AS TO THE ADMISSIBILITY OF
Application No. 34481/97
by Melahat FiLiZ and Nadir KALKAN
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 September 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 22 November 1996
by Melahat Filiz and Nadir Kalkan against Turkey and registered on 14
January 1997 under file No. 34481/97;
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 applicants, born in 1976 and 1957 respectively, are Turkish
citizens who are currently held in prison. They are represented before
the Commission by Mr. Mustafa iseri and Mr. Suat Çetinkaya, lawyers
practising in izmir.
The facts of the present case, as submitted by the applicants,
may be summarised as follows.
On 28 July 1996, following an investigation carried out by the
Public Prosecutor at the izmir State Security Court, the applicants
were arrested by members of the Anti-Terror branch of izmir Security
Directorate.
On 5 August 1996 the applicants were brought before the izmir
State Security Court which ordered their detention on remand.
On 28 August 1996 the Public Prosecutor at the izmir State
Security Court filed an indictment with the court against the
applicants charging them, under Article 168 para. 2 of the Turkish
Penal Code, with being members of an illegal armed organisation, namely
the PRK-Rizgari.
The criminal proceedings against the applicants are still pending
before the Izmir State Security Court.
COMPLAINTS
1. The applicants complain that they were held in police custody for
eight days without being brought before a judge. In this regard, the
applicants contend that Article 5 para. 3 of the Convention was
violated due to the excessive length of their detention in police
custody without being brought before a judge.
2. The applicants submit under Article 14 in conjunction with
Article 5 para. 3 of the Convention that the length of their police
custody constituted discrimination as compared to the rights of persons
suspected of having committed an offence falling within the
jurisdiction of the ordinary courts.
3. The applicants maintain under Article 6 of the Convention that
their right to a fair trial was breached, as the criminal proceedings
brought against them were based on their confessions obtained in the
course of the police custody.
The applicants contend that they were informed of the accusations
against them when the Public Prosecutor filed an indictment with the
State Security Court and thus not "promptly" when they were arrested.
They also submit that they did not have adequate time and facilities
for the preparation of their defence and that they were deprived of
legal assistance during their police custody.
4. The applicants submit under Article 14 in conjunction with
Article 6 of the Convention that they were subjected to discrimination
on the basis of domestic law as Law No. 3842, containing amendments to
the Code of Criminal Procedure, does not apply to crimes falling within
the jurisdiction of the State Security Courts. In particular, they
complain that individuals suspected of ordinary crimes have the right
to the assistance of a lawyer during questioning by the police and the
public prosecutor, whereas those suspected of offences which fall
within the jurisdiction of the State Security Courts are prevented from
enjoying this right.
THE LAW
1. The applicants complain under Article 5 para. 3 (Art. 5-3) of the
Convention that they were not brought promptly before a judge since
they were held in police custody for eight days.
The applicants submit under Article 14 in conjunction with
Article 5 para. 3 (Art. 14+5-3) of the Convention that the length of
their police custody constituted discrimination as compared to the
rights of persons suspected of having committed an offence falling
within the jurisdiction of the ordinary courts.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of these complaints to the
respondent Government.
2. The applicants under Article 6 (Art. 6) of the Convention that
they were deprived of their right to a fair trial since the criminal
proceedings brought against them were based on their confessions
obtained during police custody, that they were not promptly informed
of the accusations against them, that they did not have adequate time
and facilities for the preparation of their defence and that they were
deprived of their right to legal assistance during their police
custody.
The applicants complain under Article 14 in conjunction with
Article 6 (Art. 14+6) of the Convention that they were subjected to
discrimination on the basis of domestic law as Law No. 3842, containing
amendments to the Code of Criminal Procedure, does not apply to crimes
falling within the jurisdiction of the State Security Courts. In
particular, they complain that Law No. 3842, which provides for the
right to legal assistance during police custody in respect of the
crimes falling within the jurisdiction of the ordinary criminal courts,
does not provide for the same right in respect of the crimes falling
within the jurisdiction of the State Security Courts.
However, according to its established case-law, the Commission
must take into consideration the entire criminal proceedings brought
in order to decide whether they conform to the requirements of Article
6 (Art. 6) of the Convention (e.g. Nos. 23878/94, 23879/94, 23880/94,
23881/94, 23882/94, 23883/94, Dec. 25.5.95, D.R. 81-B, p. 94).
The Commission notes that the criminal proceedings brought
against the applicants are still pending before the State Security
Court. As the criminal charges against them have not yet been
determined the applicants still have at their disposal the possibility
of submitting their complaints to the criminal courts. After the final
ruling is given in domestic law, the applicants can apply to the
Commission if they then still consider themselves victims of violations
in the above respects. In this regard, the applicants' above complaints
under Articles 6 and 14 (Art. 6, 14) appear to be premature.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicants' complaints
that they were held in police custody for eight days without
being brought before a judge, and that they were discriminated
against as regards the length of their police custody.
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.-T. SCHOEPFER G. H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy