FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58055/00
by Abdurrahman ASLAN and Reşat ŞANCI
against Turkey
The European Court of Human Rights (Fourth Section), sitting on
4 October 2005 as a Chamber composed of:
MrJ. Casadevall, President,
MrG. Bonello,
MrR. Türmen,
MrM. Pellonpää,
MrR. Maruste,
MrS. Pavlovschi,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 9 May 2000,
Having deliberated, decides as follows:
THE FACTS
The applicants, Abdurrahman Aslan and Reşat Şancı, are Turkish nationals, who were born in 1979 and 1973 respectively and were serving their prison sentences at Nazilli Prison at the time of the application. They are represented before the Court by Ms Türkan Aslan, a lawyer practising in Izmir.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 23 February 1999 the applicants were arrested and taken into custody by police officers at the anti-terror branch of the Kuşadası Security Directorate.
On 24 and 25 February 1999 respectively, the statements of the applicants were taken by the police officers at the anti-terror branch of the Kuşadası Security Directorate.
On 26 February 1999 the applicants were brought before the Kuşadası public prosecutors’ office. They were told of their rights and in particular their right to be assisted by a lawyer, which they waived. Before the public prosecutor the applicants acknowledged having committed the offence. They claimed that they had acted alone, that they were not involved in any illegal organisation and that they regretted throwing Molotov cocktails at the buildings.
On the same day, the applicants were brought before the Kuşadası Magistrates’ Court where they reiterated their statements given before the public prosecutor. Mr Sancı partially acknowledged the statements he gave before the police. He denied his statements which were contradictory with the statements given before the public prosecutor. He alleged that he had been subjected to ill-treatment in police custody. Mr Aslan acknowledged the contents of his statements made before the police. However, he claimed that he had signed without reading it. The court remanded both applicants in custody.
On 15 March 1999 the public prosecutor at the İzmir State Security Court filed a bill of indictment with the latter accusing the applicants of throwing Molotov-cocktails to the Ulku Ocakları Association, Ziraat Bank, Halk Bank and Yaşar Bank in Kuşadası on 22 February 1999. He requested that they be charged and convicted under Articles 169 and 264 of the Criminal Code and Section 5 of Law no. 3713.
On 15 April 1999 the İzmir State Security Court, composed of two civilian and one military judge, commenced the trial of the applicants.
During the proceedings, both applicants denied their previous submissions and claimed that they gave them under duress.
On 15 July 1999 the applicants requested that a further on-site inspection be conducted in order to find out whether the time of the offence could be considered to be night time pursuant to the Criminal Code. They further requested that if this request was refused then the court should hear the bank clerks as witnesses. On the same day, the court, considering that the evidence contained in the case file sufficiently elucidated the events, dismissed the applicants’ requests.
On 14 October 1999 the military judge sitting on the bench of the İzmir State Security Court was replaced by a civil judge.
On the same day, the İzmir State Security Court convicted the applicants as charged and sentenced them to three years, fifty-five months and twenty days’ imprisonment. In its decision, the court took into account the fact that the incident reports drawn up after the events corresponded with the applicants’ submissions before the Magistrates’ Court. The court further stated that it was not convinced by the applicants’ denials before it, in the presence of the material evidence contained in the case-file (i.e. Mr.I.E’s testimony, photographs of the events, expert reports, incident reports and the reports of the re‑construction of events) and the applicants’ submissions before the public prosecutor and the Magistrates’ Court.
On 24 February 2000 the Court of Cassation upheld the judgment of the İzmir State Security Court.
COMPLAINTS
The applicants submit under Article 6 of the Convention that they did not receive a fair trial by an independent and impartial tribunal. They contend that the judges sitting on the bench of the State Security Court cannot be considered as independent and impartial as the military judge is attached to the Military Service and the civil judges are attached to the Supreme Council of Judges and Public Prosecutors. They allege that they were convicted on the basis of their statements in police custody which were taken under duress and that the court refused their demands for supplementary investigation. They complain that they were denied the assistance of a lawyer during the initial stages of the criminal proceedings. They further submit that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments.
The applicants complain under Article 14 of the Convention in conjunction with Article 6 that they were discriminated against since the criminal procedures for the offences tried before the State Security Court were different from the procedures for other offences.
The applicants claim under Article 34 that their rights to an individual petition were infringed because the judgment of the Court of Cassation was never served on them.
THE LAW
1. The applicants complain under Article 6 of the Convention having regard to the presence of a military judge on the bench of the İzmir State Security Court. In addition, the applicants complain that the fairness of the criminal proceedings was also undermined by other shortcomings.
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 the Court, to give notice of them to the respondent Government.
2. The applicants further contend under Article 6 § 1 of the Convention that they were not tried by an independent and impartial tribunal having regard to the fact that the civil judges sitting on the bench of the İzmir State Security Court are attached to the Supreme Council of Judges and Public Prosecutors.
The Court reiterates that it has already rejected similar complaints concerning the issue of the independence and the impartiality of the civil judges on account of their attachment to the Supreme Council of Judges and Public Prosecutors (see, among many others, Imrek v. Turkey (dec.), no. 57175/00, 28 January 2003). The Court finds no particular circumstances in the instance case which would require it to depart from its findings in the above‑mentioned cases.
Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
3. The applicants complain under Article 14 of the Convention in conjunction with Article 6 that they were discriminated against since the criminal procedures for the offences tried before the State Security Court were different from the procedures for other offences.
The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, p. 29, § 56).
In the instant case, the distinction was made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity (see, mutatis mutandis, Gerger v. Turkey [GC], no. 24919/94, § 69, ECHR 1999 and Kömürcü v. Turkey (dec.), no. 77432/01, 28 November 2002). The Court sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention.
Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
4. The applicants claim under Article 34 that their rights to an individual petition were infringed because the judgment of the Court of Cassation was never served on them.
The Court observes that the applicants’ application was lodged within six months of the date on which the Court of Cassation’s rendered its judgment, which was the date of the final decision in their case for the purposes of Article 35 § 1 of the Convention. Furthermore, the applicants has in no way substantiated that the alleged delay in notifying them of the Court of Cassation’s decision was designed either directly or indirectly to frustrate their application under the Convention. It is also to be noted that it was open to the applicants and their lawyer to keep themselves informed of the outcome of the appeal by contacting the registry of either the İzmir State Security Court or the Court of Cassation.
In these circumstances the Court considers that no issue arises under Article 34 of the Convention. Therefore, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints concerning their right to a fair trial by an independent and impartial tribunal;
Declares the remainder of the application inadmissible.
Michael O’BoyleJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy