AS TO THE ADMISSIBILITY OF
Application No. 26065/94
by Ömer Agin
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 9 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 September 1994
by Ömer Agin against Turkey and registered on 21 December 1994 under
file No. 26065/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1948, is a Turkish citizen of Kurdish
origin and is currently held in prison at Gölcük. He is represented
before the Commission by Mr. Veysel Uçum and Mr. Mehmet Uçum, lawyers
practising in Istanbul.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 8 September 1982 the applicant was arrested by police and he
was placed into custody. On 8 December 1982 he was detained on remand.
On 8 June 1984 he was convicted under Article 141 of the Turkish Penal
Code of being a member of an illegal organisation and sentenced to six
years' imprisonment by the Diyarbakir Martial Law Court.
On 24 April 1986 the applicant was conditionally released and he
was therefore imprisoned between 8 September 1982 and 24 April 1986.
Article 141 of the Turkish Criminal Code has been repealed by Law
No. 3713 (Anti-Terror Law) of 12 April 1991.
In May 1991 he committed another offence and on 29 September 1993
the applicant was sentenced to one year and eight months' imprisonment
and to a fine by the 2nd chamber of the Istanbul State Security Court
on the ground that he had violated Law No. 3713 by disseminating
separatist ideas.
On 19 January 1994 the applicant submitted a petition to the 2nd
chamber of the Istanbul State Security Court requesting his first
conviction to be deducted from his second conviction because he had
served a longer sentence in respect of his previous conviction than he
had to.
The applicant's request was rejected by the 2nd chamber of the
Istanbul State Security Court in a "separate decision" of 17 March
1994. In its reasoning the court stated the following: "For a deduction
to be granted the commission of the second crime should take place
before the date of the final ruling in respect of the first conviction.
As the applicant committed the second crime five years after he had
served his sentence, deduction cannot be made."
The applicant filed an objection against the decision of the
court with the 3rd chamber of the Istanbul State Security Court and his
objection was dismissed on 25 March 1994.
Finally, the applicant applied to the Minister of Justice and
requested him to issue a written order for the examination and
rectification of the State Security Court's decision by the Court of
Cassation.
On 3 May 1994 the applicant's request was rejected by the
Minister of Justice.
COMPLAINTS
The applicant complains of violations of Articles 5, 9, 10 and
14 of the Convention.
As to Article 5, the applicant complains that he was deprived of
his liberty and security due to his opinions. He alleges that the
conditional release provisions of Law No. 3713, which requires 3/4 of
the sentence to be served, violate his rights under Article 5.
As to Articles 9 and 10, the applicant complains that the
previous period of imprisonment has not been deducted from his second
conviction contrary to Article 40 of the Turkish Criminal Code.
The applicant also maintains that his rights under Articles 9 and
10 of the Convention were violated due to his second sentence and that
there has been a continuing violation since deduction was refused.
As to Article 14, the applicant complains that in a similar
situation the President of the Republic's nephew was granted a
deduction, which contravenes the principle of equality.
THE LAW
The applicant complains that his rights under Articles 5, 9, 10
and 14 (Art. 5, 9, 10, 14) of the Convention have been violated. As to
Article 5 (Art. 5), he complains that he was deprived of his liberty
and security due to his opinions. He also complains that his first
conviction was not deducted from his second conviction.
The Commission first notes that on both occasions the applicant
was convicted and sentenced for acts which constituted offences under
Turkish law. It follows that he cannot be considered to have been
punished merely for his opinions. In this respect, his complaint is
therefore unsupported by the facts of the case.
Moreover, as regards the failure to deduct the first sentence
from the second sentence, the Commission notes that the applicant, in
his first conviction on 8 June 1982, was sentenced to six years'
imprisonment and was released on 24 April 1986. In May 1991 he
committed another offence and on 29 September 1993 he was sentenced for
this offence to one year and eight months' imprisonment.
The Commission notes that under Turkish law there was not, in the
circumstances of the case, any right for the applicant to have the
first sentence deducted from the second sentence. It follows that the
imprisonment resulting from the second sentence must be considered
lawful within the meaning of Article 5 para. 1(a) (Art. 5-1-a) of the
Convention.
It follows that the application must be rejected as manifestly
ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy