FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4661/02 by Şükran YILDIZ against Turkey

The European Court of Human Rights (Fourth Section), sitting on 3 July 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Türmen , Mr K. Traja , Mr S. Pavlovschi , Mrs P. Hirvelä , judges , and Mr s F . A r aci , Deputy S ection Registrar ,

Having regard to the above application lodged on 21 June 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Şükran Y ı ld ı z , is a Turkish national who was born in 1980 and lives in Diyarbak ı r . She is represented before the Court by Mr and Mrs Beştaş , la wyers practising in Diyarbakır .

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

On 22 September 1996 the applicant, who was sixteen years old at the time, was taken into custody by policemen from the Diyarbakır Security Directorate on suspicion of membership of an illegal organisation, the PKK (the Kurdistan Workers ’ Party). In her police statements dated 6 and 8 October 1996 respectively, the applicant accepted the charges against her.

On 22 October 1996 the applicant was brought before the Diyarbakır public prosecutor. Before the prosecutor, she denied the allegations against her. The same day, she was further brought before the investigating judge, where she repeated her statement taken by the prosecutor. Taking into account the seriousness of the allegations, the judge ordered that the applicant be placed in detention on remand.

By an indictment dated 3 December 1996, the public prosecutor at the Diyarbakır State Security Court initiated criminal proceedings against the applicant and nine other accused. He accused the applicant of being a member of the PKK and accordingly called for her to be sentenced pursuant to Article 168 § 2 of the Criminal Code.

The trial commenced before the Diyarbakır State Security Court . In the subsequent twenty hearings, the court refused to release the applicant on account of the nature of the alleged offence and the state of evidence.

On 2 June 1999 the Diyarbakır State Security Court, composed of three judges including a military judge, concluded that the applicant was a member of the PKK and accordingly sentenced her to eight years and four months ’ imprisonment pursuant to Article 168 § 2 of the Criminal Code.

On 18 June 1999 the Constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge.

On 20 December 1999 the Court of Cassation quashed the judgment of the first-instance court.

On 17 February 2000 the Diyarbakır State Security Court , composed of three civilian judges, commenced the retrial of the applicant.

On 21 December 2000 Law no. 4616, which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999 came into force. The Law stipulated that parole would not be applicable to persons who had committed offences under Article 168 of the Criminal Code. Thus the applicant could not benefit from Law no. 4616.

On 10 August 2001 the applicant was released pending trial.

On 9 April 2002 the court rendered its judgment. Having regard to the content of the case file, the court found it established that the applicant was a member of the PKK. It accordingly sentenced her to eight years and four months ’ imprisonment pursuant to Article 168 § 2 of the Criminal Code.

On 7 October 2002 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court .

COMPLAINTS

1. Under Article 5 § 3 of the Convention, the applicant complained about the length of her police custody. She further stated that her family was not informed about her arrest.

2. The applicant maintained that the length of her detention on remand constituted a further breach of Article 5 § 3 of the Convention.

3. Invoking Article 6 § 1 of the Convention, the applicant maintained that she had not received a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of the Diyarbakır State Security Court.

4. The applicant further alleged under Article 6 § 1 of the Convention that the criminal proceedings against her had not been completed within a reasonable time.

5. The applicant submitted under Article 6 § 2 that her right to be presumed innocent until proved guilty was infringed throughout the trial on account of the excessive length of her detention on remand.

6. Under Article 6 § 3 of the Convention, the applicant stated that she had been deprived of her right to legal assistance while in police custody.

7. The applicant also submitted under Article 13 of the Convention that she had no remedy under domestic law in respect of her complaint concerning the length of her detention on remand.

8. Finally, the applicant alleged that the non-applicability of Law no. 4616 (Law on Conditional Release and Suspension) to her case amounted to discrimination. She relied on Articles 5, 6 and 14 of the Convention in this respect.

THE LAW

1. The applicant complained about the length of her detention in police custody and maintained that her family was not informed about her arrest. In this respect, she invoked Article 5 of the Convention.

The Court observes that the applica nt ’ s police custody ended on 22 October 1996 . However, the application was lodged with the Court on 21 June 2001 , which is more than six months from the date of the facts giving rise to the alleged violation.

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

2. The applicant also complained that the length of her detention on remand exceeded the reasonable time requirement of Article 5 § 3 of the Convention.

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.

3. The applicant maintained under Article 6 § 1 of the Convention that he was not tried by an independent and impartial court.

The Court recalls that it has examined similar cases in the past and ha s concluded that there was a violation of Article 6 § 1 of the Convention (see Özel v. Turkey , no. 42739/98, §§ 33 - 34 , 7 November 2002 and Özdemir v. Turkey , no. 59659/00, § § 35-36, 6 February 2003 ). However, the present application may be distinguished for the following reasons.

The Court notes that although the applicant was convicted by the Diyarbakır State Security Court whose composition included a military judge, this judgment was subsequently quashed by the Court of Cassation on 20 December 1999. In the meantime, while the appeal proceedings were pending, in June 1999 the Constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge. As a result, following the decision of the Court of Cassation, the applicant was tried afresh before the Diyarbakır State Security Court which was composed of three civilian judges with all of the procedural safeguards provided for by the ordinary criminal procedure (see Yaşar v. Turkey ( dec .), no. 46412 / 99 , 31 March 2005 ; Tarlan v. Turkey ( dec .), no. 31096/02, 30 March 2006 and Pakkan v. Turkey , no. 13017/02, § § 33-34 , 31 October 2006 ) .

In the light of the foregoing, the Court finds 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.

4. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings were not concluded within a rea s onable time .

The Court reiterates that the reasonableness of the length of criminal proceedings is to be assessed in the light of the particular circumstances of the case, including the complexity of the case, the applicant ’ s conduct and the conduct of the competent authorities (see, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

In the instant case, the Court observes that the period to be taken into consideration began on 22 September 1996, when the applicant was taken into police custody and ended on 7 October 2002 with the decision of the Court of Cassation. It has thus lasted for approximately six years for four levels of jurisdiction.

The Court notes that the case was complex. It involved several accused and the charges concerned membership of an illegal organisation. As regards the conduct of the authorities, the Court does not observe any period of inactivity that could be attributable to the domestic courts. Furthermore, following the appeal requests the Court of Cassation decided on the case within six months.

In 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 (see, Ö zkan v. Turkey ( dec .), no. 12822/02, 21 November 2006 and Bayram Yılmaz and Others ( dec .), no. 38370/02, 19 September 2006).

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

5. The applicant submitted under Article 6 § 2 that her right to be presumed innocent until proved guilty was infringed throughout the trial on account of the excessive length of her detention on remand.

The Court reiterates that no separate issue arises under Article 6 § 2 of the Convention in cases concerning the length of detention on remand, since in such cases the aim of ensuring respect for that principle is attained through Article 5 § 3 of the Convention (see Yavuz v. Turkey ( dec .), no. 47043/99, 5 October 2004).

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

6. The applicant alleged under Article 6 § 3 of the Convention that she had been deprived of her right to legal assistance while in police custody.

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.

7. The applicant complained under Article 13 that there were no remedies in domestic law to challenge the l ength o f h er detention on remand .

The Court considers that this complaint should be examined from the standpoint of Article 5 § 4 of the Convention.

It further 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.

8. Invoking Articles 5, 6 and 14 of the Convention the applicant also consider ed the non-applicability of Law n o. 46 16 to the offence under Article 168 of the Criminal Code as discriminatory and unfair.

Having regard to its established case-law on this issue, the Court considers that this complaint should be examined under Article 14 taken together with Article 5 § 1 (a) of the Convention.

The Court notes that the distinction alleged by the applicant is not a distinction which is made between different groups of people, but between different types of offences, according to the legislature ’ s view of their gravity. The Court previously held that such distinctions are not contrary to Article 14 of the Convention (see Gerger v. Turkey [GC], no. 24919 /94, § 69, 8 July 1999 , Kalan v. Turkey ( dec .), no. 73561/01, 2 October 2001 , and Kanat v. Turkey ( dec .), no. 16622/02, 28 April 2005). The Court therefore concludes that the practice in question does not amount to a form of “discrimination” that is contrary to the Convention.

Accordingly, this part of the application should be declared inadmissible as being manifestly ill-fou nded in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the length of her detention on remand, the right to have the lawfulness of her detention decided by a court and the right to legal assistance during her police custody;

Declares the remainder of the application inadmissible .

FatoÅŸ A ra ci Nicolas Bratza Deputy Registrar President