FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4415/02 
by Abdülmenaf OSMAN 
against Turkey

The European Court of Human Rights (First Section), sitting on 6 October 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mr R. Türmen
 Mrs F. Tulkens
 Mrs E. Steiner
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 2 November 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Abdülmenaf Osman, is a Syrian national who was born in 1965. He is currently detained in the Gaziantep Prison. The applicant is represented before the Court by Mr Vefa, a lawyer practising in Diyarbakır.

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

On 13 March 1993 the applicant was taken into custody by policemen from the Anti-Terrorism Branch of the Batman Security Directorate on suspicion of his membership of an illegal organisation, namely the Workers’ Party of Kurdistan (“the PKK”). The applicant was held under custody in Batman for twelve days and subsequently he was handed over to the Bitlis Security Directorate for further investigation. At the end of his interrogation in Bitlis, the applicant was transferred to Tatvan Security Directorate, where he was also questioned by the police. In his police statements, the applicant accepted that he was a member of the PKK and stated that he had taken part in several armed attacks.

On 13 April 1993 the applicant was brought before the public prosecutor and the investigating judge where he repeated his police statements. Before the investigating judge, the applicant further indicated that he had given his statement in Turkish. The judge subsequently ordered that the applicant be placed in detention on remand.

On 26 April 1993 the Diyarbakır State Security Court Public Prosecutor filed an indictment and accused the applicant of carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State’s control. He requested the court to sentence the applicant in accordance with Article 125 of the Criminal Code.

Two further indictments were submitted to the Diyarbakır State Security Court concerning the offences that the applicant had allegedly committed in Bitlis and Tatvan. The Diyarbakır State Security Court decided to examine these accusations jointly.

On 16 June 1993 the court held its first hearing. During the proceedings, the applicant was brought before the Diyarbakır State Security Court from the Gaziantep Prison.

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

On 21 December 2000 Law No. 4616, which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999, came into force. The Law stipulated that parole would not be applicable to persons who had committed offences under Article 125 of the Criminal Code. Thus, the applicant could not benefit from Law No. 4616.

On 12 March 2002 the Diyarbakır State Security Court, which was composed of three civilian judges, found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Criminal Code. The death penalty was commuted to a life sentence.

On 1 October 2002 the Court of Cassation upheld the decision of the Diyarbakır State Security Court.

COMPLAINTS

1.  The applicant alleges under Article 3 of the Convention that he was subjected to ill-treatment during his police custody. Under the same provision, the applicant also alleges that during his trial he had to live with the fear of death penalty.

2.  The applicant further states under Article 3 of the Convention that he was subjected to inhuman and degrading treatment as he had to travel between Gaziantep and Diyarbakır to attend the trials.

3.  The applicant complains under Article 5 about the length of his police custody.

4.  The applicant alleges under Article 6 § 1 of the Convention that he was tried by a court which did not meet the requirements of independence and impartiality on account of the presence of a military judge on the bench.

5.  The applicant also complains that the criminal proceedings brought against him were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.

6.  The applicant further alleges under Article 6 § 3 that as he was not provided with an interpreter, he could not understand or follow the trial proceedings.

7.  The applicant finally alleges that the non-applicability of Law No. 4616 (Law on Conditional Release and Suspension) to his case amounts to discrimination. He relies on Articles 5, 14 and 18 of the Convention in this respect.

THE LAW

1.  The applicant alleges under Article 3 of the Convention that he was subjected to ill-treatment while he was held in police custody. Under the same provision, the applicant also alleges that during his trial he lived with the fear of death penalty.

In respect of the applicant’s allegations concerning his ill-treatment, the Court observes that the applicant did not submit any medical evidence which could confirm his allegations. Furthermore, during the proceedings before the domestic courts the applicant confined himself to defending himself against the charges that had been brought against him. At no stage of the proceedings did the applicant ever allude to the fact that he had been ill-treated during his police custody.

The Court further observes that the applicant has not produced any concrete evidence in support of his allegations and has thus failed to substantiate his claim that he was subjected to ill-treatment. Accordingly, the Court concludes that the applicant has not laid the basis of an arguable claim that he was ill-treated at the hands of the police officers while he was held in police custody.

For these reasons, the Court finds that this part of the complaint must be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

As for his complaint concerning the fear of death penalty, the Court observes that since October 1984 the Turkish National Assembly did not render any decision authorising the enforcement of a death penalty. The Court therefore concludes that in the circumstances of the case, the enforcement of death penalty against the applicant was illusory and that the applicant cannot be considered to have suffered ever-present and mounting anguish at the prospect of being executed, exposing him to treatment going beyond the threshold set by Article 3 of the Convention (see Çınar v. Turkey, no. 17864/91, Commission decision of 5 September 1994, Decisions and Reports 79-A/B, p.5 and Sertkaya v. Turkey (dec.), no. 77113/01, 11 December 2003).

Therefore, the Court considers that this part of the complaint should also be declared inadmissible as being manifestly ill-founded.

2.  The applicant further states that he had to travel about 300 km. between Gaziantep and Diyarbakır in order to attend the trials before the Diyarbakır State Security Court. In this respect he invokes Articles 3 and 13 of the Convention.

The Court observes in the first place that at no stage of the proceedings the applicant brought this complaint before the domestic courts. Furthermore, he has not specified the reasons as to why he considered that his travel between Gaziantep and Diyarbakır constituted a breach of Article 3. In this connection, the Court recalls that, in order to fall within the scope of Article 3, the alleged treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. In the present case there is no indication that the treatment complained of reached the threshold of severity required to bring the matter within the scope of Article 3.

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 alleges that he was not brought promptly before a judge in breach of Article 5 § 3 of the Convention.

The Court observes that the applicant’s police custody ended on 13 April 1993. However, the application was lodged with the Court on 2 November 2001, which is more than six months from the date of the facts giving rise to the alleged violation.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4.  The applicant alleges under Article 6 § 1 of the Convention that his right to a fair trial was breached on account of the presence of a military judge on the bench of the Diyarbakır State Security Court which tried him.

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.

5.  The applicant also complains under Article 6 § 1 of the Convention about the length of the proceedings.

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.

6.  The applicant further alleges under Article 6 § 3 that as he was not provided with an interpreter, he could not understand or follow the trial proceedings.

The Court notes in the first place that the applicant did not request the assistance of an interpreter at any stage of the domestic court proceedings. Furthermore, in his statement dated 13 April 1993, which was taken by the Batman Magistrate’s Court, the applicant explicitly stated that he had given his statement in Turkish.

In view of the above, the Court concludes that there is no appearance of a violation and this complaint should be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

7.  Invoking Articles 5, 14 and 18 of the Convention the applicant also considers the non-applicability of Law No. 4616 to the offence under Article 125 of the Criminal Code as discriminatory and unfair.

Having regard to its established case-law on this issue, the Court considers that this complaint should be examined under Article 14 taken together with Article 5 § 1 (a) of the Convention.

The Court notes that the distinction alleged by the applicant is not a distinction which is made between different groups of people, but between different types of offences, according to the legislature’s view of their gravity. The Court previously held that such distinctions are not contrary to Article 14 of the Convention (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999, Kalan v. Turkey (dec.), no. 73561/01, 2 October 2001, and Kanat v. Turkey (dec.), no. 16622/02, 28 April 2005). The Court therefore concludes that the practice in question does not amount to a form of “discrimination” that is contrary to the Convention.

Accordingly, this part of the application must be declared inadmissible as being manifestly ill-founded 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 length of the criminal proceedings and the independence and impartiality of the Diyarbakır State Security Court;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

OSMAN v. TURKEY DECISION


OSMAN v. TURKEY DECISION