SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40395/98 by Abdulmecit CANEVİ, Şehmuz CANEVİ and Gıyas TURGUT

against Turkey

The European Court of Human Rights (Second Section) , sitting on 30 May 2000 as a Chamber composed of

Mr A.B. Baka, President , Mr B. Conforti,

Mr G. Bonello, Mr R. Türmen,

Mrs V. Strážnická, Mr P. Lorenzen, 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 18 February 1998 and registered on 23 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 applicants are all Turkish citizens, presently serving prison sentences in various prisons in Turkey. The first applicant, Abdulmecit Canevi ( A.C. ), and the second applicant, Şehmuz Canevi (Ş.C.), were both born in 1965. The third applicant, Gıyas Turgut (G.T.), was born in 1950. The applicants are represented before the Court by Ms Hülya Ceylan , a lawyer practising in Istanbul.

On 29 October 1995 A.C. and G.T. were passengers in a car belonging to Åž.C. The car was driven by a third party whose identity was never established. At 11:30 p.m. police officers of the Bursa Security Department stopped the car. They were acting on information supplied by undercover police agents to the effect that the applicants were drug dealers. The driver escaped from the scene.

The police searched the car and discovered 10 kilograms of heroin and a handgun. A.C. and G.T. were taken into police custody.

In his statement to the police, G.T. affirmed that the only reason for him being in the car was that A.C. had invited him to dinner. He stated that he did not know anything about the heroin trade.

According to a statement drafted by the police, A.C. confessed inter alia that a second car driven by Åž.C. had been following theirs and was transporting drug suppliers. That car escaped from the scene when theirs was stopped by the police.

On 2 November 1995 Ş.C. was taken into police custody. He told the police that he had lent his car to his brother, A.C. He denied knowledge of any plans to transport heroin or drug dealers and disputed the truth of A.C.’s statement.

On 3 November 1995 the Bursa Criminal Peace Court No. 3 ordered the formal arrest of all three applicants.

The applicants were tried before the Istanbul State Security Court No. 5. They were represented by a lawyer. One of the members of the bench was a military judge. According to the public prosecutor’s indictment, all three applicants were accused of involvement in organised heroin smuggling.

A.C. denied the accuracy of his statement drafted by the police while in detention, maintaining that it had been obtained under duress. Although A.C. pleaded guilty to having been involved in the transportation of heroin when he was stopped, he stated inter alia that neither his brother, Åž.C., nor G.T. were involved in the drugs trade. Åž.C. and G.T pleaded not guilty.

The court heard the evidence of various police officers who had taken part in the operation. However, the court did not find it appropriate to call as witnesses the chief of the operation team and the two undercover police agents who had earlier alerted the Security Department about the applicants’ activities.

In the course of the criminal proceedings before the State Security Court No. 5, the applicants’ lawyer made repeated requests to have the applicants released on bail. The court reviewed but rejected these requests having regard to the nature of the crime and the contents of the case file.

On 1 April 1997 the Istanbul State Security Court No. 5 convicted the applicants of involvement in drug trafficking and sentenced them to 10 years’ imprisonment and heavy fines. The court also ordered the confiscation of Ş.C.’s car which was used for the transportation of the drugs.

The applicants appealed. On 19 August 1997 the 10th Chamber of the Court of Cassation for Criminal Law Matters upheld the judgment of 1 April 1997.

COMPLAINTS

1. The second applicant, Ş.C., and the third applicant, G.T., complain inter alia about the unlawfulness of their arrest and detention and the trial court’s rejections of their requests for release pending trial. They invoke Article 5 §§ 1, 3, 4 and 5 of the Convention.

2. The applicants all contend that the proceedings before the Istanbul State Security Court No. 5 were unfair on account of the presence of a military judge on the bench. They invoke Article 6 § 1 of the Convention.

3. The applicants also complain that the trial court failed to investigate the facts sufficiently and did not assess the evidence properly. They also contend that the trial court refused to summon two undercover police agents and the police chief who conducted the operation to testify. They invoke Article 6 §§ 2 and 3 (d) of the Convention.

4. The applicants further complain about the length of the proceedings before the Istanbul State Security Court No. 5 and the Court of Cassation . They invoke Article 6 of the Convention.

5. The second applicant, Åž.C., complains that his conviction and imprisonment amount to a serious interference with his right to respect for his private and family life. In this respect, he invokes Article 8 of the Convention. The second applicant also complains that the decision to confiscate his car, deprived him of his right to the peaceful enjoyment of his possessions. He invokes Article 1 of Protocol No. 1 of the Convention.

THE LAW

1. The applicants, Ş.C and G.T., complain inter alia that their arrest was unlawful, that the domestic court systematically refused to release them pending trial although there was insufficient evidence to keep them in detention and they had no right to compensation in respect of these violations. These applicants invoke Article 5 §§ 1, 3, 4 and 5 of the Convention, which provides as relevant:

“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:

(...)

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(...)

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.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

The Court notes that the second and third applicants were apprehended on 2 November 1995 and 29 October 1995, respectively. A domestic court ordered their formal arrest on 3 November 1995. They were convicted on 1 April 1997. They made repeated requests to be released from detention before and during their trial.

In accordance with the terms of Article 35 § 1 of the Convention, the applicants’ complaints under Article 5 §§ 1(c), 3 and 4 cannot be examined unless submitted to the Court within a period of six months from the date on which the final decision was taken. In the Court’s opinion, the six-month time-limit in respect of all of these grievances should be taken to run as from the date of the applicants’ conviction on 1 April 1997. Following that decision the applicants’ detention was thereafter governed by Article 5 § 1(a) of the Convention (see, for example, the B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 14, § 36). Having regard to the fact that their application under the Convention was introduced on 18 February 1998, these complaints must accordingly be declared inadmissible as being time-barred in application of Article 35 § 1 of the Convention.

It follows from the inadmissibility of the above complaints that the applicants’ complaint under Article 5 § 5 cannot be considered by the Court and must be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. All three applicants contend that the criminal proceedings before the State Security Court were unfair having regard to the presence of a military judge on the bench. They invoke Article 6 § 1 of the Convention, which provides as relevant:

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

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) [Note1] of the Rules of Court, to give notice of this complaint to the respondent Government.

3. The applicants also complain that the trial court failed to investigate the facts sufficiently and did not assess the evidence properly. They also contend that the trial court did not summon two undercover police agents and the police chief who directed the arrest operation to testify at their trial. They invoke Article 6 §§ 2 and 3 (d) of the Convention, which state:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

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) [Note2] of the Rules of Court, to give notice of this complaint to the respondent Government.

4. All three applicants further complain about the length of the criminal proceedings before the State Security Court and on appeal before the Court of Cassation . They invoke Article 6 § 1 of the Convention.

The Court observes that the applicants were formally arrested on 3 November 1995. The applicants were convicted on 1 April 1997 and the Court of Cassation upheld their conviction in its judgment dated 19 August 1997. The criminal proceedings accordingly lasted approximately twenty-two months Having regard to its established criteria in this area (see, among many other authorities, the Portington v. Greece judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2630, § 21), the Court considers that the length of the proceedings cannot be said to be unreasonable.

For these reasons, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

5. The second applicant, Åž.C., complains that his conviction by the State Security Court amounted to an unjustified interference with his right to respect for his private and family life. In this respect, he invokes Article 8 of the Convention, which provides as relevant:

“1. Everyone has the right to respect for his private and family life ...(...),

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The second applicant further complains that the decision of the State Security Court ordering the confiscation of his car was an unlawful deprivation of his right to the peaceful enjoyment of his possessions. He invokes Article 1 of Protocol No. 1 of the Convention, which provides, as relevant:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (...)”

The Court observes that the second applicant’s complaints under these two heads stem from the fact of his conviction and sentence. The alleged interferences with the rights relied on are, accordingly, the consequence of the application of domestic law provisions governing sentence. The Court sees no reason to doubt that the tariff imposed on the applicant and the confiscation measure were options open to the trial court in application of domestic law. The applicant has not sought to dispute this.

The Court concludes therefore that the second applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 thereto are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant s’ complaints concerning the alleged lack of independence and impartiality of the State Security Court and the unfairness of the trial proceedings.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Andras Baka Registrar President

[Note1] Change as necessary.

[Note2] Change as necessary.