THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35363/02 by Adem KEPENEKLÄ°OÄžLU and Mehmet Hakan CANPOLAT against Turkey

The European Court of Human Rights (Third Section), sitting on 8 July 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 7 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Adem KepeneklioÄŸlu and Mr Mehmet Hakan Canpolat, are Turkish nationals, who were born in 1954 and 1964 respectively and live in TekirdaÄŸ. They are represented before the Court by Mr Y. HoÅŸ, a lawyer practising in Istanbul.

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

On 29 and 30 June 1992 the applicants were taken into custody in Istanbul by police officers from the Istanbul Anti-Terrorist Branch. On 13 July 1992 the applicants were detained on remand.

On 27 July 1992 the Public Prosecutor before the Istanbul State Security Court filed a bill of indictment accusing the applicants of being members of an illegal terrorist organization, organised murder, armed burglary, committing murder to facilitate murder.

On 25 November 1992 Istanbul State Security Court commenced the trial against the applicants and three other suspects and ordered the continuance of the applicants’ detention on remand.

On 3 April 1998, Istanbul State Security Court convicted the applicants and applying Article 146 of the Criminal Code, sentenced them to death.

On 10 March 1999, upon the applicants’ appeal against the above judgment to the Court of Cassation, the said judgment was quashed and sent back to the court of first instance.

On 12 June 2001 Istanbul State Security Court charged them of the same crime.

On 4 February 2002, upon the applicants’ appeal against the above judgment to the Court of Cassation, the said judgment was approved.

On 11 June 2002 the Court of Cassation rejected the applicants’ request for rectification of the judgment of the Istanbul State Security Court dated 12 June 2001.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to torture in police custody. They further claimed that the fact that they were sentenced to death amounted to torture within the meaning of Article 3 of the Convention.

The applicants complain under Article 5 § 1 of the Convention claiming that they were taken to the police station arbitrarily and were held in custody unlawfully. Under the same heading, they complain that their detention was not lawfully justified. The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons for their arrest and of the charges against them. The applicants complain that their custody period was unreasonably long and hence in violation of Article 5 § 3 of the Convention. The applicants further complain under Article 5 § 4 of the Convention that there existed no legal remedy to challenge the lawfulness of their detention.

The applicants complain under Article 13 in combination with Article 5 § 4 of the Convention that it is not possible to claim compensation under Turkish law because of the unreasonable length of their detention on remand and the criminal proceedings.

The applicants allege that they were not tried within a reasonable time and that they were not tried by an independent and impartial tribunal in violation of Article 6 § 1 of the Convention on account of being tried and convicted by Istanbul State Security Court.

They further assert that since they were detained during the whole time they were being tried, they were not presumed innocent by the relevant court, which breached Article 6 § 2 of the Convention.

Invoking Article 6 § 3 (b) of the Convention, the applicants claim that especially after they were put in the F Type prison after 19 December 2001, their consultations with their lawyer were subjected to very strict regulations where all the documents and files that were brought to the visit room were inspected and examined by the prison administration.

Invoking Article 6 § 3 (c) of the Convention, the applicants claim that they were not allowed to consult a lawyer during their custody period and the first time they were brought before the public prosecutor or the judge.

Invoking Article 6 § 3 (d) of the Convention, the applicants claim that the main prosecution witness never testified during the proceeding, they could not put questions to the other witnesses, they requested that some of the witnesses be heard during the proceeding again, however, their request was rejected by the court.

The applicants allege under Article 14 of the Convention that they had been discriminated against since there is a difference between criminal proceedings in State Security Courts and those in ordinary criminal courts.

THE LAW

1. The applicants complain under Article 3 of the Convention that they were subjected to torture in police custody.

The Court notes that the applicants were held in police custody between 29 June and 13 July 1992, whereas the application was lodged with the Court on 7 August 2002. Accordingly, this complaint should be rejected for non-compliance with the six-month time limit since their period in police custody ended on 13 July 1992.

2. The applicants further claim under the same heading that the fact that they were sentenced to death amounted to torture.

The Court notes that, in order to fall within the scope of Article 3, the alleged treatment must attain a minimum level of severity. In the present case there is no indication that the treatment complained of reached the threshold of severity required to bring the matter within the ambit of Article 3 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.

3. The applicants complain under Article 5 § 1 of the Convention that they were taken to the police station arbitrarily and were held in custody unlawfully. The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons for their arrest and of the charges against them. The applicants complain that their custody period was unreasonably long and hence in violation of Article 5 § 3 of the Convention. The applicants further complain under 5 § 4 that there existed no legal remedy to challenge the lawfulness of their detention. Invoking Article 13 in combination with Article 5 § 4 of the Convention the applicants allege that it is not possible to claim compensation under Turkish law because of the unreasonable length of their detention on remand and the criminal proceedings.

The Court notes that the applicants were held in police custody between 29 June 1992 and 13 July 1992, whereas the application was lodged with the Court on 7 August 2002. Accordingly, these complaints must be rejected for non-compliance with the six-month time limit since their period in police custody ended on 13 July 1992. It follows that the complaints concerning detention in police custody have been introduced out of time, therefore they must be rejected under Article 35 § 4 of the Convention.

4. The applicants complain that the criminal proceedings brought against them were not concluded within a “reasonable time” as required by Article 6 § 1. The applicants further complain under the same heading that they did not have a fair trial within the meaning of the Convention, as the Diyarbakır State Security Court was not impartial. They assert that since they were detained during the whole time they were being tried, they were not presumed innocent by the relevant court, which breached Article 6 § 2. Invoking Article 6 § 3 (b), the applicants claim that their consultations with their lawyer were subjected to very strict regulations which hindered their preparation of their defence. Invoking Article 6 § 3 (c), the applicants claim that they were not allowed to consult a lawyer during their custody period, before the public prosecutor and the first time they appeared before the court. Invoking Article 6 § 3 (d), the applicants claim that they could not put questions to the witnesses or request that these witnesses be heard again.

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 this part of the application to the respondent Government.

5. Invoking Article 14 of the Convention the applicants complain that they had been discriminated against since the criminal procedures for the offences tried before the State Security Court was different from other offences.

The 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 groups 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 distinction was made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999). The Court sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention.

Consequently, 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

by a majority

Decides to adjourn the examination of the applicants’ complaints concerning the lack of fair trial by an impartial and independent tribunal within a reasonable time, the lack of presumption of innocence, the lack of adequate facilities for the preparation of their defence, the lack of legal assistance under police custody and the legality of their detention;

unanimously

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President