European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/1578.html
Cite as: [2011] ECHR 1578
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SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
11022/05
by Hikmet YILMAZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 20 September 2011 as a Chamber composed of:
Françoise Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
Giorgio
Malinverni,
Işıl
Karakaş,
Guido
Raimondi,
Paulo
Pinto de Albuquerque, judges,
and
Stanley Naismith, Section
Registrar,
Having regard to the above application lodged on 28 February 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hikmet Yılmaz, is a Turkish national who was born in 1962 and lives in Belgium. He is represented before the Court by Mr R. Jespers, a lawyer practising in Antwerp.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 June 2002 the applicant was arrested at the Istanbul Atatürk Airport on suspicion of membership of the PKK (the Kurdistan Workers’ Party), an illegal organisation.
On 27 June 2002 the applicant was interrogated at the Anti-Terrorism Branch of the Istanbul Security Directorate, in the absence of a lawyer. According to a form explaining arrested persons’ rights which the applicant signed, he was informed of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the PKK. He explained that he had moved to Italy for financial reasons and that while he was in Milan he had met with a certain A.T., who had helped him in finding a job and obtaining a residence permit. The applicant stated that while he was living in Milan, he had distributed leaflets on behalf of the PKK and organised information meetings about the illegal organisation.
On 28 June 2002 the applicant was questioned by the public prosecutor at the Istanbul State Security Court in the absence of a lawyer and he repeated the statement he had made to the police. Later on the same day, the applicant was further questioned by the investigating judge at the Istanbul State Security Court, still in the absence of a lawyer. The applicant admitted to his activities in the illegal organisation and largely repeated his statement to the police. At the end of the questioning, the judge ordered his pre-trial detention. The applicant was then allowed to have access to a lawyer.
On 3 July 2002 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant of membership of the PKK, an offence under Article 168 § 2 of the former Criminal Code (Law no. 765) and Section 5 of the Prevention of Terrorism Act (Law no. 3713).
In his defence submissions, the applicant denied the charges against him and argued that his police statement had been taken under duress. He also stated that he had still been under the influence of the pressure exerted on him by the police during his questioning by the public prosecutor and the investigating judge respectively. The applicant further called a witness to attest to his innocence.
On 13 November 2002 the Istanbul State Security Court ordered the applicant’s release from pre-trial detention.
On 5 November 2003 the Istanbul State Security Court found the applicant guilty as charged and sentenced him to twelve years and six months’ imprisonment. In convicting the applicant, the court took into consideration the self-incriminating statements he had made before the police, the public prosecutor and the investigating judge respectively. The court further relied on a classified information note submitted by the Ministry of the Interior regarding the applicant’s activities within the PKK. It also took into account the police statement of another accused, namely A.T., who had been convicted of being a member of the PKK in 2001 by the Diyarbakır State Security Court. In this statement, A.T. had given a detailed account of the applicant’s activities in the PKK.
The applicant appealed. In his appeal petition, he denied being involved in the activities of the PKK and claimed that he was innocent.
On 8 July 2004 the Court of Cassation, after holding a hearing, upheld the judgment of the first-instance court. The decision, which was pronounced on 14 July 2004, was deposited with the registry of the first-instance court on 31 August 2004.
COMPLAINTS
THE LAW
The Court notes that the applicant alleged before the trial court that his statement to the police had been taken under duress, without providing any details of the alleged acts. The Court further observes that the applicant did not provide any concrete evidence in support of his allegations of ill treatment. In particular, the applicant did not submit evidence, in the form of a medical report, demonstrating that he had been subjected to any physical or psychological pressure while in police custody. Nor did he argue that he had been unable to obtain, or had been prevented from obtaining, any such evidence. The Court therefore considers that the applicant has failed to substantiate his complaint with appropriate evidence and to lay the basis of an arguable claim that he was ill-treated in police custody (see Yıldırım v. Turkey (dec.) no.33396/02, 30 August 2007; Tanrıkolu and Others v. Turkey, no. 45907/99, 20 October 2005; and Kesik v. Turkey (dec.), no. 18376/09, 24 August 2010).
It follows that this part of application must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention for being manifestly ill-founded.
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 the Court, to give notice of it to the respondent Government.
The Court considers that this part of the application should be examined under Article 6 §§ 1 and 3 (d) of the Convention.
It further notes 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 the Court, to give notice of it to the respondent Government.
The Court observes that military judges were removed from the benches of the State Security Courts in 1999, before the proceedings against the applicant were initiated. The applicant was hence tried and convicted by a tribunal that consisted of three civilian judges. Furthermore, there is nothing in the case file to indicate that the proceedings were conducted in an arbitrary manner.
It follows that this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
The Court reiterates that under the terms of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised, at least in substance, during the proceedings in question (see Bekir Yıldız v. Turkey, no. 49156/99, §§ 29-34, 6 September 2005).
In the instant case, the Court observes that at no time did the applicant rely on or raise any arguments in respect of his right to freedom of expression. The Court notes that throughout the criminal proceedings, the applicant only denied the allegations against him, claiming that he had never taken part in the activities of the PKK, and put forward arguments which were based solely on domestic law and did not raise the matter of freedom of expression at all.
In view of the foregoing, the Court holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning Article 6 §§ 3 (c) and (d) of the Convention in conjunction with Article 6 § 1 of the Convention;
Declares the remainder of the application inadmissible.
Stanley Naismith Françoise Tulkens
Registrar President