CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 21 juillet 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   589 21.07.2009   Press release issued by the Registrar   CHAMBER JUDGMENT OSMANAĞAOĞLU v. TURKEY   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Osmanağaoğlu v. Turkey (application no. 12769/02). The Court held unanimously that there had been a violation of Article 6 §§ 1 and 3 (d) (right to a fair trial) of the European Convention on Human Rights on account of the applicant’s criminal conviction in the aftermath of the “Bahçelievler massacre”.   The applicant had not submitted a claim under Article 41 (just satisfaction) of the Convention. The Court observed that where an individual had been convicted following proceedings that had entailed breaches of the requirements of Article 6, a retrial or the reopening of the case represented in principle an appropriate way of redressing the violation. ( The judgment is available only in French .)   1.     Principal facts   The applicant, Ünal Osmanağaoğlu, is a Turkish national who was born in 1956 and is currently in Metris Prison (in Turkey).   On 3 October 1978, during a spate of terrorist acts in Turkey, the president of the local branch of a right-wing party and his son were murdered in Istanbul. On 9   October 1978 seven young left-wing extremists were killed in a flat in Ankara, in what became known as the “Bahçelievler massacre”, believed to have been organised by a secret nationalist group out of revenge for the murders committed on 3 October.   In the course of the investigations the military prosecutor’s office identified fourteen persons, including the applicant, who were suspected of being involved in the killings; three successive sets of criminal proceedings were instituted in the case.   The first concerned nine of the fourteen persons identified, who were brought before the martial-law court. The applicant, however, had absconded. In a statement taken in December 1978 one of the suspects concerned, D.D., said that the applicant had been in the vehicle from which three individuals had got out and made their way to the flat on the evening of the killings. In June 1979 D.D. alleged that he had been interrogated under torture – producing a medical report in support of his assertion – and forced to sign records drawn up by the police. The judges discredited D.D.’s statements with the exception of the one given the day after the events, finding that they were intended to create a diversion.   The second set of proceedings, instituted in 1986, made no mention of any involvement of Mr Osmanağaoğlu.   The third set of proceedings, before the Assize Court, were instituted in 1995 against the applicant, who was arrested in 1999 after nineteen years on the run. The Assize Court found that Mr Osmanağaoğlu had taken part in the massacre as the principal. It based its finding in particular on the incriminating statements by D.D. and also those by M.Y., who had been questioned at Mamak Military Prison in the context of his own trial and who likewise had subsequently complained of ill-treatment, substantiated by medical evidence. On 15 February 2001 the applicant was given seven death sentences, one for each murder. This ruling was upheld by the Court of Cassation in June 2001.   Following the abolition of the death penalty in peacetime in Turkey in 2002, the applicant’s sentence was commuted to life imprisonment, with ineligibility for parole during the first twenty-five years. His sentence was reduced to forty years in October 2007.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 14 December 2001. It was decided that the admissibility and merits would be examined at the same time.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura-Sandström (Sweden), Boštjan M. Zupančič (Slovenia), Ineta Ziemele (Latvia), Luis López Guerra (Spain), Işıl Karakaş (Turkey), Ann Power (Ireland), judges , and also Santiago Quesada , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying in particular on Article 6 §§ 1 and 3 (d), Mr Osmanağaoğlu complained that he had been convicted on the basis of an arbitrary assessment of evidence extracted from two of his co-accused under torture, and that he had never been able to contest that evidence.   Decision of the Court   The statements in issue, on which the Court did not express an opinion, had been obtained in Mr Osmanağaoğlu’s absence, at the preliminary investigation stage. However, it had been of crucial importance for the applicant to be able to examine the witnesses against him, D.D. and M.Y., in view of the sentence he faced and the uncertain reliability of their statements.   The Court noted the discrepancies both in D.D.’s various statements and in the courts’ interpretation of them, but observed above all that D.D. had been questioned while being held incommunicado in police custody for six days, and that M.Y. had given evidence from the military prison where he was being held pending his trial in the martial-law court. The Court further noted that, having implicated the applicant, the witnesses had later explicitly retracted their statements, alleging that they had been interrogated under torture and lodging criminal complaints on that account, supported by medical evidence.   The judges had not assessed the effect of the admission of such statements on the fairness of the applicant’s trial. They had failed to re-examine D.D. and M.Y. to assess their credibility and to hold an adversarial hearing at which the defence could have questioned their versions of events. The Court concluded that this restriction of the rights of the defence had amounted to a violation of Article 6   §§   1 and   3   (d).     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Céline Menu-Lange (telephone: 00 33 (0)3 90 21 58 77) Stefano Piedimonte (telephone: 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: 00 33 (0)3 88 41 35 70) Frédéric Dolt (telephone: 00 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.