THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70317/01 
by Bektaş CANSEVEN 
against Turkey

The European Court of Human Rights (Third Section), sitting on 1 September as a Chamber composed of:

Mr  J. Hedigan, President
 Mr L. Caflisch
 Mr R. Türmen
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska, 
 Mrs A. Gyulumyan, 
 Ms R. Jaeger, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 9 May 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bektaş Canseven, is a Turkish national who was born in 1975 and was serving his prison sentence in the Gebze prison at the time of his application to the Court. He is represented before the Court by Mr S. Şahin, a lawyer practising in Izmir.

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

On 26 December 1993 the applicant was taken into custody by police officers from the anti-terror branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation, the DEV-SOL (Revolutionary Left). He remained in police custody until 7 January 1994. During his police custody he was subjected to ill-treatment. In particular, he was beaten, immersed in cold water and was subjected to falaka (beating of the soles of the feet). Furthermore, he was beaten and deprived of food and water and electric shocks were administered to his body. His statements were taken under duress. It is to be noted that the applicant did not submit any medical evidence to the Court in support of his allegations of ill-treatment.

On 7 January 1994, the applicant made statements before the public prosecutor at the Istanbul State Security Court. He denied the veracity of the statements that had been taken from him by the police and alleged that he had been subjected to torture while in police custody.

On the same day, the applicant was brought before a judge who ordered the applicant’s detention on remand.

On an unspecified date, the applicant, along with twelve other persons, filed a complaint with the Istanbul public prosecutor against the police officers who had allegedly ill-treated them. Subsequently, the Istanbul public prosecutor instigated an investigation against two police officers working at the anti-terror branch of the Istanbul Security Directorate.

On 10 May 1994 the public prosecutor issued a decision of non-prosecution in respect of the allegations of ill-treatment. He noted that according to the medical report of 7 January 1994 drafted by an expert in the Istanbul Forensic Medicine Institute, there was no sign of ill-treatment on the applicant’s body. He consequently found that there was insufficient evidence to initiate criminal proceedings against the police officers.

On an unspecified date the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant charging him under Articles 168 § 2 and 369 of the Criminal Code with membership of an illegal organisation and committing arson. The proceedings against the applicant were subsequently joined with criminal proceedings against nineteen other persons who had been charged with membership of the same illegal organisation.

On 8 April 1997 the Istanbul State Security Court convicted the applicant under Articles 168 § 2 and 264 § 6 of the Criminal Code of membership of the DEV-SOL and of throwing a Molotov cocktail at a bank. The court sentenced the applicant to a total of twenty-five years, five months and eight days’ imprisonment and a fine of 466,666 Turkish liras (TRL).

On 21 May 1998 the Court of Cassation quashed the judgment of the first-instance court.

On 24 December 1998 the Istanbul State Security Court once again convicted the applicant under Articles 168 § 2 and 264 § 6 of the Criminal Code. It then sentenced the applicant to a total of twenty-one years, one month and fourteen days’ imprisonment and a fine of TRL 311,110.

On 18 January 1999 the applicant appealed. He maintained in his petition, inter alia, that the first-instance court had based its judgment on his statements which had been taken by the police under duress.

On 30 September 1999 the Court of Cassation dismissed the applicant’s appeal and upheld the judgment of the Istanbul State Security Court.

On 27 December 1999 the Court of Cassation’s decision was deposited with the registry of the Istanbul State Security Court.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment while in police custody.

The applicant further maintains under Article 5 § 3 of the Convention that he was held in custody for a total of twelve days without being brought before a judge.

The applicant contends under Article 6 § 1 of the Convention that he was denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court, which tried and convicted him. He further complains under the same head that the first-instance court based its judgment on the statements that had been taken from him under torture. The applicant finally maintains under Article 6 § 1 of the Convention that the written observations of the principal public prosecutor at the Court of Cassation on the merits of his appeal were not served on him, thus depriving him of the opportunity to put forward his counter-arguments.

The applicant alleges under Article 14 of the Convention that his conviction by the Istanbul State Security Court was motivated by his political opinions and his social and ethnic origins.

THE LAW

1. The applicant alleges under Article 3 of the Convention that he was subjected to ill-treatment during his detention 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 § 3 of the Convention that he was held in custody for twelve days without being brought before a judge.

The Court recalls that according to the established case-law of the Convention organs, 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 (see, among other authorities, Ege v. Turkey (dec.), no. 47117/99, 10 February 2004).

The Court notes that the applicant’s detention in police custody ended on 7 January 1994, when he was detained on remand. The applicant introduced his application to the Court on 9 May 2000, i.e. more than six months later.

It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant complains under Article 6 § 1 of the Convention that he did not have a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court, which tried and convicted him. He contends under the same head that the first-instance court based its judgment on the statements that had been taken from him under torture. The applicant finally maintains under Article 6 § 1 that the written observations of the principal public prosecutor at the Court of Cassation on the merits of his appeal were not served on him, thus depriving him of the opportunity to put forward his counter-arguments.

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 Court, to give notice of this part of the application to the respondent Government.

4. The applicant contends under Article 14 of the Convention that he was discriminated against on the basis of his political opinions and his social and ethnic origins.

The Court observes that the applicant did not submit any evidence in support of his allegation. The Court is of the opinion that the applicant has failed to substantiate his allegation and to lay the basis of an arguable claim of a breach of Article 14.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the alleged ill-treatment of the applicant and his right to a fair trial;

Declares the remainder of the application inadmissible.

Vincent Berger John Hedigan 
 
Registrar President

CANSEVEN v. TURKEY DECISION


CANSEVEN v. TURKEY DECISION