FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 70084/01 and 70085/01 by Selim KABASAKAL and Hasan ATAR against Turkey

The European Court of Human Rights (Fourth Section), sitting on 8 March 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr R. Türmen , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application s lodged on 13 December 2000 ,

Having regard to the partial decision of 1 July 2003 ,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Selim Kabasakal and Mr Hasan Atar, are Turkish nationals, who were born in 1979 and 1977 respectively. They were serving their prison sentences in Ordu at the time of their applications to the Court . They are represented before the Court by Mr H asan ErdoÄŸan and Mr Levent Kanat, lawyers practising in Ankara .

A. The circumstances of the case

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

On 11 November 1998 the applicants were taken into police custody by police officers from the anti-terrorist branch of the Sivas Security Directorate on suspicion of membership of an illegal organisation, namely the TDP (Revolutionary Party of Turkey ) . They were held in police custody until 18 November 1998 .

On 18 November 1998 they were brought before a judge who ordered their detention on remand.

On 31 December 1998 the public prosecutor at the Erzurum State Security Court filed a bill of indictment with the latter charging the applicants under Article 168 § 2 of the Criminal Code , with membership of an illegal organisation.

On 12 January 1999 the Erzurum State Security Court commenced the trial against the applicants and four other co-accuseds .

On 8 September 1999 the military judge sitting on the bench of the Erzurum State Security Court was replaced by a civil judge. On the same day, the applicants submitted their observations on the merits.

On 12 October 1999 the Erzurum State Security Court held a hearing.

On 26 October 1999 the applicants filed their final defence submissions .

On 26 October 1999 the Erzurum State Security Court convicted the applicants of membership of the TDP and sentenced them to twelve years and six months ' imprisonment.

Following a hearing held on 5 June 2000 , the Court of Cassation rejected the applicants ' appeal and upheld the Erzurum State Security Court ' s judgment. The applicants ' representative was present during the hearing. The decision of the Court of Cassation was pronounced in the absence of the applicants ' representative on 14 June 2000 .

B. Relevant domestic law

A full description of the relevant domestic law may be found in previous similar cases, in particular Özel v. Turkey , no. 42739/98, §§ 20-21, 7 November 2002 , Özdemir v . Turkey , no. 59659/00, §§ 21-22, 6 February 2003 , and Gençel v. Turkey , no. 53431/99, §§ 11-12, 23 October 2003.

COMPLAINTS

The applicants contend under Article 6 § 1 of the Convention that they were denied a fair hearing on account of the presence of a military judge on the bench of the Erzurum State Security Court, which tried and convicted them. The applicants submit that the written opinion of the principal public p rosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. In this respect the applicants invoke Article 6 § 3 (b) of the Convention.

THE LAW

1. The Government ' s preliminary objection:

The Government submit that the applicants have failed to comply with the six-month rule provided in Article 35 § 1 of the Convention. They contend that the six month s ' period should be calculated from the date of the judgment of the State Security Court and not from the date of the pronunciation of the judgment of the Court of Cassation. They assert that an appeal to the Court of Cassation cannot be deemed to be an effective remedy since it is not a competent authority to examine allegations concerning the independence and impartiality of the State Security Court .

The Court reiterates that it has already rejected the Government ' s similar preliminary objection in respect of the non-compliance with the six month s ' rule in Özdemir v. Turkey (cited above, § 26). The Court finds no particular circumstances in the instance case which would require the Court to depart from its findings in the above-mentioned case.

Accordingly, the Court dismisses the Government ' s objection.

2. Merits:

The applicants contend under Article 6 § 1 of the Convention that they were denied a fair hearing on account of the presence of a military judge on the bench of the Erzurum State Security Court, which tried and convicted them. Article 6 § 1 of the Convention provides, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ( ... )”

The Go vernment contend that, by Law No. 4388 of 18 June 1999 , amendments were made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention. In this connection they point out that in the present ca se, the military judge sitting o n the bench of the Erzurum State Security Court was replaced by a civilian judge when the applicants ' lawyer made their submissions on the merits of the case and that the applicants were convicted by a State Security Court which was composed of three civilian judges.

The Government maintain that the a pplicants received a fair hearing by an independent and impartial tribunal. They stress that the court in its discretion reduced the sentence of the applicants.

The applicants refute the Government ' s arguments. They contend that the criminal proceedings before the Erzurum State Security Court had not been repeated when the civil ian judge replaced the military judge.

The applicants maintain that the reduction in their sentence w as not the result of a discretion on the part of the judges but w as the result of the fact that the applicants had no absence of criminal record and of their actions before the State Security Court .

The Court considers in the light of the parties ' submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. It concludes, therefore, that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

The applicants submit under Article 6 § 3 (b) of the Convention that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. Article 6 § 3 (b) of the Convention provides:

“Everyone charged with a criminal offence has the following minimum rights:

(...)

(b) to have adequate time and facilities for the preparation of his defence (...)”

The Government submit that th e written opinion of the principal public p rosecutor at the Court of Cassation is the observations of the public prosecutor following examination of the file in order to determine whether the judgment rendered by the lower court is in con formity with procedure and law. The Government point out that the written opinion does not have a binding nature and that it is generally in a form of a one-page document in which it is briefly stated whether the judgment of the first instance court should be upheld or quashed.

The Government maintain that t he above-mentioned document as well as other documents submitted to the Court of Cassation can be examined by those who are concerned pursuant to Article 99 of the Law of Court of Cassation. In this connection, t hey contend that the applicants could have fou nd out about the written opinion of the principal public prosecutor via telephone, fax or in person .

The Government further aver t hat the written opinion of the principal public prosecutor was read out during the hearing and that the applicant s would have been given the opportunity to submit their counter-arguments. In the present case however, the applicants ' representative did not attend the hearing held before the Court of Cassation. Consequently, they contend that if the applicants were deprived of the chance to put forward their counter-arguments, this was the result of the applicants ' representative ' s conduct.

Finally, the Government point to the recent am endment of 2 January 2003 to Article 316 of the Code of Criminal Procedure Law which now provides that the written opinion of the principal public prosecut or at the Court of Cassation shall be notified to the parties.

The applicant s refute the Government ' s arguments. They contend that the Government ' s contention that it would have been possible for them to find out about the written opinion of the principal public prosecutor prior to the hearing is unsubstantiated and false. In particular, the applicants point out that their representative was present during the hearing held before the Court of Cassation. They reiterate that they did not have sufficient time to prepare their defence since they learned of the contents of the written opinion of the principal public prosecutor for the first time during the hearin g held before the Court of Cassation.

The Court considers in the light of the parties ' submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. It concludes, therefore, that this part of the ap plication is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the remainder of the application s admissible, without prejudging the merits of the case.

Michael O ' Boyle Nicolas Bratza Registrar President