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AGiN v. TURKEY

Doc ref: 26065/94 • ECHR ID: 001-3738

Document date: July 9, 1997

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AGiN v. TURKEY

Doc ref: 26065/94 • ECHR ID: 001-3738

Document date: July 9, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 26065/94

by Ömer Agin

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 July 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 19 September 1994

by Ömer Agin against Turkey and registered on 21 December 1994 under

file No. 26065/94;

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 1948, is a Turkish citizen of Kurdish

origin and is currently held in prison at Gölcük. He is represented

before the Commission by Mr. Veysel Uçum and Mr. Mehmet Uçum, lawyers

practising in Istanbul.

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

be summarised as follows.

On 8 September 1982 the applicant was arrested by police and he

was placed into custody. On 8 December 1982 he was detained on remand.

On 8 June 1984 he was convicted under Article 141 of the Turkish Penal

Code of being a member of an illegal organisation and sentenced to six

years' imprisonment by the Diyarbakir Martial Law Court.

On 24 April 1986 the applicant was conditionally released and he

was therefore imprisoned between 8 September 1982 and 24 April 1986.

Article 141 of the Turkish Criminal Code has been repealed by Law

No. 3713 (Anti-Terror Law) of 12 April 1991.

In May 1991 he committed another offence and on 29 September 1993

the applicant was sentenced to one year and eight months' imprisonment

and to a fine by the 2nd chamber of the Istanbul State Security Court

on the ground that he had violated Law No. 3713 by disseminating

separatist ideas.

On 19 January 1994 the applicant submitted a petition to the 2nd

chamber of the Istanbul State Security Court requesting his first

conviction to be deducted from his second conviction because he had

served a longer sentence in respect of his previous conviction than he

had to.

The applicant's request was rejected by the 2nd chamber of the

Istanbul State Security Court in a "separate decision" of 17 March

1994. In its reasoning the court stated the following: "For a deduction

to be granted the commission of the second crime should take place

before the date of the final ruling in respect of the first conviction.

As the applicant committed the second crime five years after he had

served his sentence, deduction cannot be made."

The applicant filed an objection against the decision of the

court with the 3rd chamber of the Istanbul State Security Court and his

objection was dismissed on 25 March 1994.

Finally, the applicant applied to the Minister of Justice and

requested him to issue a written order for the examination and

rectification of the State Security Court's decision by the Court of

Cassation.

On 3 May 1994 the applicant's request was rejected by the

Minister of Justice.

COMPLAINTS

The applicant complains of violations of Articles 5, 9, 10 and

14 of the Convention.

As to Article 5, the applicant complains that he was deprived of

his liberty and security due to his opinions. He alleges that the

conditional release provisions of Law No. 3713, which requires 3/4 of

the sentence to be served, violate his rights under Article 5.

As to Articles 9 and 10, the applicant complains that the

previous period of imprisonment has not been deducted from his second

conviction contrary to Article 40 of the Turkish Criminal Code.

The applicant also maintains that his rights under Articles 9 and

10 of the Convention were violated due to his second sentence and that

there has been a continuing violation since deduction was refused.

As to Article 14, the applicant complains that in a similar

situation the President of the Republic's nephew was granted a

deduction, which contravenes the principle of equality.

THE LAW

The applicant complains that his rights under Articles 5, 9, 10

and 14 (Art. 5, 9, 10, 14) of the Convention have been violated. As to

Article 5 (Art. 5), he complains that he was deprived of his liberty

and security due to his opinions. He also complains that his first

conviction was not deducted from his second conviction.

The Commission first notes that on both occasions the applicant

was convicted and sentenced for acts which constituted offences under

Turkish law. It follows that he cannot be considered to have been

punished merely for his opinions. In this respect, his complaint is

therefore unsupported by the facts of the case.

Moreover, as regards the failure to deduct the first sentence

from the second sentence, the Commission notes that the applicant, in

his first conviction on 8 June 1982, was sentenced to six years'

imprisonment and was released on 24 April 1986. In May 1991 he

committed another offence and on 29 September 1993 he was sentenced for

this offence to one year and eight months' imprisonment.

The Commission notes that under Turkish law there was not, in the

circumstances of the case, any right for the applicant to have the

first sentence deducted from the second sentence. It follows that the

imprisonment resulting from the second sentence must be considered

lawful within the meaning of Article 5 para. 1(a) (Art. 5-1-a) of the

Convention.

It follows that the application must be rejected as manifestly

ill-founded under 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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