THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31096/02 
by Medeni TARLAN 
against Turkey

The European Court of Human Rights (Third Section), sitting on 30 March 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr R. Türmen
 Mrs M. Tsatsa-Nikolovska
 Mr V. Zagrebelsky
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 17 June 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Medeni Tarlan, is a Turkish national who was born in 1967. He is currently being detained in Erzurum Prison. The applicant is represented before the Court by Mr S Kaya, a lawyer practising in Ankara.

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

On 10 November 1993 a primary school and a post office building in Erzurum were set on fire by PKK (the Worker’s Party of Kurdistan) members.

On an unspecified date, in his statement to the police H.A. stated that he had committed the arson with the applicant and gave the applicant’s name to the police.

On 26 July 1994 the applicant handed himself into the Hınıs Gendarmerie Station.

On 30 July 1994, another suspect, A.N., told the police that he saw the applicant with members of the PKK on the day of the incident.

On 1 August 1994, the applicant and A.N. were brought before the public prosecutor and thereafter before the investigating judge. Before both the public prosecutor and the investigating judge, the applicant denied the statements he had given to the police, alleging that they were given under duress. Subsequently, the investigating judge ordered the applicant’s detention on remand, A.N. was released.

On 26 September 1994 the public prosecutor at the Erzincan State Security Court filed a bill of indictment with the same court accusing the applicant of involvement in activities that undermined the territorial integrity of the State under Article 125 of the Criminal Code, and A.N. of aiding and abetting an illegal organisation. The public prosecutor sought the death penalty for the applicant.

On 7 December 1994 the Hınıs Assize Court took a statement from A.N. and sent it to the Erzincan State Security Court.

On 8 March 1995 the Erzincan State Security Court decided to join the case with another case pending before it, being the total number of accused in the case increased to six.

On 6 April 1999 the Erzincan State Security Court convicted the applicant of being an accessory to the offence proscribed by Article 125 of the Criminal Code.

On 18 June 1999 the Turkish Constitution was amended and the military judge sitting on the bench of the Erzincan State Security Court was replaced by a civilian judge.

On 17 February 2000 the Court of Cassation quashed the judgment of the Erzincan State Security Court on the ground that the applicant should have been convicted as a perpetrator instead of an accessory pursuant to Article 125 of the Criminal Code. In the meantime, following the abolition of the Erzincan State Security Court, the case-file was transmitted to the Erzurum State Security Court.

At the hearing of 23 June 2000 the applicant requested that he be provided with the opportunity to examine the persons who had testified against him. On 17 August 2000 he repeated his request in particular concerning A.N. The court accepted this request.

On 15 September 2000 the applicant submitted to the court a list of teachers who had been working at the primary school at the time of the incident as the defence witnesses. The court ordered an investigation in relation to their addresses and issued letters rogatory to this effect.

At the hearing of 10 November 2000 the court re-issued the letters rogatory in order to secure statements from the above-mentioned witnesses.

On 26 January 2001 the court decided not to hear A.N. as a witness on the ground that he could not be found at his address and that he had already given many statements at different stages of the proceedings which had been submitted to the case file and which had been commented on by the applicant.

At the hearing of 12 January 2001 the court read to the applicant the testimony given by one of the teachers from the list he had submitted to the court. The applicant accepted the content of this statement. He further submitted that it was not necessary for the court to hear the others, as their testimonies would have little effect on the outcome of the proceedings, and that there was enough evidence in the case-file for his acquittal.

On 13 March 2001 the Erzurum State Security Court having considered the case file as a whole, i.e. the statements of the co-accused of the applicants, the reports of the incidents, and the re-construction of events found the applicant guilty as charged, sentenced him to death under Article 125 of the Criminal Code. This sentence was then commuted to life imprisonment. The judgment was ex officio subject to appeal.

On 6 December 2001 the Court of Cassation upheld the judgment of the first-instance court. Its judgment was pronounced on 26 December 2001.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the risk that he could be punished with the death penalty constituted inhuman and degrading treatment.

He alleges under Article 6 §§ 1, 2 and 3 (d) of the Convention that he did not receive a fair trial by an independent and impartial tribunal having regard to the presence of a military judge on the bench of the State Security Court. He maintains that the criminal proceedings against him were unreasonably lengthy. He further complains that the fairness of the proceedings was also undermined by the fact that the submissions of the Principal Public Prosecutor to the Court of Cassation were not served on him, and that the court did not hear A.N.

Invoking Article 7 of the Convention, the applicant alleges that the provision of the Repentance Act no. 3419 (25 March 1988) as amended by Law no. 4450 (26 August 1999) has not been applied to his case, despite the fact that he had handed himself in to the authorities.

THE LAW

1.  The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were not concluded within a reasonable time and that the written opinion of the Principal Public Prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments.

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.

2.  The applicant further alleges under Article 6 §§ 1, 2 and 3 (d) of the Convention that he did not receive a fair hearing by an independent and impartial tribunal having regard to the presence of a military judge on the bench of the State Security Court, that his witness was not heard before the court and that his conviction was solely based on the statements extracted from him under duress. He further alleges that the domestic courts’ decisions were not reasoned.

a)  As regards the independence and impartiality of the State Security Court, the Court notes that the applicant’s trial commenced before Erzincan State Security Court, whose composition included a military judge. On 6 April 1999 the court convicted the applicant of the offence. On 18 June 1999, the Turkish Constitution was amended and the military judge on the bench of the State Security Court was replaced by a civilian judge. On 17 February 2000 the Court of Cassation quashed the applicant’s conviction and remitted the case to the State Security Court. After the remission, the applicant’s trial resumed at a court which was composed of three civilian judges who carried out a full re-examination of the facts of the case and a re-assessment of the evidence and law presented before it. Consequently, on 13 March 2001, the applicant was convicted by a court of this nature (see Yaşar v. Turkey (dec.), no. 46412/99, 31 March 2005).

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

b)  As regards the complaints concerning the refusal to call A.N as his witness, the Court reiterates that as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see, among other authorities, Edwards v. the United Kingdom, judgment of 6 December 1992, Series A, no. 247-B, pp. 34-35, § 34, Kostovski v. the Netherlands judgment of 20 November 1989, Series A, no.166, p.19, § 39). The Court further draws attention to the fact that Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of a witness in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see among other authorities, Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V); its essential aim, as indicated by the words “under same conditions”, is a full equality of arms in the matter.

The Court observes that, in the present case, the state security court took note of the material before it as a whole, as well as giving the applicant the opportunity to challenge the admissibility of the evidence against him. The national court was then convinced that the applicant had committed the above-mentioned offences which had been verified by the content of the file. The Court therefore considers that the applicant’s police statement was not the sole basis for his conviction, nor that there is any other element in the case-file which would allow it to conclude that the domestic courts breached the applicant’s right to a fair hearing under Article 6 of the Convention. The Court further notes that the domestic court’s decisions were sufficiently reasoned, thus the applicant’s complaint in this regard is also unsubstantiated.

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

3.  The applicant complains under Article 3 of the Convention that during the criminal proceedings he lived with the fear of the death penalty which constituted inhuman and degrading treatment.

The Court considers that the mere fact that the applicant could have been sentenced to the death penalty and that he lived with this fear is in itself not enough to amount to a violation within the meaning of Article 3 of the Convention. Therefore, the Court considers that this part of the application should also be declared inadmissible as being manifestly-ill founded (see Abbas Sertkaya v. Turkey (dec.), no. 77113/01, 11 December 2003).

4.  The applicant further alleges under Article 7 of the Convention that the provisions of the Repentance Act no. 3419 of 25 March 1988 as amended by Law no. 4450 of 26 August 1999 was not applied to his case, despite the fact that he had handed himself in to the authorities.

The Court notes that, in the present case, the applicant was charged with an offence involving activities that undermine the territorial integrity of the state which was clearly defined in Article 125 of the Criminal Code. It further notes that the application of a certain law and the question whether the persons concerned have met the criteria to be included within the scope of it is a matter for national courts, which falls outside the Court’s jurisdiction.

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 complaints concerning the length of the criminal proceedings, and the non-communication to the applicant of the submissions of the Principal Public Prosecutor to the Court of Cassation;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

TARLAN v. TURKEY DECISION


TARLAN v. TURKEY DECISION