FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43925/98 by KARAKAŞ and YEŞİLIRMAK against Turkey

The European Court of Human Rights (Fourth Section), sitting on 5 October 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr R. Türmen , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 14 August 1998 ,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applicatio n was transferred to the Court,

Having regard to the Commission ' s partial decision of 4 June 2002 ,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Bülent Karakaş and Yılmaz Yeşilırmak are Turkish nationals who were born in 1974 and 1977 respectively and live in Istanbul . They were represented before the Court by Mr Yazıcıoğlu and Mr Elban, lawyer s practising in Istanbul .

A. The circumstances of the case

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

On an unspecified date police officers from the anti-terror branch of the Bağcılar Security Directorate reported that an illegal organisation, namely Dev-Sol (Revolutionary Left) , would hold a demonstration in front of the head office of a daily journal, namely Hürriyet on 13 August 1994 .

On 13 August 1994 the applicants, together with twelve other people, were arrested in front of the newspaper ' s head office and taken to police custody at the Bağcılar Security Directorate . According to the apprehension report drafted by the police , Dev-Sol members were arrested following a chase and two warning shots. It was also noted that t he police officers made the detainees lie on the floor and collected the pamphlets and banners that they carried.

On 17 August 1994 the applicants were examined by a doctor from the Bakırköy Forensic Medical Institute. The doctor reported bruises on one hand of the first applicant and on both hands of the second applicant. The report stated that the applicants ' injuries did not constitute a danger to life, but would prevent them from working for three days.

On the same day the Bağcılar Security Directorate held a press conference , on the subject of the apprehension of members of the Dev-Sol organisation. The next day the applicants ' names and pictures appeared on two national newspapers , namely Milliyet and Zaman , where they were described as members of the Dev-Sol organisation .

On 18 August 1994 the applicants were brought before the Public Prosecutor and then before a non-presiding judge at the Istanbul State Security Court , where they denied all charges. Both applicants rejected their statements given in police custody. They contended that they were forced to sign the se statement s under pressure. The court ordered their detention on remand.

On 23 August 1994 the applicants were examined by the prison doctor . The medical report indicated the presence of bruises on the right hand of the first applicant . Moreover a site of scarred tissue, approximately 0. 5 x 0. 5 cm in dimension, was identified o n the back of his right hand.

At the end of the examination of the second applicant the doctor reported the presence of bruises on both hands and three sites of scarred tissue, each approximately 0 . 5 x 1 cm in dimension o n the back of his left hand.

On 26 August 1994 the Public Prosecutor of the Istanbul State Security Court filed a bill of indictment, charging the applicants under Article 169 of the Criminal Code with aiding and abetting an illegal terrorist organisation .

On 7 and 8 September 1994 a doctor at the Forensic Medicine Institute examined the second and the first applicant respectively . The medical report reiterated the findings of the report s dated 23 August 1994 and indicated that the first applicant complained of pain in his waist and the second applicant complained of pain in his thighs.

At the first hearing held on 27 October 1994 before the Istanbul State Security Court , the applicants submitted, attached to the medical reports, written statement s where they alleged that they had been subjected to torture by polic e officers during their custody. They also maintained that they had been forced to sign statements before reading them.

The court ordered the applicants ' release pending trial.

At the hearing dated 21 February 1995 the Istanbul State Security Court decided that the police officers whose signatures approved under the applicants ' written statements given in police custody should be summoned to appear before the court. On 25 May 1995 the court postponed the hearing until 5 September 1995 as the police officers did not reply to the summons.

On 5 September 1995 all the police officers, except one, appeared before the Istanbul State Security Court . They confirm ed the content of the applicant s ' police statements and the authenticity of their signature s appearing on the bottom of these statements .

At the hearing dated 16 November 1995 the police officer who had not previously replied to the summons , failed to appear before the court once again.

On 14 March 1996 the police officer attended the hearing and confirmed the veracity of the applicants ' police statements and the authenticity of his signature on the bottom of the records. At the same hearing the court decided to acquit ten of the accused and convicted four of them, including the applicants , under Article 169 o f the Criminal Code and Article 5 of Law on Prevention of Terrorism. It sentenced the applicants to three years and nine months and to two years and six months ' imprisonment, respectively.

On 17 April 1996 the applicants ' lawyer lodged an app eal with the Court of Cassation. In the appeal petition the applicant ' s lawyer repeated the allegation that the applican ts had been subjected to torture in police custody.

On 13 April 1998 , at the hearing which took place before the Court of Cassation, the applicants repeated their allegations of torture in police custody and pleaded not guilty.

On 27 April 1998 the Court of Cassation upheld the decision of the Istanbul State Security Court .

On 27 May 1998 the Court of Cassation rejected the applicants ' request to rectify the decision.

B. Relevant domestic law

Article 169 of the Turkish Criminal Code provides:

“Any person, who knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years ' imprisonment...”

The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991):

Article 4 of the Law no.3713 provides that the offence defined in section 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”.

According to Article 5, penalties laid down in the Criminal Code as punishment for the offences defined under Articles... and 4 of the Act are increased by one half.

COMPLAINTS

1. The applicants alleged under Article 3 of the Convention that the treatment to which they had been subjected during their detention in police custody amounted to torture. They alleged, i n particular, that they were blindfolded, kept standing, facing a wall; they were not given water and not allowed to go to the bathroom for some time. Moreover they were beaten on both hands ( el falakası ) , insulted and threatened. The first applicant claimed that a police officer extinguished his cigarette on his wrist and the second applicant claimed that he was subjected to beatings , as a result of which he hit his head on the wall and his nose bled . The latter also alleged that the police connected electrodes to his genitals and to his little finger and subjected him to electric shocks . They also complained in general of the conditions of the prison where they were held incommunicado .

2. The applicants complain ed under Article 6 § 1 that they did not receive a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court, which convicted them.

3. The applicants further complain ed under Article 6 § 1 that the criminal proceedings against them were not concluded within a reasonable time.

4. The applicants complain ed under Article 6 § 2 of the Convention that their right to be presumed innocent was violated since, subsequent to their arrest, the police organis ed a press conference where they were presented to journalists as criminals.

THE LAW

A. Preliminary objectio n s

Six- month rule

The Government argued that as the applicants were complaining of the lack of independence and impartiality of the State Security Court , they should have lodged their application within six months of the date on which that court rendered its judgment, namely 14 March 199 6 .

The Court observes that the Court of Cassation rendered its final ruling on 27 April 1998 . Given that the application was lodged on 1 4 August 1998 , the applicant s must be considered to have complied with the six-month rule provided under Article 35 § 1 of the Convention.

Exhaustion of domestic remedies

As regards the applicants ' allegation of torture , the Government argued that they had failed to exhaust all domestic remedies, as they only complained before the Court of Cassation.

The Court notes that the applicants complained that they were forced to sign their police statements under pressure before the public prosecutor and the non-presiding judge at the Istanbul State Security Court . Moreover in their written petitions, dated 27 October 1994 , submitted to the Istanbul State Security Court , the applicant s complained of acts of torture without giving any details. It further notes that d uring the first hearing the applicants supplied the court with medi cal reports which reported bruises on their hands .

In the light of the above the Court dismisses the Government ' s preliminary objection concerning the non- exhaustion of domestic remedies.

B. Merits

1. The applicants complained that the treatment to which they were subjected during their detention in police custody amounted to torture in violation of Article 3 of the Convention which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government contend ed that the applicant s had failed to provide a detailed description of the all eged treatment to the domestic authorities. They also alleged that the injuries recorded in the medical reports occurred while the applicants had resisted the attempts of the policemen to apprehend them. They stated that the use of force had been nec essary to make the applicants submit to the lawful requirements of the police officers and no excessive force had been used against them.

The applicants reiterated their allegations.

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 the 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.

2 . The applicants complained under Article 6 § 1 of the Convention that their right to a fair trial was breached as they were tried by the Istanbul State Security Court which lacked independence and impartiality on account of the presence of a military judge on the bench.

The Government contend ed that the rules governing the appointment of military judges to the State Security Courts and the guarantees which they enjoy in the performance of their judicial functions on the bench were such as to ensur e that these courts fully complied with the requirements of independence and impartiality withi n the meaning of Article 6 § 1.

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 the 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.

3. The applicants complained under Article 6 § 1 of the Convention that the criminal proceedings were not concluded within a rea s onable time. 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 within a reasonable time by an independent and impartial tribunal established by law”

The Government alleged that the public prosecutor had submitted the bill of indictment to the court within fifteen days from the applicants ' arrest and the Istanbul State Security Court gave its decision within two years. The case was a complex one, considering that the charges concerned aiding and abetting an illegal terrorist group and the number of accused were fourteen. They further contended there were no periods of inactivity attributable to the authorities.

The applicants reiterated their view that the proceedings were unreasonably long. They argued that the case was not a complex one . During the first hearing all the accused gave their statements and at the last hearing all the accused presented their final submission and the court gave its final decision. However there was not much happening in the criminal proceedings during the period in between these two hearings. They further maintained that the appeal stage of the case which lasted almost two years was unreasonably long.

The Court notes that the period to be taken into consideration began on 13 August 1994 , when the applicants were taken into police custody, and ended on 27 April 1998 , when the Court of Cassation upheld the judgment of the Istanbul State Security Court . The proceedings thus lasted approximately three years, eight months and fourteen days in respect of two instances.

Taking into account the number of accused in the case, the seriousness of the charges involved and the number of hearings, the Court finds that the total period of three years and eight months was not unreasonably long. Moreover, the applicant s have not shown a ny substantial periods of inact ivity attributable to the judicial authorities.

The Court notes also that Article 6 of the Convention requires that judicial proceedings be conducted expeditiously, but it also lays down the more general principle of the proper administration of justice (see Boddaert v. Belgium , judgment of 12 October 1992, Series A no. 235-D, § 39). It considers that, in the circumstances of the case, the conduct of the proceedings was consistent with the fair balance which has to be struck between the various aspects of this fundamental requirement.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Articl e 35 § 4 of the Convention.

4. The applicants alleged under Article 6 § 2 of the Convention that subsequent to their arrest, the Bağcılar Security Directorate had organized a press conference and presented them to the journalists as criminals. The next day their names and photographs were published in the newspapers and they were identified as the members of the Dev-Sol. Article 6 § 2 of the Convention provides as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Government disputed the applicants ' allegation. They alleged that no news or photos, describing the applicants as members of an illegal organisation , were published i n the newspapers.

The applicants maintained that the copies of the newspaper clippings were att ached to their application form sent to the 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 the 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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants ' complaint concerning the alleged torture that they were subjected to in police custody (Article 3) , their right to a fair trial by an independent and impartial tribunal (Article 6 § 1) and their right to presumption of innocence (Article 6 § 2) ;

Declares the remainder of the application inadmissible .

Michael O ' Boyle Nicolas Bratza Registrar President