What is the Legal Fight Against Terrorism?: The Case of Ocalan v. Turkey Decided by the European Court for Human Rights

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Sunday, June 1, 2003
Florian Hauswiesner
This case involves the capture and arrest of the former leader of the Kurdish Workers Party (PKK), Mr. Ocalan, by Turkish officials in Kenya in February 1999. Mr. Ocalan was prosecuted for carrying out activities for the purpose of establishing an independent Kurdish state in eastern Turkey. He was found 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. As a result, he received a death sentence under Article 125 of the Turkish Criminal Code. The case originated in an application against the Republic of Turkey, lodged by Mr. Ocalan in February 1999 with the Court under Article 34 of the Convention for the protection of Human Rights and Fundamental Freedoms (“the Convention”). By implementing law no. 4771, the Turkish Assembly resolved, inter alia, to abolish the death penalty in peacetime by amending the relevant legislation, including the Criminal Code. This occurred as a result of Turkey’s desire to become an EU member state and because Turkey feared the potential risks of being condemned by the European Court of Human Rights. On October 3, 2002, the Ankara State Security Court commuted the applicant’s death sentence to life imprisonment. The ECHR rejected further Turkey’s argument that Mr. Ocalan failed to exhaust domestic remedies. The Court noted that the special circumstances of the case, in particular Mr. Ocalan’s isolation and the fact that the Turkish police obstructed his access to lawyers, made it impossible for the applicant to effective recourse to a domestic remedy under Turkish law. Moreover, the Court found that detention in the present case, while lawful under Turkish law, resulted in a violation of Article 4&5 of the Convention, which provides for the right to have the lawfulness of detention decided speedily by a court.