AS TO THE ADMISSIBILITY OF
Application no. 67215/01
by İbrahim KENAR
The European Court of Human Rights (Third Section), sitting on 1 December 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr L. Caflisch,
Mr R. Türmen,
Mrs M. Tsatsa-Nikolovska,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Ms I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 18 September 2000,
Having deliberated, decides as follows:
The applicant, Mr İbrahim Kenar, is a Turkish national who was born in 1972 and is currently serving his prison sentence in the Kırklareli prison.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The arrest and detention of the applicant
On 7 February 1996 the applicant was arrested by police officers from the anti-terrorist branch of the Edirne Security Directorate on suspicion of membership of an illegal armed organisation, namely the DHKP-C (Devrimci Halk Kurtuluş Partisi-Cephesi; Revolutionary People’s Liberation Party-Front).
In a letter of 8 February 1996 the Edirne Security Director asked the Chief Public Prosecutor to grant permission to keep the applicant and four other arrested persons in police custody until 12 February 1996. The security director reasoned that the police needed time to question the detainees in detail so that they could apprehend other members of the DHKP-C. On the same day, the Chief Public Prosecutor granted the leave requested until the end of the working day on 11 February 1996.
On 10 February 1996 police officers took statements from A.İ. and Ü.U. who had previously been a victim of illegal acts committed by members of the DHKP-C. In particular, Ü.U. named the applicant as the perpetrator of the petrol bomb (Molotov cocktail) attack against his lorry.
During his detention in police custody the applicant was allegedly subjected to various forms of ill-treatment. In particular, his clothes were removed; he was blindfolded, given electric shocks to various parts of his body, beaten up and hosed with cold water. He was put in a very small and dirty cell. He was forced to sign certain statements under duress. He was not examined by a doctor, could not contact a lawyer and his family was not informed of his detention.
On 12 February 1996 the Chief Public Prosecutor questioned the applicant in connection with the acts allegedly committed by him and the statements he had made at the Security Directorate. The applicant submitted that the police officers had targeted him because he had previously been convicted for a similar offence and had been kept in prison for five months. The applicant maintained that he had been forced to sign a prepared statement under duress in which he admitted to having carried out illegal activities on behalf of the DHKP-C.
On 12 February 1996 the applicant’s father filed an application with the Chief Public Prosecutor’s office in Edirne inquiring into the whereabouts of his son. He complained that he could not see or learn about the fate of his son since his detention by the police officers on 8 February 1996 and that he was worried about his son’s life.
On the same day, namely on 12 February 1996, the applicant was brought before the Edirne Magistrates’ Court (Edirne Sulh Ceza Mahkemesi), which had ordered his detention on remand. He allegedly raised his complaint concerning the alleged ill-treatment before the court. He stated that he had been tortured and denied the accusations during the trial before the Istanbul State Security Court (“SSC”). It is to be noted that the applicant did not give details of the alleged torture but merely asserted that he had been threatened by the officers and had signed documents without being aware of the contents.
2. The criminal proceedings before the Istanbul SSC
On 11 March 1996, the Chief Public Prosecutor attached to the Istanbul SSC filed a bill of indictment charging the applicant and four other co-accused with membership of an illegal armed organisation, notably the DHKP-C, and aiding and abetting members of the said organisation. The charges against the applicant were brought under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713 (Anti-terrorism Act). The indictment contained three counts of crimes allegedly perpetrated by the applicant. Under count one, the applicant was alleged to have been involved in distributing illegal leaflets containing propaganda by the DHKP-C; count two consisted of the allegations that the applicant had thrown a petrol bomb at a lorry belonging to Ü.U. and that he had also put up a poster in the entrance to a shop; and under count three, it was alleged that the applicant had painted a slogan on the walls of a stadium.
At the hearing of 21 May 1996 held by the Istanbul SSC, the applicant denied the charges against him and claimed that following his arrest on 6 February 1996 he had been subjected to various forms of torture and that he had been forced to sign written statements prepared by the police officers. He thus denied the accuracy of the statements allegedly made by him during his detention in police custody. Yet he noted that his statements before the Chief Public Prosecutor and the investigating judge were true.
In his observations on the merits of the criminal proceedings against the applicant and other co-accused, the public prosecutor submitted that the applicant had denied the allegation that he had thrown a petrol bomb at a cash dispenser belonging to a bank but that other co-accused had admitted to having committed the offence in question. He noted however that there was sufficient evidence on which to convict the applicant for having aided and abetted the illegal organisation. Thus, the public prosecutor asked the court to apply Article 169 of the Criminal Code and Article 5 of Law no. 3713 in respect of the applicant.
On 20 March 1997 the applicant filed his observations on the merits of the case and also responded to the public prosecutor’s submissions. He refuted the charges against him and asserted that his statements at the police station had been obtained under duress. He noted that only the statements which he had made before the judge were accurate.
On 8 April 1997 the Istanbul SSC found the applicant guilty of the offence under Article 169 of the Criminal Code, notably for aiding and abetting the DHKP-C, and sentenced him to four years and six months’ imprisonment. The court noted that the applicant had earlier been given leave to comment on the re-qualification of his acts which constitute the offence under Article 169 rather than the one under Article 168 § 2 of the Criminal Code. The court further reasoned that the applicant’s statements at the Security Directorate, the testimonies of his co-accused during the preliminary investigation, the testimonies of the police officers under oath and the evidence contained in the case-file had contributed to the conviction and punishment of the applicant for the offence under Article 169 of the Criminal Code.
The court also noted the applicant’s allegations, as part of his defence submissions, that he had been subjected to various forms of torture and that he had been made to sign written statements prepared by the police officers. However, it found them unconvincing.
3. The appeal and subsequent proceedings
On 21 May 1997 the applicant appealed to the Court of Cassation. He argued that he had been convicted solely on the basis of the statements made by him and his co-accused under duress at the police station. He pointed out that his co-accused had already denied the accuracy of the statements allegedly made by them in the police station. He therefore contended that the first-instance court had erred in its judgment in relying on the statements obtained under duress.
On 9 December 1997 the Court of Cassation quashed the judgment of the first-instance court. It held that the applicant’s activities were of a varied and continuous nature. It therefore ruled that the applicant should have been tried and convicted of the offence under Article 168 § 2 of the Criminal Code, namely for membership of an illegal armed organisation.
By a judgment of 7 July 1998 the Istanbul SSC challenged the Court of Cassation’s decision and reiterated its previous finding that the applicant’s acts constituted the offence under Article 169 of the Criminal Code. The case was transferred to the Grand Chamber of the Court of Cassation for Criminal Law Matters (Yargıtay Ceza Genel Kurulu).
On 11 May 1999 the Grand Chamber quashed the judgment of the first-instance court. It reasoned that the evidence contained in the case-file had clearly indicated that the applicant had been an active member of the DHKP-C. The court therefore referred the case to the Istanbul State Security Court for reconsideration.
By a judgment of 4 April 2000 the Istanbul SSC adhered to the Court of Cassation’s decision and convicted the applicant for membership of an illegal armed organisation, namely the DHKP-C, under Article 168 § 2 of the Criminal Code. The court however acquitted the applicant of the charges of throwing a petrol bomb at a lorry and burning down a cash dispenser belonging to a bank. It sentenced the applicant to twelve years and six months’ imprisonment and further debarred him from public service.
The applicant is currently serving his prison sentence in the Kırklareli prison.
The applicant complains under Article 3 of the Convention that he was subjected to various forms of torture during his detention in police custody.
He further complains under Article 5 § 3 of the Convention that he was not brought before a judge until 12 February 1996, which is the sixth day of his detention in police custody. The applicant alleges under the same heading that, during his detention in police custody, he did not have access to his lawyer and doctor and that the police officers failed to inform his family about his arrest and detention.
The applicant maintains that he did not receive a fair hearing by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention on account of the presence of a military judge sitting on the bench of the Istanbul SSC. He alleges under the same heading that his conviction was based solely on the confessions extracted from him under duress. He also complains under the same provision that the criminal proceedings at issue contravened the reasonable time requirement under Article 6 § 1.
The applicant contends under Article 7 of the Convention that the principle of nulla poena sine lege was breached in his case. He is of the opinion that the acts attributed to him did not constitute the offence under Article 168 § 2 of the Criminal Code.
The applicant also asserts under Article 9 of the Convention that his conviction and punishment for membership of a terrorist organisation was in violation of his right to freedom of thought.
The applicant finally complains under Article 14 of the Convention that he was discriminated against on account of his political opinion.
1. The applicant complains under Article 3 of the Convention that he was subjected to various forms of torture during his detention in police custody.
The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being in an uncertain situation for a prolonged period of time (see Laçin v. Turkey, no. 23654/94, Commission decision of 15 May 1995, Decisions and Reports (DR) 81, p. 80).
The Court further recalls that under Article 35 § 1 of the Convention it may only deal with a matter within a period of six months from the date on which the final decision was taken in domestic law. However, special considerations could apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see Hazar and others v. Turkey, (dec.) no. 62566/00, 10 January 2002).
The Court notes at the outset that the applicant has failed to submit to the Court any evidence in support of his allegations of torture. It observes that it would have been possible for the applicant, upon his release from police custody, to be examined by a doctor in order to obtain medical reports in support of his allegations that he had been subjected to torture. Furthermore, the applicant could have lodged formal complaints with the relevant authorities concerning these allegations. He did not do so.
Even assuming that the applicant’s circumstances could have caused him to feel vulnerable, powerless and apprehensive of the representatives of the State during his time in custody (see İlhan v. Turkey [GC], no. 22227/93, § 61, ECHR 2001-I) the Court points out that the applicant was represented by a lawyer in the course of the criminal proceedings against him. Accordingly, a criminal complaint could well have been filed by his lawyer against the perpetrators of the alleged torture. The Court further notes in this context that neither the applicant nor his lawyer has argued that they were prevented from doing so as a result of intimidation or otherwise.
The Court observes in this connection that the applicant’s submission concerning the alleged torture made to the public prosecutor and the trial court was aimed at challenging the reliability and admissibility in evidence of the statements taken from him in police custody. No detail of the alleged torture was given by the applicant to the public prosecutor or to the trial court. Nor did he submit any evidence to that effect.
Nevertheless, the Court notes that a public prosecutor who is informed by any means possible of a situation that gives rise to the suspicion that an offence has been committed, is obliged, under Article 153 of the Code of Criminal Procedure then in force, to investigate the facts by conducting the necessary inquiries to identify the perpetrators. Thus, the Court is prepared to accept that the applicant did avail himself of a domestic remedy by submitting to the trial court his allegations of torture and that this interrupted the running of the six-month period.
The Court notes that during the applicant’s trial no action was taken by the trial court on the allegations of torture brought to its attention. In its judgment of 8 April 1997 the Istanbul State Security Court merely noted the applicant’s allegations of torture as part of his observations concerning the admissibility in evidence of his statements taken at the police station and concluded that the applicant’s allegations were unconvincing.
The Court further notes that the applicant, other than alleging that he had given his statements under duress, did not reiterate his complaints of torture in his appeal petition submitted to the Court of Cassation.
The Court finds that a mere allegation of duress in itself, without any description as to what form that duress had taken, is not sufficient to be interpreted as an allegation of torture. Consequently, the procedure before the Court of Cassation and further proceedings before the trial court did not concern the allegations of torture but were confined to the qualification of his acts under the Criminal Code.
In the light of the above, the Court considers that the failure of the judicial authorities to act must have become gradually apparent up until 8 April 1997, i.e. the date on which the Istanbul State Security Court rendered its decision on the matter, and that therefore the applicants should have been aware of the ineffectiveness of remedies in domestic law by that date. Accordingly, the six-month period provided for in Article 35 of the Convention should be considered to have started running not later than 8 April 1997 (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003, and, mutatis mutandis, Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7 September 1999). However, the application was introduced with the Court on 18 September 2000.
It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
2. The applicant complains under Article 5 § 3 of the Convention that he was kept in detention in police custody for six days without being brought before a judge and without having access to his lawyer, doctor and family.
The Court notes that according to Article 35 § 1 of the Convention, the Court “may only deal with the matter ... within a period of six months from the date on which the final decision was taken”.
In the instant case, the Court observes that the applicant’s detention in police custody ended on 12 February 1996, whereas the application was introduced on 18 September 2000, i.e. more than six months after the detention complained of.
It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
3. The applicant complains that the Istanbul State Security Court was not an independent and impartial tribunal within the meaning of Article 6 § 1 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 Court, to give notice of this part of the application to the respondent Government.
4. The applicant alleges under Articles 6 § 1 of the Convention that his conviction was based solely on the confessions extracted from him under duress.
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 contends under Article 7 of the Convention that the principle of nulla poena sine lege was breached in his case. In this connection, he submits that the acts attributed to him did not constitute the offence under Article 168 § 2 of the Criminal Code and that therefore the domestic courts imposed an unlawful punishment upon him.
The Court observes that the applicant’s complaint essentially concerns the assessment of the evidence and application of the domestic law by the national courts. Accordingly, it will examine this complaint from the standpoint of Article 6 of the Convention.
This being so, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46).
In the light of the foregoing, the Court notes that the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings he was able to submit the arguments he considered relevant to his case, including the qualification of his acts which constituted the offence in question. The factual and legal reasons for the first-instance decision dismissing his claim were set out at length. In the judgment at the appeal stage, the Court of Cassation endorsed the findings of the first-instance court and upheld the legal reasoning given by the first-instance in so far as it did not conflict with its own considerations. The Court considers therefore that the applicant has failed to lay the basis of an arguable claim that any of the procedural guarantees contained in Article 6 were breached in his case. Nor is there any evidence or basis on which to conclude that the domestic courts, in evaluating the facts or interpreting the domestic law, acted in an arbitrary or unreasonable manner.
Thus the Court concludes that this complaint is manifestly ill-founded and should be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
6. The applicant alleges that the length of the criminal proceedings at issue contravened the reasonable time requirement under Article 6 § 1 of the Convention.
The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319, p. 20, § 59).
The Court observes that the criminal proceedings in question began on 8 February 1996, ended on 4 April 2000 and were dealt with by three instances. In these circumstances, a total period of four years and two months cannot be considered as unreasonably long. Moreover, the applicant failed to show to the Court any period of substantial inactivity that could be attributable to the judicial authorities during the conduct of the proceedings. Thus, the Court considers that the proceedings were completed within a reasonable time.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
7. The applicant asserts under Article 9 of the Convention that his conviction and punishment for membership of a terrorist organisation was in violation of his right to freedom of thought.
The Court considers that the applicant’s conviction for his acts constituting the offence in question does not amount to an interference with the exercise of his right to freedom of thought.
Thus, this complaint is manifestly ill-founded and must be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.
8. The applicant complains that he was discriminated against on account of his political opinions, in breach of Article 14 of the Convention.
In the light of the applicant’s submissions and having regard to the evidence in its possession, the Court finds nothing in the proceedings which can be considered as discrimination. This complaint is therefore unsubstantiated.
It follows that this complaint is manifestly ill-founded and must be rejected under 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 independence and impartiality of the Istanbul State Security Court and the use by the latter of the applicant’s statements allegedly obtained under duress in evidence;
Declares the remainder of the application inadmissible.
Vincent Berger Boštjan
KENAR v. TURKEY DECISION
KENAR v. TURKEY DECISION