Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28324/95

by Mehmet SAHiN

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 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 application introduced on 8 August 1995 by

Mehmet Sahin against Turkey and registered on 25 August 1995 under file

No. 28324/95;

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 1973, is a Turkish citizen and is

imprisoned in the province of Usak. He is represented before the

Commission by Mrs Sibel Bilge Uslu, a lawyer practising in Izmir.

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

be summarised as follows.

A. Particular circumstances of the case

On 5 April 1994 the applicant, along with his friends A.Ö., M.Ö.,

Ü.B. and F.K., found 5 million Turkish liras in the Karsiyaka

neighbourhood of the province of Izmir. As the applicant, A.Ö. and F.K.

did not agree to share the money with the other two, on 6 April 1994

the latter went to the police station in Karsiyaka and complained that

they could not get their share. On the night of 6 April 1994 the

applicant and A.Ö. were arrested by policemen and placed in custody on

suspicion of having committed extortion.

On 7 April 1994 the applicant was brought before the Public

Prosecutor of Karsiyaka. According to the record from that occasion,

he was informed of his right to have the assistance of a lawyer, to

which he responded by stating that he did not want a lawyer but

preferred to defend himself. On the same day he was also brought before

the Karsiyaka Criminal Justice of the Peace before whom he stated that

he confirmed the statements he had made before the Public Prosecutor.

He was remanded in prison on account of the nature of the alleged

offence and the evidence in the file.

On 20 April 1994 the Chief Public Prosecutor of Karsiyaka filed

an indictment with the Assize Court accusing the applicant and his

accomplices of having committed extortion with a weapon. In particular,

the Public Prosecutor alleged that the applicant and his accomplices

A.Ö. and F.K. had threatened to kill M.Ö. and Ü.B., while they were at

a café, with a knife and a toy gun, that they had asked M.Ö. and Ü.B.

to bring 5 million Turkish liras to them and that the latter had felt

compelled to give them the money.

On 21 October 1994 the Karsiyaka Assize Court sentenced the

applicant to 14 years and 7 months' imprisonment and permanently

debarred him from public service, under Article 497 para. 1 and

Article 31 of the Turkish Penal Code, on the ground that he and his

accomplices had extorted 5 million Turkish liras and a watch from M.Ö.

and that they had wounded Ü.B., thereby preventing him from working

during five days, the reason being that he had not given them 3 million

Turkish liras. Before the Karsiyaka Assize Court the applicant denied

the accusations brought against him. He stated that M.Ö. had found

5 million liras, that they had taken the money from him as he had not

agreed to share it with them, that he did not know anything about the

knife and that the toy gun had not been used against Ü.B.

On 31 October 1994 the applicant, through his lawyer, lodged an

appeal with the Court of Cassation against the judgment delivered by

the Karsiyaka Assize Court.

On 22 February 1995 the Court of Cassation decided on the appeal.

It agreed with the Karsiyaka Assize Court as regards its reasoning and

assessment of the evidence.

B. Relevant Domestic Law

The relevant domestic law in the present case is contained in

Articles 138, 139 and 140 of the Turkish Constitution, the text of

which is set out below:

The Turkish Constitution

Article 138

"Judges shall be independent in the exercise of their functions

and shall give judgments in accordance with the Constitution, the

law and their own conscience.

No organ, authority or individual shall give orders or

instructions, send circulars, offer advice or make suggestions

to courts or judges in connection with the exercise of judicial

power.

No question shall be asked, no debates be held or statements be

made in the Legislative Assembly concerning the exercise of

judicial power in a case which has not yet been decided.

Legislative and executive organs and the administration shall

comply with court decisions; they shall neither alter them in any

respect, nor delay their execution."

Article 139

"Judges and prosecutors shall not be removed from office or

compelled to retire without their consent before the age

prescribed by the Constitution, nor shall they be deprived of

their salaries, allowances or other rights relating to their

status, even following the abolition of a court or a post.

Exceptions may be made in cases where a judge or prosecutor is

convicted of an offence requiring his dismissal from the

profession, where his inability to exercise his functions on

account of ill-health is clearly established or where his

continuation in the profession is found to be undesirable."

Article 140

"Judges and prosecutors shall perfom their functions in the

ordinary and administrative courts. These functions shall be

exercised by professional judges and prosecutors.

Judges shall discharge their duties in accordance with the

principles of the independence of the courts and the security of

tenure of the judiciary.

The qualifications, appointment, rights, duties, salaries and

allowances of judges and prosecutors, their promotion, their

temporary or permanent assignment to other duties or posts, the

initiation of disciplinary proceedings against them and the

subsequent imposition of disciplinary penalties, the conduct of

investigations concerning them and the subsequent decision to

prosecute them on account of offences committed in connection

with, or in the course of, their duties, the offences or

instances of incompetence requiring their dismissal from the

profession, their in-service training and other matters relating

to their status shall be regulated by law in accordance with the

principles of the independence of the courts and the security of

tenure of the judiciary.

Judges and prosecutors shall exercise their functions until they

reach the age of sixty-five; the maximum age, promotion and

retirement of military judges shall be prescribed by law.

Judges and prosecutors shall not assume official or private

functions other than those prescribed by law.

Judges and prosecutors shall be administratively subordinate to

the Ministry of Justice.

Judges and prosecutors exercising administrative functions in the

legal service shall be subject to the same provisions as other

judges and prosecutors. Their categories and grades shall be

determined in accordance with the principles applicable to other

judges and prosecutors and they shall enjoy all the rights

granted to judges and prosecutors."

COMPLAINTS

1. The applicant complains under Article 5 paras. 1(c), 2, 3 and 5

of the Convention that there was no reasonable suspicion of his having

committed a criminal offence when he was arrested, that he was not

informed promptly of the reasons for his arrest or of any criminal

charge against him when he was in custody, that he was not released

pending trial although there was insufficient evidence and that he was

not given any compensation although he was a victim of unlawful arrest

and detention.

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

that he was not given a fair hearing by an independent tribunal as the

the judges had been appointed by the Supreme Council of Judges and

Prosecutors of which the Minister of Justice is a member and whose

decisions are not reviewed by a judicial organ pursuant to Article 159

of the Turkish Constitution.

3. He complains under Article 6 para. 3(c) of the Convention that

he was not entitled to legal assistance when he was questioned by the

Public Prosecutor and when he appeared before the Criminal Justice of

the Peace.

THE LAW

1. The applicant complains under Article 5 paras. 1(c), 2, 3 and 5

(Art. 5-1-c, 5-2, 5-3, 5-5) of the Convention that there was no

reasonable suspicion of his having committed a crime when he was

arrested, that he was not informed promptly of the reasons for his

arrest and or any criminal charge against him when he was in custody,

that he was not released pending trial although there was insufficient

evidence and that he was not given any compensation although he was a

victim of unlawful arrest and detention.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 5, as Article 26 (Art. 5, 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".

The Commission notes that the applicant was taken into custody

on 6 April 1994 and was detained on remand until 21 October 1994,

whereas the application was introduced with the Commission on 8 August

1995, i.e. more than six months later.

It follows that the complaints under Article 5 (Art. 5) of the

Convention have been introduced out of time and must be rejected under

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

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

Convention that he was not given a fair hearing by an independent

tribunal as the judges had been appointed by the Supreme Council of

Judges and Prosecutors of which the Minister of Justice is a member and

whose decisions are not reviewed by a judicial organ pursuant to

Article 159 of the Turkish Constitution.

The Commission observes that the applicant does not object to the

subjective impartiality of the judges in his case. He only objects to

the fact that they had been appointed by the Supreme Council of Judges

and Prosecutors of which the Minister of Justice is a member.

The Commission recalls that "in order to establish whether a body

can be considered 'independent', regard must be had, inter alia, to the

manner of appointment of its members (cf., Eur. Court HR, Langborger

judgment of 22 June 1989, Series A no. 155, p. 16, para. 32; Campbell

and Fell judgment of 28 June 1984, Series A, no. 80, p. 39-41,

para. 78).

The Commission notes that the judges who dealt with the

applicant's case had been appointed, like all other judges in Turkey,

by the Supreme Council of Judges and Prosecutors. It is true that the

Minister of Justice is a member of this Council. However, this element

cannot be sufficient to create any legitimate doubt as to the

independence of the courts. Moreover, the applicant adduces no other

evidence to show that the independence of the courts could be

questioned.

The Commission therefore considers that this part of the

application must be rejected as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains under Article 6 para. 3(c) (Art. 6-3-c)

of the Convention that he was not entitled to legal assistance when he

was questioned by the Public Prosecutor and when he appeared before the

Criminal Justice of the Peace.

The Commission observes that when the applicant was brought

before the Public Prosecutor to be questioned he was informed of his

right to legal assistance. However, he stated that he did not wish to

have a lawyer but preferred to defend himself. On the same day he

appeared before the Justice of the Peace and confirmed his statements

before the Public Prosecutor. There is no indication that on this

occasion he requested to be assisted by a lawyer.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SAHiN v. TURKEY

SAHiN v. TURKEY

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