FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60132/00 
by İdris BORAK 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 3 November 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr R. Türmen
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr J. Borrego Borrego, 
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 5 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, İdris Borak, is a Turkish national who was born in 1978 and who was serving his prison sentence in the Sakarya prison at the time of the lodging of the application. He is represented before the Court by Mrs Z.S. Özdoğan, a lawyer practising in İzmir.

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

On 17 July 1997 the applicant was arrested and taken into police custody by the Anti-terror branch of the İzmir Security Directorate on suspicion of his involvement in an illegal organisation, namely the D.H.P. (Revolutionary Peoples’ Party).

According to the search protocol drafted on 18 July 1997 at 06.45 a.m. by police officers and signed by the applicant’s father, the police after obtaining his consent, searched the applicant’s parents’ flat and did not find any incriminating evidence.

According to the search and seizure protocol drafted on the same day by the police officers and signed by the applicant, the police searched the flat of the applicant and found a paper with codified inscriptions and numbers in a book.

Following the search the applicant was taken back to the police station. However, three police officers remained in the applicant’s flat, until 18.30 p.m., waiting in case other members of the illegal organisation appeared.

On 18 July 1997 the applicant’s representative requested the public prosecutor at the İzmir State Security Court to give permission to see the applicant in police custody. On the same day the public prosecutor refused.

On the same day, the applicant was examined by a doctor at the İzmir Forensic Medicine Institute. The applicant complained that he had been beaten. However, the doctor found no physical evidence of ill-treatment.

On 20 July 1997 the applicant was interrogated by two police officers at the Anti-terror branch of the İzmir Security Directorate.

The applicant claims that he was subjected to various forms of ill-treatment while he was held in police custody. He alleges that he was blindfolded, deprived of adequate food and beaten and shouted at. He further claims that he was subjected to electric shocks, hosed with pressurised water and burned with a hot object under his armpits.

On 21 July 1997 the applicant was brought before the public prosecutor at the İzmir State Security Court. Before the public prosecutor the applicant gave information as to his relations with certain people but denied that he had been involved in an illegal organisation and that he had taken military training in Greece. He claimed that he did not know anything about the code found in the search. He acknowledged that he knew Mr A.T and Mr U.M. who had identified him in the police station. He submitted further that he knew Mr A.E.K., Mr M.K., and Mr G.C. because they were in the same prison as his sister. He admitted that Mr A.T. and Mr U.M. knew him as Kemal Borak but that this was not a code name.

On the same day the applicant was brought together with two other suspects before the İzmir State Security Court. He refuted his statements made to the police and reiterated his statements made to the public prosecutor.

The other suspects claimed that they knew the applicant as “Kemal” and acknowledged their statements given both in police custody and before the public prosecutor.

The court ordered the applicant’s detention on remand.

On 25 July 1997 the public prosecutor at the İzmir State Security Court filed a bill of indictment with that court, accusing the applicant of membership of an illegal organisation, namely the D.H.P. The public prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 and Article 5 of Law no. 3713.

On an unspecified date the İzmir State Security Court commenced the trial against the applicant and two other co-accused.

In a hearing held on 7 October 1997 the applicant stated that he was not a member of the D.H.P. and that he did not accept the contents of his statements, given under duress and torture, made to the police. The applicant was read his statements given before the public prosecutor. He rectified certain details. He further submitted that he had asked his brother for money but since he didn’t have an identity paper and a bank account, his brother had sent the money to the bank account of Mr R.A. He was asked about Ms S.D who was the one who had sent the money to R.A. He stated that he did not know Ms S.D. personally but that she was a friend of his brother. He averred that he did not have a code name and that people knew him as “Kemal” because that was his middle name. As to the codified inscriptions, he claimed that the police made him write them in the police station. He was read the search and seizure protocol. He denied that the codified inscriptions were found in his house.

In a hearing held on 6 November 1997 the applicant requested that his witnesses be heard by the court. The court taking into account the evidence contained in the case-file and to the fact that the witness Ms S.D. was living in Germany, decided not to hear her. As for the rest of the witnesses the court decided to hear them.

On 27 November 1997 the court heard to the applicant’s witnesses.

On 23 December 1997 the applicant submitted his final written defence submissions to the court. He claimed that there was no evidence in the case-file apart from his statements given under duress in police custody to support the accusations against him.

On 23 December 1997 the İzmir State Security Court convicted the applicant as charged and sentenced him to twelve years and six months’ imprisonment. The court held, inter alia, that as the applicant’s statements in police custody coincided with the statements of Mr I.A., Mr R.K., Mr A.T. and Mr U.M., it did not find convincing the applicant’s statements before it. As to the defence witnesses’ statements, the court considered that as they were the applicant’s relatives, their submissions were not reliable. The court held that since the profile of the applicant did not match that given by two convicts it did not take into account their statements in its assessment.

On 23 September 1998 the applicant appealed against the judgment of the İzmir State Security Court. In his appeal petition, the applicant reiterated his previous submissions. He further argued that the court had relied on unlawfully obtained evidence and that there was no evidence to support the allegation that he was a member of an illegal organisation.

The applicant also attached the written witness statement of Ms S.D. to his appellate petition. According to the written statement of Ms S.D., she was a friend of the applicant’s brother and since he was busy she did all the necessary transactions and sent the money to the bank account given to her.

On 28 September 1998 the Court of Cassation held a hearing and upheld the judgment of the İzmir State Security Court. On 26 October 1998 the decision of the Court of Cassation was deposited with the registry of the first-instance court.

By a letter dated 3 May 1999 the Registry of the Court requested the applicant to provide the Court with medical reports substantiating his claims of ill-treatment as well as information as to whether he had lodged a complaint with various authorities.

On 10 July 2000 the applicant’s representative informed the Court that the applicant had told her that he had petitioned the public prosecutor but that she was unable to find it in the case-file. She further informed the Court that the applicant did not have any medical report containing findings of ill-treatment.

On 25 April 2005 the Registry of the Court requested the applicant to provide the Court with the medical reports drafted before and after the applicant was placed in police custody.

On 20 May 2005 the applicant’s representative submitted the medical report of 18 July 1997 and stated that there was no other medical report in the case-file.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to torture while he was held in police custody.

The applicant submits under Article 5 § 3 of the Convention that the length of his detention in police custody was excessive and that to be brought before the judge at the State Security Court cannot be considered to be a sufficient guarantee of his right to liberty and security since he had been denied the assistance of a lawyer.

The applicant complains under Article 6 §§ 1, 2 and 3 of the Convention that he did not receive a fair trial by an independent and impartial tribunal. In this connection he submits that one of the three members of the State Security Court was a military judge. He asserts that his statements in police custody taken under torture were admitted as evidence before the court and that he was denied the assistance of a lawyer at the initial stages of the criminal proceedings. He submits that the court did not take into account his objections as to the admissibility of the document and the findings of the search in the case-file and that the indictment, the way his statements were taken by the police and the latter’s report, were prejudicial. He claims that the court did not listen to his witness Ms S.B. and that despite the fact that her testimony was submitted to the case-file, at the appeal stage, the Court of Cassation did not take it into account. He alleges that the court did not give any arguments as to why it did not take into account the testimony of his witnesses. He complains that the testimony of two convicts were included in the case file. Finally, he argues that his defence rights were infringed as he was detained in a prison far away from İzmir, thus, making it difficult for his representative to see him.

The applicant complains under Article 8 of the Convention that there was an unjustified interference with his private and home life on account of the unlawful search carried out in his and his family’s house. He asserts that none of the procedures laid down in domestic law were respected during these searches.

The applicant complains under Article 14 of the Convention that he was discriminated against since the criminal procedures for offences tried before the State Security Court were different from those for offences tried in other courts.

THE LAW

1.  The applicant complains under Article 3 of the Convention that he was subjected to torture while he was held in police custody.

The Court notes that the applicant failed to submit any medical evidence which could confirm his allegations of ill-treatment and that throughout the criminal proceedings, the applicant only argued that his statements in police custody were taken under duress and torture without giving any descriptions or details as to the kind of ill-treatment he was allegedly subjected to. Therefore, the Court observes that the applicant has not been able to substantiate his allegations of 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 his complaint under Article 3 of the Convention are inadmissible as being manifestly-ill founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2.  The applicant submits under Article 5 § 3 of the Convention that the length of his detention in police custody was excessive. He further claims that to be brought before the judge at the State Security Court is not a sufficient guarantee since he was deprived of his right to be assisted by a lawyer.

As regards the first limb of the applicant’s complaint under Article 5 § 3 of the Convention, the Court reiterates that where no domestic remedy is available, the six-month period runs from the date of the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, the period of six-month runs from the end of the situation concerned.

The Court notes that the applicant was detained on remand on 21 July 1997, whereas the application was introduced with the Court on 5 April 1999, i.e. more than six months later. It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

As to the second limb of his complaint concerning the denial of his right to be assisted by a lawyer before the State Security Court, the Court considers that this complaint falls under the scope of Article 6 § 3 of the Convention.

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 the Court, to give notice of it to the respondent Government.

3.  The applicant complains under Article 6 §§ 1, 2 and 3 of the Convention that he did not receive a fair hearing by an independent and impartial tribunal having regard to the presence of a military judge on the bench of the İzmir State Security Court. In addition, the applicant complains that the fairness of the proceedings was also undermined by other shortcomings.

The Court considers that it cannot on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of them to the respondent Government.

4.  The applicant complains under Article 8 of the Convention that there was an unjustified interference with his private and home life on account of the unlawful search carried out in his and his family’s house. He asserts that none of the procedures laid down in domestic law were respected during these searches.

As regards the applicant’s complaint pertaining to the unjustified interference with his private and home life on account of the search carried out in his house, 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 the Court, to give notice of it to the respondent Government.

As to his complaint pertaining to the search conducted in his family’s house, the Court observes that the applicant was not living at the time of the events with his family and, that, therefore the search conducted in that house cannot be viewed as an interference with the applicant’s right to private and home life within the meaning of Article 8 of the Convention. Accordingly, the Court considers that this part of the complaint is inadmissible as manifestly ill-founded and must be rejected pursuant to Articles 34 and 35 of the Convention.

5.  The applicant complains under Article 14 of the Convention that he was discriminated against since the criminal procedures for offences tried before the State Security Court were different from those for offences tried in other courts.

The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, p. 29, § 56).

In the instant case, the distinction was made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity (see, among many others, mutatis mutandis, Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999, and Kömürcü v. Turkey (dec.), no. 77432/01, 28 November 2002). The Court sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention.

Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning his right to a fair hearing by an independent and impartial tribunal and the interference with his private and home life as regards the search carried out in his house;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

BORAK v. TURKEY DECISION


BORAK v. TURKEY DECISION