THIRD SECTION

PARTIAL DECISION

AS TO THE ADMIS S IBILITY OF

Application no. 904/03 by Zülküf KORKMAZ against Turkey

The European Court of Human Rights (Third Section), sitting on      1 September 2005 as a Chamber composed of:

Mr J. Hedigan , President , Mr L. Caflisch , Mr R. Türmen , Mr C. Bîrsan , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mr David Thór Björgvinsson , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 22 November 200 2 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zülküf Korkmaz , is a Turkish national who was born in 1959 and lives in Erzurum . He is repr esented before the Court by Mrs Mükrime Tepe and Mrs Şehnaz Turan , lawyers practising in Istanbul .

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

On 11 September 1999 the applicant was taken into custody together with Z.G. by gendarme officers from the Tekman District Gendarme Station. The gendarmes conducted a search of the applicant ’ s house, but the materials seized during the search did not reveal any indication of criminal activity.

On 14 September 1999 the applicant ’ s statement was taken by the gendarmes, allegedly under duress. The applicant states that he was forced to sign the statement. In this statement, he confessed that he had helped certain PKK members in the transporta tion of binoculars and radios.

The same day, D.A., who was arrested on 13 September 1999 , also on suspicion of aiding and abetting the PKK, gave a statement to the gendarmes. In his statement, he explained that on the day o f his arrest a person called F. E. had come to his house and asked about the applicant. D.A. stated that F.E. had told him that the applicant had been arrested for helping the PKK members in the transportation of certain walkie-talkies and a binocular wh ich had been sent from Germany .

On 15 September 1999 the applicant was brought before the public prosecutor at the Erzurum State Security Court , where he denied the charges brought against him. He stated that he had been ill-treated by the gendarmes and that he was forced to sign his statement dated 14 September 1999 . The same day the public prosecutor decided to release the applicant on account of lack of evidence.

On 3 November 1999 a PKK courier, S.B., was arrested in Erzurum . In his statement S.B. stated that he had taken eight walkie-talkies and a stereo tape from the applicant to hand over to members of the PKK.

On 31 October 2001 the public prosecutor at the Erzurum State Security Court initiated criminal proceedings against the applicant. He accused him of aiding an illegal organisation, namely the PKK. The prosecution called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code.

The first hearing before the Erzurum State Security Court was held on 2 November 2001 . During the hearing, the court decided to send a rogatory letter to the Tekman Criminal Court, requesting the latter to obtain the applicant ’ s statement.

On 21 November 2001 the Tekman Criminal Court, acting under powers delegated to it by the Erzurum State Security Court, took the applicant ’ s defence submissions. The public prosecutor ’ s indictment was not sent to the applicant prior to the hearing, but was read out at the beginning of the hearing. The applicant, who had no legal representation, was then asked to submit his defence submissions and evidence at the same hearing. The applicant denied the charges against him and stated that his statement dated 14 September 1999 had been taken under duress.

On 30 November 2001 the Erzurum State Security Court held a second hearing in the absence of the applicant. The court took note of the applicant ’ s defence submission which had been sent by the Tekman Criminal Court. At the same hearing, it found the applicant guilty as charged and sentenced him to three years and nine months ’ imprisonment. In the reasoning of the judgment, the court mainly relied on the applicant ’ s and D.A. ’ s statements dated 14 September 1999 , taken by the gendarmes. The court also took into consideration the statement of S.B., dated 5 November 1999 , in which he admitted that he had helped the applicant in delivering six walkie-talkies and a s tereo tape to the PKK members.

On 22 May 2002 the Court of Cassation upheld the judgment of the Erzurum State Security Court .

COMPLAINTS

The applicant submits under Article 6 § 1 of the Convention that he did not receive a fair trial by an independent and impartial tribunal. He contends in this respect that the judges sitting on the bench of the Erzurum State Security Court could not be considered as independent and impartial as the judges are attached to the Supreme Council of Judges and Prosecutors. The applicant further maintains that as the State Security Courts were established by law to deal with threats to the security and integrity of the State, he did not have a trial before an independent court.

The applicant further submits under Article 6 that his statement, which was taken under duress, was admitted to the case-file and that the judgment of Erzurum State Security Court was based on this statement.

The applicant states under Article 6 § 3 (b) of the Convention that the indictment of the Erzurum State Security Court Public Prosecutor and the written opinion of the Principal Public Prosecutor at the Court of Cassation were not served on him, thus depriving him of the opportunity to put-forward his counter-arguments.

The applicant alleges under Article 6 § 3 (c) of the Convention that he was deprived of his right to legal assistance while in police custody. Under the same provision, the applicant also maintains that he was not present before the State Security Court during the entire proceedings, and therefore he could not defend himself before the court which convicted him.

The applicant maintains under Article 6 § 3 (d) of the Convention that he was not given the opportunity to question the witnesses against him, whose statements led to his conviction.

The applicant finally alleges that he was prosecuted due to his Kurdish origin. In this respect, he contends that he was subjected to discrimination in breach of Article 14 of the Convention.

THE LAW

1. The applicant submits under Article 6 of the Convention that he did not receive a fair trial by an independent and impartial tribunal. He contends that the judges sitting on the bench of the Erzurum State Security Court cannot be considered as independent and impartial as the judges are attached to the Supreme Council of Judges and Prosecutors. The applicant further maintains that as the State Security Courts were established by law to deal with threats to the security and integrity of the State, he could not be considered as having benefited from a fair trial before an independent court.

The Court reiterates that it has already rejected similar complaints concerning the issue of the independence and impartiality of the civil judges on account of their attachment to the Supreme Council of Judges and Public Prosecutors (see , amongst many others, Ä°mrek v. Turkey ( dec .), no. 57175/00, 28 January 2003 , and Vahdettin Budak and Others ( dec . ), no. 57345/00, 7 September 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 to the applicant ’ s complaint about his trial before a court which was established by law to deal with threats to the security and integrity of the State, the Court notes that the applicant ’ s submissions in this respect are far too general in nature and that he has failed to substantiate his claims.

Consequently, this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant brings several other complaints under Article 6 of the Convention. In the first place, he submits that he was convicted on the basis of his statement which had been taken under duress. He also states that he was denied the assistance of a lawyer during his custody. He further complains that the indictment of the Erzurum State Security Court Public Prosecutor and the opinion of the Principal Public Prosecutor at the Court of Cassation were not communicated to him. Moreover, he contends that he was tried in absentia and he was not given the opportunity to challenge the witness statements against him. In respect of his complaints, the applicant invokes Article 6 §§ 1 and 3 (a), (b), (c) and (d).

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

3. The applicant complains under Article 14 of the Convention that he was prosecuted due to his Kurdish origin.

The Court observes that the applicant did not submit any evidence in support of his allegation. He has therefore failed to substantiate his allegation and to lay the basis of an arguable claim of a breach of Article 14.

It follows that this part of the application is manifestly ill-founded within the meaning of 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 his right to legal assistance during police custody, his conviction on the basis of his statement which was allegedly taken under duress, his trial in absentia , the non-communication of the indictment of the Erzurum State Security Court Public Prosecutor and of the opinion of the Chief Public Prosecutor at the Court of Cassation , and his inability to challenge the witnesses against him;

Declares the remainder of the application inadmissible.

Vincent Berger John H edigan Registrar President