THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51839/99 by Caferi Sadık GÖKÇE and Rıza DEMİREL 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 I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 3 June 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants, Caferi Sadık Gökçe and Rıza Demirel, are Turkish nationals, who were born in 1975 and 1969 respectively, and live in İstanbul. They are represented before the Court by Mrs Gülizar Tuncer, a lawyer practising in İstanbul.

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

A. The circumstances of the case

On 9 March 1995 the applicants were arrested by police officers from the anti-terrorist branch of the Ä°stanbul Security Directorate on suspicion of membership of an illegal armed organisation, namely the DEV-SOL ( Revolutionary Left).

The applicants were allegedly subjected to torture while in police custody. In particular, they were blindfolded, their hands were tied and they were not given any food or water for a certain period of time. They were forced to sign certain statements under duress.

While the applicants were in police custody, on an unspecified date, the Ä°stanbul police held a press conference on the apprehension of the members of DEV-SOL, including the applicants. The picture of the second applicant and two other detainees standing behind a table on which weapons were exhibited, was published in a newspaper.

On 21 March 1995 the applicants were examined by a medical expert from the İstanbul Forensic Medicine Department, who reported that there were no signs of injury on the applicants’ bodies. The doctor noted that the first applicant complained of a pain in his shoulder.

On the same day the applicants were brought before the Third Chamber of the Ä°stanbul State Security Court where the first applicant admitted to the charges brought against him and confirmed the accuracy of the statements he had made in custody, whereas the second applicant denied his police statements and refused all the charges against him. The court ordered their detention on remand.

The Public Prosecutor attached to the İstanbul State Security Court, in his indictment dated 13 April 1995, accused the applicants of membership of DEV-SOL and charged them with the offence under Article 168 § 2 of the Criminal Code.

On 21 September 1995 both applicants maintained before the Ä°stanbul State Security Court that, during their detention, they had been subjected to torture and had been forced to sign statements pre-drafted by the police officers. They repeated this allegation in almost every hearing held by the court.

At the end of every hearing the court dismissed the applicants’ request to be released pending trial and ordered their detention on remand considering the nature of the offence and the content of the case file.

On 11 May 1999 the applicants appealed to the Presidency of the Forth Chamber of the İstanbul State Security Court and requested their release pending trial, arguing that the court’s order of detention on remand was groundless. On 12 May 1999 their request was dismissed.

By a telephone call of 27 November 2002 the applicant’s lawyer informed the Registry that proceedings were still pending before the İstanbul State Security Court and the applicants are still in detention on remand.

B. The relevant domestic law

1. The Criminal Code

Article 168 provides as follows:

“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

2. The Code on Criminal Procedure (revised version by Article 31 § 1 of Law no. 3842)

Article 104 provides as follows:

“Persons against whom there are serious indications of having committed an offence may be detained in the following cases:

1. Where there are facts indicating the presumption of the existence of a danger of absconding;

2. Where there are facts indicating that the person is attempting              to remove evidence or traces of criminal activities, or encouraging his accomplices or witnesses to make false statements or to refuse to testify or to attempt to influence experts;

3. Where the offence committed is against the authority of the State or the Government or public morals or capable of breaching the public order.

These facts and instances shall be indicated in the decision.

In the following cases the accused shall be presumed to abscond:

1. Where the offence in question is a felony,

2. Where the accused does not have a domicile or residence, or is a vagrant or a of a suspicious character or fails to identify himself,

3. Where the accused is a foreigner and there are serious indications that he would neither respond to a summons to be issued by the judge or surrender for the execution of the judgment.”

3. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991)

Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in section 168 of the Criminal Code is classified as a “terrorist” act. Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in section 3 of the Act are increased by one half.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to torture during their detention in police custody. In this connection, they also allege a violation of Article 13 of the Convention on account of lack of an independent authority before which their torture complaint can be brought with a prospect of success.

The applicants allege under Article 5 §§ 2, 3 and 4, in conjunction with Article 13 of the Convention, that they were not informed promptly of the reason for their arrest, that they were kept in police custody for thirteen days without being brought before a judge or other officer authorised by law to exercise judicial power and that they had no remedy under Turkish law to challenge the lawfulness or the length of their detention.

The applicants maintain under Article 5 § 3 of the Convention that their detention pending trial for four years exceeded the “reasonable time” requirement. They allege that the İstanbul State Security Court did not rely on relevant and sufficient grounds in dismissing their requests for release pending trial.

The applicants allege under Article 6 § 1 of the Convention that they were tried and convicted by the State Security Court, which cannot be considered an independent and impartial tribunal on account of a military judge sitting on the bench. They further complain that the criminal proceedings brought against them were not concluded within a “reasonable time” as required by Article 6 § 1. In this respect, they submit that the criminal proceedings, which began in 1995, are still pending before the State Security Court. Furthermore, they maintain that the charges brought against them were based solely on confessions extracted from them under duress.

The applicants complain under Article 6 § 2 of the Convention that their right to presumption of innocence was violated since, subsequent to their arrest, the police officers presented them as criminals to journalists.

They also allege under Article 6 § 3 of the Convention, without giving any details, that their right to a fair trial was breached, as they did not benefit from the assistance of a lawyer during their interrogation by the police officers and before the court which ordered their detention on remand.

The applicants also allege under Article 14, in conjunction with Articles 5 and 6 of the Convention, that there is a difference between proceedings in the state security courts and those in ordinary criminal courts with regard to the length of permissible police custody and the criminal proceedings, which amounts to unlawful discrimination.

THE LAW

1. The applicants complain that they were subjected to ill-treatment in violation of Article 3 of the Convention. In this connection, they also allege a violation of Article 13 of the Convention on account of the authorities’ failure to carry out an effective official investigation into their arguable claim of ill-treatment.

The applicants maintain under Article 5 § 3 of the Convention that their detention on remand was excessively long.

The applicants contend that the criminal proceedings brought against them were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention.

The applicants further complain under Article 6 § 2 of the Convention that their right to presumption of innocence was violated since, subsequent to their arrest, the police officers presented them as criminals to journalists.

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 § 3 (b) of the Rules of Court, to give notice of them to the respondent Government.

2. The applicants complain under Article 5 §§ 1, 2, 3 and 4 in conjunction with Article 13 of the Convention that they were not informed promptly of the reason for their arrest, that they were kept in detention in police custody for thirteen days without being brought before a judge or other officer authorised by law to exercise judicial power and that they had no remedy under Turkish law to challenge the lawfulness and the length of their detention in police custody.

The Court notes that it is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of Article 5 §§ 1, 2, 3 and 4 since Article 35 § 1 of the Convention provides that 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 instant case the Court observes that the applicants were arrested pursuant to the Law on the Procedures of State Security Courts and that there were no domestic remedies available in order to challenge the lawfulness and the length of their police custody (see, mutatis mutandis , Sakık and Others v. Turkey , judgment of 26 November 1997, Reports 1997-VII, § 53).

The Court points out that, according to the established case-law, when the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place (see, among others, Çıraklar v. Turkey , judgment of 28 October 1998, Reports 1998-VII).

The Court notes that in the present case, the applicants’ detention in police custody ended on 21 March 1995, whereas the application was introduced with the Court on 3 June 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 applicants complain under Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention without giving any details, that they did not have a fair trial as they were deprived of their right to legal assistance, adequate time and facilities during their questioning by the police officers, the public prosecutor and by the judge who ordered their detention on remand. They allege that the criminal proceedings brought against them were based on confessions obtained under duress in police custody and that the principle of equality of arms was not applied to them contrary to the Convention. The applicants further complain that the İstanbul State Security Court who tried them cannot be considered to be an independent and impartial court due to the presence of a military judge sitting on the bench.

However, according to its established case-law, the Court deems it necessary to take into consideration the entire criminal proceedings brought against the applicants in order to decide whether they conform to the requirements of Article 6 of the Convention (see Sakık and others v. Turkey , no. 23878/94, Commission decision of 25 May 1995, Decisions and Reports (DR) 81- B, p. 94). The Court therefore notes that, as the applicants have not yet been convicted, they still have at their disposal the possibility of submitting their complaints before the domestic courts. In this regard, the applicants’ complaints under Article 6 appear to be premature. Besides, the Court draws attention to the fact that, after the final ruling is given in domestic law, the applicants may re-submit their complaints to the Court if they still consider themselves victims of the alleged violations. It follows that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

4. The applicants complain under Article 14, in conjunction with Articles 5 and 6 of the Convention, that there is a difference between proceedings in State Security Courts and those in ordinary criminal courts with regard to the length of permissible police custody and the criminal proceedings, and it amounts to discrimination. They further submit that under the provisions of the Criminal Procedure Code, individuals have the right to the assistance of a lawyer during questioning by the police and when they appear before a public prosecutor and the investigating judge, whereas those suspected of offences which fall within the jurisdiction of State Security Courts are prevented from enjoying this right.

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 made not between different groups of people, but between different types of offences, according to the legislature’s view of their gravity (see Gerger v. Turkey [GC], no. 24919/94, § 69, ECHR 1999). It therefore concludes that the practice complained of 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 adjourn the examination of the applicant s’ complaints about their ill-treatment in police custody, the length of their detention on remand, their right to a fair hearing within a reasonable time and their right to presumption of innocence ;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President