FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 70084/01 and 70085/01 by Selim KABASAKAL and Hasan ATAR against Turkey

The European Court of Human Rights (Fourth Section) , sitting on         1 st July, 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs E. Palm , Mr R. Türmen , Mr M. Fischbach , Mr S. Pavlovschi , Mr J. Borrego Borrego , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above applications lodged on 13 December 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Selim Kabasakal and Mr Hasan Atar, are Turkish nationals, who were born in 1979 and 1977 respectively. They were serving their prison sentences in Ordu at the time of their applications to the Court . They are represented before the Court by Mr H. ErdoÄŸan and Mr L. Kanat, lawyers practising in Ankara.

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

On 11 November 1998 the applicants were taken into police custody by police officers from the anti-terrorist branch of the Sivas Security Directorate on suspicion of membership of an illegal organisation, the TDP (Revolutionary Party of Turkey). They remained in police custody until 18 November 1998. During their detention in police custody they were subjected to ill-treatment. Their statements were taken under duress. It is to be noted that the applicants did not specify the details of the alleged ill-treatment and duress.

On 18 November 1998 they were brought before a judge who ordered their detention on remand.

On 31 December 1998 the Chief Public Prosecutor at the Erzurum State Security Court filed a bill of indictment with the latter charging the applicants under Article 168 § 2 of the Criminal Code with membership of an illegal organisation.

Throughout the hearings before the Erzurum State Security Court the applicants stated that they had accepted the allegations against them under duress while in police custody.

On 26 October 1999 the Erzurum State Security Court convicted the applicants of membership of the TDP and sentenced them to twelve years and six months’ imprisonment.

On 5 June 2000 the Court of Cassation rejected the applicants’ appeal and upheld the Erzurum State Security Court’s judgment. The decision of the Court of Cassation was pronounced on 14 June 2000.

COMPLAINTS

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

The applicants allege under Article 5 § 3 of the Convention that they were kept in police custody for eight days without being brought before a judge or other officer authorised by law to exercise judicial power .

The applicants complain 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 Erzurum State Security Court, which tried and convicted them. The applicants further complain that the opinion of the Chief Public Prosecutor to the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. In this respect the applicants invoke Article 6 § 3 (b) of the Convention. They further complain under the same heading that they did not have the opportunity to request the rectification of the judgment, as there was no detailed reasoning in the Court of Cassation’s decision.

THE LAW

1. The applicants allege that they were subjected to ill-treatment during their police custody within the meaning of Article 3 of the Convention. They further submit that the Erzurum State Security Court ignored their allegations of ill-treatment and duress.

The Court points out that the purpose of the six months’ rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Laçin v. Turkey , no. 23654/94, Commission decision of 15 May 1995, Decisions and Reports (DR) 81, p. 80).

The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter within a period of six months from the date on which the final decision was taken in domestic law. However, in a case where an applicant avails himself of a domestic remedy and it becomes clear, at a later stage, that this remedy is not effective, the six-month period provided for in Article 35 of the Convention should in principle be calculated from the time when the applicant became aware, or should have become aware of, the ineffectiveness of the remedy (see the above ‑ mentioned Laçin v. Turkey decision, p. 81).

The Court notes that in their defence submissions to the Erzurum State Security Court the applicants contended that they had accepted the allegations against them under duress. After the hearings on                          5 February 1999 and 8 September 1999, the State Security Court took certain procedural decisions in which no mention was made of the allegations of ill-treatment and the applicants did not pursue their allegations in the course of other court hearings. Nor did the State Security Court mention the applicants’ allegations in its final judgment.

In the light of above, the Court considers that the failure of the judicial authorities to act must have become gradually apparent up until 26 October 1999 when the State Security Court rendered its final decision on the matter. The applicants should have therefore been aware of the ineffectiveness of remedies in domestic law by that date. Accordingly, the six-month period provided for in the Article 35 of the Convention should be considered to have started running not later than 26 October 1999 (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003, unreported and Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7 September 1999, unreported). Thus, t he applications should have been introduced not later than April 2000. However, they were introduced with the Court on 13 December 2000.

It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

2. The applicants complain under Article 5 § 3 of the Convention that they were not brought promptly before a judge or other officer authorised by law to exercise judicial power .

The Court reiterates that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period runs from the date of the act complained of.

The Court observes that the applicants were taken into police custody on 11 November 1998 and that their detention in police custody ended on 18 November 1998, when the judge ordered their detention on remand. The applicants introduced their applications with the Court on 13 December 2000, i.e. more than six months later.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicants complain under Article 6 § 1 of the Convention that their right to a fair hearing was breached as they were tried and convicted by the Erzurum State Security Court, which lacked independence and impartiality. They further complain under Article 6 § 3 (b) that no copy of the Chief Public Prosecutor’s written submission to the Court of Cassation was transmitted to them and that they were thus denied the right to respond to the same authority. They lastly complain under the same heading about the absence of reasoning in the Court of Cassation’s decision.

a) As to the applicants’ complaint regarding the independence and impartiality of the Erzurum State Security Court, 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.

b) As regards the complaint that the written submission of the Chief Public Prosecutor to the Court of Cassation was never communicated to the applicants, thus depriving them of the opportunity to put forward their response, 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.

c) Concerning the applicants’ complaint that the decision of the Court of Cassation lacked detailed reasoning, depriving them of the opportunity to request the rectification of the judgment, the Court reiterates that insofar as appeal instances are concerned, Article 6 of the Convention does not require that a court, when rejecting an appeal by reference to the reasoning given by a lower court, accompanies its decision by detailed reasons (see Ojanen v. Finland , no. 18686/91, Commission decision of 31 March 1993, unreported).

The Court observes that the Erzurum State Security Court’s judgment, though brief, explained the proven facts, their legal qualification, the legal provisions applied and the sanction imposed. The Court of Cassation upheld this judgment stating that the assessment of the facts, their legal qualification and the conviction of the accused were in accordance with law. The Court considers therefore that the decision of the Court of Cassation must be interpreted to have fully accepted the reasoning of the judgment of the Erzurum State Security Court.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the independence and impartiality of the Erzurum State Security Court and the non-communication of the submissions of the Chief Public Prosecutor to the applicants;

Declares the remainder of the applications inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President