AS TO THE ADMISSIBILITY OF

Application No. 37191/97

by Orhan YILDIRIM and others

against Turkey

The European Commission of Human Rights (Second Chamber) sitting in private on 21 October 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 June 1997 by Orhan Yĸldĸrĸm and others against Turkey and registered on  1 August 1997 under file No. 37191/97;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, whose names appear in the appendix, are Turkish citizens who are currently held in prison in the Nazilli district of Aydĸn . They are represented before the Commission by Mr Mustafa İşeri , a lawyer practising in İzmir .

The facts of the present case, as submitted by the applicants, may be summarised as follows.

In January and February 1997, following an investigation carried out by the Public Prosecutor at the Ä°zmir State Security Court, the applicants were taken into police custody by members of the Anti-Terrorist branch of the Ä°zmir Security Directorate (see the appendix for their date of arrest).

On 31 January 1997 fourteen of the applicants (all except Selahattin Güven ) were placed in detention on remand by order of the İzmir State Security Court. The applicant Selahattin Güven was placed in detention on remand on 18 February 1997.

On 20 March 1997 the Public Prosecutor's office attached to the Ä°zmir State Security Court filed a bill of indictment with the court charging the applicants with being members of the PKK terrorist organisation . The charges were brought under section 168 para. 2 of the Turkish Criminal Code and section 5 of Law No. 3713 (Anti-Terrorist Law).

The criminal proceedings against the applicants are still pending before the Ä°zmir State Security Court.

COMPLAINTS

1. The applicants complain under Article 5 para. 3 of the Convention that they were held in police custody for an excessive length of time without being brought before a judge.

2. The applicants maintain under Article 6 of the Convention that their right to a fair trial was breached, as the criminal proceedings brought against them were based on their confessions obtained from them in the course of the police custody.

The applicants contend that they were informed of the accusations against them only when the Public Prosecutor filed the indictment with the State Security Court and thus not "promptly" after their arrest. They also submit that they did not have adequate time and facilities for the preparation of their defence and that they were deprived of legal assistance during their police custody.

The applicants also assert that the Ä°zmir State Security Court cannot be regarded as an "independent and impartial tribunal".

3. The applicants submit under Article 14, taken in conjunction with Article 6, of the Convention that they were subjected to discrimination arising out of domestic law, as Law No. 3842, containing amendments to the Code of Criminal Procedure, does not apply to crimes falling within the jurisdiction of the State Security Courts. In particular, they complain that individuals suspected of ordinary crimes have the right to the assistance of a lawyer during questioning by the police and the public prosecutor, whereas those suspected of offences which fall within the jurisdiction of the State Security Courts are debarred from enjoying this right.

THE LAW

1. The applicants complain under Article 5 para. 3 of the Convention that they were held in police custody for an excessive length of time without being brought before a judge.

The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of these complaints to the respondent Government.

2. The applicants maintain under Article 6 of the Convention that their right to a fair trial was breached, as the criminal proceedings brought against them were based on their confessions obtained in the course of the police custody.

The applicants contend that they were informed of the accusations against them only when the Public Prosecutor filed the indictment with the State Security Court and thus not "promptly" after their arrest. They also submit that they did not have adequate time and facilities for the preparation of their defence and that they were deprived of legal assistance during their police custody.

The applicants also assert that the Ä°zmir State Security Court cannot be regarded as an "independent and impartial tribunal".

The applicants finally submit under Article 14, taken in conjunction with Article 6, of the Convention that they were subjected to discrimination arising out of domestic law, as Law No. 3842, containing amendments to the Code of Criminal Procedure, does not apply to crimes falling within the jurisdiction of the State Security Courts. In particular, they complain that individuals suspected of ordinary crimes have the right to the assistance of a lawyer during questioning by the police and the public prosecutor, whereas those suspected of offences which fall within the jurisdiction of the State Security Courts are prevented from enjoying this right.

However, according to its established case-law, the Commission must take into consideration the entire criminal proceedings brought in order to decide whether they conform to the requirements of Article 6 of the Convention (e.g. Nos. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec. 25.5.95, D.R. 81-B, p. 94).

The Commission notes that the criminal proceedings against the applicants are still pending before the State Security Court. As the criminal charges against them have not yet been determined the applicants still have the possibility of submitting their complaints to the criminal courts. After the final ruling is given in domestic law, the applicants can apply to the Commission if they then still consider themselves victims of violations in the above respects. In this regard, the applicants' above complaints under Articles 6 and 14 appear to be premature.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicants' complaints that they were held in police custody for an excessive length of time.

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

   M.-T. SCHOEPFER                                           J.-C. GEUS

      Secretary                                                             President

to the Second Chamber                                 of the Second Chamber

             APPENDIX

Name of the applicant Year of birth Date of arrest Date of detention on remand              Length of police custody

Orhan Yildirim 1978 17 January 1997 31 January 1997 15 days

ReÅŸit Dayan 1948 18 January1997 31 January 1997 14 days

Nasrullah Toraman 1965 18 January 1997 31 January 1997 14 days

Osman Aksoy 1966 18 January 1997 31 January 1997 14 days

Suphi Tutmaz 1974 17 January 1997 31 January 1997 15 days

Binali Gençel 1969 17 January 1997 31 January 1997 15 days

Memdullah Demir 1964 19 January 1997 31 January 1997 13 days

Süleyman Aksoy 1952 21 January 1997 31 January 1997 11 days

Melik Demir 1970 18 January 1997 31 January 1997 14 days

Abdullah Turan 1960 17 January 1997 31 January 1997 15 days

Abbas Ãœste 1945 18 January 1997 31 January 1997 14 days

Abdurrahim Çimen 1952 19 January 1997 31 January 1997 13 days

Mirhan Arslan 1969 17 January 1997 31 January 1997 15 days

Tahsin Özer 1965 17 January 1997 31 January 1997 15 days

Selahattin Güven 1952 14 February 1997 18 February 1997 5 days