European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38114/03
by Mehmet Zeki DOĞAN
against Turkey

The European Court of Human Rights (Second Section), sitting on 13 May 2008 as a Chamber composed of:

Françoise Tulkens, President,
Antonella Mularoni,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Ayşe Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 13 November 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Zeki Doğan, is a Turkish national who was born in 1978 and is currently serving a prison sentence in Edirne prison. He is represented before the Court by Mr M.A. Kırdök and Mr H.K. Elban, lawyers practising in Istanbul.

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

On 13 March 1998¹ the applicant was taken into custody as part of an operation against an illegal organisation, namely the TKP/ML-TİKKO (the Communist Party of Turkey Marxist-Leninist Turkish Workers' and Peasants' Liberation Army). On 15 March 1998 his statement was taken. On 20 March 1998 he was released due to a lack of evidence.

On 7 May 1998 the applicant was arrested at his home again and taken into custody on suspicion of injuring a third person and collecting money by force from third persons on behalf of the TKP/ML-TİKKO.

On 12 May 1998 the applicant made statements to the police. According to the document signed by the applicant and two police officers, he confessed to having taken part in the activities of the TKP/ML-TIKKO. The applicant did not have access to a lawyer while making these statements.

On 14 May 1998 the applicant and fourteen other persons were sent for a medical examination and a medical report was issued in their respect which indicated that there were no signs of ill treatment on their persons. On the same day, the applicant was brought before the public prosecutor and then the investigating judge. Before both officials the applicant retracted his police statement, alleging that he had been coerced by the police to sign them. The applicant did not benefit from legal assistance while making statements before these officials. The same day, the investigating judge remanded the applicant in custody.

On 25 May 1998 the public prosecutor at the Istanbul State Security Court filed an indictment, charging the applicant under Article 146 § 1 of the former Criminal Code with attempting to undermine the constitutional order.

On 13 December 2001 the Istanbul State Security Court convicted the applicant under Article 168 § 2 of the former Criminal Code (membership of an illegal armed organisation), and sentenced him to fifteen years, seven months and fifteen days' imprisonment. The court relied on, inter alia, the applicant's statements taken by the police.

On 8 July 2002 the Court of Cassation quashed the judgment, holding that the applicant had to be convicted under Article 146 § 1 of the former Criminal Code instead of Article 168 § 2 given the gravity of the applicant's acts, and remitted the case to the first instance court.

On 12 November 2002 the Istanbul State Security Court, after re examining the file, convicted the applicant under Article 146 § 1 of the Criminal Code and sentenced him to life imprisonment. The State Security Court once again took into consideration the applicant's statements made to the police.

On 5 May 2003 the Court of Cassation upheld the judgment of 12 November 2002.

On 2 June 2003 the Court of Cassation's decision was sent to the registry of the Istanbul State Security Court by the Principal Public Prosecutor at the Court of Cassation.

COMPLAINTS

Relying on Article 6 §§ 1, 2 and 3 (c) of the Convention, the applicant complained that he had been denied legal assistance while in police custody, before the public prosecutor and the investigating judge, and that he had been convicted on the basis of his statements to the police, which had been made under duress.

The applicant complained under Article 6 § 1 of the Convention that he had not been allowed to see his family members while in police custody. He further submitted, under the same head, that the Istanbul State Security Court's judgments lacked reasoning.

THE LAW

The Court considers that these complaints should be examined under Article 6 §§ 1 and 3 (c) of the Convention. It further considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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.

The Court considers that this complaint should be examined from the standpoint of Article 8 of the Convention (see Sarı and Çolak v. Turkey, nos. 42596/98 and 42603/98, §§ 33-37, ECHR 2006 ... (extracts)). It further reiterates that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period runs from the date of the act complained of.

The Court observes that the applicant's detention in police custody ended on 14 May 1998 whereas he introduced his application with the Court on 13 November 2003, more than six months later. In the absence of a domestic remedy (see Sarı and Çolak, cited above, §§ 29-31), the Court finds that the applicant should have lodged this complaint within six months following the end of his detention in police custody, i.e. on 15 October 1998 at the latest.

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

3. The applicant finally submitted under Article 6 § 1 of the Convention that the Istanbul State Security Court's judgments lacked reasoning.

The Court observes that Istanbul State Security Court's judgments, though brief, explained the evidence used, the facts, their legal qualification, the legal provisions applied and the sanction imposed. It therefore considers that the judgments complained of cannot be considered to have lacked reasoning.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the use of his statements allegedly taken under duress by the Istanbul State Security Court and  the alleged unavailability of legal assistance during his detention in police custody and before the public prosecutor and the investigating judge;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President