SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12822/02 
by Mehmet Emin ÖZKAN 
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 October 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Ms D. Jočienė, 
 Mr D. Popović, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 21 May 2003,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Emin Özkan, is a Turkish national who was born in 1939 and lives in Ceyhan. He is represented before the Court by Ms Y. Dora Şeker, a lawyer practising in Adana.

A.  The circumstances of the case

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

On 11 November 1996 the applicant was taken into police custody by police officers from the Mersin Security Directorate, on suspicion of being a member of the PKK. On 19 November 1996 he was brought before the Mersin Public Prosecutor and then before an investigating magistrate at the Mersin Magistrate Court. The court ordered his detention on remand.

On 15 November 1996 the applicant showed the police officers the residences of some other PKK members with whom he worked. On the same day the applicant signed an on-site inspection report, drafted by the police officers.

On 20 November 1996 the Mersin Public Prosecutor gave a decision of non-jurisdiction and referred the case to Konya State Security Court. On 3 December 1996 the Public Prosecutor at the Konya State Security Court filed an indictment against the applicant and eleven others, accusing them of being members of the PKK, whose aim was to undermine the sovereignty of the Turkish State and to separate a part of its territory. He brought charges against the applicant under Article 125 of the Criminal Code.

On 19 May 1997 the Konya State Security Court was closed down in accordance with the Law no. 4210, and the case was transferred to the Adana State Security Court.

On 24 March 1998, after five hearings, the applicant appeared before the Adana State Security Court for the first time and gave his statements with the assistance of an interpreter, as he did not know Turkish. The court ordered the continuation of the applicant’s detention on remand, in the light of the state of evidence and the seriousness of the charges, taking into account the date of his arrest.

At the hearing of 21 May 1998 the applicant was not present. The applicant’s lawyer denied his client’s involvement with the PKK and contended that these allegations were merely based on his statements taken under duress. The court maintained that, as the case was intended to be concluded at the next hearing, all the accused, as well as the interpreter, should be present.

On 18 June 1998 all the accused, except the applicant, were present before the court. The applicant, without presenting any justification, informed the court, that he would not be present at the hearing. The Adana State Security Court found the applicant guilty of the charges. It first sentenced him to death, pursuant to Article 125 of the Criminal Code, and then commuted the sentence to life imprisonment as there were mitigating circumstances.

On 3 February 1999 the Court of Cassation quashed the decision of the State Security Court.

On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of State Security Courts were replaced by civilian judges.

On 29 July 1999 the trial was resumed before the Adana State Security Court, composed of three civilian judges. During the two consecutive hearings the applicant was present before the court. The applicant’s request to be released pending trial was dismissed by the court considering the state of evidence, the seriousness of the charges and the date of his arrest.

At the hearing of 21 October 1999 the applicant requested the court to provide him with an interpreter to assist him during the hearings.

On 16 December 1999, although the applicant was present, there was no interpreter. The court emphasised that, as the applicant was not capable of pronouncing Turkish properly, it was essential to have an interpreter present at the following hearing.

At the hearing of 23 December 1999, despite the applicant’s objection, the court designated a police officer as his interpreter. The applicant’s lawyer maintained that his client feared that the interpreter was not impartial due to his profession. In his statements given with the assistance of the interpreter, the applicant denied the charges brought against him. He reiterated his lawyer’s and his own earlier submissions and requested his acquittal.

On 10 February 2000 the court convicted the applicant and sentenced him as before.

On 30 January 2001 the Court of Cassation quashed the decision, maintaining that one of the incidents for which he had been convicted was not included in the indictment. It also quashed the decision in relation to three other accused.

On 3 May 2001 the case was resumed before the Adana State Security Court. On 28 June 2001 the public prosecutor filed an additional indictment with the court accusing the applicant of being responsible for the killing of a brigadier general, under Article 125 of the Criminal Code. During the six initial hearings, the applicant was not brought before the court.

At the hearing of 6 September 2001 the applicant gave his statements without the help of an interpreter as he maintained that during the years that he had spent in detention on remand he had learned Turkish.

On 25 October 2001 and 8 November 2001 the applicant submitted written statements to the court in which he refuted all allegations and he requested to be released as he had been detained on remand already for more than five years. The applicant’s request for release was dismissed for the same reasons as before.

On 15 November 2001, in view of the statements of another accused, the court considered that it was necessary to file an additional indictment in relation to the applicant’s involvement in “the Lice incident” which took place on 22 September 1993.

On 12 December 2001 the public prosecutor filed an additional indictment against the applicant in relation to his involvement in armed clashes which had taken place between members of the PKK and the security forces, as well as to his participation in terrorist raids on public buildings.

On 7 March 2002, relying on the statements and confessions of other accused, on the witnesses’ statements and the on-site inspection report, the court convicted the applicant under Article 125 of the Criminal Code and sentenced him to life imprisonment.

On 24 September 2002 the Court of Cassation upheld the decision of the Adana State Security Court.

On 1 April 2004 the applicant’s lawyer was notified of the decision of the Court of Cassation.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment during his detention in police custody and that, despite his complaints about this treatment before the judicial authorities, no investigation was carried out into his complaints.

He contends that in view of his old age and his aggravated injuries that occurred in police custody, his prison sentence was in breach of Article 3 of the Convention.

He argues under the provision that the length of the proceedings and the fact that he was detained on remand during this period constituted degrading treatment in breach of Article 3 of the Convention. Moreover, he complains that the fact that he lived with the fear of the death penalty throughout the proceedings constituted inhuman and degrading punishment in violation of Article 3 of the Convention.

The applicant contends that his detention in police custody, as well as his detention on remand were excessively long, in breach Article 5 § 3 of the Convention. He further argues that the fact that the court ordered his detention pending trial demonstrates that he was not presumed innocent by the judicial authorities, in violation of Article 6 § 2 of the Convention.

The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial on account of the military judge sitting on the bench of the Adana State Security Court. He further complains under the same provision that the criminal proceedings which lasted more than five years and ten months were in breach of the reasonable time requirement.

He alleges that he was deprived of his right of defence as he was not allowed to consult his lawyer during his questioning by the police, the public prosecutor and the magistrate.

He also complains that the fact that he was not present before the court during most of the hearings was in breach of Article 6 § 3 (c) of the Convention.

Finally, the applicant argues, under Article 6 § 3 (e) of the Convention, that he was deprived of the assistance of an interpreter during most of the hearings held by the Adana State Security Court although he did not know Turkish.

THE LAW

1.  The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment while he was held in police custody and, despite raising this complaint before the domestic court, the authorities did not investigate his allegations.

The Court notes that the application form did not provide any details as to the kind of ill-treatment which was allegedly inflicted on the applicant. Moreover, throughout the criminal proceedings, the applicant only argued that his statements in police custody were taken under duress and torture, without giving any descriptions or details as to the kind of ill-treatment he was allegedly subjected to.

The Court considers that the applicant has not substantiated his allegations of ill-treatment. Accordingly, the Court concludes that the applicant has not laid the basis of an arguable claim that he was ill-treated at the hands of the police officers while he was held in custody. For these reasons, the Court finds that these complaints must be rejected as being manifestly-ill founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complains that, in view of his old age and his state of health, his life sentence was in breach of Article 3 of the Convention.

The Court notes that the applicant has failed to substantiate his allegations. Consequently, it considers that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

3.  He further argued that the length of the proceedings and the fact that he was detained on remand constituted degrading treatment, contrary to Article 3 of the Convention.

In the present case there is no indication that the treatment complained of reached the threshold of severity proscribed by Article 3 of the Convention (see, Taş v. Turkey (dec.), no. 21179/02, 8 July 2004).

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

4.  The applicant also maintained that the fact that he lived with the fear of the death penalty throughout the proceedings constituted an inhuman and degrading punishment in violation of Article 3 of the Convention.

The Court recalls its case law that the mere fact that the applicant could have been sentenced to the death penalty and that he lived with this fear is not, in itself, enough to amount to a violation of Article 3 of the Convention (see, Çınar v. Turkey, no. 17864/91, Commission decision of 5 September 1994, Decisions and Reports 79-A/B/5; Fikri Demir v. Turkey (dec.), no. 55373/00, 30 August 2005; Sertkaya v. Turkey (dec.), no. 77113/01, 11 December 2003). Furthermore, the circumstances of the present case differ from those in Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-...) as, on his conviction, the applicant’s sentence was immediately commuted to life imprisonment. Therefore, there was no period during which the applicant had to live with the fear that he would be executed or suffered the consequences of the imposition of the death penalty.

Therefore, the Court considers that this complaint should also be rejected as being manifestly-ill founded.

5.  The applicant contends that Article 5 § 3 of the Convention was violated on account of the length of his detention in police custody which lasted eight days. The applicant further complains that his detention on remand was excessively long. He invokes Articles 5 § 3 and 6 § 2 of the Convention.

The Court will first examine the question of the introduction date of the application.

In accordance with the established practice of the Convention organs, the Court considers the date of the introduction of an application to be the date of the first letter indicating an intention to lodge a complaint, together with some indication of the nature of the case. However, where a substantial interval follows before an applicant submits further information about the proposed application, or before returning the application form, the Court may examine the particular circumstances of the case to determine what date should be regarded as the date of introduction with a view to calculating the running of the six month period imposed by Article 35 § 1 of the Convention (Chalkley v. the United Kingdom, (dec.), no. 63831/00, 26 September 2002).

The Court observes that, in the present case, the applicant’s wife first wrote to the Court on 13 May 2002. This letter introduced only one of the applicant’s complaints, namely the deteriorating health of her husband due to prison conditions, and she requested his release. The letter did not contain any matters of substance. Following a first exchange of correspondence, the applicant’s wife did not address the Court again for almost a year, on 13 March 2003, when she requested the Court not to destroy her husband’s case-file as the full application form and supporting documents would be sent soon. However, she did not return a completed application form until 21 May 2003, i.e. more than fourteen months after the first letter (see, a contrario, Paulescu v. Romania, no. 34644/97, § 27, 10 June 2003).

In these circumstances the Court finds that the introduction date was that of the application form - 21 May 2003.

As regards the applicant’s complaint under Article 6 § 2 of the Convention, the Court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Accordingly, Article 5 § 3 of the Convention also protects, indirectly, the principle of the presumption of innocence (see Olstowski v. Poland (dec.), no. 34052/96, 15 February 2001 and Labita v. Italy, judgment of 6 April 2000, Reports of Judgments and Decisions 2000-IV, § 152). Consequently, the Court will examine the applicant’s complaint concerning the length of detention on remand under Article 5 § 3 of the Convention alone.

a)  as to the length of the applicant’s detention in police custody

The Court observes that the applicant was taken into police custody on 11 November 1996 and placed in detention on remand on 19 November 1996.

The applicant, however, lodged his application with the Court on 21 May 2003, i.e. more than six months later.

It follows that this complaint has been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention

b)   as to the length of the applicant’s detention on remand

The applicant’s detention on remand ended on 7 March 2002 when the Adana State Security Court convicted the applicant. However, the applicant lodged his application with the Court on 21 May 2003 which is more than six months after the end of his detention. It follows that this complaint has also been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

6.  The applicant maintained under Article 6 of the Convention that he was not tried by an independent and impartial court on account of the military judge sitting on the bench of the Adana State Security Court.

The Court notes that the applicant was initially convicted by the Adana State Security Court whose composition included a military judge. After the Court of Cassation quashed the decision of the State Security Court, in June 1999, the Constitution was amended and the military judges sitting on the bench of the State Security Courts were replaced by civil judges. Consequently, in the instant case, when the case was resumed, the Adana State Security Court was composed of three civilian judges. Following the applicant’s conviction for the second time, the decision was quashed by the Court of Cassation once again. As a result, the applicant was tried before the Adana State Security Court, which was composed from the outset of three civilian judges, twice. During the retrials, the court made a full re-examination of the facts of the case and a re-assessment of the evidence, before reaching a decision.

In the light of the foregoing, the Court finds that the applicant’s complaint concerning the independence and impartiality of the Adana State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

7.  The applicant also contended that the length of the criminal proceedings were in breach of the reasonable time requirement of Article 6 § 1 of the Convention.

The Court observes that the period to be taken into consideration began on 11 November 1996, when the applicant was taken into police custody, and ended on 24 September 2002 with the decision of the Court of Cassation, upholding the applicant’s conviction. Accordingly, the case was examined at six levels of jurisdiction within approximately five years and ten months.

The Court reiterates that the reasonableness of the length of the criminal proceedings is to be assessed in the light of the particular circumstances of the case, including the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among others, Mitap and Müftüoğlu v. Turkey, judgment of 25 March 1996, Reports of Judgments and Decisions 1996-II, p. 8, § 32).

The Court considers that the case was complex. It notes that the applicant was initially tried together with eleven co-accused. After the Court of Cassation quashed the decision of the State Security Court for the second time, the proceedings continued with four accused. The applicant was accused of activities carried out for the purpose of bringing about the secession of part of the national territory, and the death penalty was sought in accordance with Article 125 of the Criminal Code. Although in its decision of 18 June 1998 the Adana State Security Court sentenced the applicant as charged, it immediately commuted the death sentence to life imprisonment.

The Court observes that the period which elapsed between the hearings was approximately one and a half months. Following the applicant’s appeals, on all three occasions, the Court of Cassation decided the case in less than a year. Furthermore, there were two hearings held at the appeal stage.

As for the behaviour of the authorities, the Court does not observe any period of inactivity that could be attributable to the domestic courts during the conduct of the proceedings.

In light of the foregoing, the Court concludes that, in the present case, the length of the criminal proceedings cannot be regarded as exceeding the reasonable time requirement of Article 6 § 1 of the Convention.

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

8.  The applicant complains under Article 6 § 3 of the Convention that he was not allowed to consult his lawyer during his questioning by the police, the public prosecutor and the Adana State Security Court at the initial stage of the proceedings.

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

9.  The applicant also complains that the fact that he was not present before the court during most of the hearings is in breach of Article 6 § 3 (c) of the Convention.

Finally, he argues under Article 6 § 3 (e) of the Convention that he was deprived of the assistance of an interpreter during most of the hearings held before the Adana State Security Court although he did not know Turkish.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the fairness of his trial on account of the judicial authorities’ alleged failure to provide him with an interpreter, his lack of legal representation during the preliminary investigation and the prison authorities’ alleged failure to bring him to the hearings;

Declares the remainder of the application inadmissible.

S. Dollé J-P. Costa 
 Registrar President

MEHMET EMİN ÖZKAN v. TURKEY DECISION


MEHMET EMİN ÖZKAN v. TURKEY DECISION