SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35980/97 by Zülfiye ERDEM and others against Turkey

The European Court of Human Rights ( Second Section) , sitting on 14 December 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr R. Türmen Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr A.B. Baka , Mr E. Levits , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 March 1997 and registered on 7 May 1997,

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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, whose names appear in the appendix,  are Turkish national s. They are represented before the Court by Mr Suat Çetinkaya , a lawyer practising in İzmir (Turkey).

A. The circumstances of the case

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

In connection with an investigation carried out by the Public Prosecutor attached to the İzmir State Security Court against the activities of an illegal leftist organisation, called the Turkish Revolutionary Communist Union (“TIKB”), policemen from the Anti-Terrorism Department of the İzmir Security Department raided several houses between 7 and 10 September 1996. The first three applicants (Z.A., Z.E and A.S.) were detained on 7 September 1996 while attending a seminar about “TİKB”. The fourth applicant, G.S., was also detained on the same day in another house that belonged to the organisation. During this operation, the police further found in the houses some periodicals and posters of the illegal organisation, face masks, official stamps belonging to different government departments, three car plates, a bomb ready to explode, twelve bombs without powder, fifteen cartridges, fifteen bullets without powders, equipment used for the preparation of molotov cocktails and several false identity cards. Finally, the last applicant U.S. was detained on 10 September 1996. All of the applicants were accused of being members of the illegal organisation, TIKB.

On 16 September 1996 G.S. and U.S. and on 17 September 1996 Z.A. had short meetings with their lawyers in the Security Directorate Building. During their police custody, Z.A., Z.E., A.S. and G.S. refused to give statements to the police officers.

On 19 September 1996 the applicants were brought before the Public Prosecutor attached to the Ä°zmir State Security Court and thereafter the investigating judge of the Ä°zmir State Security Court. Both before the public prosecutor and the investigating judge the applicants denied the charges against them. The same day, the investigating judge of the Ä°zmir State Security Court decided to place the applicants in detention on remand and consequently sent the first four applicants to the Bergama Prison, and the last applicant to the UÅŸak Prison.

On 22 October 1996 the public prosecutor initiated criminal proceedings in the Ä°zmir State Security Court against the applicants. In his indictment, the public prosecutor charged Z.A., Z.E., A.S. and U.S for being members and G.S. for being one of the leaders of an illegal organisation whose aim was to undermine the constitutional order.

On 10 December 1997 Z.E and Z.A. were released pending trial.

The Ä°zmir State Security Court decided to separate and transfer the case-file concerning A.S. to the Ä°stanbul State Security Court to be joined to a similar case pending against the applicant before that court. On 23 January 1998 she was released pending trial. This case is still pending before the Ä°stanbul State Security Court.

On 24 December 1997 the Ä°zmir State Security Court delivered its decision. The court found in the first place that the TIKB was an illegal organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime and thus qualified TIKB as an armed illegal organisation pursuant to Article 168 of the Criminal Code. The court further noted that Z.E. had been detained during a seminar organised by the TIKB. It was also established that while being detained, the applicant had resisted the police officers and shouted slogans of the organisation. Taking into account the official incident and apprehension report, the illegal documents found in the house and the testimonies of the other accused persons, the court found Z.E. guilty of assisting an illegal organisation under Article 169 of the Criminal Code. As regards Z.A. the court recalled that she had previously been convicted of being a member of the TIKB by the Istanbul Court Martial and had been sentenced to 13 years and 4 months’ imprisonment. The court established that in the instant case Z.A. had been detained while attending a seminar organised about the TIKB. It was further found that Z.A. had given lectures in meetings organised by the TIKB and aided the organisation in the formation of its members. In view of the statements of the other accused and the official incident and apprehension record, the court found Z.A. guilty under Article 169 of the Criminal Code of assisting an illegal organisation. As to G.S. the court established that she had been responsible for the co-ordination of the organisation in Izmir . She had also been in charge of organising seminars about TIKB in universities, distributing leaflets about the organisation, and helping in the preparation of logistic supplies including bombs etc. Referring to the statements of the other accused persons, the court decided that G.S. was guilty under Article 168 § 2 of the Criminal Code for being a member of an illegal organisation. As regards U.Åž. the court noted that he had been involved in setting up student unions in high schools in support of TIKB, distributed illegal documents about the organisation and participated in several other activities. Moreover, his fingerprints were found on the molotov cocktails found by the police. Accordingly, the court found U.Åž. guilty of being a member of an illegal organisation under Article 168 § 2 of the Criminal Code. Finally, the court sentenced Z.E. and Z.A. to 3 years and 9 months’, U.Åž. to 12 years and 6 months’ and G.S. to 15 years’ imprisonment.              

On 24 November 1998 the Court of Cassation upheld the convictions of Z.E., Z.A and G.S. and quashed the judgment of the first instance court as regards U.Åž.

The criminal proceedings against U.Åž. were remitted to the Ä°zmir State Security Court for further examination and on 8 September 1999 he was released pending trial. The proceedings are still pending before the same court.

B. Relevant domestic law

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.

... "

Section 168 of the Turkish Criminal Code reads 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."

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 sections 3 and 4 of the Act are increased by one half."

Under section 9(a) of Law No. 2845 on procedure in the state security courts, only these courts can try cases involving the offences defined in section 168 of the Criminal Code.

Under section 128 of the Code of Criminal Procedure, an arrested person must be brought before a judge within twenty four hours or, where the offence has been committed by more than one person, within four days.

Pursuant to Section 135 paragraph 4 of the Code of Criminal Procedure, during police interrogation the accused should be warned that it is his legal right to remain silent about the accusations brought against him.

Section 30 of Law No. 3842 published on 1 December 1992 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. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days              respectively (by Act No. 4229, which was promulgated on 6 March 1997 detentions periods have been amended). 

COMPLAINTS

1. The applicants complain under Article 5 § 3 of the Convention that they were not brought promptly before a judge.

2. The applicants allege that they did not receive a fair trial in that they had been deprived of the assistance of a lawyer during their police custody. They further maintain that the public prosecutor based his indictment on their police statements, which had been allegedly taken under duress and that they were not informed promptly of the nature and cause of the accusations against them. In this respect, they invoke Article 6 of the Convention.

3. The applicants also allege that they are victims of discrimination in breach of Article 14 of the Convention taken in conjunction with Article 5 § 3 and Article 6 § § 1 and 3 (c) of the Convention. They allege in this connection that under the provisions of the Turkish Criminal Procedure Code persons taken into custody must be brought before a judge within a maximum period of four days whereas in relation to offences which fall within the jurisdiction of the State Security Courts this period may be extended up to fifteen days.

THE LAW

1. Without referring to any specific complaint raised in the application, the Government maintain that the applicants have neither exhausted the domestic remedies nor complied with the six months time limit, as required by Article 35 of the Convention.

The Court observes that the Government have not referred to any specific domestic remedies that should have been exhausted by the applicants. Moreover, they have not provided any explanation as to why the applicants should be considered to have introduced their applications out of time.

The Court therefore rejects the Government’s objections concerning compliance with Article 35 § 1 of the Convention.

2. The applicants state that they were not brought promptly before a judge after their detention. They submit that the first four applicants had been detained on 7 September 1996 and the last applicant on 10 September 1996, whereas they were all brought before the public prosecutor and the investigating judge on 19 September 1996. In this respect, they rely on Article 5  § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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 Government maintain that the custody periods that applied to the applicants at the time of the incidents were in accordance with the Constitution and the domestic legislation that had been in force. The Government further submit that as the applicants were taken into police custody on suspicion of being members of an illegal organisation, a prolonged detention period had been necessary to carry out a thorough and careful police inquiry to gather all the evidence.

The Court considers, in the light of the parties’ submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

2. The applicants allege that they did not receive a fair trial before the national courts. In this respect they invoke Article 6 of the Convention, which insofar as relevant, reads:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

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

(a) to be informed promptly, in a language which he understands and in detail, of the              nature and cause of the accusation against him;

(c) to defend himself in person or through legal assistance of his own choosing or, if              he has not sufficient means to pay for legal assistance, to be given it free when the              interests of justice so require;

... ”

As regards the fourth and the fifth applicants:

The Court observes that the criminal proceedings against the fourth and the fifth applicants are still pending before the domestic courts. Their complaints under Article 6 are therefore premature.

Consequently, this part of the application is inadmissible for being manifestly ill founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

As regards the first three applicants

As to the applicants’ allegation that they had been denied the assistance of a lawyer during their police custody, the Court recalls that Article 6 applies even at the stage of the preliminary investigation into an offence by the police. Thus, Article 6 - especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with the provisions  (see the Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p.13, § 36). The manner in which Article 6 § 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case ( loc.cit . p.14, § 38).

The Court further recalls that national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation, which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of the police investigation. However, this right, which is not explicitly set out in the Convention, may be subject to restriction for a good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (John Murray v. the United Kingdom judgment of 8 February 1996, Reports and Decisions, 1996-1, pp. 54-54, § 63).

In the instant case, the applicants’ right of access to a lawyer during their police custody was restricted pursuant to the domestic legislation. However, the applicants refused to give statements during their police custody, which could be treated as evidence against them in the future criminal proceedings and subsequently when brought before the public prosecutor and the investigating judge denied all the charges against them. The Court further recalls at this point that whether the drawing of adverse inferences from an accused person’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences be drawn, the weight attached to them by the national courts in their assessment of evidence and the degree of compulsion inherent in the situation (John Murray v. the United Kingdom judgment, loc.cit ., pp.50, § 47). The Court recalls that pursuant to Article 135/4 of the Turkish Criminal Code, the accused persons have the right to remain silent and no adverse inferences could be drawn from their silence by the national courts in their assessment of evidence.

The applicants were represented both at their trial and on appeal by their lawyers and had the opportunity of challenging the allegations of the prosecution. The Court considers that there is no element to suggest that the fairness of the applicants’ trial was prejudiced on account of the fact that they were denied access to a lawyer during their custody period.

As to the allegation that the public prosecutor based his indictment on the applicants’ police statements that had been allegedly taken under duress, the Court observes that the applicants’ submissions are not supported by the facts of the case. Despite the applicants’ allegations, it is clear from the case-file that they had refused to give statements during their police custody and the public prosecutor’s indictment was based on the circumstantial factors surrounding the applicants’ arrest during an illegal meeting.

The applicants contend that they had not been informed promptly of the accusations against them. T he Court notes that the applicants were arrested while attending a seminar held by an illegal organisation in houses, where the police found several illegal periodicals, posters, face masks, official stamps belonging to different government departments, car plates, a bomb ready to explode, twelve bombs without powder, fifteen cartridges, fifteen bullets without powders, equipment used for the preparation of molotov cocktails and various false identity cards. The applicants were taken into custody for being members of this illegal organisation. In these circumstances, the Court finds no indication of a breach of Article 6 § 3 (a) of the Convention.

The Court further observes that both the first-instance court and the Court of Cassation had examined the case thoroughly before delivering their judgments . The Court finds no element, which would allow it to conclude that the national courts acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic law.

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

3. The applicants complain under Article 14 of the Convention read in conjunction with Articles 5 § 3, 6 § § 1 and 3 (c) about the fact that there is a difference between the length of permissible police custody in State Security Court proceedings and Ordinary Criminal Court proceedings. Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in the 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 notes that the distinctions alleged by the applicants are not distinctions which are made between different groups of people, but between different types of offences, according to the legislature’s view of their gravity. The Court has previously held that such distinctions are not contrary to Article 14 of the Convention (see, the Gerger v. Turkey judgment of 8 July 1999, to be published in Reports 1999, § 69).

The Court finds that this is the situation in the present case. Consequently, the applicants’ complaints under Article 14 taken together with Article 5 § 3 and 6 §§ 1 and 3 (c) of the Convention are inadmissible as being manifestly ill-founded pursuant to Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant s’ complaint about the excessive length of their custody.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Greffier Président

APPENDIX

List of the applicants:

1. Zülfiye Erdem , who was born in 1974, resides in İstanbul .

2. Zahide Ak , who was born in 1962, resides in Ä°stanbul .

3. Gülümser Seyitcemaloğlu , who was born in 1969, resides in Kocaeli .

4. Aysel Sarıca , who was born in 1973, resides in İstanbul .

5. Umut Åžener , who was born in 1978, resides in Ä°zmir .