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AS TO THE ADMISSIBILITY OF

Application No. 29295/95 Application No. 29363/95

by Abdulaziz ECER by Mehmet ZEYREK

against Turkey against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 applications introduced on 18 July 1995 by

Abdulaziz Ecer and Mehmet Zeyrek against Turkey and registered on

16 November 1995 under file No. 29295/95 and 23 November 1995 under

file No. 29363/95, respectively;

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, born in 1952 and 1939 respectively, are Turkish

citizens resident in Geçitboyu village, province of Sirnak. They are

represented before the Commission by Mr. Mustafa Sezgin Tanrikulu, a

lawyer practising in Diyarbakir.

The facts of the present case, as submitted by the applicants,

may be summarised as follows.

On 2 September 1993 the applicants were arrested by security

forces in Sirnak and placed in custody. They were held in custody for

22 days.

On 23 September 1993 they were brought before the Sirnak Criminal

Court and placed in detention on remand by a judge of that court.

On 19 October 1993 the Public Prosecutor attached to the

Diyarbakir State Security Court filed an indictment with the court

accusing the applicants of having assisted and given shelter to members

of the PKK terrorist organisation between 1988 and 1989. He requested

that the applicants be punished in accordance with Article 169 of the

Turkish Penal Code and Article 5 of the Anti-Terror Law, No. 3713 of

12 April 1991.

On 6 December 1993 the Diyarbakir State Security Court convicted

the applicants on account of their assistance to the PKK terrorist

organisation in 1988 and 1989 and sentenced them to 3 years and 9

months' imprisonment and debarment from public service for three years.

In assessing the penalty to be imposed, the court first found that a

sentence of three years' imprisonment would be appropriate under

Article 169 of the Turkish Penal Code; it then applied Article 5 of the

Anti-Terror Law No. 3713, according to which this sentence had to be

increased by half of its length, i.e. to 4 years and 6 months'

imprisonment; finally the court applied Article 59 of the Turkish

Penal Code, mitigating the sentence by one-sixth of its length and thus

reducing it to 3 years and 9 months' imprisonment.

On 11 July 1994 the applicants lodged an appeal with the Court

of Cassation, challenging the judgment of Diyarbakir State Security

Court on points of law. In particular they alleged that the State

Security Court had violated the principle of non-retrospective

application of the criminal law because it had applied Article 5 of Law

No. 3713 of 12 April 1991 to increase the basic penalty under Article

169 of the Turkish Penal Code by half of its length, although they had

been convicted for acts committed in 1988 and 1989.

On 21 February 1995 the Court of Cassation rejected the appeal.

It upheld the cogency of the State Security Court's reasoning and its

assessment of the evidence. The Court of Cassation did not deal

specifically with the applicants' complaint relating to the retroactive

application of the Anti-Terror Law to their case.

On 22 May 1995 the applicants applied to the Public Prosecutor

attached to the Court of Cassation, requesting the rectification of the

decision of 21 February 1995. However, their request was dismissed by

the Court of Cassation.

COMPLAINTS

1. The applicants allege a violation of Article 3 of the Convention

in that they were subjected to torture and degrading treatment during

their detention in police custody. In particular, they submit that they

were held blindfold in unhealthy conditions in a small cell, that they

were not given any bed to sleep on, that they were permitted neither

to see their relatives nor to consult their lawyer and that they were

given only bread and water. They consider that there is no need for

them to exhaust domestic remedies as there were no effective remedies.

2. The applicants complain under Article 5 para. 3 of the Convention

that they were held in police custody for 22 days without being brought

before a judge.

3. The applicants finally complain that Law No. 3713, dated 12 April

1991, was applied retrospectively to acts which they committed in 1988

and 1989 in that the Diyarbakir State Security Court increased their

basic penalty by half of its length pursuant to Article 5 of this law.

THE LAW

1. The Commission notes that the two applicants have submitted

separate complaints in relation to facts by which they were both

affected in the same or a similar way. In particular the domestic

proceedings complained of were conducted jointly in respect of both

applicants. In the circumstances the Commission considers it

appropriate to order the joinder of the applications pursuant to Rule

35 of its Rules of Procedure.

2. The applicants complain under Article 3 (Art. 3) of the

Convention that they were subjected to torture and degrading treatment

during their police custody which lasted from 2 to 23 September 1993.

They further complain under Article 5 para. 3 (Art. 5-3) of the

Convention that during this period of 22 days they were held in police

custody without being brought before a judge.

The Commission recalls that, according to Article 26 (Art. 26)

of the Convention, it may deal only with a matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law, and within a period of six months from the

date on which the final decision was taken. Where no domestic remedy

is available, the six month period runs from the date of the act which

is itself alleged to be in violation of the Convention

(cf. No. 8007/77, Dec. 10.7.78, D.R. 13, pp. 85, 153; No. 8440/78, Dec.

16.7.80, D.R. 21, pp. 138, 147).

In the present case the Commission notes that the applicants have

declared that they did not make use of any domestic remedies because

they considered the existing remedies to be ineffective. The Commission

does not find it necessary to determine whether the applicants were

dispensed from the obligation to exhaust remedies, since, even assuming

this to be the case, the applicants would then have been required to

submit their complaints to the Commission within six months from the

date when the facts complained of occured.

The events of which the applicants complain occurred during their

police custody, which lasted from 2 to 23 September 1993, whereas the

applications were submitted to the Commission on 18 July 1995. It is

clear, therefore, that the applicants' above complaints under Articles

3 and 5 (Art. 3, 5) of the Convention were not lodged within six months

after the end of the situation complained of and in relation to which

no domestic remedies were either available or taken. The Commission

furthermore finds no indication of the existence of specific

circumstances which might have prevented the applicants from observing

the time-limit laid down in Article 26 (Art. 26) of the Convention.

It follows that the applicants' above complaints have been

introduced out of time and must therefore be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

3. The applicants complain that Law No. 3713, enacted on 12 April

1991, was applied retrospectively to acts which they had committed in

1988 and 1989 in that the Diyarbakir State Security Court increased the

basic penalty by half of its length pursuant to Article 5 of this law.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government.

For these reasons, the Commission,

DECIDES TO JOIN APPLICATIONS No. 29295/95 and 29363/95;

DECIDES TO ADJOURN the examination of the applicants'

complaint that a heavier penalty was imposed on them than

the one that was applicable at the time when they committed

the criminal offence of which they were convicted;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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ECER AND ZEYREK v. TURKEY

ECER AND ZEYREK v. TURKEY

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