FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58058/00
by Yahya KEZER and others
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 5 October 2004 as a Chamber composed of:
SirNicolas Bratza, President,
MrM. Pellonpää,
MrR. Türmen,
MrsV. Strážnická,
MrJ. Casadevall,
MrR. Maruste,
MrS. Pavlovschi, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 11 April 2000,
Having deliberated, decides as follows:
THE FACTS
The applicants, Yahya Kezer, Nedim Öndeş, Arap Doğan, Ferhan Özçelik and Selhan Tekin are Turkish nationals, who were born in 1960 and 1969, 1951, 1961 and 1964 respectively, and live in Izmir. They are represented before the Court by Mr Mustafa İşeri, a lawyer practising in Izmir.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 2 June 1995 Nedim Öndeş, Arap Doğan, Ferhan Özçelik and Selhan Tekin were arrested and taken into custody by the anti-terror branch of the Izmir Security Directorate on suspicion of aiding and abetting an illegal organisation. On 6 June 1995 Yahya Kezer was arrested and taken into custody by the same branch for the same reason.
On 14 June 1995 the applicants were brought before the Izmir State Security Court which ordered their detention on remand.
On 10 July 1995 the public prosecutor at the Izmir State Security Court filed a bill of indictment with the latter, accusing Yahya Keser and Nedim Öndeş of membership of an illegal organisation and the other applicants of aiding and abetting an illegal organisation. He requested that Yahya Keser and Nedim Öndeş be charged and convicted under Article 168 §2 of Criminal Code and Section 5 of Law no. 3713. In respect of the other applicants, the public prosecutor requested that they be charged and convicted under Article 169 of Criminal Code and Section 5 of Law no. 3713.
On 12 October 1995 the applicants lodged an application with the European Court of Human Rights complaining about the length of their pre‑trial detention in police custody. (application no. 29425/95)
On 22 July 1997 the Izmir State Security Court convicted the applicants as charged and sentenced Yahya Keser to fifteen years, Nedim Öndeş to fourteen years and seventeen months, Arap Doğan to two years and eleven months, Ferhan Özçelik and Selhan Tekin to three years and nine months' imprisonment.
On 7 July 1998 the Court of Cassation quashed the judgment of the Izmir State Security Court for non-compliance with procedural rules.
On 3 December 1998 the Izmir State Security Court convicted the applicants as charged and sentenced Yahya Keser to fifteen years' imprisonment, Nedim Öndeş to fourteen years' and seventeen months' imprisonment and the other applicants to three years' and nine months' imprisonment.
On 18 October 1999 the Court of Cassation held a hearing and upheld the judgment of the Izmir State Security Court.
On 10 July 2001 the European Court of Human Rights struck out the applicants' previous application concerning the length of their detention in police custody, following a friendly-settlement agreement reached between the respondent Government and the applicants.
On 7 May 2004 the Registry of the Court sent a letter to the applicants' representative asking whether they wanted to pursue their complaint under Article 5 of the Convention.
On 14 May 2004 the applicants' representative informed the Court that the applicants wished to pursue their complaint under Article 5 of the Convention.
COMPLAINTS
The applicants contend that they did not receive a fair hearing by an independent and impartial tribunal. They assert that one of the judges sitting on the bench of the Izmir State Security Court was a military judge. They complain that they were denied the assistance of a lawyer during the initial stages of the criminal proceedings. They claim that they were convicted solely on the basis of their statements taken under duress in police custody. 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. Finally, they complain that Turkish law does not give the possibility to cross-examine witnesses, thereby, depriving the applicants of their right to confront the witnesses. The applicants invoke Article 6 §§ 1, 3 (a), (b) and (d) of the Convention in respect of the above-mentioned complaints.
The applicants, without invoking any particular Article of the Convention, complain of the length of their detention in police custody. However, the applicants have informed the Court that this complaint was the subject of another application pending before the court.
THE LAW
1. The applicants complain under Article 6 §§ 1, 3 (a), (b) and (d) of the Convention that they did not receive a fair hearing by an independent and impartial tribunal 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, without invoking any particular Article of the Convention, complain 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 observes that the applicants previously lodged an application (application no. 29425/95) with the Court complaining about the length of their detention in police custody and that the latter was struck out by the Court following a friendly settlement agreement reached between the applicants and the respondent Government. The Court considers that such an agreement constitutes a final settlement of the case. In doing so the applicants expressly waived any further claims against the respondent Government in respect of their complaint concerning the length of their detention in police custody.
The Court notes that the applicants complaint under Article 5 § 3 of the Convention is substantially the same as a matter that has already been examined by the Court and that the applicants have not submitted any “relevant new information” in relation to the above complaint. (see X v. the United Kingdom, no. 8206/78, Commission Decision of 10 July 1981, Decisions and Reports (DR) 25, p. 147).
Consequently, the Court considers that the present complaint is inadmissible in accordance with Article 35 § 2 (b) of the Convention as being substantially the same as their previous application.
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.
Michael O'BoyleNicolas bratza
RegistrarPresident
Full & Egal Universal Law Academy