FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74307/01 
by Orhan GÖK and Mazhar GÜLER 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 30 August 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr R. Türmen
 Mr M. Pellonpää
 Mr R. Maruste
 Ms L. Mijović,  
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 30 May 2001,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Orhan Gök and Mr Mazhar Güler, are Turkish nationals who were born in 1972 and 1975 respectively. They were serving their prison sentences in the Istanbul prison at the time of their application to the Court. They are represented before the Court by Mr N. Çem, a lawyer practising in Istanbul.

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

Mazhar Güler and Orhan Gök were taken into police custody on 18 and 23 November 1995 respectively on suspicion of membership of the PKK. They remained in police custody until 28 November 1995. During their custody period they were subjected to ill-treatment, such as palestinian hanging, electric shocks and beating of the soles of the feet (falaka).

On 24 November 1995 G.T. and O.T., whose father had been allegedly killed by members of the PKK, were requested to identify the applicants and two other suspects as the perpetrators of the killing of their father, S.T. According to the report drawn up by the security forces, G.T. and O.T. identified the applicants.

On 28 November 1995 the applicants were examined by the Istanbul Forensic Medicine Institute’s medical expert. The doctor reported the following as regards Orhan Gök:

“There is a bruise of 1 x 1 cm on the left side of the lower lip which renders him unfit for work for one day.”

The doctor further observed the following in respect of Mazhar Güler:

“As there are two scars of 2 cm in diameter under the left knee and a feeling of pain on the back, it is not necessary to determine whether he is fit for work.”

On the same day, the applicants were taken before the public prosecutor at the Istanbul State Security Court. The applicants refused to give statements before the public prosecutor. They were then taken before the Istanbul State Security Court where they denied the charges against them. They further denied the veracity of the statements that had been taken from them under duress by the police. Mazhar Güler also stated that he did not accept the veracity of the outcome of the identification procedure as he had not seen the persons who had identified him. The Istanbul State Security Court ordered the applicants’ detention on remand.

On 5 December 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicants, along with four other persons, charging them under Article 125 of the Criminal Code with carrying out activities for the purpose of bringing about the secession of part of the national territory.

On an unspecified date, G.T. and O.T were heard by the Istanbul State Security Court who stated that they did not identify the applicants as the perpetrators of the killing of their father on 24 November 1995. They maintained that the applicants were their relatives and had been their neighbours. They further contended that the persons who had been in their house at the time of their father’s killing were masked.

On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the Istanbul State Security Court hearing the applicants’ case was replaced by a civilian judge.

On 17 November 1999 the Istanbul State Security Court convicted the applicants under Article 168 § 2 of the Criminal Code with membership of the PKK and sentenced to twelve years and six months’ imprisonment. The court opined that their activities did not fall within the scope of Article 125 of the Criminal Code. It held that the applicants had gone to the house of S.T. at the time of the incident but had not killed S.T.

On 20 December 2000 the applicants appealed. In their appeal petition, they maintained, inter alia, that they had been subjected to ill-treatment while in police custody and that their statements had been taken under duress.

On 7 February 2001 the Court of Cassation upheld the judgment of the Istanbul State Security Court in respect of the applicants.

In the meantime, 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 168 of the Criminal Code. Thus, the applicants could not benefit from Law No. 4616.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment while in police custody and that there was no adequate or effective investigation into their complaints.

The applicants complain that the non-applicability of Law No. 4616 to persons who committed offences under Article 168 of the Criminal Code created a distinction between individuals who had the same judicial status and was in violation of their right to liberty. They invoke Articles 5 and 14 of the Convention.

The applicants submit under Article 6 § 1 of the Convention that they were denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court, which tried them. The applicants further complain, under the same head, that the criminal proceedings brought against them were not concluded within a reasonable time and that the length of their detention on remand was excessive.

They contend under Article 6 § 3 (d) of the Convention that the first-instance court took into account in its judgment their statements taken by the police under duress and that they did not benefit from legal assistance during their detention in police custody.

THE LAW

1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment and the authorities failed to carry out an effective and adequate investigation into their allegations.

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 applicants complain that the non-applicability of Law No. 4616 to persons who committed offences under Article 168 of the Criminal Code created a distinction between individuals who had the same judicial status and was in violation of their right to liberty. They invoke Articles 5 and 14 of the Convention.

The Court considers that the applicants’ complaints should be examined under Article 14 of the Convention, in conjunction with Article 5 § 1 (a) of the Convention.

The Court reiterates, in the first place, that Article 5 § 1 (a) of the Convention does not guarantee, as such, a right to benefit from an amnesty law. Nor does it secure a right to conditional release (see Kalan v. Turkey (dec.), no. 73561/01, 2 October 2001; (see Savic v. the Slovak Republic, no. 28409/95, Commission decision of 3 December 1997). An issue may arise under that provision taken together with Article 14 of the Convention if a settled sentencing policy affects individuals in a discriminatory manner (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999).

The Court further 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 a 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 Gerger, cited above, § 69). The Court sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicants submit under Article 6 § 1 of the Convention that they were denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court, which tried them. The applicants further complain, under the same head, that the criminal proceedings brought against them were not concluded within a reasonable time.

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 applicants maintain under Article 6 § 1 of the Convention that the length of their detention on remand was excessive.

The Court considers that this complaint should be examined under Article 5 § 3 of the Convention.

The Court notes that the Istanbul State Security Court ordered the applicants’ detention on remand on 28 November 1995, which continued until the final judgment of the State Security Court of 17 November 1999. Following that date, the applicants were detained “after conviction by a competent court” and no longer “for the purpose of bringing them before the competent legal authority”. However, the application was lodged with the Court on 30 May 2001, which is more than six months from the end of the detention period complained of (see, among others, Kanat v. Turkey (dec.), no. 16622/02, 28 April 2005 and Turan v. Turkey (dec.), no. 879/02, 27 February 2005).

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

5. The applicants contend under Article 6 § 3 (d) of the Convention that the first-instance court took into account in its judgment their statements taken by the police under duress and that they did not have legal assistance during their detention in police custody.

The Court considers that the complaint concerning the admission of the statements in the criminal proceedings against the applicants taken allegedly under duress should be examined under Article 6 § 1 of the Convention. It further considers that the complaint concerning the lack of legal assistance during the applicants’ detention in police custody should be examined under Article 6 § 3 (c) of the Convention.

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.

For these reasons, the Court unanimously

 

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

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President

GÖK AND GÜLER v. TURKEY DECISION


GÖK AND GÜLER v. TURKEY DECISION