FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36094/97

by Fırat ANLI

against Turkey

The European Court of Human Rights ( First Section) sitting on 11 May 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr Gaukur Jörundsson ,

Mr R. Türmen ,

Mr C. Bîrsan ,

Mrs W. Thomassen ,

Mr R. Maruste , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 January 1997 by Fırat ANLI against Turkey and registered on 14 May 1997 under file no. 36094/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

THE FACTS

The applicant is a Turkish national, born in 1971 and living in Diyarbakır .

He is represented before the Court by Mr Abd  lkadir Pekdemir , a lawyer practising in Diyarbakır .

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

A. Particular circumstances of the case

The applicant, a lawyer practising in Diyarbakır , is a member of a political party, the Halkın Demokrasi Partisi (“HADEP”).

On 23 and 24 June 1996 the HADEP held its annual congress in Ankara. The applicant participated in the congress as a delegate from Diyarbakır . The delegates to the congress elected him as secretary of the Bureau. During the congress the delegates chanted slogans such as, “ biji serok Apo (long live president Apo )”, “ Guerilla is striking and setting up Kurdistan ”, “the army of the PKK is here”, “the victory belongs to the resistance”, “Liberate the prisoners”, “End up the dirty war”. Some masked people took down the Turkish flag and hung the PKK flag and posters of Abdullah  calan instead.   

On 24 June 1996 the congress building was surrounded by the police force. When the congress was over at 4 a.m. the police officers arrested the applicant outside the congress building along with the members of the Bureau of the congress and also the president and assembly members of the HADEP on account of illegal slogans and manifestations during the congress. The applicant and others were taken to the anti-terror branch of the Ankara Security Directorate. The applicant was subjected to verbal abuse during the pre-trial detention. His request to see his lawyer or his family was rejected.

On 4 July 1996 the applicant was brought before the Ankara State Security Court which ordered his detention on remand.

On 23 August 1996 the principal public prosecutor at the Ankara State Security Court filed an indictment with the court accusing the applicant of being a member of a terrorist organisation, the PKK.

On 23 October 1996 the applicant was released on bail.

On 4 June 1997 the Ankara State Security Court convicted the applicant of assisting the members of the PKK and sentenced him to 4 years six months’ imprisonment in accordance with section 169 of the Turkish Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991). The court considered that the applicant and others assisted the members of the PKK and facilitated their activities during the congress. The court stated, inter alia ,

“...All the accused are competent and responsible persons in the HADEP. They had a possibility of interrupting or even suspending the congress. By doing so, they could help the police force to capture the PKK militants who took down the Turkish flag and hung the posters of Abdullah  calan instead... On the contrary the accused hid the PKK militants by forming groups and they assisted them to perform their activities...”

The applicant appealed against the Ankara State Security Court’s judgment of 4 June 1997. The Court of Cassation quashed the above judgment on the ground that the case-file lacked relevant information and documents. The case was sent back to the Ankara State Security Court.

The proceedings are still pending before the Ankara State Security Court.

B. Relevant domestic law

i ) Section 169 of the Turkish Criminal Code provides :

“Any person, who knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

ii) The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) :

Under section 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in section 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”.

Pursuant to section 5 of  Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections ... and 4 of the Act are increased by one half.

COMPLAINTS

The applicant complains of violations of Articles 3, 5, 6, 10 and 11 of the Convention.

The applicant maintains under Article 3 of the Convention that he was subjected to inhuman treatment in that he was held in a cell along with 4 other persons and subjected to verbal abuse during his pre-trial detention.

He submits under Article 5 of the Convention that he was held in pre-trial detention for eleven days without being brought before a judge. He also alleges that he was not informed of the reasons for his arrest.

The applicant contends under Article 6 of the Convention that his right to presumption of innocence was breached on the ground that the public prosecutor who conducted the preliminary investigation had made some statements to the press, as a result of which he was considered guilty before the trial started. He also submits that he was not informed promptly of the nature and cause of the accusation against him and that he was not permitted to see his lawyer during pre-trial detention. The applicant maintains that he did not receive a fair hearing on account of the presence of a military judge on the bench of the Ankara State Security Court.

The applicant alleges under Articles 10 and 11 of the Convention that the fact that the police force raided the congress of the HADEP and arrested him along with the leaders of the party infringed his right to freedom of peaceful assembly with others.

THE LAW

1 . The applicant maintains under Article 3 of the Convention that he was subjected to inhuman treatment in that he was held in a cell along with 4 other persons and subjected to verbal abuse during his pre-trial detention.

The applicant contends under Article 6 of the Convention that his right to presumption of innocence was breached on the ground that the public prosecutor who conducted the preliminary investigation had made some statements to the press, as a result of which he was considered guilty before the trial started. He also submits that he was not informed promptly of the nature and cause of the accusation against him and that he was not permitted to see his lawyer during pre-trial detention. The applicant maintains that he did not receive a fair hearing on account of the presence of a military judge on the bench of the Ankara State Security Court.

The applicant alleges under Articles 10 and 11 of the Convention that the fact that the police force raided the congress of the HADEP and arrested him along with the leaders of the party infringed his right to freedom of peaceful assembly with others.

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 its Rules of Procedure, to give notice of them to the respondent Government.

2 . The applicant submits under Article 5 of the Convention that he was held in pre-trial detention for eleven days without being brought before a judge. He also alleges that he was not informed of the reasons for his arrest.

The Court notes that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5 of the Convention, as Article 35 § 1 of the Convention provides that the Court “may only deal with the matter ... within a period of six months from the date on which the final decision was taken”.

In the instant case the Court observes that the applicant was arrested pursuant to the Law on the Procedures of State Security Courts and that no domestic remedy was available in order to challenge the lawfulness and the length of his pre-trial detention (see, mutatis mutandis , the Sakık and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, § 53). The Court recalls that, according to the established case-law, when an act of an authority is not open to any effective remedy, the six-month period runs from the date on which the act took place (see, among other authorities, application no. 10389/83, decision of 17 July 1986, DR 47, p. 72).

The Court notes that the applicant’s pre-trial detention ended on 4 July 1996, whereas the application was introduced on 24 January 1997, that is more than six months after the detention of which complaint is made.

It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of  the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant’s complaints that he was allegedly subjected to inhuman treatment, that he did not have a fair trial and that his right to freedom of peaceful assembly with others was breached;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President