FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43926/98 by Nametullah EPÖZDEMIR against Turkey

The European Court of Human Rights ( Fourth Section) , sitting on 14 May 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr R. Türmen , Mr M. Fischbach , Mr J. Casadevall , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 August 1998 and registered on 14 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Nametullah Epözdemir, is a Turkish national, who was born in Baykan and is currently held in prison in Muş. He is represented before the Court by Ms Altay, a lawyer practising in Istanbul.

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

On an unspecified date the police officers arrested H.Z, A.A and M.Ö on suspicion of membership of the PKK.

On 21 December 1993 the Public Prosecutor attached to the Diyarbakır State Security Court filed an indictment with the court, accusing them of membership of the PKK, of aiming to form the Kurdistan National Parliament and of having fled to Iran with the applicant, to receive political training.

On 7 November 1993 the applicant was taken into custody by the police officers from the anti-terrorist branch of the Tatvan Security Directorate, on suspicion of membership of the PKK.

On 25 November 1993 the applicant was brought before the Tatvan Public Prosecutor and, thereafter, a single judge from the Tatvan Magistrates’ Court. Both before the public prosecutor and the court, the applicant denied the statements he had given in police custody, alleging that they were taken under duress. The Tatvan Magistrates’ Court ordered the applicant’s detention on remand.

On 31 December 1993 the Public Prosecutor attached to the Diyarbakır State Security Court filed an indictment with the Diyarbakır State Security Court, accusing the applicant of membership of the PKK and of aiming to form the Kurdistan National Parliament. The charge was brought under Article 168 § 1 of the Turkish Criminal Code. On an unspecified date, criminal proceedings were initiated against the applicant before the Diyarbakır State Security Court.

On 26 April 1994 the Diyarbakır State Security Court joined the cases of the applicant and H.Z, A.A and M.Ö.

In the applicant’s defence before the State Security Court he denied the statements he had given before the police, alleging that they had been taken under duress.

On 13 March 1995 the State Security Court convicted the applicant, H.Z and M.Ö under Article 168 § 2 of the Criminal Code and sentenced them to twelve years and six months’ imprisonment. The applicant appealed.

On 17 July 1995 the Court of Cassation quashed the applicant’s conviction on the ground that his conviction was not based on sufficient investigation. The case was remitted to the State Security Court.

On 18 November 1996 the Diyarbakır State Security Court convicted the applicant under Article 168 § 2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment. The applicant appealed.

On 25 February 1998 the Court of Cassation upheld the judgment of the State Security Court.

B. Relevant domestic law

1. Section 168 of the Turkish Criminal Code provides:

“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.”

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to torture and ill-treatment by the police officers during his custody period.

The applicant complains under Article 5 §§ 3 and 4 of the Convention that he was kept in police custody for eighteen days without being brought before a judge or other officer authorised by law to exercise judicial power and that he had no remedy under Turkish law to challenge the lawfulness of his detention .

The applicant alleges under Article 6 § 1 in conjunction with Article 13 of the Convention, that he did not receive a fair hearing on account of the presence of a military judge on the bench of the Diyarbakır State Security Court.

The applicant alleges under Article 6 § 3 (c) of the Convention that he did not have a fair trial as he was deprived of his right to legal assistance during his questioning by the police officers, the public prosecutor and the judge who ordered his detention on remand.

The applicant further invokes Article 14 of the Convention in conjunction with Article 6 and submits that proceedings within the jurisdiction of the State Security Courts are different from those in ordinary courts, giving rise to discrimination in breach of the Convention .

THE LAW

1. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment and torture while he was held in police custody.

The Court notes that in the proceedings before the State Security Court the applicant confined himself to challenging the admissibility of his statements to 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 Commission details of the alleged duress during his detention in police custody. It is also to be noted that he has not adduced any concrete evidence, such as a medical certificate, of having been subjected to any ill-treatment as alleged. In this regard, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that he was subjected to ill-treatment while in police custody.

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

2. The applicant complains under Article 5 §§ 3 and 4 of the Convention that he was kept in detention in police custody for eighteen days without being brought before a judge or other officer authorised by law to exercise judicial power and that he had no remedy under Turkish law to challenge the lawfulness of his detention.

The Court notes that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5 §§ 3 and 4, as 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 applicant was arrested pursuant to the Law on the Procedures of State Security Courts and that no domestic remedy was available in order to challenge the lawfulness and the length of his police custody (see, mutatis mutandis , Sakık and Others v. Turkey judgment of 26 November 1997, Reports 1997-VII, § 53). The Court recalls 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, Bayram and Yıldırım v. Turkey decision of 29 January 2002, no. 38587/97, to be published)

The Court notes that the applicant’s detention in police custody ended on 25 November 1993, whereas the application was 1 August 1998, that is more than six months after the detention of which the complaint is made.

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 invokes Article 14 of the Convention in conjunction with Article 6 and submits that the procedure within the jurisdiction of the State Security Courts is different from the one in ordinary courts, giving rise to discrimination in breach of 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 the 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 pre-trial detention 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, mutatis mutandis , the Gerger v. Turkey judgment of 8 July 1999). It therefore concludes 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.

4. The applicant alleges under Article 6 § 1 in conjunction with Article 13 of the Convention, that he did not receive a fair hearing on account of the presence of a military judge on the bench of the Diyarbakır State Security Court.

5. The applicant alleges under Article 6 § 3 (c) of the Convention that he did not have a fair trial as he was deprived of his right to legal assistance during the questioning by the police officers, the public prosecutor and the judge who ordered his detention on remand.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Procedure, to give notice of them to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the applicant’s right to a fair trial by an independent and impartial tribunal and his right to legal assistance;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President