SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41956/98 by Yavuz AKSAÇ against Turkey

The European Court of Human Rights (Second Section) , sitting on 19 October 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr R. Türmen,

Mrs V. Stráznická,

Mr P. Lorenzen, Mr E. Levits,

Mr A. Kovler, judges ,

and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 December 1997 and registered on 3 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 is a journalist, born in 1971 and presently detained in Ankara Central Prison. He is represented before the Court by Mr Hasan ErdoÄŸan , a lawyer practising in Ankara.

A. Particular circumstances of the case

On 23 March 1995 the applicant was detained by the Ankara Anti-Terror Branch on suspicion of aiding and abetting an illegal terrorist organisation, the DHKP-C. The applicant contends that he was kept in custody until 4 April 1995. He alleges that he was subjected to ill-treatment and degrading treatment while in custody. He also contends that he signed a statement under duress in which he admitted carrying out illegal activities on behalf of the DHKP-C.

On 6 April 1995 the public prosecutor attached to the Ankara State Security Court accused the applicant and a co-accused of aiding and abetting an illegal terrorist organisation and requested the court to apply Article 168 § 2 and Article 169 of the Turkish Criminal Code and section 5 of Law no. 3713 (the Prevention of Terrorism Act 1991).

On 10 April 1996 the Ankara State Security Court found the applicant guilty of aiding and abetting an illegal terrorist organisation, the DHKP-C, and sentenced him to three years and nine months imprisonment and debarred him from public service for three years. The court concluded that the applicant aided and abetted the DHKP-C by putting up placards in support of the DHKP-C and painting slogans on walls.

The applicant appealed. On 10 July 1997 the Court of Cassation dismissed the appeal, upholding the Ankara State Security Court's assessment of the evidence and its reasons for rejecting the applicant's defence.

B. Relevant domestic law

The relevant legal provisions governing the status and functioning of State Security Courts in the respondent State are described in the Court’s İncal v. Turkey judgment of 9 June 1998 (Reports of Judgments and Decisions 1998-IV).

COMPLAINTS

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

2. The applicant further complains under Article 5 § 3 of the Convention that he was detained on remand for an excessive period of time without being brought before a judge.

3. The applicant complains in addition under Articles 9 and 10 of the Convention that he was convicted on account of his association with a left wing magazine and that his rights to freedom of thought and expression were violated as a consequence.

4. The applicant complains under Article 6 § 1of the Convention that he was tried and convicted by a court which did not meet the requirements of independence and impartiality. The applicant also complains under Article 6 §§ 1 and 3 of the Convention that he was denied adequate time and facilities for the preparation of his defence. He alleges in this connection that the principle of equality of arms was violated since he was not notified of the public prosecutor’s observations at the appeal stage.

5. Finally, the applicant alleges that the Court of Cassation failed to deliver a reasoned judgment with the result that he could not request its rectification.

THE LAW

1. The applicant complains that he was tortured during his time in custody, in breach of Article 3 of the Convention which provides:

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

The Court observes that the applicant never complained to the authorities that he had been tortured as alleged. It appears from the case file that the applicant alleged before the Ankara State Security Court that his confession statement was involuntary and obtained under duress. At no stage of the trial did he specifically assert that he had been tortured.

In the Court’s opinion, the applicant has failed to lay the basis of an arguable claim that he was subjected to treatment prohibited under Article 3 of the Convention. The Court considers that it is confirmed in this conclusion having regard to the absence of any medical records indicating injuries to his person.

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

2. The applicant complains that he was not brought promptly before a judge in breach of Article 5 § 3 of the Convention, which provides as relevant:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge (...).”

The Court observes that the applicant’s complaint relates to the period spent in custody between 23 March 1995 and 4 April 1995. The applicant introduced his application under the Convention on 6 January 1998, which is more than 6 months from the date of the facts giving rise to the alleged violation.

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

3. The applicant complains that he was convicted and sentenced simply because he was a journalist working for a left-wing journal. He states that his rights to freedom of thought and expression guaranteed, respectively, under Articles 9 and 10 of the Convention were violated. These Articles provide:

Article 9

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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.

4. The applicant states that he was denied a fair trial before an independent and impartial tribunal having regard to the presence of a military judge on the bench of the Ankara State Security Court. He further states that the fairness of the appeal proceedings was undermined by reason of the failure to notify him of the public prosecutor’s observations on his appeal. The applicant invokes Article 6 §§ 1 and 3 of the Convention, which provide:

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

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;

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

5. The applicant complains under Article 6 § 1 of the Convention that the Court of Cassation failed to deliver a reasoned judgment on his appeal. In the applicant’s submission this failing prejudiced his right to seek rectification of the judgment.

The Court observes in the first place that, under Turkish law, a request for rectification of a judgment of the Court of Cassation on an appeal in a criminal case is an extraordinary remedy which does not have to be exhausted for the purposes of the exhaustion rule in Article 35 § 1 of the Convention. The applicant cannot claim therefore that he was prejudiced in respect of the Convention proceedings.

Secondly, while is true that the right guaranteed to an applicant under Article 6 of the Convention includes the right to have reasons for decisions handed down by a domestic court in his case this cannot be understood as requiring a detailed answer to every argument adduced by him. The extent to which the duty to give reasons applies may vary according to the nature of the decision at issue (see, for example, the Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2929, § 56). The Court observes in this connection that the judgment of the Ankara State Security Court was fully reasoned and addressed the substance of the applicant’s submissions in the light of adversarial argument. As to the limited reasons given by the Court of Cassation , the Court considers that it is implicit in that court’s decision that the applicant failed to make out a case which would have led it to depart from the lower court’s findings on the facts, evidence and applicable law. In the Court’s opinion, the limited reasoning given by the Court of Cassation was sufficient in the circumstances to comply with the requirements of Article 6 of the Convention.

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

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaints concerning the interference with his rights to freedom of thought and expression and the alleged unfairness of his trial caused by the presence of a military judge on the bench of the trial court and the failure to notify him of the public prosecutor’s submissions on his appeal.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President