SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4947/04 by Emin GURBAN against Turkey

The European Court of Human Rights (Second Section), sitting on 13 November 2008 as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Vladimiro Zagrebelsky , Danutė Jočienė , András Sajó , Nona Tsotsoria , Işıl Karakaş , judges, and Françoise Elens-Passos , Deputy Section Re gistrar ,

Having regard to the above application lodged on 24 December 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Emin Gurban, is a Turkish national who was born in 1966 and is currently serving a prison sentence in the Kocaeli F-Type Prison . He is represented before the Court by Mr M . Erbil, a lawyer practising in I stanbul .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 11 October 1996 the applicant was arrested and taken into custody on suspicion of being a member of and aiding and abetting the PKK ( Kurdistan Workers ’ Party , an illegal organisation).

On 18 October 1996 he was brought before a single judge at the 2 nd Chamber of the Istanbul State Security Court who ordered him to be placed in pre-trial detention.

On 25 October 1996 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and ten other accused, accusing the applicant of being a member of an illegal organisation and of having engaged in acts aimed at the separation of a part of the territory of the State. The public prosecutor requested that the applicant be convicted and sentenced under Article 125 of the former Turkish Criminal Code (“the Criminal Code”).

On 13 June 2001 the Istanbul State Security Court found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the former Criminal Code.

On 28 January 2002 the Court of Cassation quashed the judgment of the first-instance court on purely procedural grounds and remitted the case to the first-instance court.

On 27 September 2002 the Istanbul State Security Court once again convicted the applicant under Article 125 of the Criminal Code and sentenced him to life imprisonment. In its judgment, the Istanbul State Security Court noted that the applicant would serve his sentence until the end of his life.

On 30 June 2003 the Court of Cassation upheld the judgment of the Istanbul State Security Court .

B. Relevant domestic law

Section 1(B) of Law no. 4771, published on 9 August 2002, provides:

“The periods set forth in Articles 70, 73 and 82 of the Turkish Criminal Code shall be doubled vis-à-vis persons whose death sentences have been commuted to life imprisonment in accordance with the provisions of this Law, and tripled vis-à-vis those persons who have been found guilty of terrorist offences.

The p rovisions on conditional release found in the Law on Sentence Enforcement and Anti-Terrorism ( Law no. 3713 of 12 April 1991 ) shall not be applicable to persons found guilty of terrorist offences whose death sentences have been commuted to life imprisonment in accordance with the provisions of this Law. For these persons, the life sentence shall be served for the rest of their lives.”

Articles 70, 73 and 82 of the Turkish Criminal Code set out the terms of solitary confinement for those persons sentenced to life imprisonment within the context of concurrent or recurrent crimes.

COMPLAINTS

The applicant complained that the imposition of an irreducible life sentence in accordance with section 1(B), paragraph 2 of the Law no. 4771 and the particular conditions of his imprisonment, which entailed a certain period of solitary confinement in accordance with section 1(B), paragraph 1 of the Law no. 4771, amounted to torture, or inhuman or degrading punishment under Article 3 of the Convention .

The applicant further alleged that life imprisonment and in particular the resulting ineligibility for an amnesty or reduction of sentence amounted to an infringement of his right to liberty under Article 5 § 1 of the Convention.

The applicant contended u nder Article 5 § 3 of the Convention that his pre-trial detention had exceeded the “reasonable time” requirement and that his requests for release pending trial had been dismissed on identical and stereotypical grounds which failed to provide any relevant and sufficient grounds justifying the continuing deprivation of liberty.

The applicant maintained under Article 6 § 1 that the Istanbul State Security Court which convicted him was not independent or impartial because the judges on its bench had been appointed by the Supreme Council of Judges and Prosecutors ( Hakimler ve Savcılar Yüksek Kurulu ) , which was presided by the Minister of Justice.

The applicant also contended under Article 6 § 1 that he had not been tried within a reasonable time and that his conviction had been based on insufficient and unlawful evidence and on statements extracted from him under duress.

The applicant argued, lastly, under Article 13 of the Convention that he had no effective remedy by which he could raise the issue of the excessive length of his detention and of the proceedings against him before a national authority.

THE LAW

1 . The applicant complained under Article 3 of the Convention that his continuous detention for the rest of his life, in accordance with section 1(B) paragraph 2 of the Law n o. 4771, which rendered him ineligible for an amnesty or a reduction of sentence, amounted to torture, or inhuman or degrading punishment.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2 . The applicant contended under Article 3 of the Convention that his confinement to a single cell for a certain period of his sentence, in accordance with the terms of section 1(B) paragraph 1 of Law no. 4771, amounted to torture, or inhuman or degrading punishment .

The Court notes that the applicant has not substantiated the applicability of this domestic provision to his situation. Moreover, the applicant has not submitted any documents to the Court as evidence that he is indeed kept in solitary confinement.

It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3 . The applicant complained under Articles 5 §§ 1, 3(c) and 13 of the Convention of his ineligibility for an amnesty or reduction of sentence resulting from his life imprisonment, of the excessive length of his pre-trial detention and of the lack of effective remedies to challenge the length of his detention.

The Court first notes that the applicant ’ s complaint concerning his ineligibility for an amnesty or reduction of sentence is to be examined under Article 3 of the Convention as discussed above.

The Court considers that there were two periods of detention in the present case. The first period began on 11 October 1996, when the applicant was taken into police custody, and ended on 13 June 2001, when the Istanbul State Security Court convicted him. Thereafter until the Court of Cassation ’ s decision of 28 January 2002, the applicant was detained “after conviction by a competent court”, which falls within the scope of Article 5 § 1 (a) of the Convention. The second period began on 28 January 2002, when the Court of Cassation quashed the first-instance court ’ s judgment, and , ended on 27 September 2002 with the Istanbul State Security Court ’ s judgment.

The Court observes that from 27 September 2002 onwards the applicant was once again detained “after conviction by a competent court” and no longer for the purpose of being brought before the competent legal authority (see, among other authorities, Turan v. Turkey (dec.), no. 879/02, 27 January 2005 ). Accordingly, the applicant ’ s pre-trial detention ended on 27 September 2002, whereas these complaints were introduced on 24 December 2003, more than six months later.

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4 . The applicant argued under Article 6 § 1 of the Convention that he was not tried by an independent and impartial tribunal. He maintained that the judges sitting on the bench of the Istanbul State Security Court had been appointed by the Supreme Council of Judges and Prosecutors, which was presided by the Minister of Justice.

The Court reiterates that it has already rejected similar complaints concerning the issue of the independence and impartiality on account of the appointments by the Supreme Council of Judges and Public Prosecutors (see, inter alia , Ä°mrek v. Turkey (dec.), no. 57175/00, 28 January 2003). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the earlier cases on this issue.

Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

5 . The applicant maintained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him, which was over six years and eight months, had been excessive.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

6 . The applicant alleged under Article 6 § 1 of the Convention that he had been convicted on the basis of insufficient, unlawful evidence and his police statements, which had been extracted under duress.

The Court reiterates that while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found (see, among others, Jalloh v. Germany [GC], no. 54810/00, § 95, 11 July 2006).

In the present case the Court notes that the applicant did not submit any document, such as medical reports, in support of his allegation that his statements had been taken under duress in police custody. Nor did the applicant provide the national authorities or the Court with a detailed account of the alleged ill-treatment.

The Court further notes in this regard that the applicant ’ s police statement, which he also failed to submit to the Court, was not the sole or main basis of his conviction His conviction was based on a wide array of evidence, including witness statements and search, seizure autopsy and expert reports.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

7 . The applicant contended under Article 13 of the Convention that he had had no effective remedy by which to raise the issue of the excessive length of the proceedings in his case before a national authority.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning his life imprisonment without any prospects of conditional release, the excessive length of the criminal proceedings against him and the lack of an effective remedy to complain of the excessive length of the proceedings ;

Declares the remainder of the application inadmissible.

             Françoise Elens-Passos Françoise Tulkens              Deputy Registrar President