FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43925/98 by Bülent KARAKAŞ and Yılmaz YEŞİLIRMAK against Turkey

The European Court of Human Rights ( Fourth Section) , sitting on 4 June 2002 as a Chamber composed of

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

Having regard to the above application introduced with the European Commission of Human Rights on 14 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 applicants, Bülent Karakaş and Yılmaz Yeşilırmak, are Turkish nationals, who were born in Izmir and Tokat respectively. They are represented before the Court by Mr Elban, a lawyer practising in Istanbul.

A. The circumstances of the case

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

On 4 August 1994 three members of an illegal organisation, Dev -Sol (Revolutionary Left) were killed by the security forces. The following day, the daily journal “ Hürriyet ” published information about the incident.

On an unspecified date police officers from the anti-terror branch of the Bağcılar Security Directorate reported that Dev -Sol members would hold a demonstration in front of the Hürriyet newspaper’s head office on 13 August 1994.

On 13 August 1994 the applicants, together with fourteen people, were arrested in front of the newspaper’s office and placed in police custody at the Bağcılar Security Directorate. During their police custody, the applicants signed statements and confessed that they were members of the Revolutionary Left.

On 17 August 1994 the applicants were examined by a doctor from the Bakırköy Forensic Medical Institute. The doctor reported bruises on both hands of the second applicant and on one hand of the first applicant. The report stated that the applicants’ injuries did not constitute a danger to life, but would prevent them from working for three days.

On 18 August 1994 the applicants were brought before the Public Prosecutor and then before a non-presiding judge at the Istanbul State Security Court, where they denied all charges. The court ordered the applicants’ detention on remand.

On 23 August 1994 the applicants were examined by a doctor from the Eyüp Forensic Medical Institute. The doctor’s report indicated the presence of bruises on both hands of the second applicant and on one hand of the first applicant.

On 26 August 1994 the Public Prosecutor of the Istanbul State Security Court filed a bill of indictment with the Istanbul State Security Court, charging the applicants under Article 169 of the Turkish Criminal Code with having assisted and given shelter to the acts of an illegal terrorist organisation, Dev -Sol.

At the first hearing held on 27 October 1994 before the Istanbul State Security Court, the applicants alleged that they had been subjected to torture and ill-treatment by police officers during their custody and maintained that they had been forced to sign statements before reading them. They further submitted the medical reports they had obtained from the Forensic Medical Institute. The court ordered the applicants’ release pending trial.

On 14 March 1996 the Istanbul State Security Court convicted the applicants under Article 169 of the Turkish Criminal Code and Law no. 3713 (Anti-Terror Law) and sentenced them to three years’ imprisonment.

On 17 April 1996 the applicants’ lawyer lodged an appeal with the Court of Cassation and alleged of the ill-treatment and torture that the applicant’s had been subjected to in police custody.

On 27 April 1998 the Court of Cassation upheld the decision of the first instance court.

B. Relevant domestic law and practice

Article 169 of the Turkish Criminal Code provides:

“Any person, who knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

COMPLAINTS

1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment and torture by police officers during their police custody. In this respect, they allege that they were beaten on both hands ( el falakası ) , deprived of water and sanitary facilities, insulted and threatened.

2. The applicants allege under Article 5 §§ 3 and 4 of the Convention that they were kept in detention in police custody for five days without being brought before a judge and that they had no remedy under Turkish law to challenge the lawfulness of their detention.

3. The applicants complain under Article 6 § 1 that they did not receive a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court, which convicted them.

4. The applicants further complain under Article 6 § 1 that the criminal proceedings against them were not concluded within a reasonable time.

5. The applicants complain under Article 6 § 2 of the Convention that their right to be presumed innocent was violated since, subsequent to their arrest, their photographs were published in newspapers and they were identified as members of Dev -Sol.

6. The applicants allege under Article 14 of the Convention in conjunction with Articles 5 § 3 and 6 § 1 that there is a difference between proceedings in State Security Courts and proceedings in ordinary courts with regard to the permissible length of police custody and the length of sentences imposed. In their submission, this amounts to unlawful discrimination.

THE LAW

1. The applicants complain under Article 5 §§ 3 and 4 of the Convention that they were kept in detention in police custody for five days without being brought before a judge and that they had no remedy under Turkish law to challenge the lawfulness of their detention .

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 §§ 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 applicants were 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 their police custody (see, mutatis mutandis , Sakık and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions, 1997-VII, § 53). The Court recalls that, according to its established case-law, when an act of an authority is 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 applicants’ detention in police custody ended on 18 August 1994, whereas the application was 4 August 1998, that is more than six months after the detention of which 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 applicants submit under Article 14 of the Convention, in conjunction with Articles 5 § 3 and 6 § 1, that there is a difference between the proceedings in State Security Courts and in the ordinary courts as regards the permissible length of police custody and the length of sentences imposed. This, they argue, amounts to unlawful discrimination.

The Court notes that in principle the aim of Law no. 3842 is to penalise persons 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 Gerger v. Turkey judgment of 8 July 1999, Reports 1999, § 69 ). It 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.

The applicants allege under Article 3 of the Convention that they were subjected to ill-treatment and torture by police officers during their police custody. In this respect, they allege that they were beaten on both hands ( el falakası ) , deprived of water and sanitary facilities, insulted and threatened.

The applicants complain under Article 6 § 1 of the Convention that they did not receive a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court, which convicted them.

The applicants further complain under Article 6 § 1 of the Convention that the length of the criminal proceedings against them exceeded the reasonable time requirement within the meaning of this article.

The applicants finally complain under Article 6 § 2 of the Convention that their right to be presumed innocent was violated since, subsequent to their arrest, their photographs were published in the newspapers and they were identified as members of Dev -Sol.

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 applicants’ complaints under Articles 3, 6 §§ 1 and 2 of the Convention.

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President