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The Case of the Isolation Regime of Abdullah Öcalan

A Violation of European Human Rights Law and Standards?

Diploma Thesis 2010 103 Pages

Politics - International Politics - Topic: Public International Law and Human Rights

Excerpt

Table of Contents

A. INTRODUCTION

B. INVESTIGATION OF ART.3 ECHR
I. Scope of Protection of Article 3 ECHR
1. Torture
2. Inhuman Treatment
3. Degrading Treatment or Punishment
4. Detention Conditions
II. Functions of the two supervising organs: CPT and ECtHR
1. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
a) The CPT's relation with other human rights bodies
b) The CPT Standards
2. The European Court of Human Rights (ECtHR)
a) The judgments and their binding force
b) Judgments in connection to isolation regimes

C. THE CASE OF ABDULLAH ÖCALAN
I. Historical Context: The Kurdish Question
II. Background Information, Political Career and Acts of Abdullah Öcalan
III. Arrest of Abdullah Öcalan and Imprisonment
IV. The Turkish Trials against Öcalan
V. Excursus: Abolition of the Death Penalty in Turkey
VI.Imprisonment in Imrali High Security Closed Prison
VII.Recent developments on the Kurdish Question and Abdullah Öcalan

D.THE MONITORING PROCEDURE OF THE CPT
I.V isit in 1999
1. Report of the CPT
2. Response of the Turkish Authorities
II.Visit in 2001
1. Preliminary Observations of the Committee
2. Reply of the Turkish Authorities
3. Report of the Committee
4. Response of the Turkish Authorities
III.Visit in 2003
1. Report of the Committee
2. Response of the Turkish Authorities
IV.Visit in 2007
1. Report of the Committee
2. Response of the Turkish Authorities
V.The End of the Isolation Regime and recent Developments

E.CONTROVERSIAL VIEW OF THE ISOLATION REGIME BY THE EUROPEAN COURT OF HUMAN RIGHTS
I. Judgment of 2003
II. Judgment of 2005

F.CONCLUSION
I. The 'Ongoing Dialogue' between the CPT and Turkey
II. The Standard-Setting role of the CPT in the light of Turkey's actions and reactions

G.BIBLIOGRAPHY
I. Articles and Books
II. CPT
III. ECtHR
IV. Other Sources
V. Figures

H.ANNEX
I.Important CPT Standards in respect to Detention Conditions/Isolation Regimes
II.I mportant provisions in respect to the Abolition of the Death Penalty in Turkey
1. Art.38 of the Constitution of the Republic of Turkey
2. Amendment to the legislation referring to the death penalty (Art.1 of the Law amending various laws) from August 2002

List of Illustrations:

List of Figures

Fig. 1: Kurdish- inhabited area

Fig. 2: Abdullah Öcalan

Fig. 3: Location of Imrali

Fig. 4: Adullah Öcalan's cell at Imrali Closed Prison

List of Tables

Table 1: Chronology of Historical Events

Table 2: Chronicle of Visits to Imrali Prison with Imrali-9 in 2001 and 2002

Table 3: Chronicle of Visits to Imrali Prison from July 2006 to June 2007

List of Abbreviations

illustration not visible in this excerpt

A. INTRODUCTION

The topic of this diploma thesis is of high legal as well as socio-political importance, provoking great global interest and intense reactions from all over the world. The thesis deals with the isolation regime of the former Kurdish leader of the PKK, Abdullah Öcalan, who was arrested in 1999 and since then has been imprisoned as the sole inmate in the High Security Prison of Imrali in Turkey. The aim is to investigate the detention conditions imposed on the detainee and to find out about the allegations of human rights violations in this case of isolation, as well as to reveal the discrepancy between the perception of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Court of Human Rights.

As a first step the principle of the prohibition of torture, which is laid down in Art. 3 ECHR will serve as the basis for this research. The provision of Art.3 ECHR will be dissected, thereby clarifying the scope of protection. Furthermore it is essential to have a closer look at the differences and peculiarities of the two human rights bodies, tasked with the protection of this principle on the one hand and the prevention of its violation on the other hand.

For the sake of completeness and in order to grasp the problems behind this whole issue it will be necessary at this point to give a short account of the historical background of the Kurds, the political situation over the decades and the foundation of the PKK. The case of Abdullah Öcalan will then be discussed from the beginning of his career onwards as the PKK- leader up to his arrest in Kenya as well as the trials in Turkey and finally his imprisonment on the Island of Imrali.

In a very short excursus I would like to bring up the topic of the abolition of the death penalty in Turkey and point out the amendment of Art. 38 of the Turkish Constitution that abolished the death penalty and which was the reason for the commutation of Mr. Öcalan´s death sentence to life imprisonment.

Nevertheless this thesis focuses on the isolation regime itself rather than on the human rights violations that occurred during Abdullah Öcalan's arrest etc. The third chapter serves the purpose of giving an insight view of Abdullah Öcalan´s situation of isolation over the past ten years: his conditions of detention, his rights as a sole inmate, his access to lawyers and family members as well as his health. The isolation situation that has now been sustained since the year 1999 will be assessed on the basis of the CPT reports and recommendations as well as the corresponding responses of the Turkish Government. Until now four visits have been carried out by the CPT (1999, 2001, 2003, and 2007). It will therefore certainly be interesting to examine the different stages of the isolation regime, in particular the improvements that were achieved and the requirements that were fulfilled in the last years.

Since the European Court of Human Rights holds a controversial view concerning Human Rights violations in the isolation regime, I will try to investigate the relevance of the standards developed by the CPT in comparison to the case law of the Court. At this point the role of the Committee as a preventive organ in setting human rights standards and its influence on member states will be discussed. This issue will be clarified in the conclusion, where the dialogue between the CPT and Turkey will also be assessed.

On the momentous occasion of the sudden end of the isolation regime on November 17, 2009, this thesis aims at imparting a comprehensive knowledge about the development of the isolation regime of Abdullah Öcalan, the perception of the CPT regarding Human Rights conformity as well as the controversial judgment of the ECtHR and consequently the improvements that have been made by transferring five convicts to Imrali Island.

B. INVESTIGATION OF ART.3 ECHR

In the course of the establishment of the Council of Europe in August 1949 the European Convention of Human Rights (ECHR) was signed one year later in Rome by all Council of Europe (CoE) member states in order to guarantee a full Human Rights Protection in Europe. Specifically interesting for this thesis is Art.3 ECHR, which can be found in Section I of the Convention that embodies substantive rights and freedoms.1

Article 3 – Prohibition of torture 2

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 3 of the ECHR outlaws torture, inhuman or degrading treatment or punishment. The provision is not only applicable to cases of torture but especially to cases of police violence and detention conditions, generally speaking to persons deprived of their liberty. As the main idea of human rights is the notion that all human beings have an inherent and inviolable human dignity, it is also necessary to provide protection for detainees against certain dangers to which they are exposed because of their physical, social and legal situation.3

The structure of Art.3 ECHR is that remarkable because it is not subject to any reservations or exceptions, not even in extraordinary situations as for example terrorism, hijacking or organized crime. Therefore it constitutes an absolute prohibition of torture of any kind.4 In the past discussions have been taking place and the question arose whether it should be permitted to a state to threaten and/or execute torture in order to save a life or that of several persons. The basis of these considerations can be found in Art.2 ECHR5 which can be restricted under certain premises.6 Nevertheless the prohibition is a substantive right that allows no deviation by the state.

Another peculiarity of Art. 3 ECHR is that this provision does not only constitute a passive side, which lies in the state's obligation to forbearance but also the active obligation to take measures in order to secure people under their jurisdiction from torture, inhuman and degrading treatment or punishment. Such a warranty obligation occurs when there is an imminent danger of a qualified violation, no matter if the danger originates from a governmental or a private organ. However this obligation for the state only arises when the danger could be recognizable.7

I. Scope of Protection of Article 3 ECHR

The subject of protection of this provision is the physical and mental integrity of human beings. Important fields of application of Art. 3 ECHR are among others detention (police custody and imprisonment), penalties (measures and treatments) and psychiatric treatment (or placement in a psychiatric establishment).8 However not every interference with Art.3 ECHR implies a violation of Art. 3. First of all it needs to be clarified whether the treatment or punishment complained of meets the minimum level of suffering required to qualify this action as a violation. ''The treatment complained of must constitute a minimum level of severity as assessed by reference to the circumstances comprising duration, physical and mental effects, sex, age and health of the victim''9. These requirements will only be met if excessive suffering and a total disregard of the human being is given. Secondly an appropriate term has to be given to the treatment or punishment, in other words it has to be identified which category of prohibited treatment is addressed.

Investigating Art.3 ECHR we distinguish three separate categories of prohibited treatment or punishment10, namely ''torture'' ; ''inhuman treatment or punishment'' and ''degrading treatment or punishment''. These categories are arranged in an hierarchic structure,11 but in order to define the scope of protection it is necessary to clarify the exact meaning of these terms.

In addition it should be noted that the interpretation of these terms and its definitions vary between the ECtHR and the later discussed CPT. While reading through the following definitions it should just be kept in the back of one's mind that for the ECtHR the threshold test which treatments must meet in order to be considered a violation of Art.3 is logically much higher than the preventive approach of the CPT, which will be covered in the following sub chapter.12

1. Torture

The term ''torture'' is reserved for the most serious forms of violations of Art.3 ECHR. The difference between torture and inhuman treatment lies in the severity of the action. A measure can be seen as torture if there is a deliberate inhuman or degrading treatment that evokes serious and cruel suffering.13 In this context one can also refer to Art. 1 of the UN- Convention against Torture.14 To illustrate some cases in which the European Court of Human Rights assumed torture eg.: “Palestinian hanging”- a detainee was pulled up on a string with his hands bound together with the result that his arms were debilitated15 ; rape of a female inmate by the police16 ; exertion of mental pressure on a detainee by the police as well as causing physical pain17.

2. Inhuman Treatment

An action can be classified as inhuman when it causes intense mental or physical suffering.18 The person concerned is exposed to fear and humiliation. The existence of an inhuman treatment depends very much on the individual case, in particular the duration and the physical or mental consequences, but even age, sex and the state of health can play a certain role. In this respect the ECtHR has to assess whether the intended purpose of the governmental measure is to humiliate the person concerned.19 Examples for inhuman treatments are for instance: certain techniques20 practiced during interrogation,21 the health risk and pain caused during the violent infusion of a nauseant through a nasal tube in order to gain means of evidence22 and the death sentence after a trial violating Art.6 ECHR23.

3. Degrading Treatment or Punishment

Degrading treatment or punishment is the weakest form of a violation against Art. 3 ECHR. Certainly such measures are prohibited by national law and morally condemnable, but do not reach the severity of the qualification of the inhuman treatment. Whereas inhuman treatment is geared towards the physical and mental suffering, degrading treatment rather focuses on the humiliation.24 In this connection the jurisdiction occasionally refers to the human dignity25 as an essential element to define a violation. A degrading treatment will possibly provoke fear, anguish and the strong feeling of inferiority and might break the physical and moral resistance.26 As already mentioned it depends very much on the individual case whether a measure is defined as degrading treatment.27

The ECtHR for instance judged as degrading treatment: court-ordered corporal punishment28, the performance of physical exercises in a detention center that caused enormous effort, stress and exhaustion among the elderly inmates29, severe cold of a disabled female inmate as an effect of an insufficiently heated cell30.

4. Detention Conditions

Relating to persons deprived of their liberty, special safeguards become necessary because of their vulnerability.31 Any use of physical force or punishment which does not become necessary because of the inmate´s behavior, can be classified as degrading treatment and a violation of Art.3 ECHR.32 The ECtHR declared as so-called ill-treatment : ''In order for a punishment or treatment associated with it to be 'inhuman' or 'degrading', the suffering or humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment''33.

The applicability of Art. 3 ECHR is given if suffering exceeds this unavoidable level. At this point a line has to be drawn between 'normal suffering' under general prison conditions and 'excessive suffering' as a result of a certain detention regime. The basis for a qualification of certain detention conditions as a violation of Art. 3 ECHR are internationally accepted standards, as for instance the European Prison Rules and the standards developed by the CPT.

In the course of this thesis the focus will certainly be the legal classification of segregation units, solitary confinement and forms of isolation. These detention measures can not per se be said to violate Art. 3 ECHR and are often imposed for various reasons: either as a disciplinary sanction or as a security measure of certain high risk inmates, as well as because of the detainee's troublesome behavior or in the interest of a criminal investigation and lastly to prevent further crime and therefore confine the flow of information and thoughts.34

Nevertheless in such cases of segregation and solitary confinement it is necessary to keep in mind certain important principles that have to be fulfilled in order to ensure the conformity with Art. 3 ECHR. These principles embody for instance: the unimpeded right of access to lawyers35, the access to court36, the contact (and maintenance of contact including visits) with the close family37 and proper correspondence38. Frequently the deprivation of only one principle does not necessarily result in a breach of Art. 3 ECHR but in the end the crucial factors remain to be ''the culmination of deprivations inflicted upon the detainee''39 and the duration of these deprivations. Furthermore a violation of Art. 3 ECHR has to be taken into consideration if detention conditions give reason for physical or mental suffering acting as a punishment for the detainee and in the long run lead to a destruction of personality and breaking of resistance.40

II. Functions of the two supervising organs: CPT and ECtHR

1. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

In this thesis the previously discussed Art. 3 ECHR is the basis for all investigations. This provision can be seen to have initiated the drafting of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) in 1987.41 This Convention again amplifies the UN- Convention against Torture42 in the regional field.43 Until now the ECPT has been ratified by 47 member states of the Council of Europe and the Protocol No. 1 to the ECPT44 empowers the Committee of Ministers of the Council of Europe to invite any non-member state of the organization to accede to the Convention. Morgan's description of the ECPT is quite decisive when he says that ''...The ECPT establishes a procedural mechanism intended to 'strengthen by non-judicial means of a preventive nature' the realisation of the obligations contained in Art.3 ECHR''.45 This is achieved by the establishment of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)46 as the Convention's independent and non- judicial preventive body to protect detainees from ill-treatment in places of detention such as police stations, prisons, immigration centers, military detention facilities, psychiatric establishments and detention centers for juveniles.

The CPT follows a special monitoring procedure composed of a system of periodical visits47 to the CoE member states and a subsequent reporting system. These on-sight- inspections are carried out on average every four years by delegations48, who might if necessary be accompanied by members of the Committee's Secretariat, experts and interpreters.49

The number of Committee members matches the number of CoE parties, but no two representatives are allowed to have the same nationality.50 Being elected by the Committee of Ministers, the CPT members come from various different backgrounds, each of them with high reputation in the Human Rights sector and professional experience.51 Furthermore all of them need to accomplish the requirement of independence.

One main difference to other Human Rights bodies is, that the CPT is proactive. The Committee neither has to rely on reports from the government or second-hand accounts from individuals and organizations, nor wait for petitions, rumours or reports.52 "If required in the circumstances''53, a very effective instrument to investigate possible violations are ad hoc- visits54, and follow-up visits to institutions previously subject to recommendations.

Vital principles to ensure the CPT's work are co-operation and confidentiality, partly stated in Art.2 ECPT. The general principle of co-operation is laid down in Art.3 ECPT, which obliges the state and the Committee to co-operate in any necessary form. However the Explanatory Report sheds light on this provision saying that: ''The purpose of the committee is not to condemn states, but, in a spirit of cooperation and through advice, to seek improvements, if necessary, in the protection of persons deprived of their liberty''55. Under the co-operation principle CPT delegations are granted unlimited access to the territory of the state56 but also access to the places where people are deprived of their liberty57. During the inspection the delegation's main interest lies in the assessment of intentional ill-treatment by the staff as well as inter- detainee violence. Moreover the material conditions of detention, e.g.: the size of the cell, the cleanliness or the level of occupancy as well as the regime itself concerning out-of-cell activities, sports and education play a decisive role in the evaluation of the detention center concerned. The expert body also pays particular attention to the crucial issues of health care services, contact with the outside world, use of means of restraint, discipline and isolation, staffing issues and complaints as well as inspection procedures.58 The findings, facts and observations of each visit end up being drafted into reports by the CPT and submitted to the state concerned. This reporting system is meant to give detailed information on the parties internal situation of detainees and outline certain points of concern combined with recommendations for improvement. If ill- treatment is found, the CPT considers appropriate actions to remedy the national situation, which might require administrative reforms or amendments of domestic law but primarily the strengthening of awareness and with this the changes in practice.59

In order to provide a constructive dialogue, the member state needs to come up with a response within six months and comments on the Committee's recommendations. Through this 'ongoing dialogue' the CPT attempts to encourage the implementation of its recommendations.60

As far as the second principle of ''confidentiality'' is concerned, the initial idea was that this obligation of the expert body would be important to the member states in order to gain their co-operation in return and therefore secure the effectiveness of the CPT's manner of working. Until the state does not authorize publication, the expert body is bound to this obligation and has to keep all findings confidential. However, rather from the beginning the parties were willing to publish many parts of the dialogue between themselves and the CPT and made it available to the public.61 On the one hand this step can certainly be seen as a positive effect, sharing approaches, treatment and criticism with other states but on the other hand if a party is reluctant to cooperate with the Committee or refuses to acknowledge any recommendations for improvement of the situation, the only sanction available to the CPT - with a majority of two-thirds of its members62 -is to make a public statement on the state's continuing failure to take measures to address the CPT's concerns. However this right is rarely used by the Committee.63 As far as the effectiveness of such a public statement is concerned,

Turkey acts as a good example. In this case the provided information provoked enormous political pressure exercised by the European Union and caused a huge amount of national as well as international attention, and in the end lead to reconsideration. It can be concluded that in case of a lack of political will or international attention this instrument might not have a high impact on the state.64

a) The CPT's relation with other human rights bodies

As far as the CPT's manner of working is concerned, its compulsory visit-based system can certainly be seen as unique among Human Rights mechanisms.65 As the Committee functions as a preventive organ for instances of torture and inhuman or degrading treatment, it is not equipped with judicial or quasi-judicial power and not bound by the jurisprudence developed under the ECHR.66 Moreover if this was the case, we would find overlapping spheres of activity between the CPT and the ECtHR.67 This is again emphasized in the Explanatory Report to the ECPT saying that recommendations "[...]will not bind the state concerned and the Committee shall not express any view on the interpretation of legal terms. Its task is a purely preventive one.''68

To summarize it can be said that the ECtHR attempts to find solutions to the conflict on a legal level, whereas the CPT rather tries to avoid them on a practical level.69 As far as Art. 3 ECHR is concerned, the ECPT does not set any boundaries upon the CPT's approach to this provision but suggests the guiding aspect of the ECtHR's case law.70 Morgan calls it a ''two- way relationship'', when he explains that on the one hand the decisions of the ECtHR guide the CPT, whereas on the other hand the findings of the CPT may stimulate petitions and on occasion may directly influence the application of Art. 3 ECHR.71 However this implies that the CPT is allowed to develop its very own understanding of the terms used in Art. 3 ECHR, gathering inspiration from various judicial or quasi-judicial bodies.72

Therefore in the course of the working process the Committee developed certain standards relating to the treatment of persons deprived of their liberty. These standards have been published in the substantive sections of the General Annual Reports.73

b) The CPT Standards

Every year the CPT publishes a General Report which gives insight into its activity and reveals substantive issues which the Committee pursues and employs during its visits. The CPT Standards are basically a collection of all these substantive issues with the aim to provide a clear advance indication to national authorities of its views regarding the manner in which persons deprived of their liberty should be treated.74 ''Standard setting is designed to assist in the prevention of ill-treatment by providing a set of 'measuring rods' to states.''75 The initiative to develop these standards was the Committees critical perception of existing European and international instruments, which according to them were often lacking clear guidance in this field. Therefore the CPT provided more detailed criteria to monitor prison conditions more objectively.76 Originating from the Committee's recommendations the CPT standards do not have a legally binding character and are perceived as mere guidelines. However an important approach to this slightly unsatisfying result is to consider a legal obligation of the ECPT member states to co-operate according to Art. 3 ECPT. As already mentioned before, the CPT possesses the right to make a public statement in case of the non- implementation of the given recommendations and by doing that is able to react to the state's behavior of non-co-operation. This raises the question whether there exists an obligation to compliance for the member states that can be derived directly from the Convention. Considering the requirements of soft law, we come to the conclusion that CPT standards do not only enjoy acceptance by the member states as a legal obligation ( opinio iuris) but are also complied with in practice ( consentudo), which already indicates the legal relevance of the Standards.77 One might even regard these standards as an ''emergent rule of general international law''. 78

The CPT holds a different perception of the terms torture, inhuman or degrading treatment than the ECtHR. While the Court utilizes a hierarchical structure of these terms, it can be observed that within the Committee these terms are used to refer to different types of ill- treatment. The term ''torture'' is almost exclusively used for cases of corporal ill-treatment by the police. Moreover the expert body has a high threshold of the usage ''torture'', most probably because of reasons of evidence. ''Inhuman'' and ''degrading treatment'' tend to be either mentioned alone or together to describe ill-treatments that lie in the custodial environment, but often lack the intentional element.79

CPT standards exist for various categories of detainees80 and pay special attention to issues such as accommodation and overcrowding, hygiene, cell facilities, food, outdoor activities, medical care, staffing, privacy and confidentiality and the prisoner's contact with the outside world.81 Furthermore the CPT demands a 'clear disciplinary procedure' for all prisoners including ''the right to be heard on the subject of the offences it is alleged they have committed, and to appeal to a higher authority against any sanctions imposed''. Further the CPT states that this right of appeal should be available against all sanctions that can be imposed and not just the most serious ones, such as segregation in isolation.82

Especially interesting for this thesis is the CPT' s categorization of prisoners subject to high security measures such as certain forms of isolation. Prisoners facing those high security measures obviously gave reason to this kind of special treatment.83 Generally speaking it can be stated that just the fact of locating a prisoner in a segregation unit does not automatically imply an 'inhuman or degrading treatment' nor breach Art. 3 ECHR.84 In connection to these isolation measures certain references should be made to certain CPT standards, as for instance para. 51 and 56 of the General Report 2.

The Committee argues that under certain conditions a solitary confinement can be seen as 'inhuman and degrading treatment' and because of its harmfulness this kind of segregation should be kept as short as possible.85 Another essential safeguard for conditions of solitary confinement is the immediate access to a doctor on request of the prison officer or on behalf of the prisoner. Moreover the decision to continuation of segregation should regularly be reviewed86, if necessary on the basis of a medical expertise.87 In relation to regimes under segregated conditions the CPT chooses to apply the principle of proportionality, which means that a balance must be ''struck between the requirements of the case and the application of a solitary confinement-type regime''88. This very principle was extended by reasoning that restrictions should be balanced with compensating privileges. To the CPT prisoners who are prohibited the contact with other prisoners must therefore be allowed compensating contact with the staff instead. Furthermore the Committee believes that these kinds of regimes require special efforts, for instance especially trained staff, in order to establish a good atmosphere within the prison.89

The CPT also emphasizes the importance of maintaining ''reasonable good contact with the outside world''90, which means keeping up relationships with the prisoner's family and close friends. Limitations should only be imposed on this important standard if they become necessary because of security reasons.91

2. The European Court of Human Rights (ECtHR)

The European Court of Human Rights is the central institution of the ECHR, prescribed in Art. 19 ECHR onwards. It was established to create a supervising authority in case of a breach of one of the rights guaranteed in the ECHR, providing that any individual, non-governmental organization or groups of individuals claiming to be a victim of a violation of a Convention provision may bring up a complaint to the ECtHR.92 The Court is a permanent93, full- time court situated in Strasbourg, France, counting as many judges as treaty members.94 The members are elected for six years95 by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.96 Additionally ECtHR' s judges need to meet certain outstanding criteria97.

The Plenary Court's responsibility lies in administrative activity, whereas the cases are treated in either committees98, chambers99 or the Grand Chamber100. Concerning complaints, the Court distinguishes between Inter-State Cases101 and Individual Applications102. Remarkably the former only plays a subordinate role, while the latter enjoys great importance. The Individual Application allows a procedural equality of the complaining individual and the state that is prosecuted.103 Nevertheless the exhaustion of local remedies is an essential requirement in order to launch a complaint in front of the ECtHR.104 ''The court's task is basically to discover whether the particular individual has been subjected to ill-treatment by assessing all the the relevant circumstances'' 105.

a) The judgments and their binding force

The ECtHR delivers decisions and judgments. While decisions are made in order to decide on the formal criteria of a complaint, namely the legitimacy, judgments focus on the content itself, in this case the violation of a provision of the Convention.106

Judgments are concluded through a majority of votes from the judges. However there is the possibility to deliver a 'separate opinion' 107, either 'dissenting' 108 or 'concurring' 109, if a judge does not support the unanimous opinion of the others.110 Due to the fact that ECtHR's judgments are defined as ''final''111, there is no possibility to arrange a re-examination through a national court.112

A remarkable characteristic of a ECtHR judgment is the standardized structure, which consist of three parts. Firstly in the ''Procedure'' a detailed account is given from what has happened in the former court proceedings followed by a part called ''The Facts'', describing the facts of the case and the state's legal situation. Finally ''The Law'' concludes with the decision on the violations of the Convention.113 This raises the question of the binding force and the effect of ECtHR's judgments. According to Art. 46 ECHR the High Contracting Parties undertook to acknowledge and follow the judgments made by the ECtHR.114 Consequently the judgment's main addressee appears to be the state as an international legal personality, which is obliged to face the consequences and react with the necessary measures in terms of the Court.115 Additionally there exist opinions that the judgments do not only bind the convicted state but also its public authorities and courts, in short all decision-making units.116

However the state concerned has to implement the binding judgment and immediately enforce the termination of the violation that was discovered by the Court.117 Furthermore the state faces the obligation of full reparation118, also known as restitutio in integrum, which not only implies the removal of all consequences of the violation but also ensures the impossibility of repetition.119 Though if the internal law of the state only allows a partial reparation, the court will award just satisfaction to the injured party.120

A crucial factor which should be emphasized in connection with the case law of the Court is the effect of precedence. With its judgments the ECtHR establishes principles and new interpretations in the human rights sector that will be decisive and groundbreaking when facing similar cases in the future.

b) Judgments in connection to isolation regimes

Before delving into the case of Abdullah Öcalan and investigating detailed aspects of his isolation regime, some reference should be made to similar cases, in which detainees were also held under harsh detention conditions, to point out and compare how the Court was dealing with them.

A case that should definitely be mentioned in this context is the case of Ensslin, Baader and Raspe vs. The Federal Republic of Germany in the 1970s during the time of the Red Army Fraction, in which the ECtHR considered the simultaneous use of sensory isolation and complete social isolation of the applicant as unjustifiable. The Court argued that these two methods of treatment could destroy a person's personality.121

Furthermore a quite significant case in connection to isolation regimes was the case Ramirez Sanchez vs. France 122 from the year 2005, which was in series referred to the Grand Chamber that delivered judgment in 2006. The Venezuelan terrorist Ilich Ramirez Sanchez, also known as ''Carlos, the Jackal'', was held in solitary confinement for eights years and two months facing detention conditions that were doubtfully conform to Art.3 of the ECHR. His cell for example measured only 6.84 square meters and was dilapidated and poorly insulated. Moreover Ramirez Sanchez had no contact with other prisoners or prison warders and was only granted two-hours of daily walk. His only recreation was provided by newspapers and a rented television set and the only visits he received were those from his lawyers and once in a month a priest.123

The reasons for this isolation were his dangerousness, the need to maintain order and security in the prison and the risk of absconding.124 Although the Court shared the CPT’s concerns125 about the possible long-term effects of Mr. Ramirez Sanchez's isolation, it found there had been no violation of Art.3 ECHR. The Court held the view that considering the applicant's character and danger, the conditions in which Mr. Ramirez Sanchez was kept during the period under consideration had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Art.3 of the Convention.126 In the end the Court argued that because of all the access to books, newspapers and television and further the contact with his lawyers, his doctor and fiancee the claimed sensory and social isolation could not be supported.

C. THE CASE OF ABDULLAH ÖCALAN

I. Historical Context: The Kurdish Question

The Kurdish issue can probably be described as one of the most long-lasting and bloodiest resistances against the Turkish Government in the Middle East. The conflict had and still has various levels including geographic, political and historical but also cultural and religious aspects. The origin of the Kurdish-Turkish conflict reaches back hundreds of years and in order to truly understand the roots of it, it is necessary to dig up ages of history. As a detailed historical review of the Kurdish history would go beyond the scope of this thesis, this chapter will only provide some key data that are important in order to be able to grasp the problems this ethnic minority group has been facing for centuries.

Due to the fact that neither in the past nor in the present there has ever been a Kurdish national state, it is difficult to define who exactly belongs to the Kurds. However we can act on the assumption that the Kurds are a unity with a common sense and awareness of society, language127 and culture. The Kurdish society is spread over the countries of Turkey, Iraq, Iran and Syria, and their settlements are often found high up in pathless mountainous areas exposed to harsh climate and difficult conditions.128

Already in 1258, long before the Ottoman empire was founded, the Kurds already followed the Islam. At that time the Mongolian invasion129 did not influence the nomadic life of the Kurds but the end of the Abbasid dynasty left behind a power vacuum out of which several centers developed. During the Ottoman Empire the Kurds were steadily disrupted between the Shiite- Safavid dynasty and the Sunni-

Abbildung in dieser Leseprobe nicht enthalten

Fig. 1: Kurdish- inhabited area

Ottoman dynasty, which both tried to get in control of the Kurdish population. As a reward for the Kurdish support in a battle in 1514, the Ottomans allowed the foundation of sixteen Kurdish principalities, the Hukumate Kurd 130 , which were self- governed by the Kurds.131 These principalities survived for three hundred years, until the nineteenth century.

In the nineteenth century Kurdish areas were scene to many wars.132 In series many Kurdish rebellions133 took place against the Ottoman Empire.134 At the beginning of World War I, in 1914 pressure was put upon the Ottomans to join one of the warring factions. Because of territorial intentions from Russia and Britain, the empire decided to move on the side of Germany, which resulted in the overrun of the eastern Kurdish provinces by the Russians. After their success, the Allies tried to destabilize the Ottoman Empire by assuring a state to the Armenians and the Arabians and promising independence to the Kurds. 135 In fact the Allies were not at all interested in finding a political solution to the problem of the Kurds but on the contrary only had their own selfish benefits in mind. 136

Due to the internal disturbances of the October Revolution in 1917, the Russian were forced to withdraw their troops from East Anatolia and left behind a lot of armament to the Armenians. Consequently, after the October Revolution the Bolsheviks arranged the disclosure of the Sykes-Picot Treaty 137,which determined the division of Kurdish areas in the Ottoman Empire into three separate parts between Russia, France and Great Britain. Russia was given parts of East Anatolia, where many Kurds lived; France was given a great part of Mosul and Great Britain gained the western part of Mosul.138 In autumn 1918 the Ottoman Empire was defeated at all ends.

After the Armistice of Mudros 139 the Kurdish population was in a precarious situation, because parts of the Kurdish territory were supposed to be annexed to the newly founded state of Armenia.140 Obviously this caused resistance among the Kurds. In 1919 Sultan Mehmed VI. therefore sent out General Mustafa Kemal Pascha141 in order to disarm the rebels and get in control of the situation, but by doing that achieved the contrary. General Pascha supported the revolution and started opposing the Sultan, and consequently the Allies, and proclaimed 'unity and fraternity between Turks and Kurds' 142 and fought for the inviolability of the Ottoman area and its independence. In August 1920 the Sultan, who was put under pressure of the Allies, signed the Treaty of Sèvres 143, which was not at all accepted by Mustafa Kemal Pascha. Henceforward he enjoyed high authority and a good reputation as integrative leader among the peoples, which was also the reason why his call for national resistance met with great response not only among the Anatolian citizens, but also those in the occupied capital and in the European leftovers.144 At the same time the people had to face the Greek invasion in Izmir, and the Italian occupation of Antalya. Nevertheless the Allies realized that they could not defeat Turkey on a military basis, but when a peace conference failed, the combat was restarted. After having defeated the Greeks, World War I was only over in October 1922 for the Ottoman Empire by having achieved a ceasefire.145

Shortly after that, in November 1922, the sultanate was abolished and Mehmed VI. was sent to exile to San Remo; which sealed the decline of the Ottoman Empire. The caliphate however remained untouched. With the Treaty of Lausanne 146 in July 1923 the Allies fully approved Turkey's sovereignty. Turkey was granted the territory of Anatolia, East Thrace and Edirne, but had to give up Arabic territory, among others the region of Mosul which was very rich in crude oil. As far as minorities were concerned the Treaty only referred to the christian society, the Kurds as the biggest minority group were not mentioned at all.147 Mustafa Kemal Pascha gained more and more power and became president. He even tried to remove the caliphate completely in order to achieve a clear distinction between state and religion and

[...]


1 Cf. L.Betten/N. Grief (Eds.), EU Law and Human Rights , 1998, p.28.

2 European Convention on Human Rights signed in 1950 in Rome, entered into force on September 3rd 1953.

3 Cf. Jim Murdoch, The Treatment of Prisoners- European Standards , 2006, p.15.

4 Cf. Christoph Grabenwarter, Europäische Menschenrechtskonvention , 2007,§20 Rn.20.

5 Art.2 ECHR-Right to life

6 Cf. Grabenwarter, (Fn.4),§20 Rn.35.

7 Cf. Grabenwarter, (Fn.4),§20 Rn.36.

8 Cf. Mayer-Ladewig, Europäische Menschenrechtskonvention Handkommentar , 2006, p.66f.

9 ECtHR, Ireland vs. the United Kingdom , judgment of January 8 1978, Application No. 5310/71, paragraph 162.

10 Cf. J.Cooper, Cruelty-an analysis of Art.3 ,2003, Rn.1-06.

11 Cf. Grabenwarter, (Fn.4),§20 Rn.21.

12 Cf. Murdoch,(Fn.3), p.122.

13 Cf. Grabenwarter, (Fn.4),§20 Rn.22.

14 Art.1 UN- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, drafted December 10th 1984, effective June 26th 1987.

15 Cf. ECtHR, Aksoy vs. Turkey , judgment of December 18 1996, Application No. 21987/93.

16 Cf. ECtHR, Aydın vs. Turkey , judgment of September 25 1997, Application No. 23178/94.

17 Cf. ECtHR, Selmouni vs. France ,judgment of July 28 1999, Application No. 25803/94.

18 Cf. Cooper, (Fn.10), Rn.1-26.; Grabenwarter (Fn.3), Rn.22.

19 Cf. Grabenwarter, (Fn.4),§20 Rn.23.

20 The person had to stand blindfolded against the wall for several hours with a high noise level.

21 Cf. ECtHR, Ireland vs. the United Kingdom , judgment of January 18, 1978, Application No. 5310/71.

22 Cf. ECtHR, Jalloh vs. Germany , judgment of July 11, 2006, Application No. 54810/00.

23 Cf. ECtHR ,Öcalan vs. Turkey, judgment of March 12, 2003,Application No. 46221/99; to be treated in Chapter 4.3 and Excursus.

24 Cf. Grabenwarter, (Fn.4),§20 Rn.25.

25 Not explicitly mentioned in the ECHR.

26 Cf. Cooper, (Fn.10), Rn.1-31.; also compare Murdoch,(Fn.3),p.119.

27 Note the above mentioned in 3.1. b).

28 Cf. ECtHR, Tyrer vs. the United Kingdom , judgment of April 25, 1978, Application No.5856/72.

29 European Commission of Human Rights: Report of January 1st 1978, Ireland, Yb 19,512. Commission abolished in 1998 and replaced through EurCourtHR.

30 Cf. ECtHR, Price vs. the United Kingdom , judgment of July 10, 2001, Application No. 33394/96.

31 Cf. Mayer-Ladewig , (Fn.8) p.66, Rn.10.

32 Cf. Cooper, (Fn.10), Rn.1-34.

33 See CoE Homepage, URL: http://www.coehelp.org/mod/lesson/view.php?id=2034 (Retrieved on June 17th , 2009).

34 Cf. Cooper, (Fn.10), Rn.4-58; also see Murdoch,(Fn.3),p.254.

35 Cf. Cooper, (Fn.10), Rn.4-59.

36 Cf. Cooper, (Fn.10), Rn.4-62.

37 Cf. Cooper, (Fn.10), Rn.4-61.

38 Cf. Cooper, (Fn.10), Rn.4-60.

39 Cooper, (Fn.10), Rn.4-64.

40 Cf. Cooper, (Fn.10), Rn.4-65.

41 See CoE Homepage, URL: http://cpt.coe.int/en/about.htm#Introduction (Retrieved on July, 28 2009).

42 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; signed in December 1984.

43 Cf. Mayer-Ladewig , (Fn. 8),p.60, Rn.1c.

44 Protocol No.1 entered into force on 1 March 2002.

45 Rod Morgan, Combating torture in Europe , 2002, p.22.

46 Compare Art. 1 ECPT.

47 Compare Art. 2 ECPT.

48 Usually of two or more CPT members.

49 Compare Art.7 ECPT.

50 See Art.4 ECPT.

51 Compare Art.4 and 5 ECPT.

52 Cf. Morgan,(Fn.45),p.47.

53 See Art.7,para 2 ECPT.

54 Ad-hoc visits last between one to several days. The Committee must notify the State concerned but need not specify the period between notification and the actual visit, which, in exceptional circumstances, may be carried out immediately after notification. Please see Art.8(2) ECPT.

55 Compare para. 20 of the Explanatory Report to the ECPT.

56 That means to travel without restriction. See Art.8(2)lit a ECPT.

57 Right to access such places without restriction and right to access important information (e.g. Medical records, interviews with detainees). See Art.8(2)lit b,c,d and (3),(4) ECPT.

58 Cf. Renate Kicker, The Council of Europe Committee for the Prevention of Torture (CPT) in Benedek/Karl/ Mihr/Nowak (Eds.), European Yearbook on Human Rights 2009, p.202.

59 Cf. Murdoch , (Fn.3), p.38.

60 Cf. Murdoch (Fn.3),p.42.

61 see Murdoch (Fn.3), p.44.; Cf. Renate Kicker (Fn.58), p.202.

62 Compare Art.10(1) and (2) ECPT.

63 Up to now there have only been five of these public statements (two in respect of Turkey and three in respect of Russia).

64 Cf. Renate Kicker (Fn.58), p.203.

65 Cf. Morgan,(Fn.45), p.31.

66 Cf. Morgan,(Fn.45), p.59.

67 Cf. Morgan,(Fn.45), p.32.

68 Compare Explanatory Report, para. 25.

69 Compare General Report 1, para 2-3.

70 Cf. Morgan,(Fn.45), p.32.

71 Cf. Morgan,(Fn.45), p.59., also see R. Morgan, Bekämpfung der Folter in Europa , 2003, p.47.

72 Cf. Morgan,(Fn.45), p.33.

73 See CoE Homepage. URL: http://cpt.coe.int/en/about.htm#Introduction (Retrieved on July, 28 2009).

74 Compare Preface of the CPT Standards. Also see Art.12 ECPT.

75 Murdoch (Fn.3),p.45.

76 Cf. Murdoch (Fn.3),p.45.

77 Cf. Renate Kicker, The European Committee on the Prevention of Torture (CPT) Developing European Human Rights Law? In: Benedek/ Isak/ Kicker (Eds.), Development and Developing International and European Law, 1999, pp.11-13.

78 Nigel, Rodley, Soft Law, Tough Standards. in: Interights Bulletin Vol.7 No.3, 1993, pp. 43-44.

79 Cf. Morgan,(Fn.45), p.66. See also Morgan (Fn.71), p.55.

80 Suspects and persons detained temporarily, immigration detainees, pre-trial detainees.

81 Cf. Morgan (Fn.45), chapter 5 for detailed information; also Morgan (Fn.71), chapter 5.

82 Cf. Morgan (Fn.45) p.117.

83 see chapter B.I.4. on Detention Conditions.

84 Cf. Cooper, (Fn.10), Rn.4-58.

85 See Para. 51, 56 from the 2nd General Report [CPT/Inf (92) 3].

86 At least every three months. compare CPT Standards, General Report 2, para. 56.

87 Cf. Morgan,(Fn.71), p.115. Also see Morgan (Fn.45) p.118.

88 compare CPT Standards, General Report 2, para. 56.

89 Cf. Morgan (Fn.45) p.119.

90 para. 51 from the 2nd General Report[CPT/Inf (92) 3].

91 Compare Fn.77.

92 See Art.34 ECHR. Further in Art.34 ECHR: ''The High Contracting Parties undertake not to hinder in any way the effective exercise of this right''; see URL: http://www.echr.coe.int/ECHR/EN/Header/The+Court/How+the+Court+works/Procedure+before+the+Court / (Retrieved on September 25,2009).

93 Only since the 11th Protocol to the ECHR. See URL: http://conventions.coe.int/Treaty/en/Treaties/Html/155.htm (Retrieved on Septemer 16, 2009)

94 see Art. 20 ECHR.

95 see Art. 23 ECHR.

96 Compare Art. 22 ECHR

97 Compare Art. 21 ECHR.

98 Counting three judges.

99 Counting seven judges.

100 Counting seventeen judges. The Grand Chamber operates in cases of relinquishment (Art.30 ECHR) or referral (Art.43 ECHR).

101 See Art. 33 ECHR. Any state may refer to the Court any violation of provisions of the ECHR and the protocols thereto by another High Contracting Party/state.

102 See Art. 34.ECHR. Complaint of any person (non-governmental organisation or group of individuals) claiming to be the victim of a violation of the Convention by one of the High Contracting Parties.

103 Cf. Neuhold-Hummer-Schreuer, Österreichisches Handbuch des Völkerrechts, 2004, p.290.

104 Cf. Neuhold-Hummer-Schreuer,(Fn. 103), Rn.1521.

105 Murdoch, (Fn.3), p.51.

106 Cf. Grabenwarter, (Fn. 4), §14 Rn.1.

107 See Art.45(2) ECHR-2. If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

108 Dissenting opinion on the Reasons of the judgment; compare Art.45(1) ECHR.

109 Concurring opinion on the whole judgment, on the outcome/ result.

110 Cf. Grabenwarter, (Fn. 4), §14,Rn.7; Neuhold , (Fn.104), Rn.1538.

111 Compare Art.44(1)ECHR for the Grand Chamber judgments and Art.44(2)ECHR for the Chamber judgments.

112 This would mean a breach of Art. 44 ECHR.

113 Cf. Grabenwarter, (Fn. 4), §14 Rn.5.

114 See Art.46 ECHR- Binding force and execution of judgments 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are partie s. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

115 Cf. S.Haß, Die Urteile des Europäischen Gerichtshofs für Menschenrechte ,2006, p.72.

116 Cf. Haß , (Fn.115), p.73; also see Elisabeth Lambert-Abdelgawad, The execution of judgments of the European Court of Human Rights, 2002, p.8.

117 Cf. Neuhold-Hummer-Schreuer,(Fn. 103), Rn.1538; also see URL: http://www.echr.coe.int/ECHR/EN/Header/The+Court/How+the+Court+works/The+execution+of+judgment s/ (Retrieved on September 25, 2009).

118 Compare Art. 41 ECHR.

119 Cf. Haß (Fn.115), p.75.

120 Compare Art.41 ECHR.

121 Cf. Cooper, (Fn.10), Rn.4-58.

122 Compare ECtHR, Ramirez Sanchez vs. France, judgment of July 4, 2006,,Application No. 59450/00. For further reading see ECtHR Homepage.URL: http://cmiskp.echr.coe.int/tkp197/portal.asp? sessionId=27499163&skin=hudoc-en&action=request (Retrieved on August 4, 2009).

123 For detailed information see the case of Ramirez Sanchez vs. France on the ECtHR Hompage.URL: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=27498704&skin=hudoc-en&action=request (Retrieved on August 4, 2009).

124 See ECtHR Hompage, URL: http://cmiskp.echr.coe.int/tkp197/view.asp? item=1&portal=hbkm&action=html&highlight =59450/00 &sessionid=27499235&skin=hudoc-pr-en (Retrieved on August 4, 2009).

125 Cf. CPT/ Inf (2001) 10, paragraph 111.

126 see Fn.121,122.

127 The kurdish language can be subdivided into three main groups: Kurmanci (Turkey, Libanon, north Iraq, north Iran), Sorani (Iraq, Iran) and Zazaki (Turkey). For further reading see: A. Kadir Özdemir, Die Kurden -Ein Volk in drei Nationen (Die Geschichte und Entwicklung des Kurdenkonflikts), 2006, pp.18f.

128 Cf. Kadir Özdemir, (Fn.127), p.15.

129 The Mongolian Invasion happened in 1258 and brought the Abbasid Dynasty to an end.

130 In return the Kurds had to pay a toll to the Ottomans and were obliged to fight on their side in the case of war.

131 Cf. Kadir Özdemir, (Fn.127), p. 28.

132 The Ottomans fought a war against its vasall Muhammad Ali, who declared himself independent ruler of Egypt. Further wars were fought against Persia.

133 Rebellion of Baban (1806-1809), Rebellion of Soran (1830-1836), Rebellion of Bothan (1843-1846), Rebellion of Hakkari (1853-1855), etc..

134 Cf. Kadir Özdemir, (Fn.127), pp. 33, 41.

135 Cf. Kadir Özdemir, (Fn.127), p. 51.

136 Cf. Kadir Özdemir, (Fn.127), p. 97.

137 Secret agreement between Britain and France on May 16, 1916 defining there spheres of influence after the downfall of the Ottoman Empire during World War I.

138 Cf. Kadir Özdemir , (Fn.127), p. 52.

139 The Armistice of Mudros in October 1918 ended the hostilities between the Ottoman Empire and the Allies of World War I. The Allies conquered former Constantinople and the Ottoman Empire was devided.

140 Cf. Kadir Özdemir , (Fn.127), p. 65.

141 General Mustafa Kemal Pascha was later called Atatürk .

142 Cf. Kadir Özdemir, (Fn.127), pp. 66, 67.

143 The treaty was the outcome of the peace negotiations of Paris and was signed by the US, France and Great Britain. Armenian, turkish and kurdish delegation were only invited as observers. The treaty was basically a renewal of the Sykes-Picot Treaty, claiming that the osmanic territory should diminish to the inner steppe of east Anatolia. For further information see: Kadir Özdemir , (Fn.127), p.56.

144 Cf. Kadir Özdemir, (Fn.127), pp. 68, 69.

145 Cf. Kadir Özdemir, (Fn.127), p. 71.

146 The Treaty of Lausanne was the final treaty concluding World War I between Turkey and the Allies.

147 Cf. Kadir Özdemir, (Fn.127), 2006, pp. 73, 74.

Details

Pages
103
Year
2010
ISBN (eBook)
9783640636655
ISBN (Book)
9783640636945
File size
996 KB
Language
English
Catalog Number
v151592
Institution / College
University of Graz – Institut für Völkerrecht und Internationale Beziehungen
Grade
1
Tags
Abdullah Öcalan isolation regime CPT

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Title: The Case of the Isolation Regime of Abdullah Öcalan