judge’s replacement had followed the proceedings from the beginning and had attended the hearings, without being entitled to vote. He replaced the military judge before the end of the stage relating to the taking of evidence. Likewise according to the Government, he had the right to vote against the completion of that stage if he felt that the court needed to investigate the case more thoroughly. On 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. It sentenced him to death, pursuant to Article 125 of the Criminal Code. The National Security Court held that the applicant was the founder and principal leader of the unlawful organisation the PKK. The aim of the latter 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 court held 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, sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, policemen, 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 to, among other things, 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. G.     Appeal on points of law The applicant’s lawyers appealed on points of law against that judgment, which, on account of the gravity of the sentence, was in any event subject to review by the Court of Cassation automatically. In a judgment adopted on 22 November 1999 and delivered on the 25th the Court of Cassation affirmed 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 seeing 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, among other reasons on security grounds. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and chairman 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 which Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces and 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”, gifts, 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 groupings. 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 men to resort to violence, had indicated combat tactics, had imposed penalties on those who did not obey his instructions and had incited the civilian population to translate words into deeds. As a result of the acts of violence carried out by the PKK from 1978 up 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   policemen and 1,225 village guards had died. The Court of Cassation held that the PKK, founded and led by the applicant, had represented a substantial, serious and pressing threat to the country’s integrity. It ruled that the acts of which the applicant was accused matched those which constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order that that provision should apply, for the applicant – the founder and chairman of the PKK and the instigator of the acts of violence committed by that organisation – to have used a weapon himself. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Provisions on National Security Courts Before the Constitution was amended on 18 June 1999, Article 143 provided that National Security Courts were composed of a president, two other regular members and two substitute members. The President of the National Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges. 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 regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors. The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and Public Prosecutors of the first rank, according to procedures laid down in special legislation, and the Public Prosecutors from among other Public Prosecutors by the National Legal Service Council, for four years. Their term of office shall be renewable…” The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the National Security Courts by means of 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. B.     Article 125 of the Turkish Criminal Code “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.” C.     Review of the lawfulness of detention The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person arrested and/or whose police custody has been extended on the orders of a prosecutor may challenge the measure in question before the appropriate district judge and, if successful, be released. In proceedings in National Security Courts (governed by Law no. 2845 of 16 June 1983) Article 128 of the Code of Criminal Procedure applies only as it was worded before the amendments of 18 November 1982, when it did not provide for any appeal by persons arrested and/or kept in police custody on the orders of a prosecutor. Section 1 of Law no. 466 “on the award of compensation to persons arrested unlawfully or held in detention without due cause” provides that the State shall compensate any person who, inter alia , is “arrested or taken into detention in conditions and circumstances incompatible with the Constitution and legislation” in force. Furthermore, Article 144 of the Code of Criminal Procedure provides that anyone arrested or detained pending trial may speak with his legal representative in private and without the need for the latter to have an authority to act. COMPLAINTS 1.     The applicant submitted in the first place that the practice of the member States taken as a whole showed that a death sentence (and/or its execution) amounted to an infringement of the right to life guaranteed by the first sentence of Article 2 of the Convention and inhuman punishment within the meaning of Article 3 of the Convention. He further submitted in that connection that execution by hanging was a particularly cruel punishment, on account of the acute suffering it caused. Likewise under the head of Article 2 of the Convention, the applicant complained that he had been sentenced to death by a body which could not be regarded as a “court” within the meaning of that provision and at the end of criminal proceedings which had breached Articles 5 and 6 of the Convention in several respects. The applicant further alleged a potential violation of Article 2 of the Convention taken together with Article 14 in that execution of the death sentence imposed on him would be discriminatory given that it was clearly Government policy no longer to carry out such sentences. 2.     Relying on Article 3 of the Convention, the applicant further complained that agents of the State had abducted him in Kenya, and had blindfolded, handcuffed and drugged him during his transfer to prison in Turkey. The applicant’s representatives alleged that his guards had taunted him in the aircraft during the flight from Kenya to Turkey in order to humiliate him in the video recording made during the journey. In addition, exhibiting the applicant to the press and the television cameras after his arrest had been intended to degrade him in the eyes of the public. Still under the head of Article 3, the applicant further complained of the isolation he was being held in at İmralı Prison. 3.     Relying on Article 5 of the Convention, the applicant complained, in particular, -   that he had been deprived of his liberty unlawfully, that is to say without the formalities required for extradition being complied with (Article   5   §   1); -   that he had been the victim of an abduction which could not be regarded as a lawful arrest (Article 5 § 1 (c) and (f)); -   that he had not been brought “before a judge or other officer” within the meaning of Article 5 § 3 (that is, before one who was independent and impartial); -   that he had not been informed of the reasons for his arrest (Article   5   §   2); -   that he had not been “brought promptly” before a judge (Article 5 § 3); -   that he had not been able to take proceedings by which the lawfulness of his detention in police custody could be decided (Article 5 § 4); and -   that he had had no right to compensation for the excessive length of the time he had spent in police custody (Article 5 § 5). 4.     Under Article 6 of the Convention, the applicant alleged in particular -   that his unlawful arrest had prejudiced the fairness of his trial (Article   6   §   1); -   that his case had not been heard by an independent and impartial tribunal, given that a military judge had participated in part of the proceedings and that the replacement judge had already taken part in the proceedings which had led to the order for his detention pending trial (Article 6   §   1); -   that the replacement of the military judge by a civilian judge one week before judgment was given had meant that the court was unlawfully constituted (Article   6 § 1); -   that the circumstances in which his trial had been conducted had deprived him of the benefit of the presumption of innocence and of a fair trial, particularly because he had been portrayed as a “baby-killer” in the media (which had published daily accounts of the statements he had made during the secret preliminary investigation) and on account of pronouncements about his guilt made by politicians even before he had been tried (Article 6 § 1 and/or Article 6 § 2); -   that he had not been informed, promptly and in detail, of the nature and cause of the accusation against him (Article 6 § 3 (a)); -   that he had not had adequate time and facilities for the preparation of his defence (Article 6 § 3 (b)), for the following reasons: (i) his lawyers had not been able to contact him until 25 February 1999, after he had made statements to the public prosecutor and the judge; (ii) his lawyers had been verbally intimidated by the crowd when they attempted to visit their client; (iii)   before his lawyers spoke to him they had been searched, their fingerprints had been taken and their documents and files had been seized; (iv) during meetings with him his representatives had been accompanied by prison warders, he had not been permitted to give documents to his lawyers and the latter had not been able to give him the case file; (v)   his representatives had had only fifteen days in which to prepare his defence and to study the file, which ran to seventeen thousand pages, and the applicant had not had access to these documents at all; (vi) the applicant’s lawyers had not had access to all the documents which might have assisted the defence case, including those concerning the applicant’s arrest; (vii) the applicant’s trial had been conducted with too much haste; -   that his right to legal assistance of his own choosing had been infringed on account of the delay before he was   permitted to contact his lawyers, the restrictions on his meetings with his lawyers and the intimidation his lawyers had been subjected to (Article 6 § 3 (c)); and -   that he had been unable to make a satisfactory choice of witnesses to appear on his behalf because of the restrictions on his contacts with his lawyers and the Government’s reluctance to supply the documents concerning his arrest (Article 6 § 3 (d)). 5.     In addition, the applicant alleged a violation of Article 7 of the Convention in that he had been sentenced by a court which was not established by law, nor independent and impartial, to a penalty which it was no longer the practice of the Contracting State to enforce. 6.     The applicant further alleged that the conditions of his arrest and detention had entailed an unjustified interference in his private and family life within the meaning of Article 8 of the Convention. He further submitted that the statement made to the press on 9 March 1999 had also breached that provision. 7.     Relying on Articles 9 and 10 of the Convention, the applicant alleged that he had been arrested and sentenced to death on account of his political opinions on the Kurdish question in Turkey. He submitted that such measures, taken in order to penalise his political activities, were not “necessary” within the meaning of the second paragraphs of those provisions. 8.     The applicant, referring to his complaints set out above, taken together with Article 13 of the Convention, alleged that the National Security Court had neither examined nor allowed his applications to have the restrictions on his defence removed and defence witnesses examined. 9.     The applicant alleged that he had been the victim of a violation of Article 14 of the Convention taken together with the other Articles mentioned above, given that his detention and conviction had been measures taken only on account of his political opinions and ethnic origins. 10.     The applicant further alleged a violation of Article 18 of the Convention in that the Contracting State had prosecuted him and convicted him in the context of its campaign against the PKK, but not in pursuance of one of the objectives set out in the Convention. 11.     Lastly, the applicant alleged that his right to submit an application to the Court under Article 34 of the Convention had been infringed because his representatives in Amsterdam had not been able to contact him after his arrest and the Government had failed to reply to the Court’s request for information.   PROCEDURE BEFORE THE COURT On 16 February 1999 the applicant’s representatives lodged an application concerning his arrest in Kenya and his detention by the Turkish authorities in Turkey. The application also included a request for application of Rule 39 of the Rules of Court. On 23 February 1999 the Court (First Section) requested the respondent Government to supply information about the possibility of the applicant being assisted by lawyers and about the conditions of his arrest and detention. The Government replied to the Court on 26 February 1999. On 2 March 1999 one of the applicant’s representatives, Ms Prakken of Amsterdam, submitted her observations. On 3 March 1999 the Government submitted further information. On 4 March 1999 the Court asked the respondent Government to take interim measures within the meaning of Rule 39 of the Rules of Court, with particular regard to compliance with the requirements of Article 6 in the proceedings brought against the applicant in the National Security Court and the effective use by the applicant of his right to lodge an individual petition with the Court through lawyers of his choice. On 8 March 1999 the respondent Government submitted their observations.   On 12 March 1999 the applicant’s representatives also filed their observations. On 23 March 1999 the Court requested the Government to supply further information on particular points concerning the measures taken in application of Rule 39 of the Rules of Court.   On 9 April 1999 the legal adviser to the Turkish Permanent Delegation indicated that the Government were not prepared to answer the Court’s questions on the ground that these went well beyond the scope of interim measures within the meaning of Rule 39.   On 29 April 1999 the Court decided to communicate the application to the Government for their observations on its admissibility and merits. It asked questions in particular about the rights of the defence (Article 6 of the Convention), the independence and impartiality of the National Security Court, whether the applicant’s arrest had complied with the requirements of Article 5, whether the applicant’s treatment had been compatible with Article 3 and about the right of individual petition before the Court (Article   34). The Government submitted their observations on 31 August 1999. The applicant filed his observations in reply on 27 September 1999 (through Mr   Kaplan) and on 29 October 1999 (through Ms Prakken and Ms Böhler). On 2 July 1999 one of the applicant’s representatives, Ms Böhler, asked the Court to request the Government “to suspend execution of the death sentence imposed on 29 June 1999 until the Court [had] decided on the merits of his complaints”. On 6 July 1999 the Court decided that the request for application of Rule   39 could be allowed if the applicant’s sentence were to be upheld by the Court of Cassation. By a judgment of 25 November   1999 the Court of Cassation dismissed the applicant’s appeal on points of law and upheld the judgment of 29   June   1999. On the same day (25 November   1999) one of the applicant’s representatives, Mr Kaplan, asked the Court to apply Rule   39 of its Rules of Court and to request the Government to stay execution of the death sentence imposed on the applicant until the end of the proceedings concerning his application to the Court.   On 30   November   1999 the Court decided to indicate to the Government the following interim measure: “The Court requests the respondent Government to take all necessary steps to ensure that the death penalty is not carried out so as to enable the Court to proceed effectively with the examination of the admissibility and merits of the applicant’s complaints under the Convention”. On 12 January 2000 the Turkish Prime Minister announced that the applicant’s file was to be transmitted to the Turkish Grand National Assembly (which is empowered to approve or disapprove enforcement of the death penalty) when the proceedings before the Court were over. On 19 May 2000 the applicant submitted further observations. On 20   June 2000 the Government submitted comments on the applicant’s observations of 27 September and 20 October   1999. By the President’s decision, these observations were added to the file. A hearing was held in public in the Human Rights Building, Strasbourg, on 21 November 2000 (Rule   59 § 2). There appeared before Court: (a)   for the Government Mr Francis Szpiner and Mr Şükrü Alpaslan,   Co-Agents ; Mr Yunus   Belet, Mr   Orhan Nalcıoğlu, Mr   Ergin Ergül, Mr   Gülhan Akyüz, Mr   Bilal Çalışkan, Mr   Özer Zeyrek, Mr   Recep Kaplan, Mr Cengiz Aydın, Mr Tuncay Çınar, Mr Kaya Tambasar, Mr   Münci Özmen, Ms Deniz Akçay, Ms Didem Bulutlar and Ms Banur Özaydın,   Advisers . (b)   for the Applicant Mr Hasip Kaplan, Sir Sydney Kentridge, Mr Mark Muller and Mr   Timothy   Otty,   Counsel ; Mr Kerim Yildız, Mr İrfan Dündar, Mr   Doğan   Erbaş, Ms   Gareth   Pierce, Mr Louis Charalambous and Mr   Philip   Leach,   Advisers . The Court heard addresses by Mr Szpiner and Mr Alpaslan for the Government and by Mr Kaplan, Sir Sydney Kentridge, Mr Muller and Mr   Otty for the applicant. THE LAW I.     THE APPLICATION (PRELIMINARY OBJECTION) The Government raised an objection to the admissibility of the application. Firstly, relying on expert reports, they asserted that the signature on Ms Böhler’s authority to act as the applicant’s representative before the various institutions, annexed to the application form lodged with the Court on 16 February 1999, was a forgery. At the hearing in the National Security Court on 6 June 1999 the applicant himself had stated that Ms Böhler was not his representative. Secondly, the Government argued that Mr Muller had not signed the observations he had submitted to the Court on 19 May 2000 in his capacity as President of the KHRP (Kurdish Human Rights Project) and asked the Court to exclude them from the proceedings in the present case. The applicant’s representatives replied that to their knowledge the disputed signature was the applicant’s. They further observed that on 16   February 1999 Ms Böhler and Ms Prakken had been prevented from contacting the applicant and obtaining a specific authority to act for him in the proceedings before the Court. Those two lawyers had later been appointed as the applicant’s representatives either directly by the applicant or through his other lawyers. The Court notes that it is not disputed that the applicant had just been arrested when his application was lodged with the Court on 16 February 1999 and that neither Ms Böhler nor any other lawyers were able to contact him on that date. The Court notes that the applicant subsequently confirmed his intention of taking part in the proceedings before it. The counsel appointed for that purpose, either directly or through the other representatives, included Ms Böhler. Lastly, whatever the outcome of the discussion about the authenticity of the signature on the disputed authority to act, the file contains no evidence that the applicant wished to abandon or withdraw his application or alter the effect and/or the substance of the allegations and observations submitted by his counsel (see, mutatis mutandis , the Ergi v. Turkey judgment, Reports of Judgments and Decisions 1994, §§ 60-64). With regard to the observations submitted by Mr Muller on 19 May 2000 on paper bearing the letterhead of the Kurdish Human Rights Project, the Court notes that these have already been added to the file by the President’s decision. Having regard to the fact that Mr Muller was named as the applicant’s representative in the authority to act which was valid at that time, the Court sees no reason to depart from its initial decision. The Court therefore dismisses the preliminary objection to the admissibility of the application. II.   DEATH PENALTY (ARTICLE 2 OF THE CONVENTION TAKEN ALONE, ARTICLE 3 TAKEN ALONE AND ARTICLE 2 TAKEN TOGETHER WITH ARTICLES 5, 6 AND 14) The applicant submitted in particular that the practice of the Contracting States taken as a whole showed that at the present day a death sentence (and/or its execution) amounted to an infringement of the right to life guaranteed by the first paragraph of Article 2 of the Convention as well as inhuman punishment within the meaning of Article 3 of the Convention. He further alleged the violation of the first paragraph of Article 2 of the Convention taken together with Articles 5 (protection against arbitrary detention), 6 (right to a fair trial) and 14 (prohibition of discrimination) of the Convention. The relevant part of Article 2 of the Convention provides: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law...” The Government’s arguments The Government observed that the death penalty was clearly provided for, under certain conditions, in Article 2 of the Convention. They submitted that, contrary to the applicant’s assertion, and irrespective of whether the death penalty ought to be abolished, Article 3 of the Convention could not through legal interpretation be made to include a prohibition of that penalty. They observed that Article 3 did not allow of any derogation, whereas Article 2 of Protocol No. 6 made provision for the death penalty to be kept in time of war or of imminent threat of war. It was obvious that the signatories to Protocol No. 6 did not consider the death penalty a degrading or inhuman punishment within the meaning of Article 3 of the Convention. The existence or imminence of a war could not make a punishment less inhuman or degrading. The Government therefore submitted that on this point the applicant’s interpretation was untenable. They further observed that abolition of the death penalty was the subject of a debate being conducted freely and independently in Turkey in the light of the international texts Turkey had signed and the obligations arising from them. They maintained that the decisions of a cou