THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64447/01 
by Hikmettin GARBUL 
against Turkey

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

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr R. Türmen
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska
 Ms R. Jaeger, 
 Mr E. Myjer, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 28 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Hikmettin Garbul, is a Turkish national who was born in 1967 and was serving his prison sentence in Aydın prison at the time of the lodging of the application. He is represented before the Court by Mr A. Terece, a lawyer practising in İzmir.

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

On an unspecified date, an arrest warrant was issued against the applicant on account of his involvement in an illegal organisation.

On 2 July 1997 the applicant was arrested and taken into custody by police officers at the Anti-terror branch of the İzmir Security Directorate.

The applicant alleged that he was arrested and taken into custody on  
30 June 1997 and that while he was in custody he was subjected to torture. The applicant submitted that he was beaten, swore at, blindfolded and subjected to electric shocks and hosed pressurized water. He further claimed that his mother fainted when the police officers started to beat him at his home at the time of his arrest.

According to the medical report drafted on 2 July 1997 the applicant had complained that he had been battered on his chest and that he had 1 cm graze on the right side of his forehead and a hyperaemic1 region in the middle of his chest. The medical report indicated that the medical examination was conducted on 2 July 1997 at 11.40 a.m. and that the applicant was arrested on 2 July 1997 at 2.00 a.m.

The applicant was interrogated by the police officers at the Anti-terror branch of the İzmir Security Directorate on 3 July 1997.

According to the medical report drafted on 3 July 1997 the applicant had complained that he had been battered on his chest and that he had 1 cm graze on the right side of his forehead, a hyperaemic region in the middle of his chest and a graze of 1 cm on his right leg.

On the same day, the applicant was brought before the public prosecutor at the İzmir State Security Court. Before the public prosecutor, the applicant stated, inter alia, that while he was working as a musician at wedding ceremonies, Agit (code name) threatened him and told him to collect money for the PKK and that he gave some money from his own pocket. He further gave information about some people and denied knowing Mr M.K, Mr F.Ö, Mr S.T and Mr F.K. He stated that if he did some things it was because he was forced to do so and that he was a victim. When he was asked about his previous statements given to the police, he claimed that the statements before the court were his true statements.

On the same day, the applicant was brought before the İzmir State Security Court. The applicant reiterated, inter alia, that he was threatened and forced by Agit and some other PKK militants to collect money and to conduct one minute silence to Kurdistan martyrs during wedding ceremonies. He submitted that he was not a member of the organization. He acknowledged his previous statements given to the public prosecutor and denied his statements given to the police. He claimed that they were not his and that he had just signed them. The court ordered his remand in custody.

The applicant alleges that while he was been transferred to prison he was beaten and swore at by the soldiers.

On an unspecified date, the public prosecutor at the İzmir State Security Court filed a bill of indictment accusing the applicant of aiding and abetting an illegal organisation. He requested that the applicant be convicted and sentenced under Article 169 of the Criminal Code.

On an unspecified date, the criminal proceedings against the applicant commenced before the İzmir State Security Court.

On 19 August 1997 the İzmir State Security Court decided that the case brought against the applicant be joined to the case brought against twenty-five other suspects. In that hearing the applicant’s representative submitted that the applicant’s statements were taken under duress and that the applicant had given money to Agit because he thought that Agit was a relative of the owner of a wedding.

In a hearing held on 31 March 1998 the applicant stated that he did not accept the statements of some of the co-accused and claimed that they had given these statements under torture.

Following the decision of the court to join another case-file to the trial, the public prosecutor, on 12 March 1998, accused the applicant of membership in an illegal organisation and requested that he be convicted and charged under Article 168 § 2 and Article 5 of Law no. 3713.

On 21 May 1998 the İzmir State Security Court, referring to the statements of Mr A.P., photo identification report, statements of Mr S.Ç. (“Agit”) and Mr S.T., the gun found buried in the applicant’s garden and the findings of the ballistic report in this respect, held that it had been established that the applicant had entered into a permanent hierarchical and organic relationship with the organization. The court, referring to the aforementioned evidence, stated that it did not find convincing the applicant’s denials before it. The applicant was convicted under Article 168 § 2 and Article 5 of Law no. 3713 and sentenced to twelve years and six months’ imprisonment.

On 31 March 1999 the applicant appealed to the Court of Cassation. In his appellate petition, he submitted, inter alia, that there was no real evidence to convict him and that his conviction was based, in his view, on statements, taken under duress.

On 23 February 1999 the Court of Cassation upheld the judgment of the first-instance court. This decision was deposited with the registry of the İzmir State Security Court on 16 March 1999.

On 29 July 1999 the applicant filed an application with the principal public prosecutor at the Court of Cassation and requested the rectification of the decision of the Court of Cassation. He submitted that following the entry into force of Law no. 4390, his trial and subsequent conviction became null and void and that he should be re-tried.

On 28 September 1999 the principal public prosecutor at the Court of Cassation dismissed the applicants’ request for a rectification of judgment. It held that, pursuant to provisional Article 3 of the Law no. 4390, the cases which were pending at the date of entry of the new law would continue to be tried as such.

On 1 November 2000 the applicant filed a complaint with the İzmir public prosecutor against the police officers at the Anti-terror branch of the İzmir Security Directorate. He submitted, inter alia, that while he was held in police custody between 30 June and 2 July 1997 he had been subjected to torture. He gave details of the alleged ill-treatment and claimed that when he was brought before the doctor for a medical examination, two police officers were in the room. He further submitted that the police officers were also next to him while he gave his statements before the public prosecutor and the court on 3 July 1997. Finally, he further submitted that he was also beaten while he was transferred to remand in custody. He claimed that he did not know their names but would be able to recognise some of them if he saw them.

On an unspecified date, the public prosecutor heard the applicant. The latter reiterated that he had been tortured while he was held in police custody between 30 June and 2 July 1997. He further submitted that he had complained about the ill-treatment when he was brought before the court and that despite the medical report in the case-file indicating that he had been subjected to torture nothing had been done since that time.

On 11 December 2000 the İzmir public prosecutor gave a decision of non-prosecution against the police officers at the Anti-terror branch of the İzmir Security Directorate on account of lack of evidence. It held that the applicant was arrested and taken into custody on 2 July 1997 and was remanded in custody on 3 July 1997. The public prosecutor further noted that the findings of the medical report of 3 July 1997 were the same as those found in the medical report drafted prior to his entry into custody.

On 7 February 2001 the Karşıyaka Assize Court dismissed the applicant’s objection against the decision of 11 December 2000 of the public prosecutor.

By a letter dated 7 July 2005 the Registry requested the applicant’s representative to clarify whether the applicant wished to pursue his complaints under Articles 5 and 10 of the Convention. At the same time, the applicant’s representative was requested to inform the Court whether the applicant was still in prison.

By a letter dated 28 July 2005 the applicant’s representative informed the Court that the applicant wished to pursue his complaints under Articles 5 and 10 of the Convention. He also informed the Court that the applicant was released from prison in November 2004 pending the entry into force of the new Criminal Code (Law no. 5237).

COMPLAINTS

In his initial letter dated 28 July 1999 and subsequent application form dated 23 November 1999, the applicant complained that he had been subjected to torture, that the State Security Court was not a competent court, that he was remanded in custody without a reasonable suspicion, that the trial before the court was not fair as there was no real evidence to convict him, that the State Security Court which tried and convicted him was not independent and impartial as the military judge is attached to the Military Service and the civil judges are attached to the Supreme Council of Judges and Public Prosecutors and that there was an interference with his freedom of expression as they prevented him from making music. In his initial letter, the applicant complained that the real reason for his conviction was because he was singing, at the request of guests, songs in Kurdish. He submitted as a result his career in music was destroyed. He invoked Articles 3, 5 §§ 1 (a) and (c), 6 and 10 of the Convention.

By a letter dated 13 December 1999 the applicant complained that the principal public prosecutor’s decision to dismiss his request for a rectification of judgment was unlawful. He invoked Articles 3, 5, 6, 7, 9, 10, 11, 17 and 18 of the Convention.

By a letter dated 7 September 2000 the applicant’s representative submitted a revised application form and reiterated the applicant’s complaint under Article 3 (torture in police custody) and Article 6 in so far as it concerned the independence and impartiality of the State Security Court.

THE LAW

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

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.

2.  The applicant complains under Article 5 §§ 1 (a) and (c) of the Convention that the State Security Court was not a competent court and that his remand in custody was unlawful.

As regards the first limb of the applicant’s complaint under Article 5, the Court notes that the applicant failed to provide any arguments as to why the State Security Court was not a competent court within the meaning of Article 5 §§ 1 (a) of the Convention. In any event, the Court observes that the legislation governing the status and functioning of State Security Courts in force at the material time gave these courts to try accused, inter alia, of offences covered by the Prevention of Terrorism Act 1991 as amended. Accordingly, the applicant was detained following conviction by a competent court and his detention thus fell within the scope of Article 5 § 1 (a) of the Convention. Furthermore, the sentence handed down was lawful under Turkish law and was imposed in accordance with a procedure prescribed by law. Accordingly, it cannot be said that the applicant’s detention was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a), so as to be arbitrary (see, among other authorities, Şahin v. Turkey (dec.), no. 34400/02, 6 May 2004). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the second limb of the applicant’s complaint, the Court notes that on 21 May 1998 the applicant was convicted by the İzmir State Security Court and that on 23 February 1999 the aforementioned judgment was upheld by the Court of Cassation. Following 21 May 1998 the applicant was detained “after conviction by a competent court” and no longer “for the purpose of bringing her before the competent legal authority” (see Turan v. Turkey (dec.), no. 879/02, 27 January 2005). Accordingly, the applicant’s detention on remand ended on 21 May 1998. However, the applicant lodged his application with the Court on 28 July 1999; this complaint has been introduced out of time. Consequently, this part of the application should be rejected for non-compliance with the six-month time limit pursuant to Article 35 §§ 1 and 4 of the Convention.

3.  The applicant complains under Article 6 of the Convention that he did not receive a fair trial by an independent and impartial tribunal on account of the presence of the military judge sitting on the bench of the State Security Court and that he was convicted despite the lack of real evidence against 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.

4.  The applicant complains under Article 6 of the Convention that he was not tried by an independent and impartial tribunal having regard to the fact that the civil judges sitting on the bench of the İzmir State Security Court are attached to the Supreme Council of Judges and Public Prosecutors.

The Court reiterates that it has already rejected similar complaints concerning the issue of the independence and the impartiality of the civil judges on account of their attachment to the Supreme Council of Judges and Public Prosecutors (see, among many others, İmrek v. Turkey (dec.), no. 57175/00, 28 January 2003). The Court finds no particular circumstances in the instance case which would require it to depart from its findings in the above-mentioned cases.

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

5.  The applicant complains under Article 10 of the Convention that there was an interference with his freedom of expression as they prevented him from making music and that the real reason why he had been convicted was because he was singing, at the request of guests, songs in Kurdish.

The Court reiterates that under the terms of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised, at least in substance, during the proceedings in question (see, among others, Çakar v. Turkey, no. 42741/98, § 30, 23 October 2003).

In the instant case, the Court observes that according to the documents provided by the applicant, at no time did he allege, rely on or raise any arguments in respect of his right to freedom of expression. The Court notes that, throughout the criminal proceedings, the applicant merely denied the allegations against him, claiming that he had never taken part in any of the activities which was the subject of the charges against him and put forward arguments which were based solely on domestic law not related to his right to freedom of expression.

Even assuming that the national courts were able, or even obliged, to examine the case of their own motion under the Convention, this could not dispense the applicants from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem they intended to submit subsequently, if need be, before the Court (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 19 § 39, and Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996 -V, § 33).

In view of the considerations above, the Court holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

6.  The applicant complains under Articles 3, 5, 6, 7, 9, 10, 11, 17 and 18 of the Convention that the principal public prosecutor’s decision to dismiss his request for a rectification of judgment was unlawful.

The Court considers that this part of the complaint should be examined under Article 6 of the Convention.

The Court observes that an application for rectification of a judgment as provided for in Turkish law is a special remedy against decisions of the Court of Cassation by which that court can be requested to review its own judgments where it is alleged that it has failed to rule on a ground which had been submitted to it and/or an error of law by the trial court which is likely to be decisive for the outcome of the trial.

Under Article 322 of the Code of Criminal Procedure, only the principal public prosecutor can use that remedy, either of his own motion or at the request of the convicted person. It is not therefore a domestic remedy directly accessible to persons triable in the courts (see Çiraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, pp. 3070-71, §§ 29-32, and Kucherenko v. Ukraine (dec.), no. 41974/98, 4 May 1999).

In this connection, the Court reiterates that guarantees of Article 6 of the Convention do not apply to proceedings in which re-opening of the proceedings terminated by a final decision are sought (see, among many other authorities, Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001, and Wierciszewska v. Poland, no. 41431/98, § 35, 25 November 2003). The Court therefore concludes that Article 6 of the Convention is not applicable to this part of the proceedings.

It follows that this part of the application 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the alleged torture the applicant was subjected to while he was held in police custody and his right to a fair hearing before an independent and impartial tribunal;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

1.  Hyperaemia is the increase in organ blood flow.


GARBUL v. TURKEY DECISION


GARBUL v. TURKEY DECISION