European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2007/1101.html
Cite as: [2007] ECHR 1101
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SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
5197/03
by Hüseyin DEMİR and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 20 November 2007 as a Chamber composed of:
Mrs F. Tulkens, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs D.
Jočienė,
Mr D. Popović, judges,
and
Mrs S. Dollé, Section Regitrar,
Having regard to the above application lodged on 12 November 2002,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Hüseyin Demir, Mr Mehmet Cömert, Mr Murat Dalkılıç and Mr Aydın Boyraz, are Turkish nationals who were born in 1960, 1971, 1974 and 1975 respectively. At the time of the introduction of the application they were serving sentences in Elazığ Prison. The applicants are represented before the Court by Mr H. Muhammed Taş and Mr Veysel Taş, lawyers practising in Elazığ.
The circumstances of the case
The facts of the case, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.
On 17 January 2000 a police operation was conducted in Istanbul into the actions of the Hizbullah. During the operation the leader of the organisation was killed and a number of documents – some of which had been stored in computer files – were recovered. In the light of the information gleaned from those documents, further operations were carried out by the police in various parts of the country to arrest members of the Hizbullah.
The first applicant was arrested on 28 January 2000 and placed in the custody of the Anti-Terrorist Branch of the Malatya Police. He was questioned by the police on 2 February 2000 and then by the prosecutor and the judge at the Malatya State Security Court on 3 February 2000. In the three separate statements the applicant was recorded as having conceded that he was a member of the Hizbullah, responsible for the Adıyaman Province. In the statements taken by the prosecutor and the judge, the applicant confirmed his statement to the police and that he had not been put under pressure to admit the allegations against him.
The second applicant was arrested on 27 January 2000 and placed in the custody of the Anti-Terrorist Branch of the Malatya Police. He was questioned by the police on 31 January 2000 and then by the prosecutor and the judge at the Malatya State Security Court on 1 February 2000.
The third applicant did not submit any documents to the Court showing the date of his arrest. Nevertheless, according to the documents in the file, he was already under arrest when questioned by the police on 15 February 2000. He was questioned by the prosecutor and the judge at the Malatya State Security Court on 16 February 2000.
The fourth applicant was arrested on 8 February 2000 and placed in the custody of the Anti-Terrorist Branch of the Malatya Police. He was questioned by the police on 9 February 2000 and then by the prosecutor and the judge at the Malatya State Security Court on 11 February 2000.
No lawyer was present when any of the applicants were questioned by the above-mentioned authorities. The judge ordered the applicants’ remand in prison custody.
On 10 March 2000 the prosecutor at the Malatya State Security Court filed an indictment with that court, accusing the applicants of membership of an illegal organisation, namely the Hizbullah.
Criminal proceedings against the applicants and 17 other persons commenced before the Malatya State Security Court (hereafter “the trial court”), which consisted of three civilian judges.
In the course of the trial, the lawyer representing the applicants submitted written observations to the court and argued, inter alia, that the statements made by his client Hüseyin Demir – the first applicant – in police custody on 2 February 2000, and then before the prosecutor and the judge on 3 February 2000, had been taken from his client by “threats and deception”.
On 18 May 2001 the applicants, who were still in pre-trial detention in prison, were found guilty of membership of an illegal organisation and sentenced to twelve years and six months’ imprisonment. In convicting the applicants the trial court relied, inter alia, on the statements given by them to the police, the prosecutor and the remand judge. The applicants appealed.
On 5 February 2002 the Court of Cassation quashed the conviction of the first applicant and upheld the convictions of the others. The Court of Cassation considered that the first applicant should have been found guilty of having been in a senior position in the illegal organisation and not solely of membership of that organisation. The decision of the Court of Cassation was returned to the trial court on 26 March 2002.
The criminal proceedings, which recommenced against the first applicant before the trial court, ended with his conviction on 25 April 2002, when he was again sentenced to twelve years and six months’ imprisonment. The judgment of the trial court was upheld by the Court of Cassation on 2 July 2002.
COMPLAINTS
The applicants complained under Article 3 of the Convention that they had been subjected to ill-treatment while in police custody.
Under Article 6 of the Convention, the applicants argued that the State Security Court which had convicted them was not independent or impartial because the judges on its bench had been appointed by the Supreme Council of Judges and Prosecutors, which included the Justice Minister.
The applicants also argued that their pre-trial detention had violated their right to the presumption of innocence, within the meaning of Article 6 § 2 of the Convention.
Relying on Article 6 § 3 (b) of the Convention, the applicants complained that the statements extracted from them by ill-treatment had been used in convicting them, and that the defence arguments submitted by them had not been taken into account by the trial court.
Under Article 6 § 3 (c) of the Convention, the applicants complained that they had not been allowed the assistance of a lawyer when they were questioned by the police, the prosecutor and the remand judge.
THE LAW
Complaints under Article 3 of the Convention
The Court observes at the outset that the applicants have not submitted any evidence in support of their allegations. Nor have they argued that they had been unable to obtain, or had been prevented from obtaining, any such evidence, for example in the form of medical reports.
Furthermore, it does not appear from the documents submitted by them that they had informed the authorities about their allegations. Indeed, according to the first applicant, he had not made an application to the national authorities “because any such complaint would not have yielded any results”.
In the light of the foregoing, the Court considers that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Complaints under Article 6 of the Convention
The Court reiterates that it has already rejected similar complaints concerning the issue of the independence and impartiality on account of the appointments by the Supreme Council of Judges and Public Prosecutors (see, inter alia, İmrek v. Turkey (dec.), no. 57175/00, 28 January 2003). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the earlier cases on this issue.
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.
The Court notes that this applicant’s pre-trial detention ended on 5 February 2002 but he did not lodge his application with the Court until 12 November 2002, more than six months later. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-observance of the six-month rule.
The Court reiterates that the first applicant did not submit any evidence which would indicate that he was ill-treated in police custody. Nor did he submit any details of such ill-treatment to the domestic authorities.
As for the other aspect of the complaint, the Court observes that in the course of the trial proceedings the first applicant was represented by lawyers and was able to put forward his arguments before the first-instance court as well as before the Court of Cassation. Furthermore, the Court recalls that it is not its function to substitute its own assessment of the facts and evidence for that of the national courts or to act as a fourth instance appeal court (see, among many other examples, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34).
However, the applicant did not have the benefit of legal representation while in police custody when his statement was taken, or before the prosecutor and remand judge when further statements were recorded. These three statements were taken into account as part of the evidence against him during the trial.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this aspect of the case at the present stage. 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 first applicant’s complaint concerning his right to defend himself effectively through legal assistance at the pre-trial stage;
Declares the remainder of the application inadmissible.
S. Dollé F. Tulkens
Registrar President