Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29495/95

by Hasan ERDEMLi

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 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 I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

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 13 October 1995

by Hasan Erdemli against Turkey and registered on 7 December 1995 under

file No. 29495/95;

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 applicant, born in 1956, is a Turkish citizen and currently

imprisoned in Aydin. He is represented before the Commission by

Mr Hüsnü Öndül, a lawyer practising in Ankara.

A. Particular circumstances of the case

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

On 21 April 1992, at 1 a.m., the applicant was arrested in

connection with an investigation by policemen from the Anti-Terror

branch of the Security Directorate in Samsun. Following his arrest, the

Director of the Anti-Terror branch sent a letter to the Public

Prosecutor of Samsun requesting a permission to hold the applicant in

custody long enough to question him. The Public Prosecutor granted a

custody order for 15 days.

On 27 April 1992 the applicant was questioned by the police about

his involvement with an illegal organisation, the THKP/C-DEV-SOL. In

his statements he told the police that he had been involved in the

activities of the organisation, that he regretted it, that his

statements were true and that he had not made them under duress.

On 30 April 1992 the applicant was brought before the Public

Prosecutor of Samsun. He stated to the Public Prosecutor that he had

been a member of the THKP/C-DEV-SOL for three months or three months

and a half, that he had not participated in any illegal activity during

this time, that the statements he had made to the police were true and

that he had not made them under duress.

On the same day, 30 April 1992, the applicant was brought before

the Magistrate's Court for criminal cases. Before the magistrate he

stated that he had not participated in any illegal activity of the

organisation and that the statements he had made to the police and the

Public Prosecutor were true. He was then remanded in custody.

On 27 May 1992 the Public Prosecutor attached to the Ankara State

Security Court filed an indictment against the applicant under Article

168 para. 1 of the Turkish Penal Code.

On 3 July 1992, at the first trial before the Ankara State

Security Court, the applicant allegedly stated that he had made his

statements under duress and denied the accusations against him. The

applicant was released by the court on the same day.

On 16 March 1993 the Ankara State Security Court acquitted the

applicant on account of insufficient evidence on which to convict him.

Following an appeal by the Public Prosecutor the Court of

Cassation on 30 September 1993 quashed the judgment delivered by the

Ankara State Security Court on the ground that the applicant should

have been convicted pursuant to Article 168 para. 1 of the Penal Code

as he had participated in the illegal activities of the THKP/C-DEV-SOL

and had carried out particular duties in the organisation.On 30

November 1994 the Ankara State Security Court, complying with the Court

of Cassation's decision, sentenced the applicant to 18 years and 9

months' imprisonment under Article 168 para. 1 of the Turkish Penal

Code.

The applicant lodged an appeal against the judgment of the Ankara

State Security Court.

On 15 June 1995 the Court of Cassation upheld the judgment dated

30 November 1994.

B. Relevant domestic law

Article 168 para. 1 of the Turkish Penal Code

"Whoever establishes an armed group or undertakes the duty of

chieftain or command or any other particular duty in such groups, with

the purpose of committing the felonies defined in Articles 125, 131,

146, 147, 149 and 156, shall be punished by heavy imprisonment of not

less than ten years."

COMPLAINTS

1. The applicant complains under Article 5 of the Convention that

he was not informed promptly of the reasons for his arrest or of any

charge against him. He alleges that he was told that he had been

arrested in connection with an investigation and that he could learn

the reasons for his arrest when he was questioned by the police, six

days later.

The applicant also complains under Article 5 para. 3 of the

Convention that he was not brought before a judge until nine days after

his arrest, which was not promptly.

2. The applicant complains under Article 6 para. 1 of the Convention

that he was deprived of his right to a fair trial as he was sentenced

to imprisonment by the Ankara State Security Court, following the

decision of the Court of Cassation to quash the first judgment, on

account of his involvement in the activities of an illegal

organisation. He maintains that the Ankara State Security Court based

its judgment on the statements which he had made to the police under

duress and on the testimonies of three witnesses, S.Ü, A.T. and N.K.,

which should have been ruled inadmissible.

3. He further complains under Article 6 of the Convention that he

was not permitted the assistance of a lawyer during questioning by the

police, the public prosecutor and the judge.

THE LAW

1. The applicant complains under Article 5 (Art. 5) of the

Convention that he was not informed promptly of the reasons for his

arrest or of any charge against him. He alleges that he was told that

he had been arrested in connection with an investigation and that he

could learn the reasons for his arrest when he was questioned by the

police, six days later.

The applicant also complains under Article 5 para. 3 (Art. 5-3)

of the Convention that he was not brought promptly before a judge in

that he was not brought before a judge until nine days after his

arrest.

However, concerning the above complaints, the Commission is not

required to decide whether or not the facts alleged by the applicant

disclose any appearance of a violation of these provisions, as Article

26 (Art. 26) of the Convention provides that the Commission may only

deal with the matter within a period of six months from the date on

which the final decision was taken.

When an act of a public authority is not open to any effective

remedy, the six-month period runs from the date on which the act took

place. In this context the Commission refers to its established

case-law (No. 8007/77, Dec. 10.7.78, D.R. 13, p. 85, at p. 153).

In the present case the Commission observes that the applicant

was arrested pursuant to the Law on the Procedures of State Security

Courts and that no domestic remedy was available in order to challenge

the lawfulness and the length of his police custody. The situation

complained of ended on 30 April 1992, whereas the application was

submitted to the Commission on 13 October 1995, that is more than six

months after the end of the situation complained of.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he was deprived of his right to a fair trial as the

Ankara State Security Court based its judgment on the statements which

he had made to the police under duress and on the testimonies of three

witnesses, S.Ü, A.T., N.K., which should have been ruled inadmissible.

He complains further under Article 6 (Art. 6) of the Convention

that he was not permitted the assistance of a lawyer during questioning

by the police, the public prosecutor and the 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.

For these reasons, the Commission,

DECIDES TO ADJOURN the applicant's complaints concerning his

right to a fair trial and to legal assistance;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

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

Secretary President

to the Second Chamber of the Second Chamber

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ERDEMLI v. TURKEY

ERDEMLI v. TURKEY

LEXI