SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55954/00 by Suna AKAR and Erdal BE Ç ET against Turkey

The European Court of Human Rights (Second Section), sitting on 28 September 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs A. Mularoni, judges , and Mr T . L. E arly , Deputy Section Registrar ,

Having regard to the above application lodged on 30 December 1999 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Suna Akar and Erdal Be ç et , are Turkish   nationals , who were born in 1971 and 1975 respectively , and live in Istanbul . They are repre sented before the Court by Mr Faruk Nafiz Ertekin and Mr Tahsin Ayçık, lawyer s practising in Istanbul .

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

On 11 March 1996 the Küçükyalı Police Station was informed that a poster with a bomb had been hung over the Küçükyalı Bridge . Following their arrival at the bridge , the police found a cloth-poster of 2x1 metre s on which it was written “We have and will demand the account of Gazi , MLKP ”, ( Gazinin hesabını sorduk, soracağız, MLKP ) . According to the police report , the box looked as if it contained a bomb . However, it did not.

On 12 March 1996 the first applicant was arrested and taken into police custody.

According to her statement to the police on 14 March 1996 , the first applicant denied being a member of the MLKP , namely the Marxist-Leninist Communist Party . She stated that she was only a sympathiser . She also admitted having taken part in the hanging of a cloth-poster from the top of a bridge on 11 March 1996 .

T he Istanbul Forensic Medic ine Institute ' s report on 19 March 1996 stated that the first applican t did not show any signs of ill- treatment.

On 19 March 1996 the first applicant was brought to the public prosecutor ' s office at the Istanbul State Security Court where she admitted having taken part in the hanging of the poster along with the second applicant and other suspects . As to the statement she made to the police on 14 March 1996 , the first applicant said that she had only made it be cause she had been afraid of being ill-treated.

On the same day the first applicant was brought before the Istanbul State Security Court . She told the court that her statement in police custody had been taken under dures s. She further stated that she no longer accepted the statements she had made to the public prosecutor . The court ordered her de tention on remand.

On 21 March 1996 the first applicant filed a n objection with the Istanbul State Security Court against the decision to detain her. In her objection, s he also alleged , without giving any details , that she had been subjected to i ll-treatment in police custody.

On 12 June 1996 the second applicant was arrested and taken into police custody.

According to the statement given to the police on 17 June 1996 , the second applicant denied membership of the MLKP. He stated that he did not know either the first applicant or the other suspects who had given his name.

According to a report dated 18 June 1996 prepared by the Istanbul Forensic Medicine Institute , the second applicant had a pain in his left arm and a graze of 1 cm on his back.

On 18 June 1996 the second applicant was brough t to the public prosecutor ' s office at the Istanbul State Security Court . He denied that he was a member of the MLKP. He also repeated the statements he had made to the police.

On the same day the second applicant was brought before the Istanbul State Security Court . He repeated the s tatements he had made to the police and the public prosecutor. He also stated that he had not been ill-treated in police custody. The c ourt ordered his detention on remand.

According to a medical report prepared by the Sakarya State Hospital on 27 June 1996 , the second applicant was suffering from a 2 mm - perforation of the upper part of the membrane of his ear .

On 26 March 1996 and 20 June 1996 respectively, the public prosecutor at the Istanbul State Security Court filed a bill of indictment with that court accusing the applicants of aiding and abetting an illegal organisation, namely the MLKP. The public prosecutor requested that the applicant s be convicted and sentenced under Article 169 of the Criminal Code and s ection 5 of Law no. 3713.

On 1 April 1996 the Istanbul State Security Court commenced the trial of the first applicant tog ether with other co-accused .

On 4 June 1996 the Istanbul State Security Court held a hearing. Before the c ourt, the first applicant refuted the statements which s he had made in police custody and claimed that they had been taken under duress. When asked about her statement to the public prosecutor , she alleged that certain parts of it had been misunderstood and that she had signed it without reading it. As to her statement given to the State Security Court on 19 March 1996 , the applicant said that she no longer accepted it and affirmed that the correct statement was the statement which she was giving to the court.

On an unspecified date , the first and second applicants ' case files were joined and they were tried before the Istanbul State Security C ourt along with four other suspects accused of the same offence.

On 3 September 1996 the second applicant made his defence submissions to the Istanbul State Security Court . He reaffirmed that he did not know the other co-accused and that he acknowledged the statements he had given to the police, the public prosecutor and the State Security Court on 18 June 1996 .

On 23 October 1997 the Istanbul State Security C ourt , relying on the statements given by the applicants and the other suspects to the police, the public prosecutor and the court, convicted the applicants as charged and sentenced them to three years and nine months ' imprisonment.

On 14 November 1997 the applicants appealed to the Court of Cassation against the judgment of the State Security Court . They contend ed that the court had adopted its judgment without having adequately investigated the facts alleged against them. The first applicant also alleged that her statements in police custody had been taken under duress.

Following a hearing held on 21 June 1999 , the Court of Cassation dismissed the applicants ' appeal and upheld the judgment of the Istanbul State Security Court . The judgment was pronounced in the absence of the applicants ' lawyers on 23 June 1999 .

O n 21 July 1999 the judgment of the Court of Cassation was sent to the registry of the Istanbul State Security Court .

COMPLAINT S

The applicants allege under Article 3 of the Convention that they had been subjected to ill- treatment in police custody . In this connection, they challenge the veracity of the medical reports prepared on them.

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 Istanbul State Security Court and that they were convicted solely on the basis of their statements in poli ce custody.

The applicants submit under Article 14 of the Convention that they were discriminated against on account of their polit ical opinions. They further complain that they were discriminated against since the criminal procedure followed in respect of offences tri ed by State Security Court s was different from that used for offences tried in other courts.

THE LAW

1. The applicants complain under Article 6 of the Convention that they were denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court and that they were convicted solely on the basis of their statements in police custody.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints under Article 6 and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicants allege under Article 3 of the Convention that they were subjected to ill-treatment in police custody.

As to the first applicant ' s complaint, the Court observes that she has not provided any details of the kind of ill-treatment to which she was al legedly subjected; nor has she submitted any medical evidence which could confirm her allegations and contradict the findings contained in the medical reports drawn up following her examination on 19 March 1996 . It is to be further observed that the applicant did not question the accuracy of those findings in the course of the domestic proceedings.

Furthermore, throughout the criminal proceedings the applicant confined herself to challenging the admissibility of the statements which were allegedly procured under duress when she was in custody. However, a n allegation of duress cannot of itself lay the basis of an arguable claim of ill-treatment.

For these reasons, the Court finds that the first applicant ' s complaint under Article 3 of the Convention is inadmissible as being manifestly ill ‑ founded within the meaning of Article 35 § 3 and 4 of the Convention.

As regards the second applicant ' s allegation , the Court observes that the medical reports of 18 and 27 June 1996 contain certain physical findings which could have been the result of acts of ill-treatment . However, the applicant has failed to provide any details of the nature of his alleged ill ‑ treatment and, more decisively, he specifically denied before the Istanbul State Security Court on 18 June 1996 that he had been ill-treated . Furthermore, at no stage of the proceedings did the applicant ever allude to the fact that he had been ill-treated either in police custody or in detention awaiting trial. He was at all times content to rely on the statements which he gave to the police and to the public prosecutor.

For these reasons, the Court finds that the second applicant ' s complaint under Article 3 of the Convention is inadmissible as being manifestly ill ‑ founded within the meaning of Article 35 § 3 and 4 of the Convention.

3. The applicants submit under Article 14 of the Convention that they were discriminated against , firstly, on account of their political opinions and, secondly, as a result of the fact that t he criminal procedures for offences tried before the State Security Court were different from those followed in respect of offences tried in other courts.

As to first limb of the applicants ' complaint s , t he Court observes that the applicant s were tried and convicted on account of aiding and abetting an illegal organisation and not because of their political views .

As regards the second limb , t he 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 1976, Series A no. 23, p. 29, § 56). In the instant case, the distinc tion was made not between different groups of people, but between different types of offence, according to the legi slature ' s view of their gravity (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999 ) . The Court , therefore, see s no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention.

Consequentl y, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ' complaint concerning their right to a fair hearing by an independent and impartial tribunal ;

Declares the remainder of the application inadmissible.

T . L. E arly J-P. C osta Deputy Registrar President