THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48095/99 by Nazif TÖRE against Turkey

The European Court of Human Rights (Third Section), sitting on 29 April 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mr J. Hedigan, Mrs M. Tsatsa-Nikolovska, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 17 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Nazif Töre, is a Turkish national, who was born in 1964 and lives in Istanbul. He is represented before the Court by Mrs Engül Çıtak, a lawyer practising in Istanbul.

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

In 1988 the applicant was convicted of membership of an illegal organisation, namely the Marxist-Leninist Communist Party. On 15 April 1991 he was conditionally released from prison.

On 16 March 1996 the applicant was arrested and taken into custody by the police.

On 9 April 1996 the applicant was interrogated by the police officers at the Tunceli Security Directorate without the presence of a lawyer.

On 9 April 1996 the Malatya State Security Court ordered his detention on remand.

On 22 April 1996 the public prosecutor at the Malatya State Security Court filed an indictment with the latter, accusing the applicant of membership of an illegal armed organisation, namely the Marxist-Leninist Communist Party. The public prosecutor requested that the applicant be convicted and sentenced under Article 146 § 1 of the Criminal Code and Section 5 of Law no. 3713.

On 16 December 1997 the Malatya State Security Court, composed of two civilian judges and a military judge, convicted the applicant as charged and sentenced him to life imprisonment.

On 30 November 1998 the Court of Cassation upheld the judgment of the Malatya State Security Court.

On 10 October 2002 the applicant's representative informed the Court that the applicant was released from prison due to ill-health pursuant to Article 399 of the Criminal Procedure Code.

COMPLAINTS

The applicant contends under Article 6 §§ 1 and 3 of the Convention that he did not receive a fair hearing by an independent and impartial tribunal. He asserts in this regard that one of the three members of the Malatya State Security Court was a military judge. He further submits that the written opinion of the principal public prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments.

The applicant contends under Article 5 of the Convention that the length of his detention in police custody was excessive and that he had been deprived of his right to a lawyer while he was held in police custody.

The applicant submits under Article 14 of the Convention that he 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 applicant complains under Article 6 §§ 1 and 3 of the Convention that he was not heard by an independent and impartial tribunal. He asserts in this regard that one of the three members of the Malatya State Security Court was a military judge. He further submits that the written opinion of the principal public prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments.

The applicant complains under Article 5 of the Convention that he had been deprived of his right to a lawyer while he was held in police custody. The Court considers that this part of the complaint should be examined under Article 6 § 3.

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 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant contends under Article 5 of the Convention that the length of his detention in police custody was excessive.

The Court reiterates that where no domestic remedy is available, the six ‑ month period runs from the date of the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, the period of six-month runs from the end of the situation concerned.

The Court notes that the applicant was detained on remand on 9 April 1996, whereas the application was introduced with the Court on 17 April 1999, i.e. more than six months later.

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant submits under Article 14 of the Convention that he 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 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 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, ECHR 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 unanimously

Decides to adjourn the examination of the applicant's complaint concerning his right to a fair trial by an independent and impartial tribunal;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President