"... Whether there is a legitimate reason to fear that a particular court lacks independence and impartiality, the standpoint of the accused is important without being decisive" (Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, pp. 1572 - 1573, § 71). "... [T]he applicant could legitimately fear that... one of the judges... was a military judge" (ibid., paragraph 72). Similar sentences are contained in {Ciraklar} v. Turkey, judgment of 28 October 1998, Reports 1998-VII, §§ 38 and 40, and numerous other judgments. In all these judgments the Court found a violation of Article 6 due to the fear created by the presence of a military judge.
Moreover, inhuman treatment within the meaning of Article 3 must attain a minimum level of severity. The applicant must show beyond reasonable doubt that he has suffered fear and anguish that reaches the threshold level required by Article 3 (see mutatis mutandis, V. v. the United Kingdom [GC], No. 24888/94, ECHR 1999-IX). In the present case there is no evidence which shows that the applicant has suffered fear and anguish that reaches the necessary threshold due to a lack of impartiality and independence on the part of of the Court. As stated in paragraph 39 of the judgment, during the trial the applicant accepted the main charge against him under Article 125 of the Turkish Penal Code, that is to say having accomplished acts aimed at separating a part of the State's territory. He also accepted political responsibility for the PKK's general strategy as its leader and envisaged establishing a separate State on the territory of the Turkish State. He knew what the charge against him was and what the penalty would be. (There is only one penalty provided for in Article 125 of the Turkish Penal Code). He also stated expressly that he accepted the State Security Court's jurisdiction.
Under such circumstances, the presence of a military judge at an early stage of the trial can hardly have caused fear and anguish reaching a threshold constituting a violation of Article 3.
Furthermore, for a threat to amount to inhuman treatment there must be a "real risk". A mere possibility is not in itself sufficient (Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A No. 215, § 111). The threat should be "sufficiently real and immediate" (Campbell and Cosans v. the United Kingdom, judgment of 25 February 1982, Series A No. 48, § 26). "It must be shown that the risk is real" (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).
In the present case, there is no ground to believe that there was a real and immediate risk that the applicant would be executed, for the following reasons:
(a) In Turkey, the death penalty has not been executed since 1984.
(b) The Turkish Government by an official communication sent to the Court, accepted the Rule 39 decision of former Section I and stayed Mr {Ocalan's} execution (see paragraph 5 of the judgment).
(c) In compliance with the Rule 39 decision, the Government did not send the applicant's file to the Parliament for the death sentence to be approved (under the Turkish Constitution, the death penalty may be executed only after the Parliament adopts a law approving the sentence). In other words, the process of execution never started. Under such circumstances, it is not possible to conclude that a real threat of execution existed for Mr {Ocalan} in the period between the Turkish Court's decision and the abolition of the death penalty in Turkey.
In Soering, the Court ruled, mutatis mutandis, that there was no inhuman treatment as long as the Government complied with the interim measure indicated by the Strasbourg organs (Soering, § 111). The same considerations apply in the present case. Since the Government agreed to comply with the Rule 39 decision, there has never been a "sufficiently real and immediate" threat of execution for the applicant.
In {Cinar} v. Turkey (No. 17864/91, Commission decision of 5 September 1994, DR 79-B, p. 5), the applicant claimed that there had been a violation of Article 3 because his death sentence, which became definitive on 20 October 1987, was submitted to the Grand National Assembly for approval and the Grand National Assembly did not take any decision until 1991. He was therefore exposed to the death-row phenomenon.
The Commission rejected this claim on the ground that the death penalty had not been executed in Turkey since 1984 and the risk of the penalty was illusory.
We cannot accept that in the present case the risk of execution for the applicant was more real than in {Cinar}.
The applicant's political background did not increase the risk of execution, as is suggested in the judgment (paragraph 72). On the contrary, it made him less vulnerable because of the political ramifications his execution would have had. The fact that there has been a quasi-consensus among all political parties in the Parliament not to execute confirms this view. This political consensus is evident from the fact that the Parliament abolished the death penalty by Law No. 4771, which was accepted with a large majority and published on 9 August 2002 (see paragraph 51 of the judgment). Furthermore, on 12 November 2003 Turkey ratified Protocol No. 6.
For all these reasons we conclude that there is no violation of Article 3 on account of the death sentence imposed by the State Security Court.