THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9464/02 by Orhan BAKAY against Turkey

The European Court of Human Rights (Third Section), sitting on 28 September 2006 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr R. Türmen , Mr C. Bîrsan , Mr V. Zagrebelsky , Mr E. Myjer , Mr David Thór Björgvinsson , Mrs I. Ziemele , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 17 September 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Orhan Bakay , is a Turkish national who was born in 1973 and lives in Diyarbakır . He is represented before the Court by Mr M. A. Altunkalem , a lawyer practising in Diyarbakır .

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

On 11 August 1994 the applicant was taken into police custody on suspicion of membership in the PKK. While in police custody the applicant was subjected to ill-treatment.

During an on-site inspection the applicant showed the place of a firearm to the security forces.

On 29 August 1994 the applicant was brought before a single judge at the Diyarbakır State Security Court who ordered his detention on remand.

On an unspecified date, the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant, along with ten other persons. The applicant was accused of carrying out activities for the purpose of bringing about the secession of part of the national territory under Article 125 of the Criminal Code. The public prosecutor alleged that the applicant had participated in a bombing with a certain H.Y.

On 25 November 1994 the applicant denied the allegations against him before the Diyarbakır State Security Court . He further maintained that he had been interrogated under duress while in police custody. On the same day, the applicant ’ s lawyer asked the first-instance court to request information as to whether criminal proceedings were initiated against H.Y. regarding the alleged bombing. The Diyarbakır State Security Court accepted the request and requested the public prosecutor at this court to submit information.

On 30 March 1995 the public prosecutor at the Diyarbakır State Security Court informed the latter that there was a non-prosecution decision in respect of H.Y.

On 26 October 1995 the applicant ’ s lawyer requested the Diyarbakır State Security Court that the applicant be released pending trial. His request was dismissed.

On 8 February 1996 the applicant ’ s representative once again requested that the applicant be released pending trial. He maintained, inter alia , that according to the expert report drawn up in respect of the firearm belonging to the applicant, this gun was never used in any illegal activity and that there was no other evidence against the applicant. His request was dismissed.

Between 8 February 1996 and 15 April 1999 the applicant requested to be release pending trial several times, reiterating that there was no evidence against him. It is to be noted that the first-instance court did not collect any evidence in respect of the applicant between these dates.

On 15 April 1999 the Diyarbakır State Security Court convicted the applicant for membership in the PKK under Article 168 § 2 of the Criminal Code and sentenced him to twelve years and six months ’ of imprisonment.

The applicant appealed. In his appeal petition, he requested not to be convicted in accordance with Law no. 4450, claiming that he had surrendered his arm to the security forces and provided information about the PKK.

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 10 February 2000 the Court of Cassation quashed the first-instance court ’ s judgment in respect of the applicant and another accused, İ.B., holding that the first-instance court should consider their requests under Law no. 4450. It then remitted the case-file to the Diyarbakır State Security Court .

On 13 April 2000 the Diyarbakır State Security Court requested the Ministry of the Interior to submit an opinion as to whether the applicant and İ.B. could benefit from Law no. 4450.

On 10 August 2000 the Ministry of the Interior replied to the first ‑ instance court that the accused should not benefit from the law in question. On the same day, the first-instance court ordered the public prosecutor to make his submissions on the merits of the case.

On 5 October 2000 the public prosecutor submitted his opinion on the merits.

On 7 December 2000 the applicants made their defence submissions.

On 14 December 2000 the Diyarbakır State Security Court dismissed the applicant ’ and İ.B. ’ s requests concerning the application of Law no. 4450 and convicted them under Article 168 § 2 of the Criminal Code. The applicant was sentenced to twelve years and six months ’ of imprisonment.

The applicant appealed.

On 2 July 2001 the Court of Cassation upheld the judgment of 14 December 2000 .

In the meantime, 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 31 October 2003 the applicant was released from prison during the proceedings that he had initiated in order to benefit from Law no. 4959.

COMPLAINTS

The applicant complains under Article 5 of the Convention that he was kept in police custody for an excessive length of time and that he was subjected to ill-treatment while in custody.

The applicant contends under Article 6 of the Convention that the criminal proceedings against him were not concluded within a reasonable time. He further maintains under the same head that, between 1994 and 1999, there was a military judge on the bench of the Diyarbakır State Security Court .

The applicant complains that the non-applicability of Law No. 4616 to persons who committed offences under Article 168 of the Criminal Code created a distinction between individuals who had the same judicial status and was in violation of their right to liberty. He invokes Articles 1, 5, 6, 7, 13, 14, 17 and 18 of the Convention. Under the same heads, he further contends that the fact that he was sentenced to a term of imprisonment under Law no. 3713 meant that he was not entitled to automatic parole until he had served three quarters of his sentence, unlike prisoners sentenced under the ordinary criminal law, who were entitled to parole after serving two fifths of their sentence.

By a letter dated 16 March 2006 , the applicant ’ s representative submitted under Article 5 § 3 of the Convention that the applicant ’ s detention on remand was excessively long. He finally maintained that the presence of the military judge on the bench of the state security court during five years violated the applicant ’ s right under Article 6 § 2 of the Convention.

THE LAW

1. The applicant complains under Article 6 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time.

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 complains under Article 5 of the Convention that he was subjected to ill-treatment while in police custody.

The Court considers that this complaint should be examined under Article 3 of the Convention. It further points out that under Article 35 § 1 of the Convention it may only deal with a matter within a period of six months from the date on which the final decision was taken in domestic law. However, in a case where an applicant avails himself of a domestic remedy and it becomes clear, at a later stage, that this remedy was not effective, the six-month period provided for in Article 35 of the Convention should in principle be calculated from the time when the applicant became aware, or should have become aware of, the ineffectiveness of the remedy (see İçöz v. Turkey ( dec .), no. 54919/00, 9 January 2003 ).

The Court notes in this connection that, the applicant complained before the Diyarbakır State Security Court that he had been subjected to ill ‑ treatment in police custody. However, no official investigation was initiated by the prosecuting authorities into his complaint.

The Court considers that the failure of the judicial authorities to act must have become gradually apparent up until 15 April 1999 when the State Security Court rendered its first judgment on the matter, and that, therefore, the applicant should have been aware of the ineffectiveness of remedies in domestic law by that date. Accordingly, the six-month period provided for in the Article 35 of the Convention should be considered to have started running no t later than 15 April 1999 (see İçöz , cited above). The application should therefore in any event have been introduced not later than October 1999. However, it was introduced with the Court on 17 September 2001.

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

3. The applicant complains under Article 5 of the Convention that he was kept in police custody for an excessive length of time.

The Court may only deal with a matter within a period of six months from the date on which the final decision was taken. When the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place (see Arslan v. Turkey ( dec .), no. 31320/02, 1 June 2006).

The Court observes that the applicant was taken into police custody on 11 August 1994 and that his detention in police custody ended on 29 August 1994, when the judge ordered his detention on remand. The applicant introduced his application with the Court on 17 September 2001, i.e. more than six months later.

It follows that these complaints have been introduced out of time and must be reje cted in accordance with Article 35 §§ 1 and 4 of the Convention.

4. The applicant maintains under the same head that, between 1994 and 1999, there was a military judge on the bench of the Diyarbakır State Security Court .

The Court notes that the applicant ’ s trial commenced before the Diyarbakır State Security Court , whose composition included a military judge. On 15 April 1999 this co urt convicted the applicant. On 18 June 1999, the Constitution was amended and the military judge on the bench of the State Security Court was r eplaced by a civilian judge. On 10 February 2000 the Court of Cassation quashed the applicant ’ s conviction and remitted the case to the State Security Court . After the remission, the applicant ’ s trial resumed at a court which was composed of three civilian judges who carried out a full re-examination of the facts of the case and a re-assessment of the evidence and law presented before it. Consequently, on 14 December 2000, the applicant was convicted by a court of this nature (see Tarlan v. Turkey ( dec .), no. 31096/02, 30 March 2006).

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

5. The applicant contends that the non-applicability of Law No. 4616 to persons who committed offences under Article 168 of the Criminal Code created a distinction between individuals who had the same judicial status and was in violation of their right to liberty. In this connection, he invokes Articles 1, 5, 6, 7, 13, 14, 17 and 18 of the Convention. Under the same heads, he further contends that the fact that he was sentenced to a term of imprisonment under Law no. 3713 meant that he was not entitled to automatic parole until he had served three quarters of his sentence, unlike prisoners sentenced under the ordinary criminal law, who were entitled to parole after serving two fifths of their sentence.

The Court considers that this part of the application should be examined under Article 14 of the Conventi on, in conjunction with Article 5 § 1 (a) of the Convention.

The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or a group of persons are distinguishable from each other (see Kjeldsen , Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1 976, Series A no. 23, p. 29, § 56). In the instant case, the distinctions complained of were made not between different groups of people, but between different types of offence, according to the legislature ’ s view of their gravity (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999). The Court, therefore, sees no ground for concluding that these practices amount to a form of “discrimination” that is contrary to the Convention.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6. By a letter dated 16 March 2006 , the applicant ’ s representative submitted under Article 5 § 3 of the Convention that the applicant ’ s detention on remand was excessively long. He finally maintained that the presence of the military judge on the bench of the state security court during five years violated the applicant ’ s right under Article 6 § 2 of the Convention.

The Court reiterates that it may only deal with a matter within a period of six months from the date on which the final decision was taken. When the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place

The Court observes that the applicant ’ s detention on remand and the criminal proceedings against him ended on 14 December 2000 and 2 July 2001 respectively whereas these complaints were lodged with the Court on 16 March 2006 i.e. more than six months later.

It follows that these complaints have been introduced out of time and must be reje cted in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the length of the criminal proceedings against him;

Declares the remainder of the application inadmissible .

Vincent Berger Boštjan M. Zupančič Registrar President