SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41954/98 
by Mehmet Ferit AYDIN 
against Turkey

The European Court of Human Rights (Second Section), sitting on 14 September 2000 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr B. Conforti, 
 Mr G. Bonello, 
 Mr R. Türmen,

Mr M. Fischbach, 
 Mrs M. Tsatsa-Nikolovska, 
 Mr E. Levits, judges,

and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 28 April 1998 and registered on 30 June 1998,

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 deliberated, decides as follows:

 

THE FACTS

The applicant is a Turkish national, born in 1960 and living in Batman. He is represented in the proceedings before the Court by Mr Mesut Bektaş, and Mrs Meral Bektaş, lawyers practising in Diyarbakır.

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

The applicant was detained for interrogation on 18 January 1981. On 12 March 1983 the Diyarbakır Martial Court ordered his formal arrest.

On 23 September 1988, the Diyarbakır Martial Court found the applicant guilty of membership of the PKK, involvement in the bombing of a junior officer’s house and attempted murder. The court sentenced him to sixteen years and eight months’ imprisonment. The court ordered the applicant’s conditional release.

On 10 February 1991 the Military Court of Cassation upheld the lower court’s judgment.

Meanwhile, on 4 October 1990 the applicant was detained for the second time and on 18 October 1990 was formally arrested.

On 17 March 1993 the Diyarbakır State Security Court No. 2 found the applicant guilty of separatist acts and sentenced him to life imprisonment.

On 5 November 1993 the Court of Cassation upheld the Diyarbakır State Security Court’s judgment.

On 13 February 1998 the applicant requested the Diyarbakır State Security Court No. 2 to sentence him on the basis of the principle of multiplicity of sentences.

On 20 March 1998 the Diyarbakır State Security Court No. 2 accepted the applicant’s submissions.

The Diyarbakır State Security Court No. 2 sent its final decision to the Bursa Public Prosecutor’s Office in order to have its decision of 20 March 1998 executed.

On 27 March 1998 the Office of the Bursa Public Prosecutor objected to the decision to apply to the applicant the principle of multiplicity of sentences and requested the Diyarbakır Public Prosecutor’s Office to contest the decision or, alternatively, to forward its objection to the Diyarbakır State Security Court.

On 1 April 1998 the Diyarbakır Public Prosecutor sent the correspondence of the Office of the Bursa Public Prosecutor to the Diyarbakır State Security Court No. 3.

On 1 April 1998 the Diyarbakır State Security Court No. 3 accepted the objections of the Bursa Public Prosecutor’s Office and cancelled the earlier decision on multiplicity of sentences. The Diyarbakır State Security Court No. 3 concluded that the multiplicity of sentences principle was only to be applied in circumstances where a person is convicted of several crimes. As regards the applicant, the court found that he had no right to invoke the multiplicity of sentences principle since his first sentence in respect of which he was conditionally released had already been executed. The court relied on Law no. 647 which provides that if a person is conditionally released his sentence is considered to have been executed.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the establishment and the functions of the State Security Courts are not compatible with the provisions of Article 6 of the Convention.

2. The applicant further complains under Article 6 of the Convention that the objection raised by the Bursa Public Prosecutor against the decision of the Diyarbakır State Security Court No. 2 did not comply with the seven-day time limit prescribed in Article 33 of the Turkish Code of Criminal Procedure. He alleges that he was not notified of this objection with the result that the principle of equality of arms was breached.

3. The applicant alleges under Article 5 of the Convention that he was unlawfully deprived of his liberty. He points out that the cancellation of the multiplicity of the sentences had as a result that he was deprived of his liberty for eight years longer that should have been the case.

4. The applicant complains under Article 8 of the Convention that his right to respect for his private life was interfered with on account of the unlawful prison sentence imposed on him.

5. The applicant maintains under Article 13 of the Convention that the judgment of the Diyarbakır State Security Court is final and that there is no further appeal from that decision.

6. The applicant finally alleges under Article 14 of the Convention that he was subjected to discrimination on account of the nature of his activities.

THE LAW

1. The applicant contends that the Diyarbakır State Security Court No. 3 failed to apply in his favour the principle of multiplicity of sentences and that it took its decision without allowing him to comment on the observations of the Bursa Public Prosecutor. The applicant invokes Article 6 § 1 of the Convention, which states as relevant:

“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.”

The Court recalls that the guarantees of Article 6 extend to the sentencing stage of criminal proceedings (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 279, § 69). It observes that the applicant’s last conviction and sentence were upheld by the Court of Cassation on 5 November 1993. The applicant has been serving the prison sentence imposed on him ever since. The Court is not persuaded that the decision taken by the Diyarbakır State Security Court No. 3 regarding the applicants’ request to serve his sentence in accordance with the principle of multiplicity of sentences involved the determination of a “criminal charge” within the meaning of that Article 6 § 1. The applicant’s initial request to the Diyarbakır State Security Court No. 2 related to the manner of implementing that sentence. It was not an appeal against the length of the prison sentence which he was serving. The Court notes that proceedings concerning the execution of a sentence are not covered by Article 6 § 1 of the Convention (see, for example, Application no. 16266/90, Aldrian v. Austria, Dec. 7.5.90, D.R. 65, p. 342) and, moreover, there is no right under the Convention to serve a prison sentence in accordance with a particular sentencing regime.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicant maintains that the failure of the Diyarbakır State Security Court No. 3 to apply to him the principle of multiplicity of sentences had the result of extending the prison sentence originally imposed on him. He invokes Article 5 of the Convention, which provides as relevant:

“1.  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 a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court;”

The Court observes that the fact that the Diyarbakır State Security Court No. 3 chose to accept the public prosecutor’s objection to the application of the multiplicity of sentences principle does not call into question the lawfulness of the sentence originally imposed on the applicant or his incarceration which resulted from that sentence.

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

3. The applicant further complains under Articles 8, 13 and 14 of the Convention in respect of the refusal to apply to him the multiplicity of sentences principles.

The Court recalls that it has found the applicant’s detention to be lawful within the meaning of Article 5 § 1 (a) of the Convention. Having examined the applicant’s allegations it finds that they do not disclose any appearance of a violation of the Convention Articles invoked.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Erik Fribergh Christos Rozakis 
 Registrar President

41954/98 - -


- - 41954/98