THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46281/99 by Cihan SÄ°NCAR and Others against Turkey

The European Court of Human Rights (Third Section), sitting on 19 September 2002 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 lodged with the Court on 25 January 1999 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Cihan Sincar , Mr Oktay Bağatır and Mr Mehmet Hanafi Baran , are Turkish nationals, who were born in 1957, 1962 and 1964 respectively and live in Ankara , Batman and Diyarbakır . They are represented before the Court by Mr Mahmut Vefa , a lawyer practising in Diyarbakır .

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

Regarding the first applicant

The applicant was the wife of an MP with Kurdish origin who was killed by unknown perpetrators. She is a member of the HADEP ( Halkın Demokrasi Partisi -People’s Democracy Party ). At the time of the events at issue the HADEP appointed the applicant to organise the party’s election campaign in Batman and to supervise the provincial branches of the party in the Batman region.

In the meantime hunger strikes and demonstrations were being organised in Batman in order to protest the arrest of the PKK leader Abdullah Öcalan in Italy .

On 18 November 1998 the applicant was taken into police custody in the course of an investigation carried out by the Diyarbakır Security Directorate.

In a letter dated 20 November 1998 the Diyarbakır Security Directorate requested the Diyarbakır Public Prosecutor to extend the detention period of the applicant along with 108 others until 22 November 1998 . On the same day the public prosecutor authorised the security directorate to extend the detention period until 22 November 1998 .

On 22 November 1998 a judge at the Diyarbakır State Security Court decided to extend the applicant’s detention period until 28 November 1998 following a request from the Diyarbakır Security Directorate.

On 26 November 1998 the applicant was brought before a public prosecutor at the Diyarbakır State Security Court . During her questioning the applicant rejected the accusations against her and stated that she had not been involved in the activities of an illegal terrorist organisation and had not participated in a demonstration. The applicant stated that she was blindfolded when she signed her statement in police custody.

On the same day the applicant was brought before a judge at the Diyarbakır State Security Court where she reiterated her statement she had given before the public prosecutor. The judge ordered the applicant’s release pending trial.

On 17 December 1998 the Diyarbakır Public Prosecutor filed a bill of indictment with the Diyarbakır State Security Court accusing the applicant of aiding and abetting the members of a terrorist organisation.

On 3 April 2001 the Diyarbakır State Security Court decided to defer the imposition of a final sentence upon the applicant, pursuant to Law no. 4616. The court held, under Article 1 § 4 of the same law, that the criminal proceedings against the applicant would be suspended and a final sentence would be imposed should the applicant be convicted of a further intentional offence within five years of this decision.

Regarding the second applicant

The applicant is a practising lawyer in Batman and a member of the HADEP.

On 18 November 1998 the applicant was taken into police custody while he was in the company of the first applicant.

In a letter dated 20 November 1998 the Diyarbakır Security Directorate requested the Diyarbakır Public Prosecutor to extend the detention period of the applicant along with 108 others until 22 November 1998 . On the same day the public prosecutor authorised the security directorate to extend the detention period until 22 November 1998 .

On 22 November 1998 a judge at the Diyarbakır State Security Court decided to extend the applicant’s detention period until 28 November 1998 following a request from the Diyarbakır Security Directorate.

On 26 November 1998 the applicant was brought before a public prosecutor at the Diyarbakır State Security Court . During his questioning the applicant rejected the accusations against him and stated that he had not been involved in the activities of an illegal terrorist organisation. The applicant stated that he was blindfolded when he signed his statement in police custody.

On 17 December 1998 three public prosecutors attached to the Diyarbakır State Security Court decided that no prosecution should be brought against the applicant on the ground that there existed no evidence to convict him.

Regarding the third applicant

The applicant is a member of the HADEP. On 17 November 1998 he was taken into police custody while he was going to the HADEP Headquarters in Bartın in order to participate in a demonstration.

In a letter dated 18 November 1998 the Diyarbakır Security Directorate requested the Diyarbakır Public Prosecutor to extend the detention period of the applicant along with 110 others until 21 November 1998 . On the same day the public prosecutor authorised the security directorate to extend the detention period until 21 November 1998 .

On 20 November 1998 a judge at the Diyarbakır State Security Court decided to extend the applicant’s detention period until 26 November 1998 following a request from the Diyarbakır Security Directorate.

The applicant alleges that he was severely tortured while in police custody. He was hosed with cold water, given electric shocks, hung by his arms in the form of torture known as “Palestinian hanging”, beaten and his testicles were squeezed. He further alleges that he was taken into custody with six other people who witnessed the torture.

On 25 November 1998 the applicant was brought before a public prosecutor at the Diyarbakır State Security Court . During his questioning the applicant denied the allegations against him and stated that he had no involvement in the hunger strikes and demonstrations. He alleged that he had signed his statement in police custody without knowing its contents.

On the same day the applicant was brought before a judge at the Diyarbakır State Security Court . He reiterated the statement he had given before the public prosecutor and alleged that he was blindfolded when he signed his statement in police custody. The judge ordered the applicant’s release pending trial.

On an unspecified date the Diyarbakır Public Prosecutor filed a bill of indictment with the Diyarbakır State Security Court accusing the applicant of aiding and abetting the members of a terrorist organisation.

On 22 February 2001 the Diyarbakır State Security Court decided to defer the imposition of a final sentence upon the applicant, pursuant to Law no. 4616. The court held, under Article 1 § 4 of the same law, that the criminal proceedings against the applicant would be suspended and a final sentence would be imposed should the applicant be convicted of a further intentional offence within five years of this decision.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were tortured while in police custody. They allege that the national authorities failed to initiate an investigation against the police officers that tortured them.

The first and second applicants complain under Article 5 § 1 (c) of the Convention that their detention was not in accordance with a procedure prescribed by law. The first applicant alleges that she was arrested on account of a secret order of the Ministry of Justice and the Ministry of Interior. The second applicant submits that criminal investigations against lawyers must be carried out by a public prosecutor pursuant to Turkish law. He points out that he was interrogated by police officers.

The applicants complain under Article 5 § 3 of the Convention that they were held in police custody for an excessive period of time.

The applicants complain under Article 6 of the Convention that they were not tried by an independent and impartial tribunal.

The applicants complain under Article 9 of the Convention, in conjunction with Article 14, that they were taken into police custody and prosecuted on account of their ethnic origin and their membership of the HADEP.

The applicants complain under Article 13 of the Convention, in conjunction with the above Articles, that they had no effective domestic remedies in Turkish law.

THE LAW

1. The applicants complain under Article 3 of the Convention that they were tortured while in police custody. They allege that the national authorities failed to initiate an investigation against the police officers that tortured them. They rely on Article 13 of the Convention in this respect.

The first applicant complains under Article 5 § 1 (c) of the Convention that her detention was not in accordance with a procedure prescribed by law. She alleges that she was arrested on account of a secret order of the Ministry of Justice and the Ministry of Interior.

The applicants complain under Article 5 § 3 of the Convention that they were held in police custody for an excessive period of time.

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 its Rules of Procedure, to give notice of them to the respondent Government.

2. The applicants complain under Article 13 of the Convention, in conjunction with Article 5, that they had no effective domestic remedies in Turkish law.

The Court notes that the essence of the applicants’ complaint under this head is related to Article 5 § 4 of the Convention. The Court, therefore, considers that this complaint should be examined under that Article 22 .

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 § 3 (b) of its Rules of Procedure, to give notice of it to the respondent Government.

3. The second applicant complains that his detention was not in accordance with a procedure prescribed by law. He submits that criminal investigations against lawyers must be carried out by a public prosecutor pursuant to Turkish law. He points out that he was interrogated by police officers. The applicant relies on Article 5 § 1 (c) of the Convention.

The Court notes that, pursuant to Articles 57 and 58 of the Turkish Advocacy Law, criminal investigations against lawyers must be carried out by public prosecutors when the crime has been committed during the exercise of their profession.

In the instant case the Court observes that the second applicant was taken into police custody on account of his membership of an illegal organisation and that he was not accused of having committed a crime during the exercise of his profession.

In these circumstances, the Court is of the opinion that the second applicant’s complaint under Articles 5 § 1 (c) of the Convention must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicants complain under Article 6 of the Convention that they were not tried by an independent and impartial tribunal.

a) The Court notes that on 17 December 1998 three public prosecutors attached to the Diyarbakır State Security Court decided that no prosecution should be brought against the second applicant on the ground that there existed no evidence to convict him.

It concludes, therefore, that the second applicant, at the time of lodging his application, could no longer claim to be a victim in respect of his complaint under Article 6 of the Convention.

It follows that the applicant’s complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

b) As to the first and third applicants’ complaints, the Court notes that the applicants were not convicted by the state security court which held on 22 February 2001 and 3 April 2001, pursuant to Law no. 4616, that the criminal proceedings against them would be suspended and a final sentence would be imposed should the applicants be convicted of a further intentional offence within five years of the court’s decision.

In these circumstances the Court concludes that the first and third applicants cannot claim to be a victim within the meaning of Article 34 of the Convention in respect of their complaints under this head.

5. The applicants complain under Article 9 of the Convention, in conjunction with Article 14, that they were taken into police custody and prosecuted on account of their ethnic origin and their membership of the HADEP.

The Court recalls that Article 9 of the Convention is not concerned with differences having as their basis or reason a personal characteristic by which persons or group of persons are distinguishable from each other.

The Court, therefore, concludes that the applicants’ complaint under this head is inadmissible ratione materiae within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court

by a majority,

Decides to adjourn the examination of the applicants’ complaints under Articles 3, 5 § 1 (c) (with respect to the first applicant), 5 § 3, 5 § 4 and 13 of the Convention;

unanimously, Declares inadmissible the remainder of the application.

Vincent Berger Georg R ess Registrar President