THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 77113/01 by Abbas SERTKAYA against Turkey

The European Court of Human Rights (Third Section), sitting on 11 December 2003 as a Chamber composed of:

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , 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 28 July 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Abbas Sertkaya , is a Turkish national, who was born in 1974 and lives in MuÅŸ . He was represented before the Court by Mr Orhan Tural , a lawyer practising in Istanbul.

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

On 12 July 1995 the Public Prosecutor at the Istanbul State Security Court filed an indictment with the Court and accused the applicant and four other suspects of being a member of a terrorist organisation and of having engaged in acts aimed at the separation of a part of the territory of the State. The Public Prosecutor requested that the applicant be convicted and sentenced under Article 125 of the Turkish Criminal Code. The applicant was accused of setting fire to 7 different forests for terrorism purposes in the Province of Bursa in 1994.

On 19 July 1995 the Istanbul State Security Court commenced the trial against the applicant and four other suspects.

On 6 February 1996 the Istanbul State Security Court ordered the applicant’s detention on remand.

On 4 May 1996 the applicant was detained on remand.

On 27 February 1997 the Istanbul State Security Court requested the Criminal Court of First Instance of Bursa to hear a witness.

On 1 July 1997 the Istanbul State Security Court requested the Criminal Court of First Instance of Varto to hear witnesses in order to find out whether the applicant was in Varto at the time of the alleged criminal activities.

On 22 September 1997 the Bursa Criminal Court heard evidence from a witness.

On 11 November 1997 the Varto Criminal Court heard evidence from five witnesses.

Between 19 July 1995 and 22 October 1998 the Istanbul State Security Court held hearings every two months.

On 16 November 1999 the Public Prosecutor at the Istanbul State Security Court submitted his observations on the merits of the case.

On 16 November 1999 the applicant was released from detention on remand.

On 13 February 2001 the applicant was acquitted of all charges on account of lack of evidence.

On 21 February 2001 the decision became final in respect of the applicant.

On 22 October 2001 the Court of Cassation upheld the decision of the State Security Court.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to torture in police custody and that during 6 years he lived with the fear of the death penalty.

The applicant complains under Article 5 of the Convention on account of the length of his detention on remand.

The applicant complains under Article 6 § 1 of the Convention that he was not tried within a reasonable time and that he was charged with an offence carrying a heavier sentence than the act he allegedly committed. Furthermore he complains that the State Security Court did not recommence the proceedings which were conducted by the Court before the changing of the composition of the Court from a military judge to a civil judge and hence does not meet the requirements of a fair and an independent tribunal inscribed under Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that he was not tried within a reasonable time.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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 complains under Article 3 of the Convention that he was subjected to torture in police custody and that during six years he lived with the fear of the death penalty.

Regarding the applicant’s complaint concerning the torture to which he had been allegedly subjected to, the Court notes that the applicant did not give any details as to what kind of ill-treatment he had been inflicted upon nor provide any medical evidence in support of his allegation. Thus, the Court considers that the applicant’s allegation of being subjected to torture in police custody is unsubstantiated.

In view of the above, the Court finds that this part of the application be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

As for his complaint concerning the fear of the death penalty, the Court considers that the mere fact that the applicant could have been sentenced to the death penalty and that he lived with this fear is in itself not enough to amount to a violation within the meaning of Article 3 of the Convention. Therefore, the Court considers that this part of the complaint should also be declared inadmissible as being manifestly-ill founded (see Çınar v. Turkey , no. 17864/91, Commission decision of 5 September 1994, Decisions and Reports 79-A/B/5).

3. The applicant complains under Article 5 of the Convention on account of the length of his detention on remand.

The Court notes that the applicant’s detention on remand was discontinued on 16 November 1999 whereas the applicant lodged a complaint before the Court on 28 June 2001. Consequently, this part of the complaint should be declared inadmissible in accordance with the six months rule.

4. The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair trial by an independent and an impartial tribunal. The Court notes that the applicant was acquitted of all charges against him and therefore cannot be considered a victim within the meaning of Article 34 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning [Note1] the length of the criminal proceedings;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.