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MUTLU AND YILDIZ v. TURKEY

Doc ref: 30495/96 • ECHR ID: 001-3874

Document date: September 11, 1997

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MUTLU AND YILDIZ v. TURKEY

Doc ref: 30495/96 • ECHR ID: 001-3874

Document date: September 11, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 30495/96

by Abdullah MUTLU and Necmettin YILDIZ

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 9 February 1996

by Abdullah Mutlu and Necmettin Yildiz against Turkey and registered

on 19 March 1996 under file No. 30495/96;

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 first applicant, born in 1960, and the second applicant, born

in 1964, are Turkish citizens who are currently detained at Buca Prison

in izmir. They are represented before the Commission by

Mr. Kemal Bilgiç, a lawyer practising in izmir.

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

may be summarised as follows.

On 21 October 1995 the applicants were arrested by policemen from

the Anti-Terrorist branch of Manisa Security Directorate. They were

accused of being members of and assisting the PKK terrorist

organisation.

On 30 October 1995 the applicants were brought before a judge in

Manisa who ordered their detention on remand.

On 31 October 1991 the Public Prosecutor of Manisa declined

jurisdiction due to the nature of the crimes, which are against the

security of the State, and referred the case to the Public Prosecutor

attached to izmir State Security Court.

On 22 November 1995 the latter filed an indictment against the

applicants charging them with being members of and assisting the PKK

terrorist organisation.

The case is still pending before the izmir State Security Court.

COMPLAINTS

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

ten days as they were accused of crimes that fall within the

jurisdiction of the State Security Courts. 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. They also allege 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 contend under Article 6 of the Convention that

their right to a fair trial was breached as they were deprived of their

right to defend themselves through legal assistance during the 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 promptly brought before a judge since

they were held in police custody for ten days.

They also allege 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 complain under Article 6 (Art. 6) of the

Convention that they could not enjoy their right to a fair trial since

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, which has

made amendments to the Code of Criminal Law, did 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 ten 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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