FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40518/98 by Süleyman YILDIRIM against Turkey

The European Court of Human Rights (First Section) , sitting on 22 November 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr R. Türmen , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar.

Having regard to the above application introduced with the European Commission of Human Rights on 19 November 1997 and registered on 30 March 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, Süleyman Yıldırım, is a Turkish national , born in 1968 and is currently serving his prison sentence in Batman ‘E’ Type Prison in Turkey. He is represented before the Court by Mr M.Vefa, a lawyer practising in Diyarbakır.

A. The circumstances of the case

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

On 2 September 1997 the applicant was arrested in Istanbul on suspicion of membership of an illegal organisation, namely the PKK, and having taken part in an armed clash with the security forces. He was questioned at the Istanbul Police Headquarters following which he was transferred to the Siirt and Batman Police Headquarters where he was further questioned.

On 12 September 1997 the applicant was brought before the Batman Public Prosecutor who transferred the applicant to the Batman Criminal Court of Peace, where he was subsequently charged and his detention on remand was ordered.

On 2 October 1997 the public prosecutor at the Diyarbakır State Security Court filed an indictment with the Court, requesting the latter to try and sentence the applicant and Mehmet Özbey , a co-accused, in accordance with Article 168 § 2 of the Turkish Penal Code and Article 5 of the Prevention of Terrorism Act (Law no . 3713 of 12 April 1991).

In the proceedings before the Diyarbakır State Security Court and also in his statement taken by the prosecutor following his detention, the applicant said that the contents of the statements he had given during his detention were correct. He did not deny that he was a member of the PKK but denied the other charges against him. He further stated that he was a warrior but that he had not yet had an opportunity to carry out any armed attacks.

In a supplementary indictment submitted to the trial court on 30 May 2000, the prosecutor accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He requested the court to sentence the applicant in accordance with article 125 of the Turkish Penal Code.

On 2 November 2000 the Diyarbakır State Security Court found the applicant guilty as charged and sentenced him to death penalty under article 125 of the Turkish Penal Code. Taking into account the applicant’s behaviour during the trial, the death penalty was commuted to a life sentence.

The applicant’s appeal against the judgment was rejected by the Court of Cassation on 22 May 2001.

B. Relevant domestic law and practice

i. Criminal law and procedures

Article 17 of the Turkish Constitution provides:

“...

No one shall be subjected to torture or ill-treatment; no one shall be subjected to penalty or treatment incompatible with human dignity.

...”

Article 243 of the Turkish Criminal Code ( Türk Ceza Kanunu ) provides:

“A President or member of a court or official body or any other public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, or engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life.”

Article 245 provides:

“Civil servants charged with the forcible execution of an order, police officers and any other officials charged with enforcement who, either of their own accord or on the orders of their superiors, enforce the order concerned in an unlawful manner or who, in doing so, ill-treat, strike or cause bodily harm to another shall be punished by between one and three years’ imprisonment and temporarily disqualified from holding public office.”

The relevant parts of Article 168 of the Turkish Criminal Code provides as follows:

“1. 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.

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

Article 125 of the Turkish Criminal Code provides as follows:

“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”

Article 135/a of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ) provides:

“The statement of the accused should be based on his free will. The accused shall not be subjected to physical or mental interference such as torturing, medication by force, fatigue, deceit, use of physical force and hardness and other use of devices which will result in the obstruction of his free will.

No unlawful benefit shall be promised.

The statements that are extracted from the accused by using the unlawful ways described above cannot be considered as evidence even if the accused does not challenge their lawfulness.”

Article 136 § 1 of the Turkish Code of Criminal Procedure (amended by Law 3842 of 18 November 1992) provides:

“The accused or a person arrested shall have access to legal assistance of one or more lawyers at any stage and level of the investigation.”

Article 31 of Law 3842 provides that the above provision shall not be applicable for charges that fall under the jurisdiction of the State Security Courts.

ii. The law relating to detention in police custody

Article 19 of the Constitution provides:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ...

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days ... These time-limits may be extended during a state of emergency.

A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.”

Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.

At the material time section 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the state security courts, any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days.

iii. Provisions on National Security Courts

Before the Constitution was amended on 18 June 1999, Article 143 provided that National Security Courts were composed of a president, two other regular members and two substitute members. The President of the National Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges.

As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:

“...

National Security Courts shall be composed of a president, two other regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors.

The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and Public Prosecutors of the first rank, according to procedures laid down in special legislation, and the Public Prosecutors from among other Public Prosecutors by the National Legal Service Council, for four years. Their term of office shall be renewable...”

The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the National Security Courts by means of Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the National Security Courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the National Security Courts on the date of publication of the Law were to continue from the stage they had reached by that date.

COMPLAINTS

The applicant alleges that the treatment to which he was subjected to while in police custody amounted to torture in violation of Article 3 of the Convention. He claims, in particular, that he was blindfolded, hanged from his arms, that electric shocks were given to his sexual organs, mouth, toes and to various other parts of his body, that had his testicles squeezed, beaten on the sole of his feet and subjected to pressure hosing. In support of his allegations of ill-treatment during the police custody, the applicant relies on a letter sent to the Court by his co-accused, stating that he had witnessed the police officers squeezing the applicant’s testicles and dousing him with cold water.

The applicant complains under Article 5 of the Convention that he was detained for ten days and was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

Under Article 6 § 1 of the Convention the applicant complains that his right to a fair hearing was breached because he was tried and convicted by the Diyarbakır State Security Court which lacked independence and impartiality.

The applicant further complains under Article 6 § 3 of the Convention that he was not given sufficient time to prepare his defence and that he was not allowed to consult his lawyer during the police custody.

The applicant finally complains under Article 14 in conjunction with the above Articles of the Convention that he was subjected to pressure because of his Kurdish origin and his political opinion.

THE LAW

1. The applicant alleges that the treatment to which he was subjected to during his detention amounted to torture within the meaning of Article 3 of the Convention.

The Court considers that it is not necessary to determine whether the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention since this complaint is in any event inadmissible for the following reason.

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis , the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, § 30). The Court observes in the first place that the applicant has not produced any concrete evidence in support of his allegations of ill-treatment. In particular, the applicant failed to send the Court, despite two requests to do so, any medical reports in support of his very serious allegations of ill-treatment. The only evidence which the applicant submitted to the Court are two letters written by the applicant and his co-accused, describing the ill-treatment the applicant had allegedly suffered in custody.

While the Court recognises the difficulty for detained people to obtain evidence of ill-treatment during police custody, it notes that the applicant did not suggest that he had ever been refused permission to see a doctor. In the light of the seriousness of his allegations, in particular being subjected to pressure hosing, hit on the soles of his feet, being subjected to electric shocks on most vulnerable parts of his body and had his testicles squeezed, the Court considers that this treatment would have left signs on the applicant’s body which would have been observed by a medical doctor.

Even assuming that the applicant’s circumstances could have made him feel vulnerable, powerless and apprehensive of the representatives of the State during his custody (See Ilhan v. Turkey [GC], no. 22227/93, § 61), the Court considers it significant that the applicant or his lawyer never referred to his very serious complaints of ill-treatment in the proceedings before the Diyarbakır State Security Court. The Court further notes in this context that the applicant did not argue that he was prevented from doing so by intimidation or otherwise.

In the Court’s opinion the applicant has not laid the basis of an arguable claim that he was tortured in custody. It follows that the complaint under Article 3 of the Convention should be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

2. The applicant complains that his custody period of ten days without being brought before a judge or other officer authorised by law to exercise judicial power was unreasonably long and hence in breach of  under Article 5 § 3 of the Convention, which provides as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

...”

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 of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached because he was tried and convicted by the Diyarbakır State Security Court which lacked independence and impartiality. The relevant parts of Article 6 § 1 of the Convention provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.

...

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 of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. Under Article 6 § 3 of the Convention the applicant complains that he was not permitted the assistance of a lawyer during questioning by the police and that he did not have sufficient time to prepare his defence. The relevant parts of Article 6 of the Convention provide as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

b. to have adequate time and facilities for the preparation of his defence;

c. to defend himself in person or through legal assistance of  his own choosing...

...”

As to the applicant’s allegation that he did not have adequate time to prepare his defence, the Court notes that this complaint has never been raised by the applicant’s lawyer who attended the first hearing before the Diyarbakır State Security Court on 19 November 1997. Neither the lawyer nor the applicant himself raised this issue in any of the subsequent two hearings on 24 December 1997 and on 4 March 1998 minutes of which were submitted to the Court by the applicant’s lawyer. The Court further notes that this issue was not invoked as one of the grounds for appeal by the applicant’s lawyer in his petition submitted to the Court of Cassation on 16 May 2001.

It follows that domestic remedies have not been exhausted in relation to this complaint and it must therefore be rejected under Article 35 § 4 of the Convention.

The Court considers, as to the applicant’s complaint that he was not permitted the assistance of a lawyer during questioning by the police, 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 of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicant finally complains under Article 14 in conjunction with the above Articles of the Convention that he was subjected to pressure because of his Kurdish origin and his political opinion. Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court considers that the applicant did not provide any evidence in support of this complaint.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Articles 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that he was not brought promptly before a judge and that he was denied a fair hearing by an independent and impartial tribunal ;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakıs              Section Registrar President