THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4238/02 by Lütfüşah KELEKÇİLER against Turkey

The European Court of Human Rights (Third Section), sitting on 18 March 2008 as a Chamber composed of:

Josep Casadevall, President ,

Rıza Türmen,

Boštjan M. Zupančič,

Alvina Gyulumyan,

Ineta Ziemele,

Luis López Guerra ,

Ann Power, judges ,

and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 26 November 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Lütfüşah Kelekçiler, is a Turkish national who was born in 1975 and lives in Diyarbak ı r . He was represented before the Court by Mr F. Gümüş, a lawyer practising in Diyarbakır . The Turkish Government (“the Government”) were represented by their Agent .

A. The circumstances of the case

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

On 11 March 1998 the applicant was arrested and taken into police custody on suspicion of involvement in the activities of an illegal armed organisation, namely the PKK (Workers ’ Party of Kurdistan).

On 15 March 1998 the applicant was brought before a judge at the Diyarbakır State Security Court , who remanded him in custody.

In an indictment dated 17 March 1998, the public prosecutor at the Diyarbakır State Security Court accused the applicant of aiming to undermine the sovereignty of the Turkish State and of seeking to separate a part of its territory. The applicant was accused, in particular, of having participated in the bombing of various buildings in 1994, including a mosque where Mr. M. G. lost his life and Mr I. K. was injured. The charges were brought under Article 125 of the Criminal Code.

The first hearing, held before the Diyarbakır State Security Court on 23 March 1998, in the applicant ’ s absence, was taken up with procedural matters such as the measures to be taken for securing the presence of the accused. The next hearing was scheduled for 27 April 1998.

On 27 April 1998 the court heard the applicant, who denied all the charges against him. In particular, he submitted that his deceased brother, who was a member of the PKK, had taken his identity papers from him and that he might have used his name and identity during this time. He retracted the statements he had made to the police and partially confirmed the statements he had made to the public prosecutor. In particular, he submitted that he had given his brother food to take home and not to the organisation and that he had been shot by Mr A.G. in 1994 for not helping the organisation. He acknowledged that he had been caught with false identity papers and that he had previously been arrested while trying to go to Greece to find work and escape army service. The applicant also challenged the veracity of the verbatim records of the search and seizure protocol and the reconstruction of events. The applicant was read statements by a number of persons who were tried before another State Security Court for membership of the PKK. The applicant admitted knowing a few of them, including two relatives, and stated that he did not know why they had made such statements against him. The applicant ’ s representative submitted that the applicant had materially helped the organisation because of his brother and that after the latter ’ s death he had escaped from the region and had not taken part in any event.

Between 15 June 1998 and 16 August 1999 the first-instance court held hearings on a regular basis , during which the judges dealt with various procedural matters connected with the completion of the case file. Information was received regarding the state of the criminal proceedings against the witnesses. The applicant failed to appear before the court at several hearings during this time. At one of the hearings the applicant ’ s representative submitted that the applicant had acknowledged that some of his actions could be construed as aiding and abetting an illegal organisation within the meaning of Article 169 of the Criminal Code. At a hearing held on 24 March 1999 the court decided to take statements from two officers who had taken the verbatim records of the reconstruction of events (“the officers”).

At a hearing held on 16 August 1999 the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The next hearing was scheduled for 11 October 1999.

Between 11 October 1999 and 14 November 2000 the first-instance court held hearings on a regular basis , during which the judges dealt with procedural matters connected with th e completion of the case file and in particular with the securing of statements from the officers. At a hearing held on 30 May 2000 the applicant requested to be confronted with witnesses. In this connection, he claimed that since his brother had stolen his identity documents, they might be able to identify whether it was the applicant or his brother who took part in these acts. The court refused this request on the ground that these witnesses had later retracted the statements they had made to the police and that therefore there was no need to hear them. The officers ’ statements were included in the case file on 12 September 2000. At that hearing the applicant stated that he was not request ing an additional investigation ( tevsi tahkikat ) and that he did not accept the statements of these officers. On 24 October 2000 the public prosecutor read out his observations on the merits. A request by the applicant for time to prepare his submissions was granted by the court.

At a hearing held on 14 November 2000 the public prosecutor reiterated his earlier submissions. The applicant and his representative submitted their final submissions. In particular, the applicant ’ s representative denied the charges against the applicant and claimed that some of his actions, even assuming the applicant had committed them, should be construed merely as aiding and abetting an illegal armed organisation. He further challenged witness statements in the case file, noting that the applicant had not been given the chance to confront the witnesses. The applicant agreed with his representative ’ s submissions. He also read out parts from his eight paged written defence submissions. On the same day the court, taking into account the evidence in the case file, including the statements of a number of persons who were tried before another State Security Court for membership of the PKK and the verbatim records of the reconstruction of events, convicted the applicant as charged and sentenced him to life imprisonment. This judgment was upheld by the Court of Cassation on 7 May 2001. The decision notes that the applicant and his lawyer had failed to appear before it. The decision of the Court of Cassation arrived at the registry of the first ‑ instance court on 29 May 2001.

The applicant ’ s representative requested a copy of the Court of Cassation ’ s decision and received it on 22 October 2001.

B. Rele vant domestic law and practice

The relevant domestic law and practice in force at the material time are outlined in the Öcalan v. Turkey judgment ([GC], no. 46221/99, §§ 52 ‑ 54, ECHR 2005) .

By Law no. 5190 of 16 June 2004, published in the Official J ournal on 30 June 2004, State Security Courts were abolished.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention on the ground that he had been detained in police custody for a long period of time.

The applicant maintained under Article 6 § 1 of the Convention that he had been denied a fair hearing within a reasonable time by an independent and impartial tribunal. In this connection he complained that the civilian judges are attached to the Supreme Council of Judges and Public Prosecutors and that there was a military judge on the bench of the State Security Court which tried him.

THE LAW

1. The applicant complained that he had been held in police custody for a long period of time without being brought before a judge or other officer authorised by law to exercise judicial power as provided in Article 5 § 3 of the Convention , which reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power.”

The Government argued under Article 35 § 1 of the Convention that this part of the application should be rejected for failure to comply with the six ‑ month rule. They maintained that the applicant should have lodged his application with the Court within six months of the date on which his detention in police custody ended.

The applicant maintained his allegations.

The Court reiterates that, according to the established case-law of the Convention organs, where there is no domestic remedy available, the six-month period runs from the date of the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, the period of six months runs from the end of the situation concerned (see, among other authorities, Yüksektepe v. Turkey , no. 62227/00, § 31, 24 October 2006 , and Özden Bilgin v. Turkey , no. 8610/02, § 23 , 14 June 2007 ).

The Court notes that the applicant ’ s detention in police custody ended when he was remanded in custody on 15 March 1998, whereas this complaint was lodged with the Court on 26 November 2001, more than six months later. In these circumstances, the Court accepts the Government ’ s objection that the applicant has failed to comply with the six ‑ month rule. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

2. The applicant complained that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Court which tried him. He further complained about the fact that the civilian judges sitting on the bench of the State Security Court are attached to the Supreme Council of Judges and Public Prosecutors. Finally, the applicant maintained that the length of the criminal proceedings brought against him had been excessive. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Government maintained under Article 35 § 1 of the Convention that the applicant had failed to comply with the six-month rule. In this connection, they submitted that the complaints regarding the independence and impartiality of the State Security Court should have been lodged with the Court within six months of the date on which that court rendered its judgment. The Government further noted that the applicant should have lodged his remaining complaint with the Court within six months of the date on which the Court of Cassation ’ s decision was rendered.

As to the Government ’ s objection under its first limb, the Court reiterates that it has already examined and rejected such arguments in similar cases (see, in particular, Özdemir v. Turkey , no. 59659/00, § 29, 6 February 2003, and Yavuzaslan v. Turkey , no. 53586/99, § 16, 22 April 2004). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned cases.

As regards the Government ’ s objection under its second limb, the Court notes that in the instant case the judgment of the State Security Court was upheld by the Court of Cassation on 7 May 2001 and deposited with the registry of the Diyarbakır State Security Court on 29 May 2001. The Court observes that the application was lodged with the Court on 26 November 2001, five months and twenty-nine days later. The application was therefore introduced in time.

In view of the above, the Court rejects the Government ’ s objections.

1. Independence and impartiality of the Diyarbakır State Security Court

As regards the complaint concerning the independence and impartiality of the military judge, the Court has consistently held that certain aspects of the status of these judges sitting as members of the State Security Courts rendered their independence of the executive questionable (see Incal v. Turkey , judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 68, and Çıraklar v. Turkey , judgment of 28 October 1998, Reports 1998-VII, § 39). The Court also found in Öcalan v. Turkey ( [GC] no. 46221/99, ECHR 2005-IV, §§ 114-115) that when a military judge participated in one or more interlocutory decisions that remained in effect during the criminal proceedings in question, the military judge ’ s replacement by a civilian judge in the course of those proceedings, before the verdict was delivered, failed to dissipate the applicant ’ s reasonably held concern about that trial court ’ s independence and impartiality, unless it was established that the procedure subsequently followed in the State Security Court sufficiently allayed that concern.

In the instant case, the Court observes that the applicant ’ s trial commenced before the Diyarbakır State Security Court , whose composition included a military judge. On 16 August 1999 the military judge sitting on the bench of this court was replaced by a civil judge. Consequently, when the applicant was convicted on 14 November 2000 the Diyarbakır State Security Court was composed of three civilian judges.

T he Court notes that before his replacement, the military judge sat on the bench of the State Security Court between 23 March 1998 and 16 August 1999, when the court held hearings at regular intervals. At these hearings, the domestic court heard the applicant and the prosecutor and mostly carried out minor procedural acts in order to complete the case file . However, no interlocutory decisions of importance, in particular for the rights of defence of the applicant, were taken by the domestic court during these hearings. In this connection, the Court notes that after the military judge was replaced by a civilian judge, the domestic court continued to hold reg ular hearings, during which it heard the applicant and the prosecutor and took various decisions. Furthermore, the final submissions of both the public prosecutor and the applicant were read out before the court, which was composed of three civilian judges.

The Court takes note of the respective importance of the procedural acts which were carried out before and after the replacement of the military judge. It f inds that in the instant case no ne of the acts which were carried out with the participation of the military judge required immediate renewal after his replacement by a civ ilian judge (see, among other authorities, Kabasakal and Atar v. Turkey , nos. 70084/01 and 70085/01, § 34, 19 September 2006 ).

In view of the overall proceedings, the Court finds that, in the particular circumstances of the case, the replacement of the military judge in the course of the proceedings disposed of the applicant ’ s reasonably held concern about the trial court ’ s independence and impartiality (see, among others, Osman v. Turkey , no. 4415/02, § 17, 19 December 2006 ).

In the light of the foregoing, the Court concludes that the applicant ’ s complaint concerning the independence and impartiality of the Diyarbakır State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

As to the complaint concerning the independence and impartiality of the civilian judges, the Court observes that it has previously rejected grievances of this kind (see, among many others, Imrek 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 earlier findings. Consequently, this part of the application is also manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

2. Length of the criminal proceedings

The Court observes that the period to be taken into consideration began on 11 March 1998, when the applicant was arrested and taken into police custody, and ended on 7 May 2001, when the Court of Cassation upheld the judgment of the Diyarbakır State Security Court . The period under consideration thus lasted three years and two months before two instances.

After examining the overall duration of the proceedings, and taking into account that the case against the applicant was of some complexity and the fact that the case was dealt with at two levels of jurisdiction, the Court does not consider that the length of the proceedings in the present case was excessive even if it had been somewhat unduly prolonged by the inability of the first-instance court to secure the officers ’ statements. Furthermore, on appeal, the Court of Cassation decided on the case within six months. In the light of the foregoing, the Court concludes that, in the present case, the length of the criminal proceedings cannot be regarded as exceeding the reasonable time requirement of Article 6 § 1 of the Convention.

It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible .

Santiago Quesada Josep Casadevall Registrar President