FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40518/98 
by Süleyman YILDIRIM 
against Turkey

The European Court of Human Rights (First Section), sitting on 10 April 2003 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr G. Bonello, 
 Mr R. Türmen
 Mr E. Levits
 Mrs S. Botoucharova
 Mr A. Kovler, 
 Mrs E. Steiner, judges
and Mr Søren Nielsen, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 19 November 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court’s partial decision of 22 November 2001,

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, Süleyman Yıldırım, is a Turkish national, born in 1968 and is currently serving a prison sentence in Batman ‘E’ Type Prison in Turkey. He is represented before the Court by Mr Mahmut Vefa, a lawyer practising in Diyarbakır.

A.  The circumstances of the case

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

On 2 September 1997 the applicant was arrested in Istanbul on suspicion of membership of an illegal organisation, namely the PKK. 4,000 German Marks and 2,600 US Dollars in cash were found in his possession. During his questioning at the Istanbul Police Headquarters the applicant stated that he had joined the PKK in 1992 and that the money found in his possession at the time of his arrest had been given to him by the PKK to be used in obtaining a false passport. He also added that he had been trained in Syria and that he had carried out activities on behalf of the PKK in Germany, the Netherlands and France.

On 3 September 1997 the applicant’s detention period was extended for two days with the permission of the public prosecutor at the Istanbul State Security Court.

On 5 September 1997 the applicant was examined by a doctor at the Haseki Hospital in Istanbul. The medical report states that he bore no marks of ill-treatment on his body.

On 6 September 1997 the applicant was handed over to the Siirt Police Headquarters in whose jurisdiction the applicant had allegedly committed a number of offences. On the same day the Siirt public prosecutor authorised the applicant’s detention for a further two days.

On 7 September 1997 a statement was taken from the applicant by the Siirt Police. The applicant reiterated the confessions he had made in his statement at the Istanbul Police Headquarters. On the same day the applicant was examined by a doctor who recorded in his report that there were no signs of ill-treatment on the applicant’s body.

Following the medical examination the applicant was handed over to the Batman Police in whose jurisdiction he alleged he had carried out certain activities. On his arrival in Batman the applicant was given another medical examination by a doctor. No signs of ill-treatment were observed on his body according to the medical report drawn up on 7 September 1997.

On 8 September 1997 the judge at the Batman Criminal Court of Peace (Batman Sulh Ceza Mahkemesi) authorised the applicant’s detention until 12 September 1997.

On 11 September 1997 a 21-page statement was taken from the applicant by the Batman Police. The applicant gave a detailed account of his involvement within the PKK and of the activities he had carried out on behalf of that organisation. He also explained, in detail, the structure of the PKK.

Following this statement the applicant was medically examined by a doctor who observed no signs of ill-treatment on the applicant’s body.

On 12 September 1997 the applicant was brought before the Batman Public Prosecutor who took a statement from him. The applicant stated that the statements he had given during his police custody were truthful and that he had nothing further to add to those statements.

The public prosecutor transferred the applicant to the Batman Criminal Court of Peace, where he was subsequently charged and his detention on remand was ordered.

On 2 October 1997 the public prosecutor at the Diyarbakır State Security Court filed an indictment with the court, requesting the latter to try and sentence the applicant and Mehmet Özbey, a co-accused, in accordance with Article 168 § 2 of the Turkish Penal Code and Article 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991).

In the proceedings before the Diyarbakır State Security Court the applicant maintained that the contents of the statements he had given during his detention were correct. He did not deny that he was a member of the PKK but denied a number of other charges against him. He further stated that he was a warrior but that he had not yet had an opportunity to carry out any armed attacks.

In a supplementary indictment submitted to the trial court on 30 May 2000, the prosecutor accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He requested the court to sentence the applicant in accordance with Article 125 of the Turkish Penal Code.

On 2 November 2000 the Diyarbakır State Security Court found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Penal Code. Taking into account the applicant’s good behaviour during the trial, the death penalty was commuted to a life sentence.

The applicant’s appeal against the judgment was rejected by the Court of Cassation on 22 May 2001.

B.  Relevant domestic law

i. Criminal law and procedure

The relevant parts of Article 168 of the Turkish Penal Code provides as follows:

“1. Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership...or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

2. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

Article 125 of the Turkish Penal Code provides as follows:

“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”

However, the death penalty was abolished on 3 August 2002 in respect of all crimes other than crimes committed in time of war or of imminent threat of war.

Article 136 § 1 of the Turkish Code of Criminal Procedure (amended by Law 3842 of 18 November 1992) provides:

“The accused or a person arrested shall have access to legal assistance of one or more lawyers at any stage and level of the investigation.”

At the material time and pursuant to Article 31 of Law no. 3842 the above provision was not applicable to charges falling under the jurisdiction of the State Security Courts.

ii. The law relating to detention in police custody

At the material time Article 19 of the Constitution provided:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ...

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days ... These time-limits may be extended during a state of emergency.

A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.”

At the material time and pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained had to be brought before a justice of the peace within twenty-four hours. This period could be extended to four days when the individual was detained in connection with a collective offence.

At the material time section 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the state security courts, any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days.

iii. Provisions on State Security Courts

Before the Constitution was amended on 18 June 1999, Article 143 provided that State Security Courts were composed of a president, two other regular members and two substitute members. The President of the State Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges.

A detailed description of the relevant legal provisions is set out in the Incal v. Turkey (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV).

As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:

“...

State Security Courts shall be composed of a president, two other regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors.

The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and Public Prosecutors of the first rank, according to procedures laid down in special legislation, and the Public Prosecutors from among other Public Prosecutors by the National Legal Service Council, for four years. Their term of office shall be renewable...”

The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the State Security Courts by means of Law no. 4390 of 22 June 1999. According to provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the State Security Courts were to end on the date of publication of that Law (22 June 1999). Under provisional section 3 of the same Law, proceedings pending in the State Security Courts on the date of publication of the Law were to continue from the stage they had reached by that date.

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention that he was detained for ten days and was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

Under Article 6 § 1 of the Convention the applicant complains that his right to a fair hearing was breached because he was tried and convicted by the Diyarbakır State Security Court which lacked independence and impartiality.

The applicant finally complains under Article 6 § 1 and 3 (c) of the Convention that he was not allowed to consult his lawyer during police custody.

THE LAW

The applicant complains of violations of Articles 5 § 3, 6 § 1 and 3 (c) of the Convention in connection with his detention and subsequent trial before the Diyarbakır State Security Court. The relevant parts of these provisions provide as follows:

Article 5 § 3

“Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power...

...”

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

Article 6 § 3

“Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

Admissibility and Merits

The Government submit that the detention period of 10 days was lawful at the material time and that it was not unreasonably long given that the applicant had to be questioned at three different police stations in three different cities.

They further submit that the applicant, who had been charged with an offence under Article 125 of the Penal Code, was tried and convicted by a state security court which had been specifically established to deal with offences against the indivisible integrity of the State. The decisions of these courts could be challenged before the Court of Cassation. Referring to the Court’s judgment in the case of Incal v. Turkey, the Government argue that the applicant, who had been charged with an offence under Article 125 of the Penal Code, could not have any legitimate doubts about the independence and impartiality of the Diyarbakır State Security for the sole reason that the bench comprised a military judge (p. 1573, § 72).

In relation to the applicant’s complaint relating to his inability to have access to legal representation during his police custody, the Government submit that at the material time persons arrested in connection with offences falling within the jurisdiction of state security courts did not have the right to have access to the services of a lawyer until they were brought before a judge. However, when the applicant was brought before the judge he did not request a lawyer. The Government refer to the case of John Murray v. the United Kingdom (see John Murray v. the United Kingdom judgment of 8 February 1996, Reports 1996-1, § 63) and submit that the applicant’s right to legal assistance in police custody was restricted for good cause. Moreover, this restriction did not jeopardise his right to a fair hearing since the applicant had confessed to the offence of which he was convicted and he never challenged, either when brought before the judge or during the trial, his statements taken during police custody in the absence of his lawyer.

The applicant maintains his allegations. He submits, in particular, that the fact that his detention period was in accordance with the legislation in force at the time does not mean that it was compatible with his rights under Article 5 § 3 of the Convention. In support of his submissions the applicant refers to the case of Brogan and Others (see Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B pp. 30-35, §§ 55-62). As to his complaint regarding the trial before the Diyarbakır State Security Court, the applicant states that he had sufficient justification to doubt the independence and impartiality of that court. Finally and in relation to his complaint regarding the lack of legal representation during police custody, the applicant states that the fact that he did not have the right to consult his lawyer, regardless of the fact that he had confessed to his crimes during police custody, resulted in him receiving a harsher prison sentence.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 Deputy Registrar President

YILDIRIM v. TURKEY DECISION


YILDIRIM v. TURKEY DECISION