SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8036/02 
by Mehmet SAĞAT, Aydın BAYRAM and Hasan BERK 
against Turkey

The European Court of Human Rights (Second Section), sitting on 5 January 2006 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Ms D. Jočienė, 
 Mr D. Popović, judges,  
and Mrs S. Dollé, Section Registrar.

Having regard to the above application lodged on 31 January 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mehmet Sağat, Aydın Bayram and Hasan Berk, are Turkish nationals. The first applicant was born in 1980 and the second and third applicants in 1981. They live in Adana. They are represented before the Court by Ms Y. Dora Şeker, a lawyer practising in Adana.

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

On 20 March 1999 the applicants were arrested in their homes and taken into custody by police officers from the Ceyhan Security Directorate. They were suspected of setting three vehicles on fire, by throwing Molotov cocktails, with the aim of protesting the arrest of the PKK1 leader Abdullah Öcalan.

The police officers questioned the applicants in the presence of a lawyer. In their statements the applicants confessed to having taken part in some of the incidents, but denied any involvement with the PKK.

On the same day the applicants were taken to the scenes of certain incidents. The police officers drafted two reports of on-site inspections which were signed by the applicants.

On 22 March 1999 the applicants were first taken to the Hürriyet Clinic for a medical examination. According to the medical report there were no signs of blows on the applicants' bodies.

The applicants were subsequently taken to the Ceyhan Public Prosecutor's office. During their questioning, the police officers from the Ceyhan Security Directorate, as well as the lawyer who had been present during the applicants' earlier questioning, were present in the room. The third applicant refuted his statements given in police custody. He claimed that he was threatened by the police to accept all the allegations against him. The first and second applicants confirmed their previous statements.

On the same day the owners of the destroyed vehicles filed complaints with the Ceyhan Public Prosecutor.

Following their questioning by the Public Prosecutor, the applicants were once again taken to the Ceyhan Security Directorate where they had allegedly been ill-treated.

Later on, the applicants were taken before the investigating magistrate at the Ceyhan Magistrates Court. The first and second applicants reiterated their earlier statements. The third applicant confessed to having participated in the incidents. The court ordered their detention on remand.

On the evening of their detention, the second applicant was taken to the emergency room of the hospital. According to the hospital records, the applicant was diagnosed with acute bronchitis.

On 23 March 1999 the applicants filed petitions with the Ceyhan Public Prosecutor, alleging that they had been threatened and beaten in police custody. They refuted their statements given in police custody and requested their release.

On 26 March 1999, considering that the motive behind the incidents was to support a terrorist organisation, the Ceyhan Public Prosecutor sent a copy of the case file to the Public Prosecutor at the Adana State Security Court.

On 6 April 1999 the Ceyhan Public Prosecutor filed an indictment with the Ceyhan Assize Court, accusing the applicants, and a third person, of damaging other persons' property, contrary to Article 516 of the Criminal Code.

On 8 April 1999 the Public Prosecutor at the Adana State Security Court also filed an indictment against the applicants and a fourth person, accusing them of aiding and abetting a terrorist organisation, and charging them under Article 264 of the Criminal Code and Article 5 of the Law on the Prevention of Terrorism.

The proceedings before the Ceyhan Assize Court

On 9 June 1999 the court took the statements of a witness and the complainants. The applicants were not present.

On 3 July 1999 the applicants' lawyer contended before the court that her clients had been ill-treated in police custody, as a result of which the second applicant had been taken to the hospital on the first night of his detention. She maintained that the applicants had already filed a complaint with the Ceyhan Public Prosecutor in this regard. The applicants alleged that they were unable to complain about the ill-treatment or show their injuries to the doctor as the police officers were in the premises while they were being examined.

The court requested the Ceyhan Public Prosecutor to inform it of any pending investigation into the applicants' allegations of ill-treatment.

On 20 October 1999 the complainants appeared before the court and reiterated their earlier statements. Moreover, the court took the statements of the police officer who had questioned the applicants. The officer refuted the applicants' allegations of ill-treatment and claimed to have noted down everything that the applicants had dictated. Upon the request of the applicants' lawyer, the court asked the police officer why the applicants were brought back to the Security Directorate from the Public Prosecutor's office. The police officer maintained that, although this was not the normal procedure, they had taken the applicants back to the Security Directorate because it was the lunch break. He maintained that after the applicants had eaten and taken their belongings, they were brought to the Ceyhan Magistrates Court.

At the same hearing the court took the doctor's statements who had drafted the applicants' medical reports. The doctor contended that during the applicants' examination there was no one else on the premises and that the medical reports drafted by him on 22 March 1999 were accurate.

The court also took the statements of the lawyer who was present during the applicants' questioning by the police officers and the Ceyhan Public Prosecutor. He contended that the applicants were not under any pressure while giving their statements. The applicants confirmed the lawyer's presence during their questioning.

At the hearing on 3 July 2000, the applicants gave some details regarding their allegations of ill-treatment for the first time. The third applicant contended that he had been electrocuted and beaten up while in police custody.

On 23 October 2000 the court decided to join the applicants' case to the one pending before the Adana State Security Court.

The proceedings before the Adana State Security Court

On 6 May 1999 the court examined the case file on its own motion and, in view of the state of evidence and the seriousness of the charges, decided to prolong the applicants' detention on remand.

On 10 May 1999 the Adana State Security Court requested the Ceyhan Assize Court to take the statements of the witness and the complainants.

On 1 June 1999 the first hearing was held before the Adana State Security Court. All three applicants refuted the accusations and claimed to have accepted them during the preliminary investigation only because of the ill-treatment to which they had been subjected in police custody. They further maintained that, after the public prosecutor's office, they had been taken to the police station once again where they had been threatened and ill-treated. They did not give any details concerning their allegations of ill-treatment.

On 5 July 1999 the court examined the case file on its own motion, and prolonged the applicants' detention on remand.

At the hearing of 27 July 1999 the statements of the witness and the complainants, taken by the Ceyhan Assize Court, were read out loud before the court and the applicants were asked to comment on them.

On 21 September 1999 the court convicted all three applicants under Articles 168 and 264 of the Criminal Code and Article 5 of the Law on the Prevention of Terrorism. It sentenced them to imprisonment and acquitted the fourth person.

On 25 April 2000 the Court of Cassation quashed the decision of the State Security Court. It held that the court had convicted the applicants without taking into consideration the case which was pending before the Ceyhan Assize Court. The Court of Cassation noted in its decision that the applicants' lawyer, despite having requested the court to hold an appeal hearing, did not attend that hearing.

On 4 July 2000 the case was resumed before the Adana State Security Court. The court ordered the prolongation of the applicants' detention on remand.

At the hearing of 5 December 2000, the two cases were joined before the Adana State Security Court.

On 22 December 2000, subsequent to the enactment of Law no. 4616 on the suspension of proceedings regarding offences committed before 23 April 1999, the court postponed the trial regarding the charges under Article 516 of the Criminal Code. It convicted the applicants under Article 168 of the Criminal Code.

On 21 June 2001 the Court of Cassation upheld the decision of the Adana State Security Court concerning the first and second applicants. It quashed the part of the decision concerning the third applicant. The applicants' lawyer did not attend the hearing.

The decision of the Court of Cassation was deposited with the Registry of the State Security Court on 13 July 2001.

On 11 September 2001, relying on the on-site inspection reports, the incriminating items found in the applicant's home and the statements of the witness, the complainants and the other accused, the court convicted the third applicant and sentenced him to imprisonment. It further held that, although the applicant complained of having been ill-treated in police custody, the medical report did not note any signs of blows to the applicant's body.

On 4 March 2002 the Court of Cassation upheld this decision.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they had been subjected to ill-treatment in police custody. Moreover, they contend that the authorities failed to react to their allegations of ill-treatment, although they persistently complained before the judicial authorities.

They further allege that they had been handcuffed and taken in a prison car, for some 60 kilometres, from the prison to the court for almost every hearing, in breach of Article 3 of the Convention.

The applicants next complain under Article 5 § 1 (c) that there was no reasonable suspicion for their arrest and detention. They also complain under Article 5 § 3 of the Convention about the length of their detention in police custody, as well as the length and lawfulness of their detention on remand. They argue that their continued detention was not justified by adequate grounds.

The applicants contend that State Security Courts are not tribunals which are independent and impartial, as required by Article 6 § 1 of the Convention. They claim that their conviction and subsequent prison sentences were unlawful. They also complain under Article 6 § 1 of the Convention about the length of the proceedings.

The applicants further argue that the fact that the court ordered their detention pending trial, throughout the proceedings, demonstrates that they were not presumed innocent by the judicial authorities, in violation of Article 6 § 2 of the Convention.

Finally, the applicants complain under Article 6 § 3 of the Convention that, during the proceedings before the Adana State Security Court, they were unable to ask questions to the complainants, as the latter's statements had been taken by way of rogatory letters.

THE LAW

A.  Regarding the first and second applicants

The first and second applicants complain under Article 3 of the Convention about the alleged ill-treatment to which they were subjected in police custody. They contend under Article 5 that there was no reasonable suspicion to arrest them, and that the length of their detention in police custody as well as that on remand was excessive. They further complain that they did not have a fair trial within a reasonable time, in violation of Article 6 § 1 of the Convention.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with an application within a period of six months from the date on which the final decision was taken.

(a)  As regards their complaints concerning their alleged ill-treatment in police custody, the Court notes that, in their defence submissions to the Adana State Security Court and the Ceyhan Assize Court, the applicants contended that they had been ill-treated in police custody. On 20 October 1999 the Ceyhan Assize Court questioned the police officer who was allegedly responsible for the ill-treatment and the doctor who drew up the relevant medical reports. However, after this hearing, no action was taken regarding their allegations of ill-treatment.

Furthermore, despite the fact that they asked the Court of Cassation to hold a hearing, the applicants' lawyer failed to attend the hearings, thus waiving the opportunity to bring the applicants' allegations to the attention of the Court of Cassation. Consequently, the procedure before the Court of Cassation did not concern the allegations of torture.

In the light of the above, the Court considers that the failure of the judicial authorities to act must have become clear by 22 December 2000, i.e. the date on which the Adana State Security Court rendered its final decision on the matter, and, 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 § 1 of the Convention should be considered to have started running not later than 22 December 2000 (see, mutatis mutandis, İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003, and, mutatis mutandis, Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7 September 1999).

It follows that this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

(b)  The applicants next complain, under Article 5 §§ 1 (c) and 3 of the Convention, about the lack of reasonable suspicion to arrest them, the length of their detention in police custody and the length of their detention on remand. The Court observes that the applicants were taken into police custody on 20 March 1999 and placed in detention on remand on 22 March 1999. Considering that the application was introduced with the Court on 31 January 2002, the Court concludes that the complaint regarding their police custody has been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

Moreover, the applicants' detention on remand ended on 22 December 2000, the date on which the Adana State Security Court convicted the applicants. From then onwards, the applicants were detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) of the Convention. The applicants, however, lodged their application with the Court on 31 January 2002, which is more than six months after the end of the detention periods of which complaint is made. Consequently, the applicants' complaint regarding their detention on remand has been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

(c)  As regards the applicants' complaints concerning the fairness of the proceedings, the Court observes that the criminal proceedings were concluded by the Court of Cassation's decision of 21 June 2001. This final decision was deposited with the Registry of the first instance court on 13 July 2001. Nevertheless, the applicants lodged their application with the Court on 31 January 2002, i.e. more than six months. It follows that this part of the application has also been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

B.  Regarding the third applicant

1.  The applicant alleges under Article 3 of the Convention that he was subjected to ill-treatment in police custody and, although he complained before the judicial authorities, no proper investigation had been initiated into the matter. He complains of the conditions in which he was transported from the jail house to the court were in violation of Article 3 of the Convention.

(a)  As regards the applicant's complaint regarding his ill-treatment in police custody, the Court observes that the applicant did not submit any medical evidence which could confirm his allegations and contradict the findings contained in the medical report drawn up on 22 March 1999. Nor did he complain of ill-treatment when he was brought before the public prosecutor and the magistrate.

The Court finds that a mere allegation of duress in itself, without any description as to what form that duress had taken, is insufficient to constitute an allegation of torture. It observes that the applicant's petition filed with the Ceyhan Public Prosecutor did not contain any details as to the alleged acts of the police officers. Moreover, apart from the allegation that his statements were taken under duress, until very late in the proceedings, he did not give any indication to the national courts of the sort of ill-treatment which he had purportedly suffered. Nevertheless, the Ceyhan Assize Court initiated an investigation into the applicant's allegations and questioned the lawyer, the doctor and the police officer who were involved in the preliminary investigation of the case. The lawyer maintained that he was present during the applicant's questioning and did not witness any pressure on the applicant. (The applicant confirmed the lawyer's presence.) Contrary to the applicant's allegations, the doctor claimed that during the medical examination of the applicant there had been no one else on the premises.

In view of the above, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that he was subjected to ill-treatment whilst in police custody.

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.

(b)  To the extent that the applicant alleges that being transported in a prison van for approximately 60 kilometres, handcuffed, for every hearing held before the State Security Court, the Court finds that the applicant has not shown that this complaint was raised, at least in substance, before the domestic authorities. He did not, therefore, exhaust the remedies available to him under Turkish law in respect of this complaint.

It follows that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2.  The applicant complains under Article 5 § 1 (c) of the Convention that there was no reasonable suspicion on which to arrest and detain him. Moreover, he contends that Article 5 § 3 of the Convention was violated on account of the length of his detention in police custody and his detention on remand. He also argues that the fact that the court ordered his detention pending trial throughout the proceedings, demonstrates that he was not presumed innocent by the judicial authorities. He invokes Articles 5 § 3 and 6 § 2 of the Convention.

(a)  As regards the complaints concerning a lack of reasonable suspicion for the arrest and the length of detention in police custody, the Court observes that the applicant was taken into police custody on 20 March 1999 and placed in detention on remand on 22 March 1999. The application, however, was lodged with the Court on 31 January 2002, i.e. more than six months later.

It follows that this complaint has been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention

(b)  As regards the complaint concerning the length of his detention on remand, the Court reiterates that continued detention may be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Accordingly, Article 5 § 3 of the Convention also protects, indirectly, the principle of the presumption of innocence (see Olstowski v. Poland (dec.), no. 34052/96, 15 February 2001, and Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV). Consequently, the Court will examine the applicant's complaint concerning the length of detention on remand under Article 5 § 3 of the Convention alone.

However, it considers that it cannot, on the basis of the case file, determine the admissibility of this complaint at the present stage 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.

3.  The applicant next complains under Article 6 § 1 of the Convention that State Security Courts are, in general, tribunals which lack independence and impartiality. Moreover, he complains about the length and unlawfulness of the criminal proceedings.

(a)  The Court observes that the applicant's complaint about State Security Courts is not related to his own trial, but is a general criticism which finds no substantiation in the circumstances of the present application.

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.

(b)  The applicant argues that his conviction and subsequent prison sentence were unlawful, in violation of Article 6 § 1. He claims that his liability for the alleged incidents was not established beyond reasonable doubt.

The Court recalls that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance, from the decisions of domestic courts. It is the role of the latter to interpret and apply the relevant rules of national procedural and substantive law. Furthermore, the domestic courts are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 32, and Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34).

The Court finds no evidence in the case file which might disclose any appearance of a violation of Article 6 of the Convention in this case. Accordingly it rejects the complaint as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

(c)  The applicant also contends that the length of the criminal proceedings was in breach of the reasonable time requirement of Article 6 § 1 of the Convention.

The Court observes that the period to be taken into consideration began on 20 March 1999, when the applicant was taken into police custody, and ended on 11 September 2001 with the decision of the Adana State Security Court. Accordingly, the proceedings lasted approximately two years and six months. The case was examined in six instances, three of which were at the appeal level.

The Court reiterates that the reasonableness of the length of the criminal proceedings is to be assessed in the light of the particular circumstances of the case, including the complexity of the case, the applicant's conduct and the conduct of the competent authorities (see, among many others, Mitap and Müftüoğlu v. Turkey, judgment of 25 March 1996, Reports of Judgments and Decisions 1996-II, p. 8, § 32).

The Court considers that the case was complex. It notes that the applicant was initially tried together with three other accused. There were two separate cases initiated against the applicant. Before the Ceyhan Assize Court, the applicant was accused of damaging third persons' property, while before the Adana State Security Court he was accused of being a member of a terrorist organisation. The two cases were later joined before the State Security Court.

The Court observes that, following the applicant's appeals, on all three occasions, the Court of Cassation decided the case in approximately six months. Furthermore, at the request of the applicant's lawyer a hearing was held at the appeal stage.

As for the behaviour of the authorities, the Court does not observe any period of inactivity that could be attributable to the domestic courts.

In light of the foregoing, the Court concludes that, in the present case, the length of the criminal proceedings cannot be regarded as exceeding the reasonable time requirement of Article 6 § 1 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

(d)  The applicant alleges under Article 6 § 3 (d) of the Convention that, during the proceedings before the Adana State Security Court, he was unable to put questions to the complainants, as their statements were taken by way of rogatory letters.

The Court notes that on 9 June 1999, when the Ceyhan Assize Court took the statements of the witness and the complainants, the applicant was not present before the court. However, at the hearing of 20 October 1999, the complainants and witness again appeared before the court and repeated their earlier statements in the presence of the applicant. Moreover, the court took the statements of the police officer, the doctor and the lawyer who had taken part in the preliminary investigation of the applicant. The applicant was given an opportunity to comment on these statements. Additionally, his lawyer questioned the police officer.

When the two cases were joined before the Adana State Security Court, the statements of the complainants and the witnesses taken by the Ceyhan Assize Court were read out loud during the hearing, and the applicant was given the opportunity to make comments.

Thus, the Court finds that, having regard to the proceedings as a whole, there is no appearance of a violation of the principle of equality of arms regarding the questioning of the complainants.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the third applicant's complaint concerning the length of his detention on remand;

Declares the remainder of the application inadmissible.

S. Dollé J.-P Costa 
 Registrar President

1.  The Kurdistan Workers’ Party


SAĞAT, BAYRAM AND BERK v. TURKEY DECISION


SAĞAT, BAYRAM AND BERK v. TURKEY DECISION