FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42775/98 by Volkan ÜKÜNÇ and Deniz GÜNEŞ against Turkey

The European Court of Human Rights (First Section), sitting on 5 December 2000 as a Chamber composed of

Mrs W. Thomassen , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr R. Türmen , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 26 June 1998 and registered on 14 August 1998,

Having deliberated, decides as follows:

THE FACTS

The applicants are Turkish nationals. They were both born in 1980 and live in Edirne , Turkey. They are represented in the proceedings before the Court by Mr Veysel Uçum , 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 8 February 1996 the applicants were taken into custody by the Edirne Anti-Terror Branch on suspicion of membership of an illegal terrorist organisation, the DHKP-C. The applicants were kept in custody until 12 February 1996. They were interrogated by the police on 10 February 1996 in the absence of their lawyers.

The applicants allege that they were tortured in police custody. They contend that they signed a prepared statement on 10 February 1996 under duress in which they admitted to having carried out illegal activities on behalf of the DHKP-C. The statement referred to their having painted a slogan on a wall, distributed a publication entitled KurtuluÅŸ , put up a poster in the entrance to a shop and watched while another member of the DHKP ‑ C threw a petrol bomb at a lorry.

On 12 February 1996 the applicants were brought before the public prosecutor and then before a judge. On both occasions they repeated the content of their statements of 10 February 1996. They never mentioned that their statements had been obtained under duress. The applicants were released on the same day.

On 11 March 1996 the public prosecutor attached to the Istanbul State Security Court accused the applicants and three other co-accused of aiding an illegal terrorist organisation and requested the court to apply Article 169 of the Turkish Criminal Code and section 5 of Law No. 3713 (the Prevention of Terrorism Act 1991 as amended).

The applicants requested the Istanbul State Security Court not to require them to appear at any of the hearings since they had to attend school. They were legally represented in their absence.

On 17 April 1996 the Edirne Assize Court requested the applicants’ observations on the charges against them for submission to the Istanbul State Security Court. The applicants challenged for the first time the authenticity of the statements which they gave to the police and then repeated on 12 February 1996 when brought before the public prosecutor and the judge. They contended that they were tortured by the police and forced to sign a prepared statement. They further alleged that they were threatened by the police in order to make them repeat the same statement when they were brought before the public prosecutor and the judge on 12 February 1996.

On 8 April 1997 the Istanbul State Security Court found the applicants guilty of aiding and abetting an illegal terrorist organisation, the DHKP ‑ C, and sentenced them to two years and six months’ imprisonment. The court pointed out that the applicants’ defence statement to the Edirne Assize Court alleging that they had been forced to repeat the prepared confession statements when brought before the public prosecutor and the judge on 12 February 1996 was unconvincing. The court concluded that the applicants aided and abetted the DHKP-C by painting a slogan on a wall, distributing publications supporting DHKP-C and putting up a placard in the entrance to a shop.

The applicants appealed on the ground that there was no concrete evidence on which they could be convicted.

On 9 December 1997 the Court of Cassation upheld the State Security Court’s decision. The applicants then applied for rectification of the Court of Cassation’s decision on the ground that the preliminary investigation was unlawful having been conducted without their lawyer being present and given that they were minors at the date of the offences. The applicants’ rectification request was rejected on 22 May 1998.

B. Relevant domestic law

The law governing the composition and functioning of the system of State Security Courts at the material time is described in the Court’s İncal v. Turkey judgment of 9 June 1998 ( Reports of Judgments and Decisions 1998-IV).

COMPLAINTS

1. The applicants contend that they were tortured in police custody. They invoke Article 3 of the Convention.

2. The applicants contend that they were deprived of their right to a lawyer in police custody as well as before the public prosecutor and the judge. They point out they were minors at the material time and as such were entitled to a lawyer under domestic law. The applicants further contend that they were wrongly brought before the Edirne Public Prosecutor instead of before the public prosecutor attached to the Istanbul State Security Court. They maintain that although none of the charges against them was proved they were nevertheless convicted by the Istanbul State Security Court. They finally contend that they should have been tried by a juvenile court in view of their ages.

As regards the above-mentioned complaints the applicants invoke Article 5 § 1 (a) and (d) of the Convention and Article 6 § 3 (c) thereof.

THE LAW

1. The applicants submit that they were subjected in custody to treatment prohibited under Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

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

2. The applicants further maintain that they were unlawfully deprived of their liberty in violation of Article 5 § 1 (a) and (d) of the Convention. These provisions provide respectively:

“1. 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 a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; …

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; …”

The Court observes that the legislation governing the status and functioning of State Security Courts in force at the material time gave these courts jurisdiction to try juveniles accused, inter alia , of offences covered by the Prevention of Terrorism Act 1991 as amended. Accordingly, the applicants were detained following conviction by a competent court and their detention thus fell within the scope of Article 5 § 1 (a) of the Convention. Furthermore, the sentence handed down was lawful under Turkish law and was imposed in accordance with a procedure prescribed by law. Moreover, it cannot be said that the applicants’ detention was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a), so as to be arbitrary (see the Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, p. 23, § 42).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the applicants’ complaint under Article 5 § 1 (d), the Court observes that they were released from custody on 12 February 1996. Their application under the Convention was lodged on 26 June 1998. They have thus failed to comply with the six-months rule contained in Article 35 § 1 of the Convention in respect of this complaint.

It follows that since this complaint is introduced out of time it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicants complain that they did not receive a fair trial, in breach of Article 6 of the Convention, which provides as relevant:

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

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

(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; …”

(a) The applicants contend that they were wrongly brought before the Edirne Public Prosecutor instead of the public prosecutor attached to the Istanbul State Security Court. They further contend that they should have been tried by a juvenile court in view of their ages.

The Court recalls that it has already found that the Istanbul State Security Court had jurisdiction to try the applicants. It further considers that their complaint about the competence of the public prosecutor before whom they appeared does not disclose any appearance of the fairness guarantees set out in Article 6 of the Convention.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) The applicants contend that they were deprived of their right to a lawyer in police custody as well as before the public prosecutor and the judge and state in addition that, although none of the charges against them, was proved they were nevertheless convicted by the Istanbul State Security Court.

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

For these reasons, the Court, by a majority,

Decides to adjourn the examination of the applicants’ complaints that they were ill-treated and denied access to a lawyer in custody and convicted by a court which was neither independent nor impartial (the Istanbul State Security Court) in the absence of proof of guilt;

Declares inadmissible the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President