Öcalan v. Turkey (Application No. 46221/99)

A selection of key paragraph(s) can be found below the document.

FOR THESE REASONS, THE COURT
(…)
2. Holds unanimously that there has been a violation of Article 5 § 4 of the Convention on account of the lack of a remedy by which the applicant could have the lawfulness of his detention in police custody decided;
3. Holds unanimously that there has been no violation of Article 5 § 1 of the Convention on account of the applicant’s arrest;
4. Holds unanimously that there has been a violation of Article 5 § 3 of the Convention on account of the failure to bring the applicant before a judge promptly after his arrest;

103. The Grand Chamber notes at the outset the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial authority promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment

131. The Grand Chamber sees no reason to disagree with the Chamber’s finding that the applicant’s lack of access to a lawyer while in police custody adversely affected his defence rights. The Grand Chamber agrees with the reasoning of the Chamber, which was as follows:
“… The Court reiterates that Article 6 may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with it (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3 (c) are applied during the investigation depends on the special features of the proceedings and the facts of the case. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, pp. 54-55, § 63).

173. As to the nature of the applicant’s trial, the Court refers to its conclusions on the applicant’s complaints under Article 6 of the Convention. It has found that the applicant was not tried by an independent and impartial tribunal within the meaning of Article 6 § 1 and that there has been a breach of the rights of the defence under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and (c), as the applicant had no access to a lawyer while in police custody and was unable to communicate with his lawyers out of the hearing of officials, restrictions had been imposed on the number and length of his lawyers’ visits to him, he was unable to consult the case file until an advanced stage of the proceedings, and his lawyers did not have sufficient time to consult the file properly.