European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4233/03
by Mehmet PEHLIVAN
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 September 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mr D. Popović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 25 September 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Pehlivan, is a Turkish national who was born in 1963 and lives in Istanbul. He is represented before the Court by Mr A. Pehlivan, a lawyer practising in Istanbul.

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

On 5 April 1996 the Diyarbakır provincial gendarmerie command issued an arrest warrant in respect of the applicant, on the basis of which he was arrested and taken into custody on 12 April 1996 by police officers from the anti-terror branch of the Istanbul Security Directorate. The applicant signed an arrest report acknowledging the warrant and the authorities’ intention to transfer him to the Diyarbakır provincial gendarmerie command.

After being held for two or three days in the Istanbul Security Directorate, the applicant was transferred to Diyarbakır, where he was held in the custody of the gendarmerie until 25 April 1996. During this period of detention, the applicant was allegedly subjected to ill-treatment. In particular, the applicant alleged that he was beaten and insulted. He was also deprived of food and water and was prevented from going to the toilet.

On 25 April 1996 the applicant was brought before the Diyarbakır public prosecutor. He maintained that he was not involved in the activities of the PKK (the Kurdistan Workers’ Party, an illegal organisation). The applicant further contended that in 1992 he had killed a certain B.C. in his village as he had suspected that his partner had had a relationship with him. The applicant stated that the murder was not linked to any terrorist activity. The statements that he had allegedly made at the gendarmerie command were read to him. The applicant denied that he had made these statements. Furthermore the statements of three other suspects, Ş.B., Ş.C. and S.B., who maintained that the applicant was a member of the PKK, were read to him. The applicant denied the accuracy of these statements, claiming that these persons were relatives of B.C.

On the same day, the applicant was brought before a single judge at the Diyarbakır State Security Court. He reiterated the statements which he had made before the public prosecutor. Following questioning, the judge ordered the applicant’s detention on remand, holding that there were strong indications that he had committed the offence defined in Article 125 of the Criminal Code.

On 10 May 1996 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and six other persons. The applicant was charged with carrying out activities for the purpose of bringing about the secession of part of the national territory, proscribed by Article 125 of the Criminal Code.

On 14 May 1996 the First Chamber of the Diyarbakır State Security Court held the first hearing in the case and ordered the applicant’s continued detention on remand in view of the nature of the offence, the state of evidence and the content of the case file.

On 19 August 1996 the applicant made statements before the first instance court, denying the charges against him.

Between 19 August 1996 and 29 December 1997, the first-instance court postponed the hearings as it was awaiting information and documents from the Lice public prosecutor’s office.

On 29 December 1997 the State Security Court requested the Lice gendarmerie command to provide information concerning the killing of B.C. The court subsequently postponed the hearings until 24 December 1998 on account of the failure of the gendarmerie command to submit the relevant information.

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, on 28 June 1999 the military judge on the bench of the Diyarbakır State Security Court hearing the applicant’s case was replaced by a civilian judge.

On 22 November 1999 the First Chamber of the Diyarbakır State Security Court requested the Third Chamber of the same court to submit a copy of the file in the case brought against Ş.B., Ş.C. and S.B. Between 22 November 1999 and 4 September 2001, the trial court postponed the hearings as the Third Chamber failed to submit a copy of the case file.

During the trial, the Diyarbakır State Security Court held forty-five hearings. At the end of every hearing the first-instance court considered the applicant’s detention on remand, either of its own motion or at the applicant’s request. It ordered the applicant’s continued detention pending trial, having regard to the nature of the offence and state of evidence.

On 26 March 2002 the Diyarbakır State Security Court convicted the applicant under Article 448 of the Criminal Code of homicide and sentenced him to fifteen years’ imprisonment. The court found no convincing evidence that the offence committed by the applicant was linked to terrorist activities. The court ordered the applicant’s release from prison in view of the length of his detention on remand.

On 4 July 2002 the Court of Cassation quashed the judgment of 26 March 2002 because the applicant had been unable to examine three witnesses against him during the trial. The case was subsequently remitted to the First Chamber of the Diyarbakır State Security Court.

On 12 August 2002 the first-instance court requested the Istanbul State Security Court to obtain the applicant’s submissions on the statements of the witnesses. Between 12 August 2002 and 14 July 2003, the State Security Court held six more hearings whilst awaiting the applicant’s submissions.

On 14 July 2003 the first-instance court convicted the applicant once more of homicide and sentenced him to fifteen years’ imprisonment.

On 8 April 2004 the Court of Cassation upheld this judgment.

COMPLAINTS

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

The applicant also complained under Article 5 of the Convention about the length of his detention in police custody. He further contended that his detention on remand had exceeded the “reasonable time” requirement as provided for in Article 5 § 3 of the Convention.

The applicant next complained that the criminal charges brought against him were not determined within a reasonable time, in breach of Article 6 § 1 of the Convention. He further contended under the same head that he was denied a fair hearing on account of the presence of a military judge on the bench of the Diyarbakır State Security Court until June 1999.

The applicant finally maintained under Article 6 § 3 (a) of the Convention that he was not informed of the accusations against him at the time of his arrest on 12 April 1996.

THE LAW

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 applicant’s complaints concerning his right to release pending trial, to a fair hearing within a reasonable time and to be informed promptly of the nature and cause of the accusations against him;

Declares the remainder of the application inadmissible.

F. Elens-Passos F. Tulkens
Deputy Registrar President