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SECOND
SECTION
CASE OF ALKES v. TURKEY (No. 2)
(Application
no. 16047/04)
JUDGMENT
STRASBOURG
8 June
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Alkes v. Turkey
(no. 2),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16047/04) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Ali Ümit Alkes
(“the applicant”), on 5 April 2004.
- The
applicant was represented by Mr B. Kurt, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
5 February 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
-
The applicant, who was born in 1980, currently resides in
Switzerland.
- On
28 March 1998 the applicant was taken into police custody on
suspicion of membership of an illegal organisation. On 2 April 1998
he was placed in detention on remand.
- On
15 April 1998 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant, charging him
under Articles 168 (2), 497 (2), 522, 55 (3), 33 and 40 of the
former Criminal Code with membership of an illegal organisation and
armed robbery.
- On
28 March 2001 the Istanbul State Security Court convicted the
applicant under Articles 168 (2) and 497 (2) of the former Criminal
Code, and sentenced him to eight years and four months' imprisonment
for the former offence and to eleven years and eight months'
imprisonment for the latter offence. The State Security Court further
stated that the provisions of Law no. 4616, which governed
conditional release, the suspension of proceedings and the execution
of sentences in respect of certain offences committed before 23 April
1999, had to be taken into account in the execution of the sentence
in relation to the offence under Article 497 (2).
- On
an unspecified date the applicant appealed against the judgment of
the Istanbul State Security Court. The public prosecutor did not
lodge an appeal.
- On
29 April 2002 the Court of Cassation quashed the judgment of the
Istanbul State Security Court, finding that the classification of the
applicant's offence had been erroneous. The Court of Cassation
further held that the applicant's acquired rights in his former
conviction by the decision dated 28 March 2001 had to be safeguarded
in the new judgment which would be rendered by the Istanbul State
Security Court.
- The
applicant was consequently tried afresh before the Istanbul State
Security Court. On 24 January 2003 the Istanbul State Security Court
convicted the applicant under Article 146 (1) of the former Criminal
Code for attempting to undermine the constitutional order and
sentenced him to sixteen years and eight months' imprisonment. The
State Security Court stated in its judgment that the applicant's
acquired rights had been observed because in the first judgment the
applicant had been sentenced to a total of twenty years'
imprisonment, whereas in the new judgment the sentence was reduced.
- On
22 October 2003 the applicant appealed against this judgment arguing,
inter alia, that his acquired rights had not been protected.
He maintained that, although the sentence imposed by the Istanbul
State Security Court in its second judgment had been lower than that
originally imposed, under the latter he would have been conditionally
released pursuant to Law no. 4616 after ten years, thus actually
serving a shorter sentence.
- On
2 December 2003 the Court of Cassation upheld the reasoning in the
judgment of the Istanbul State Security Court, and dismissed the
appeal.
- Following the entry into force of the new Criminal
Code on 1 June 2005, the Istanbul Assize Court reopened the
proceedings against the applicant in order to review his sentence,
pursuant to the provisions of the new Criminal Code. As an interim
measure, on 11 October 2005 the applicant was conditionally released
pending the outcome of the proceedings. On 22 December 2006 the
Istanbul Assize Court found that the provisions of the former
criminal code were more favourable to the applicant and therefore
decided not to apply the provisions of the new Criminal Code. On 13
November 2007 the Court of Cassation rejected the applicant's appeal.
In the meantime, following his release, the applicant fled to
Switzerland, where he currently resides.
II. RELEVANT DOMESTIC LAW
1. Law no. 4616 on the conditional release, the
suspension of proceedings and the execution of sentences in respect
of certain offences committed before 23 April 1999 (dated 21 December
2000)
- Section
1 (2) of Law no. 4616, stipulates, inter alia, that persons
who were serving their prison sentences following a conviction in
respect of crimes committed before 23 April 1999 were entitled to a
ten year reduction in their total sentence under the relevant
execution regulations.
Section
1 (5) of this Law states that the provisions of Article 1 are
not applicable to, inter alia, Articles 146 and 168 of the
former Criminal Code.
2. Article 326 of the former Code of Criminal Procedure
- Article
326 (4) of the former Code of Criminal Procedure stipulates that,
upon an appeal lodged solely by the accused, or by the prosecutor for
the benefit of the accused, the new judgment may not impose a
sentence which is more severe than that which was imposed originally.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Articles 1, 6 and 7 of the Convention that
the domestic courts had failed to respect the prohibition of
reformatio in peius, a principle established by Article 326 of
the former Code of Criminal Procedure, when deciding his appeal to
his detriment. In his view, had he not appealed against the first
judgment, he would have been released from prison by June 2004
pursuant to Law no. 4616. He also maintained that the additional term
of imprisonment which had been imposed on him by the second judgment
of the Istanbul State Security Court amounted to an unjustified
deprivation of liberty and thus violated Article 5 of the
Convention.
- The
Government contested the allegations, stating that the applicant had
not been sentenced to a longer sentence of imprisonment by the second
judgment.
- The
Court considers that these complaints should be examined solely under
Article 6 of the Convention (see, Puchol Oliver v. Spain
(dec.), no. 17823/03, 25 January 2005, and Conde Conde v.
Spain (dec.), no. 45249/99, 23 Mars 2000). It notes that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
- The
Court reiterates in the first place that it is not its function to
deal with errors of fact or law allegedly made by a national court,
unless and insofar as they may have infringed rights and freedoms
protected by the Convention (García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999 I). In any event, it is
primarily for the national authorities, notably the courts, to
resolve problems of interpretation of national legislation. This
applies in particular to the interpretation by the courts of rules of
a procedural nature (Pekinel v. Turkey, no. 9939/02, §
53, 18 March 2008). The Court's role is confined to ascertaining
whether the effects of such an interpretation are compatible with the
Convention in general and with the principle of legal certainty,
guaranteed by Article 6 in particular.
- Turning
to the facts of the present case, the Court observes that, while the
criminal proceedings against the applicant were pending before the
Istanbul State Security Court, on 21 December 2000 Law No. 4616
came into force. According to this new law, also known as the amnesty
law, an accused who was sentenced to a term of imprisonment of more
than ten years became entitled to conditional release after a
reduction of ten years from his or her total sentence. The applicant
was convicted under Articles 168 and 497 of the Criminal Code
and sentenced to a total of twenty years' imprisonment, to which this
partial amnesty would have applied. However, the applicant appealed.
After his retrial, he was convicted under Article 146 of the Criminal
Code, a provision which was excluded from the benefit of Law no.
4616. When the Istanbul State Security Court delivered its new
judgment on 24 January 2003, it noted that the acquired rights of the
applicant had nevertheless been observed, as a lesser sentence had
been imposed of sixteen years and eight months' imprisonment.
- The
Court observes that the main complaint of the applicant relates to
his inability to benefit from conditional release under Law no. 4616
and the interpretation of Article 326 of the Criminal Procedure Code
governing the principle of reformatio in peius (see paragraphs
14-15 above). However, as stated above, the domestic courts are in a
better position to interpret domestic legislation, in particular laws
relating to procedural matters, as in the present case. The Court
takes note of the fact that the allegations of the applicant were
thoroughly examined by the domestic courts at two levels of
jurisdiction and, in its judgment, the Istanbul State Security Court
explicitly stated that the second judgment was more favourable to the
applicant than the former, as he was finally sentenced to sixteen
years and eight months' imprisonment instead of twenty years.
Concerning the question of conditional release, the Court cannot
substitute its own view for that of the domestic courts' findings in
this specific case. The Court finds that the applicant was able
to submit his arguments to the courts, which addressed those
arguments in decisions which were duly reasoned and disclose no
elements of arbitrariness (notably Puchol Oliver v. Spain,
cited above).
- In
the light of the above, the Court finds that there has been no
violation of Article 6 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 of the Convention.
Done in English, and notified in writing on 8 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
