SECOND SECTION

PARTIAL DECISION

AS TO THE ADMIS S IBILITY OF

Application no. 74321/01 by Osman KO Åž T Ä° and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 25 August 2005 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr V. Butkevych , Ms D. Jočienė , Mr D. Popović , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 27 May 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Osman Ko ş ti , Mr Mehmet Koşti and Mr Hışman Öngör , are Turkish nationals who were born in 1981 , 1983 and 1981, respectively , and live in Şanlıurfa . They are represented before the Court by Mr M. Vefa , a lawyer practising in Diyarbakır .

A. The circumstances of the case

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

On 19 February 1999 the applicants were taken into police custody on suspicion of having attempted to throw a type of explosive called a “ M olotov cocktail” in the Suruç district in Şanlıurfa . During their police custody they were allegedly subjected to torture. Their statements were taken under duress. It is to be noted that the applicants did not submit any medical evidence to the Court in support of their allegations of ill-treatment.

On 25 February 1999 the applicants were detained on remand.

On an unspecified date, the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicants and four other persons, charging them with membership of the PKK (the Kurdistan Workers ’ Party) under Article 168 § 2 of the Criminal Code.

On 12 May 1999 the Diyarbakır State Security Court held its first hearing and heard the accused. The applicants denied the charges against them and alleged th at they had been subjected to torture while in police custody. On the same day, the first-instance court ordered that the age of Hışman Güngör and one of the accused, Y.K., be determined since Hışman Güngör was not registered with the Vital Statistics Office and Y.K. contended that he was a minor, born in 1986.

Between 12 May 1999 and 22 December 2000 , the Diyarbakır State Security Court held fifteen hearings and postponed the trial as the procedure concerning the determination of the age of these two people could not be completed.

On 21 December 2000 new legislation (Law No. 4616) on the suspension of proceedings and the execution of sentences regarding offences committed before 23 April 1999 came into force. The new Law stated that conditional release s hould not be applied to persons who had committed offences under , inter alia , Article 168 of the Criminal Code.

The first-instance court requested the public prosecutor and the applicants to submit their observations on the merits of the case on 22 December 2000 and 20 February 2001 , respectively.

On 10 April 2001 the applicants ’ lawyer filed a petition with the first ‑ instance court, requesting the referral of Law no. 4616 to the Constitutional Court on the ground that it was in breach of the principle of equality. He further requested an extension for the submission of the applicants ’ observations on the merits. The Diyarbakır State Security Court dismissed the referral request, but granted an extension for the submission of observations.

On 29 May 2001 , following receipt of the observations of the public prosecutor and the accused, the Diyarbakır State Security Court rendered its decision. It held that the acts of the applicants and their co ‑ accused would not constitute the offence defined in Article 168 § 2 of the Criminal Code. The court considered that they should be convicted under Article 169 of the Criminal Code for aiding and abetting members of an illegal organisation. The State Security Court then decided to defer sentencing the applicants and their co-accused, pursuant to Law no. 4616 . The court held, under Article 1 § 4 of the same law, that the criminal proceedings against the applicants would be suspended and a final sentence imposed only if they were to be convicted of a further offence within the next five years. It further ordered that the accused be released from detention.

Throughout the proceedings the applicants ’ lawyer repeatedly requested that the applicants be released pending trial. He maintained, inter alia , that the applicants were juveniles and that their acts could not be considered to constitute an offence under Article 168 § 2 of the Criminal Code. The first-instance court dismissed the applicants ’ requests until 29 May 2001 , having regard to the nature of the offence with which they were charged and the state of the evidence.

A description of the relevant domestic law is to be found in Gülizar Tuncer v. Turkey (no. 12663/02, decision of 13 March 2003 ).

COMPLAINTS

The applicants complain , under Article 6 of the Convention, that the criminal proceedings against them were not concluded within a reasonable time. They maintain that they were denied a fair hearing by an independent and impartial tribunal on account of the presence of the military judge on the bench of the Diyarbakır State Security Court which tried them. They finally contend under Article 6 that they were deprived of their right to have adequate time and facilities for the preparation of their defence and to defend themselves through legal assistance.

The applicants maintain, under Article 5 of the Convention, that the length of their detention on remand was excessive. In particular, the y complain about the i n applicability of Law No. 4616 to the offence under Article 1 68 of the Criminal Code, and hence their detention between 21 December 2000 and 29 May 2001.

The applicants finally complain, under Article 13 of the Convention, in conjunction with Article 3, that they did not have an effective domestic remedy in respect of their complaints of ill-treatment.

THE LAW

1. The applicants allege under Article 6 of the Convention that the proceedings against them 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 applicants contend under Article 6 of the Convention that the Diyarbakır State Security Court which tried them was not independent and impartial on account of the presence of a military judge on the bench. They further maintain that they were deprived of their right to have adequate time and facilities for the preparation of their defence and to defend themselves through legal assistance.

The Court re calls that a person may not claim to be a victim of a violation of the right to a fair hearing under Article 6 of the Convention where the criminal proceedings were halted by a discontinuation ( I.I. v. Bulgaria , no. 44082/98, decision of 25 March 2004 ). The Court finds that the applicants ’ situation is comparable:

The Court observes that on 29 May 2001 the Diyarbakır State Security Court decided to defer the imposition of a final sentence upon the applicants, pursuant to Law no. 4616 . Consequently, the Court is not in a position to make an examination of the proceedings as whole, as is usually required by complaints under Article 6 of the Convention, because of this conditional suspension of the proceedings (see Dikme v. Turkey (no. 20869/92, § 111, ECHR 2000-VIII).

Unless the applicants were to face new criminal charges, thereby reviving the present case, the Court finds that the applicant s cannot claim to be victim s within the meaning of Article 34 of the Convention at this stage of the proceedings ( cf. Sincar v. Turkey , no. 46281/99, partial decision of 19 September 2002 , and F.A. v. Turkey , no. 36094/97, final decision of 1 February 2005 ).

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

3. The applicants complain, under Article 5 of the Convention, about the length of their detention on remand, which they allege was excessive. In particular, the y complain about the in applicability of Law No. 46 16 to the offence under Article 1 68 of the Criminal Code and hence their detention between 21 December 2000 and 29 May 2001.

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.

4. The applicants finally complain, under Article 13 of the Convention, in conjunction with Article 3, that they did not have an effective domestic remedy in respect of their allegations of ill-treatment.

The Court reiterates that Article 13 of the Convention cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complain t may be. The grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

In this connection, the Court observes that the applicants have not produced any concrete evidence in supp ort of their allegations of ill ‑ treatment. They failed to submit to the Court a detailed account of the alleged ill- treatment , limiting themselves to the stat ement that they had been threatened and tortured. Moreover, they did not produce any medical evidence to substantiate their claims .

In the circumstances of the case, the Court considers that the applicants have not la id the basis of an arguable claim that they were ill ‑ treated by the police which would attract the guarantees of Article 13 of the Convention .

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

For these r easons, the Court unanimously

Decides to adjourn the examination of the applicants ’ complaints concerning the length of the criminal proceedings brought against them and their detention on remand ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President