Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34481/97

by Melahat FiLiZ and Nadir KALKAN

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 September 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 22 November 1996

by Melahat Filiz and Nadir Kalkan against Turkey and registered on 14

January 1997 under file No. 34481/97;

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, born in 1976 and 1957 respectively, are Turkish

citizens who are currently held in prison. They are represented before

the Commission by Mr. Mustafa iseri and Mr. Suat Çetinkaya, lawyers

practising in izmir.

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

may be summarised as follows.

On 28 July 1996, following an investigation carried out by the

Public Prosecutor at the izmir State Security Court, the applicants

were arrested by members of the Anti-Terror branch of izmir Security

Directorate.

On 5 August 1996 the applicants were brought before the izmir

State Security Court which ordered their detention on remand.

On 28 August 1996 the Public Prosecutor at the izmir State

Security Court filed an indictment with the court against the

applicants charging them, under Article 168 para. 2 of the Turkish

Penal Code, with being members of an illegal armed organisation, namely

the PRK-Rizgari.

The criminal proceedings against the applicants are still pending

before the Izmir State Security Court.

COMPLAINTS

1. The applicants complain that they were held in police custody for

eight days without being brought before a judge. In this regard, the

applicants contend that Article 5 para. 3 of the Convention was

violated due to the excessive length of their detention in police

custody without being brought before a judge.

2. The applicants submit under Article 14 in conjunction with

Article 5 para. 3 of the Convention that the length of their police

custody constituted discrimination as compared to the rights of persons

suspected of having committed an offence falling within the

jurisdiction of the ordinary courts.

3. 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 when the Public Prosecutor filed an indictment with the

State Security Court and thus not "promptly" when they were arrested.

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.

4. The applicants submit under Article 14 in conjunction with

Article 6 of the Convention that they were subjected to discrimination

on the basis 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.

THE LAW

1. The applicants complain under Article 5 para. 3 (Art. 5-3) of the

Convention that they were not brought promptly before a judge since

they were held in police custody for eight days.

The applicants submit under Article 14 in conjunction with

Article 5 para. 3 (Art. 14+5-3) of the Convention that the length of

their police custody constituted discrimination as compared to the

rights of persons suspected of having committed an offence falling

within the jurisdiction of the ordinary courts.

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 under Article 6 (Art. 6) of the Convention that

they were deprived of their right to a fair trial since the criminal

proceedings brought against them were based on their confessions

obtained during police custody, that they were not promptly informed

of the accusations against them, that they did not have adequate time

and facilities for the preparation of their defence and that they were

deprived of their right to legal assistance during their police

custody.

The applicants complain under Article 14 in conjunction with

Article 6 (Art. 14+6) of the Convention that they were subjected to

discrimination on the basis 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 Law No. 3842, which provides for the

right to legal assistance during police custody in respect of the

crimes falling within the jurisdiction of the ordinary criminal courts,

does not provide for the same right in respect of the crimes falling

within the jurisdiction of the State Security Courts.

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 (Art. 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 brought

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 at their disposal 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 (Art. 6, 14) appear to be premature.

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,

DECIDES TO ADJOURN the examination of the applicants' complaints

that they were held in police custody for eight days without

being brought before a judge, and that they were discriminated

against as regards the length of their police custody.

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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FiLiZ AND KALKAN v. TURKEY

FiLiZ AND KALKAN v. TURKEY