THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21865/02 
by Kemal EVCİMEN 
against Turkey

The European Court of Human Rights (Third Section), sitting on 31 August 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr R. Türmen
 Mr C. Bîrsan
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 28 January 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kemal Evcimen, is a Turkish national who was born in 1971 and lives in Edirne. He is represented before the Court by Mr A. Şahin, a lawyer practising in Istanbul.

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

At the material time, the applicant was the owner and editor of a local newspaper published in Trabzon, the Özgür Karadeniz (Free Black Sea).

On 15 January 1995 the applicant was taken into police custody on suspicion of membership in an illegal organisation.

On 20 January 1995 he was brought before a judge who ordered his detention on remand.

On 10 March 1995 the public prosecutor at the Erzincan State Security Court filed a bill of indictment against the applicant, along with twenty-one other persons. The applicant was accused of being a member of an illegal organisation, the DHKP-C. According to the indictment, the applicant’s house was searched when he was arrested and illegal periodicals, newspapers, books and a bullet were found in his house. The public prosecutor alleged that the applicant had published a newspaper containing propaganda in support of the DHKP-C, participated in illegal demonstrations, put up posters, distributed leaflets supporting the DHKP-C and carried out activities in the Karadeniz University for the recruitment of new members for the illegal organisation.

On 13 March 1995 the applicant was transferred to the Erzurum special type prison. Between 13 March and 1 June 1995 he was subjected to torture in prison.

On different dates in 1995, five other criminal proceedings were brought against the applicant before various courts, with the charges of disseminating separatist propaganda and incitement to hatred and hostility through the medium of his newspaper.

The cases against the applicant and his co-accused were subsequently joined before the Erzincan State Security Court.

Following promulgation of the Law no. 4210, which abolished the Erzincan State Security Court and established the Erzurum State Security Court, in 1997 the Erzurum State Security Court acquired jurisdiction over the case and the case-file was sent to it.

On 27 November 1998 the Erzurum State Security Court rendered its judgment in the case against the applicant and twenty-nine other persons. The court convicted the applicant under Article 168 § 2 of the Criminal Code of membership in the DHKP-C. The first-instance court held that it was not established that the applicant had been involved in any armed activity. It however found that two articles published in Özgür Karadeniz on 15 November 1994 and 1 March 1995 contained separatist propaganda and incitement to hatred. It further found it established that the applicant had participated in illegal demonstrations, put up posters, distributed leaflets supporting the DHKP-C and carried out activities in the Karadeniz University for the recruitment of new members for the illegal organisation. The Erzurum State Security Court considered that the applicant’s activities taken as a whole constituted membership of the DHKP-C and sentenced him to twelve years and six months’ imprisonment.

On 18 November 1999 the Court of Cassation upheld the judgment of 27 November 1998 in respect of the applicant.

On 29 May 2004 the applicant was conditionally released from prison.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was tortured in the Erzurum special type prison between 13 March and 1 June 1995.

The applicant complains under Article 5 § 3 of the Convention that he was kept in police custody for five days without being brought before a judge. He further contends under the same head that he was detained on remand for an unreasonable length of time.

The applicant submits under Article 6 § 1 of the Convention that he was denied a fair hearing on account of the presence of a military judge on the bench of the State Security Courts, which tried and convicted him.

The applicant maintains under Article 10 of the Convention that his conviction constituted an unjustified interference with his freedom of expression as he was convicted on the basis of, inter alia, the articles published in his newspaper.

The applicant complains under Articles 7 and 14 of the Convention, in conjunction with Article 5 § 1 of the Convention, that people who are convicted and sentenced to imprisonment under Article 168 of the Criminal Code have no possibility of conditional release until they have served three quarters of their sentence, whereas generally prisoners may be conditionally released after having served half of their sentence.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that he was denied a fair hearing on account of the presence of a military judge on the bench of the State Security Courts which tried and convicted 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 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. As regards the applicant’s other complaints under Articles 3, 5, 7, 10 and 14 of the Convention, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and in so far as the matters complained of are within its competence.

It follows that this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the independence and impartiality of the State Security Courts which tried and convicted him;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

EVCİMEN v. TURKEY DECISION


EVCİMEN v. TURKEY DECISION