FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 57345/00
by Vahdettin BUDAK and Others
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 7 September 2004 as a Chamber composed of:
SirNicolas Bratza, President,
MrM. Pellonpää,
MrR. Türmen,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki, judges,
and MrsF. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 21 April 2000,
Having deliberated, decides as follows:
THE FACTS
The applicants, Vahdettin Budak, Mehmet Emin Yalçın, Songül Karatağna and Tayyip Ölmez, are Turkish nationals, who were born in 1977, 1976, 1974 and 1968 respectively. They were serving their prison sentences in Nazilli at the time of their applications to the Court. 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 22 February, 13 March, 12 April and 24 April 1998, respectively police officers at the anti-terror branch of the Antalya Security Directorate arrested Tayyip Ölmez, Vahdettin Budak, Songül Karatağna and Mehmet Emin Yalçın and placed them in custody.
On 27 February, 22 March, 21 April and 29 April 1998 respectively, the Antalya Magistrates’ Court ordered the detention on remand of Tayyip Ölmez, Vahdettin Budak, Songül Karatağna and Mehmet Emin Yalçın.
On 24 March, 8 May, 17 May and 22 May 1998 respectively, the public prosecutor at the Izmir State Security Court filed a bill of indictment with the latter, accusing Vahdettin Budak, Songül Karatağna and Mehmet Emin Yalçın of membership of an illegal organisation and Tayyip Ölmez of aiding and abetting an illegal organisation. He requested that Vahdettin Budak be convicted and sentenced under Article 125 of the Criminal Code. In respect of Songül Karatağna and Mehmet Emin Yalçin, the public prosecutor requested that they be convicted and sentenced under Article 168 § 2 of the Criminal Code and Section 5 of Law no. 3713. As for Tayyip Ölmez, the public prosecutor requested that he be convicted and sentenced under Article 169 of the Criminal Code and Section 5 of Law no. 3713.
On 11 November 1998 the Izmir State Security Court convicted the applicants as charged and sentenced Vahdettin Budak to life, Songül Karatağna and Mehmet Emin Yalçın to twelve years and six months and Tayyip Ölmez to five years’ imprisonment.
On 11 October 1999 the Court of Cassation upheld the judgment of the Izmir State Security Court. On 2 November 1999 the judgment of the Court of Cassation was sent to the registry of the Izmir State Security Court.
COMPLAINTS
The applicants complain, without invoking any particular Article of the Convention, about the length of their detention in police custody.
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 that 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 a 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 that they were discriminated against since the criminal procedures and the sentences for the offences tried before the State Security Court were different from the offences tried in other courts.
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 Izmir State Security Court. In addition, the applicants complain that the fairness of the 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 complain, without invoking any particular Article of the Convention, about the length of their detention in police custody.
The Court considers that this complaint should be examined under Article 5 § 3 of the Convention.
The Court reiterates that where no domestic remedy is available, the six‑month period runs from the date of the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, the period of six-month runs from the end of the situation concerned.
The Court notes that the applicants were respectively brought before a court and detained on remand on 27 February, 22 March, 21 April and 29 April 1998, whereas the application was introduced with the Court on 21 April 2000, i.e. more than six months later.
It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. 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 Izmir 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.
4. The applicants complain under Article 14 of the Convention that they were discriminated against since the criminal procedures and sentences for offences tried before the State Security Court were different from those in respect of offences tried in other courts.
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.
5. The applicants claim under Article 34 that their rights of 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 judgment was sent to the registry of the State Security Court, which was the date of the final decision in their case for the purposes of Article 35 § 1 of the Convention. Furthermore, the applicants have 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 Izmir 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 hearing by an independent and impartial tribunal;
Declares the remainder of the application inadmissible.
Françoise ELENS-PASSOSNicolas bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy