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ÖZATA AND OTHERS v. TURKEY

Doc ref: 30453/96 • ECHR ID: 001-3957

Document date: October 22, 1997

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ÖZATA AND OTHERS v. TURKEY

Doc ref: 30453/96 • ECHR ID: 001-3957

Document date: October 22, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 30453/96

by Güven ÖZATA and others

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 3 February 1996

by Güven ÖZATA, Sait KIZAR, Ali ÖZMEN, ibrahim TEKiN, Sabri ÖNER and

Enver SÖNMEZ against Turkey and registered on 14 March 1996 under file

No. 30453/96;

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, Güven Özata, Sait Kizar, Ali Özmen, ibrahim

Tekin, Sabri Öner and Enver Sönmez, are all Turkish citizens, born in

1945, 1952, 1968, 1958, 1963 and 1959 respectively, who reside in

Antalya. They are represented before the Commission by Mehmet Nur Terzi

and Kemal Bilgiç, lawyers practising in izmir.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

Following a number of investigations carried out by the Antalya

police, the applicants were taken into police custody on various dates

between 16 and 21 November 1995 on suspicion of being members of an

illegal armed organisation, the PKK.

The details are as follows:

The applicant Period of police custody

Güven Özata 21.11.1995

29.11.1995

Sait Kizar 16.11.1995

29.11.1995

Ali Özmen 16.11.1995

29.11.1995

ibrahim Tekin 16.11.1995

29.11.1995

Sabri Öner 16.11.1995

29.11.1995

Enver Sönmez 16.11.1995

29.11.1995

As the Antalya Public Prosecutor found that he had no

jurisdiction to examine the case, the file was sent to the Izmir Public

Prosecutor's office. On 29 November 1995 the applicants were brought

before a judge of the izmir State Security Court. The judge, having

regard to the nature of the accusations and the evidence already

available, placed them in detention on remand.

In an indictment dated 27 December 1995, the Public Prosecutor

at the izmir State Security Court charged the applicants with being

members of an illegal organisation, the PKK, and carrying out acts

aimed at the separation of part of the State territories.

The criminal proceedings against the applicants are still pending

before the State Security Court and the applicants remain in detention.

COMPLAINTS

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

that they were kept in police custody without being brought before a

judge for periods between 9 and 14 days.

2. The applicants further complain under Article 6 para. 3 (b) of

the Convention that during their police custody they were deprived of

any possibility of contacting a lawyer and did not have a chance to

defend themselves through legal assistance.

3. They complain lastly under Article 14 in conjunction with

Article 6 para. 3 (b) of the Convention that they were treated in a

discriminatory manner as regards the enjoyment of their rights under

Article 6 para. 3 (b) of the Convention. They observe that, according

to the Code of Criminal Procedure, persons charged with offences to be

tried by the ordinary courts 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.

They maintain that this difference of treatment is completely

unjustified and constitutes discrimination within the meaning of

Article 14.

THE LAW

1. The applicants complain under Article 6 para. 3 (b) (Art. 6-3-b)

of the Convention that during their police custody they were deprived

of any possibility of contacting a lawyer and did not have a chance to

defend themselves through legal assistance.

They also complain under Article 14 in conjunction with Article 6

para. 3 (b) (Art. 14+6-3-b) of the Convention that they were treated

in a discriminatory manner as they were suspected of offences which

fall within the jurisdiction of the State Security Courts.

The Commission notes, however, that the criminal proceedings

against the applicants are still pending.

The Commission must take into consideration the entire criminal

proceedings before it can express an opinion as to whether they comply

with the requirements of Article 6 (Art. 6) of the Convention. It notes

that, under Turkish law, the applicants can submit to the first-

instance court and the Court of Cassation the complaints which they now

raise before the Commission.

The introduction of the above complaints therefore appears

premature, given the current stage of the proceedings before the

domestic courts. The applicants cannot therefore complain at this stage

of any violation of the Articles of the Convention which they invoke.

They may re-submit the case to the Commission if, following the outcome

of the criminal proceedings against them, they still consider

themselves victims of the alleged violations. This part of the

application must therefore be rejected as being manifestly ill-founded

pursuant to Article 27 para. 2 (Art. 27-2) of the Convention (Nos.

23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec.

25.5.95, D.R. 81-B p. 94).

2. The applicants also complain under Article 5 para. 3 (Art. 5-3)

of the Convention that they were kept in police custody without being

brought before a judge for periods between 9 and 14 days.

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 ADJOURN the examination of the applicants' complaint

related to the length of their police custody,

unanimously,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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