SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36391/02 
by Yusuf SALDUZ 
against Turkey

The European Court of Human Rights (Second Section), sitting on 28 March 2006 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 8 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yusuf Salduz, is a Turkish national who was born in 1984 and lives in Izmir. He is represented before the Court by Ms T. Aslan, a lawyer practising in Izmir.

A.  The circumstances of the case

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

On 29 May 2001, the applicant was arrested by police officers from the anti-terrorism branch of the Izmir Security Directorate on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Workers’ Party of Kurdistan). The applicant was also accused of hanging an illegal placard on a bridge in Bornova on 26 April 2001.

On 30 May 2001, the police officers took a statement from the applicant in which the applicant accepted the charges against him.

On 1 June 2001, the applicant was brought before the public prosecutor and then the investigating judge. Before both the public prosecutor and the investigating judge the applicant denied the content of his police statement and alleged that it had been extracted from him under duress. The same day, the investigating judge ordered the applicant’s detention on remand.

On 11 July 2001, the public prosecutor at the Izmir State Security Court filed a bill of indictment, accusing the applicant of aiding and abetting the PKK, pursuant to Articles 169 of the Criminal Code and Section 5 of Law no. 3713 (the anti-terrorism law).

At the hearing of 25 October 2001 the applicant’s lawyer requested that the court hear a person who was allegedly with the applicant at a bus stop when he was arrested. The court concluded that the applicant had not been arrested immediately after the demonstration, and thus, the testimony of this person would not be relevant to the merits of the case.

On 5 December 2001, the Izmir State Security Court convicted the applicant as charged and sentenced him to four years and six months’ imprisonment. This sentence was then reduced to two and a half years’ imprisonment as the applicant had been under eighteen years of age at the time of the offence.

On 27 March 2002, the Principal Public Prosecutor to the Court of Cassation submitted his written opinion to the 9th Chamber of the Court of Cassation, in which he had argued that the Chamber should uphold the judgment of the Izmir State Security Court.

On 10 June 2002 the 9th Chamber of the Court of Cassation confirmed this judgment.

B.  Relevant domestic law and practice

At the material time Article 169 of the Criminal Code provided that any person who, knowing that an armed gang or particular organisation is illegal, lends it assistance, harbours its members, provides it with food, weapons, ammunition or clothes, or otherwise facilitates its operations, could be sentenced to not less than three and not more than five years’ imprisonment.

Section 9 of Law no. 2845 (the Law on the procedure before the State Security Courts) provided that only State Security Courts could try cases involving the offences defined in Article 169 of the Criminal Code.

Article 5 of Law no. 3713 (the Prevention of Terrorism Act of 12 April 1991) provided that the penalty laid down in Article 169 of the Criminal Code could be increased by half.

Section 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedures, excluded the accused’s access to legal assistance during police custody for offences falling within the jurisdiction of the State Security Courts.

COMPLAINTS

The applicant complains, under Articles 5, 6 §§ 1, 3 (c) and (d) of the Convention, that he did not receive a fair hearing by an independent and impartial tribunal on account of the status of the civil judges at the State Security Court and that the domestic court refused to hear his witness. He further alleges that his right to a fair trial was infringed insofar he was not provided with legal assistance during his police custody, and that the written opinion of the Principal Public Prosecutor to the Court of Cassation was never served on him, thus depriving him of an opportunity to put forward his counter-arguments.

The applicant next complains under Article 7 of the Convention that the domestic court erred in its classification and application of the relevant domestic provisions.

He finally alleges that his prosecution constituted an infringement of his right to freedom of expression. He invokes Article 10 of the Convention in this respect.

THE LAW

1.  The applicant complains, under Articles 5, 6 §§ 1 and 3 (c) of the Convention, that the submissions of the Principal Public Prosecutor to the Court of Cassation was not communicated to him, and that he was denied legal assistance during his police custody.

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.  The applicant alleges, under Article 6 § 1 of the Convention, that he was not tried by an independent and impartial tribunal given that the civil judges sitting on the Izmir State Security Court were attached to the Supreme Council of Judges and Public Prosecutors. He further complains under Article 6 § 3 (d) of the Convention that the State Security Court refused to hear his witness.

As regards the complaint concerning the independence and impartiality of the civil judges, the Court observes that it has previously rejected grievances of this kind (see, among many others, Imrek v. Turkey (dec.), no. 57175/00, 28 January 2003). The Court finds no particular circumstances in the instant case which would require it to depart from its earlier findings.

The Court further notes that Article 6 § 3 (d) of the Convention does not grant the accused an unlimited right to secure the appearance of witnesses in court. Furthermore, the domestic court provided sufficient reasons for the refusal of this request (see, Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V).

Consequently, 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 7 of the Convention that the domestic court erred in the classification and application of the relevant provisions of domestic law. The Court finds that this complaint raises no issue whatsoever under Article 7 of the Convention.

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.

4.  The applicant finally alleges, under Article 10 of the Convention, that his conviction violated his right to freedom of expression.

The Court observes that the applicant was not convicted for having expressed his opinion or for being a member of a political party, but for aiding and abetting an illegal organisation, pursuant to Article 169 of the Criminal Code. There is therefore nothing in the case file to support his claim under Article 10 of the Convention (see in this respect, Kılıç v. Turkey (dec.), no. 40498/98, 8 July 2003, and Şirin v. Turkey (dec.), no. 47328/99, 27 April 2004).

It follows that this complaint is also 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 applicant’s complaints concerning the lack of legal assistance in police custody, and the failure to communicate to the applicant the submissions of the Principal Public Prosecutor to the Court of Cassation;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

SALDUZ v. TURKEY DECISION


SALDUZ v. TURKEY DECISION