THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 42208/02, 43491/02 and 43495/02 
by Ferman AYÇOBAN, Aziz YİĞİT and Mehmet Şirin MEYGİL 
against Turkey

The European Court of Human Rights (Third Section), sitting on 13 January 2005 as a Chamber composed of:

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

Having regard to the above applications lodged on 18 November 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, MM. Ferman Ayçoban, Aziz Yiğit and Mehmet Şirin Meygil, are Turkish nationals, who were born in 1973, 1975 and 1980 respectively. At the time of the events giving rise to their applications, they were living in Diyarbakır. They are currently in prison in Elazığ. They are represented before the Court by Mr M. Özbekli, a lawyer practising in Diyarbakır.

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

On 14 March 1999 the police raided a flat which was used as a cell by Hezbollah in Mardin. The police officers captured, among other things, three computer hard disks and compact disks during the operation. The applicants' names were recorded on these hard disks as members of Hezbollah.

On 4 June 1999 the applicants were arrested by police officers from the anti-terror branch of the Diyarbakır Security Directorate on suspicion of being members of Hezbollah.

On 5 June 1999 the Public Prosecutor at the Diyarbakir State Security Court drew up a list of the materials that were captured during the raid in Mardin in order to place them in the custody of the court, amongst which the computer hard disks were also noted.

On 11 June 1999 the applicants gave statements to the police where they accepted the charges against them. On the same day, they were brought before the public prosecutor and thereafter before the investigating judge at the Diyarbakır State Security Court, where they denied both the accuracy of their statements taken by the police and all the charges against them. The investigating judge detained the applicants on remand.

On 25 June 1999 the public prosecutor filed an indictment with the Diyarbakır State Security Court accusing the applicants of being members of Hezbollah pursuant to Article 168 § 2 of the Criminal Code.

At the hearing before the State Security Court the applicants denied the content of their police statements alleging that they were taken under duress.

The court further read out the police statements that were taken from M.Ç., M.P. and A.Y. – who were also accused of being members of the same organisation – in the presence of the applicants and asked the latter whether they had any counter-arguments against these. The applicants stated that they did not know these persons, and that they did not accept the parts of the statements that were against them.

The court further read out the transcriptions of the hard disks to the applicants and asked them about their submission against these. They denied the content of these documents. They further stated that they had no idea as to how their names had appeared on the computer hard disks.

On 27 December 2001 the State Security Court noted that the applicants' police statements were supported by information gathered from the archive of the organisation and further evidence.

On the same day, the court convicted the applicants of the offence as charged and sentenced them to twelve years and six months' imprisonment. The applicants appealed.

On 27 May 2002 the Court of Cassation rejected the appeal and upheld the judgment of the State Security Court.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that they did not have a fair trial as the seized evidence, among which the hard disks and compact disks were noted, were not deposited in the State Security Court at the beginning of the criminal proceedings but rather two months later, which according to the applicants, casts doubts on the reliability of this evidence. They also allege that the transcriptions of these hard disks had not been undertaken by experts.

The applicants further complain that the court had relied upon their statements to the police, which they were allegedly forced to sign under duress.

The applicants allege under Article 6 § 3 (a) of the Convention that they had not been informed in sufficient detail of the nature and cause of the accusations against them.

The applicants further complain under Article 6 § 3 (b) of the Convention that the opinion of the Principal Public Prosecutor to the Court of Cassation was not communicated to them.

They finally complain under Article 6 § 3 (d) of the Convention that the State Security Court did not hear M.Ç., M.P. and A.Y. but relied upon the statements that were taken from them in police custody.

THE LAW

1.  The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that they were denied a fair hearing on several grounds.

They allege that the evidence used against them for their conviction was not handed over to the judicial authorities promptly, which would cast doubt as to the reliability of this evidence, that the court had relied upon their police statements which they were forced to sign under duress, and that the transcription of the hard disks had not been undertaken by experts. They further allege that the Court did not hear M.Ç., M.P. and A.Y. before it, but relied upon their statements made in police custody.

The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them (see Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166, p. 19, § 39). 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. It further draws attention to the fact that Article 6 § 3 (d) of the Convention does not grant the accused unlimited right to secure the appearance of witnesses in court. It is normally for 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 the same conditions”, is a full equality of arms in the matter.

The Court observes that in the present case the police had captured the computer hard disks and compact disks in a flat which was used as a cell by the organisation during the operation of 14 March 1999. The hard disks contained the names of the applicants as members of Hezbollah and revealed information about their activities in the organisation. The disks were handed to the public prosecutor on 5 June 1999 when he, among other things, deposited them with the State Security Court. The transcriptions of these disks were later submitted to the court as evidence. These documents were read out to the applicants by the court and the latter were then asked whether they had any counter-arguments against these, which they responded to. Furthermore, in the proceedings before the State Security Court, the applicants confined themselves to challenging the admissibility of their statements to the police officers, as well as the accuracy of the police statements of M.Ç., M.P. and A.Y. (see Korkmaz v. Turkey (dec.), no. 42576/08, 24 January 2002).

The Court notes that, in the instant case, the State Security Court heard the case for the defence and had the opportunity of observing the applicants' demeanour and their response to the prosecution case under adversarial conditions as the prosecution disclosed to the defence all material evidence in its possession for or against the applicants. The court then convicted the applicants on the basis of the facts and evidence before it as a whole.

In light of the foregoing, the Court finds no element, which would allow it to conclude that, in the present case, the national authorities acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic law (see Barım v. Turkey (dec.), no. 34536/9, 12 January 1999, and Tamkoç v. Turkey (dec.), no. 31881/96, 11 January 2000).

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2.  The applicants allege under Article 6 § 3 (a) of the Convention that they had not been informed promptly and in detail of the accusations against them.

They further complain under Article 6 § 3 (b) of the Convention that the opinion of the Principal Public Prosecutor to the Court of Cassation was not communicated to them.

The Court considers that it cannot, on the basis of the case files, 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 applications to the respondent Government.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the complaints concerning the lack of prompt and detailed information on the nature and cause of the accusations against the applicants and the non-communication to the applicants of the submissions of the Principal Public Prosecutor to the Court of Cassation;

Declares the remainder of the applications inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

AYÇOBAN AND OTHERS v. TURKEY – NEW CASE