THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54919/00 by Mustafa İÇÖZ against Turkey

The European Court of Human Rights ( Third Section) , sitting on 9 January 2003 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 10 December 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, who was born in 1951, is a Turkish national and lives in the province of Hatay in Turkey. He is represented before the Court by Mr Keleş Öztürk, a lawyer practising in İstanbul.

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

On 11 November 1996, police officers from the anti-terrorism branch of the Ä°skenderun Security Directorate arrested the applicant in connection with an investigation carried out against an illegal organisation, namely, the Marxist-Communist and Leninist Party (the M,K,L,P,). The police officers found in his house a pistol, some bullets, books and a typewriter allegedly belonging to the organisation. The applicant was then placed in custody at the Ä°skenderun Security Directorate, where he was interrogated and held incommunicado until 23 November 1996. During his interrogation by the police officers, the applicant was forced to sign certain statements under duress. He was also subjected to ill-treatment.

On 23 November 1996 the applicant was brought before the İskenderun Public Prosecutor and thereafter before the İskenderun Magistrates’ Court, where he denied both the accuracy of his statements taken at the police station and all the charges against him. On the same day, the court ordered the applicant’s detention on remand.

On 6 December 1996 the Public Prosecutor attached to the Malatya State Security Court filed an indictment with the court, accusing the applicant of membership of an illegal armed organisation under Article 169 of the Criminal Code.

On 23 January 1997 the applicant denied before the Malatya State Security Court the veracity of the statements he made while in custody, alleging that they were made under duress. He however confirmed his statements taken by the İskenderun Magistrates’ Court.

On 29 April 1997 the applicant was released pending trial.

On 25 September 1997, in his defence in the proceedings before the Malatya State Security Court, the applicant pleaded not guilty and requested acquittal. He claimed that his detention had been based solely on confessions extracted from him under duress while in custody.

On 4 February 1999 the Malatya State Security Court, composed of two civilian judges and the military judge, convicted the applicant as charged and sentenced him to three years and nine months’ imprisonment. In the proceedings before the court, the applicant challenged the presence of the military judge on the bench of the Malatya State Security Court and alleged that the latter could not be considered an independent and impartial tribunal.

On 22 February 1999 the applicant appealed against the decision of the Malatya State Security Court, challenging the version of the facts accepted by the court and the way in which the evidence was assessed.

On 17 June 1999 the Court of Cassation upheld the decision of the Malatya State Security Court.

On 5 August 2000 the applicant applied to the Chief Public Prosecutor’s office at the Court of Cassation for rectification of the latter’s decision. On 20 August 2000 his request was rejected.

COMPLAINTS

The applicant complains of a violation of Articles 3, 6 and 14 of the Convention.

The applicant alleges that the physical and psychological pressure to which he was subjected while in police custody incommunicado for twelve days, amounted to ill-treatment in violation of Article 3 of the Convention. He also submits that he was not taken to a doctor for a medical examination, before or after his detention in police custody.

The applicant complains that he has been denied a fair hearing in breach of Article 6 § 1 of the Convention on account of the presence of a military judge on the bench of the Malatya State Security Court which tried and convicted him.

The applicant further complains under Article 6 § 1 of the Convention that his conviction was based solely on the confessions extracted from him under duress.

The applicant finally submits under Article 14 of the Convention that there is a difference between proceedings in State Security Courts and those in ordinary criminal courts which amounts to discrimination.

THE LAW

1. The applicant alleges under Article 6 § 1 of the Convention that he was denied a fair hearing on account of the presence of a military judge on the bench of the Malatya State Security Court, which tried and convicted him.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint under Article 6 § 1 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 applicant complains that he was subjected to ill-treatment during his detention in police custody, contrary to Article 3 of the Convention.

He submits that, although he alleged in his pleading at the hearings that his statements had been taken under duress and that he had been subjected to ill-treatment while in police custody, the local court ignored his allegations.

The Court points out in the first place 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 points out 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 was 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 in this connection that, in his defence submissions to the Malatya State Security Court, the applicant complained of alleged ill-treatment inflicted on him by police officers. After the hearings on 16 December 1996 and 23 January 1997, the State Security Court took certain procedural decisions in which no mention was made of the allegations of ill-treatment and the applicant did not pursue these allegations in the course of other court hearings. Nor did the State Security Court mention the applicant’s allegations in its final judgment.

The Court further notes that the applicant did not reiterate his complaints of ill-treatment in his defence submissions of 17 June 1999 before the Court of Cassation . Consequently, the procedure before the Court of Cassation did not concern this specific complaint.

In the light of the above, the Court considers that the failure of the judicial authorities to act must have become gradually apparent up until 4 February 1999 when the State Security Court rendered its final decision on the matter, and that therefore the applicant should have 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 4 February 1999 (see, mutatis mutandis , Elçi v. Turkey , application no. 23145/93, Commission decision of 2 December 1996; Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7 September 1999, unreported). The application should therefore in any event have been introduced not later than August 1999. However, it was introduced with the Court on 10 December 1999.

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.

3. The applicant further alleges under Articles 6 § 1 of the Convention that his conviction was based solely on the confessions extracted from him under duress.

The Court points out that the Convention does not lay down rules on evidence as such. The admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them (see Kostovski v. The Netherlands judgment of 20 November 1989, Series A no. 166, p. 19, § 39). However, an issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention even if the admission of such evidence was not decisive in securing the conviction.

In the instant case, the Court notes that in the proceedings before the Malatya State Security Court the applicant confined himself to challenging the admissibility of the statements taken by the police officers. However, apart from the allegation that his statements were taken under duress, he did not at any stage give any indication to the national courts of the sort of ill-treatment which he allegedly suffered. The Court further observes that the applicant did not specifically set out in his application form to the Court the details of the alleged duress inflicted on him during his detention by the police. Consequently, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that the statements made by him during his detention by the police were taken under duress.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicant finally submits under Article 14 of the Convention that the proceedings in the State Security Courts are different than those in ordinary courts, causing discrimination as prohibited by the Convention.

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).

The Court notes that in principle the aim of Law no. 3842 is to penalise people who commit terrorist offences and that anyone arrested and charged with an offence falling within the scope of that law will be treated less favourably with regard to the length of detention in police custody than persons arrested and charged with an offence under the ordinary law.

In this regard, the Court considers that the distinction is not made between different groups of people, but between different types of offences, according to the legislature’s view of their gravity (see, mutatis mutandis , Gerger v. Turkey [GC], no. 24919/94, § 69, ECHR 1999). The Court therefore concludes that that practice does not amount to a form of “discrimination” that is contrary to the Convention.

It follows that this part of the application must be rejected as being manifestly ill ‑ founded within the meaning of Articles 35 § 3 of the Convention.

For these reasons, the Court unanimously,

Decides to ajourn the examination of the applicant’s complaints concerning the independence and impartiality of the Malatya State Security Court.

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President