AS TO THE ADMISSIBILITY OF
Application No. 30495/96
by Abdullah MUTLU and Necmettin YILDIZ
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 9 February 1996
by Abdullah Mutlu and Necmettin Yildiz against Turkey and registered
on 19 March 1996 under file No. 30495/96;
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 first applicant, born in 1960, and the second applicant, born
in 1964, are Turkish citizens who are currently detained at Buca Prison
in izmir. They are represented before the Commission by
Mr. Kemal Bilgiç, a lawyer practising in izmir.
The facts of the present case, as submitted by the applicants,
may be summarised as follows.
On 21 October 1995 the applicants were arrested by policemen from
the Anti-Terrorist branch of Manisa Security Directorate. They were
accused of being members of and assisting the PKK terrorist
organisation.
On 30 October 1995 the applicants were brought before a judge in
Manisa who ordered their detention on remand.
On 31 October 1991 the Public Prosecutor of Manisa declined
jurisdiction due to the nature of the crimes, which are against the
security of the State, and referred the case to the Public Prosecutor
attached to izmir State Security Court.
On 22 November 1995 the latter filed an indictment against the
applicants charging them with being members of and assisting the PKK
terrorist organisation.
The case is still pending before the izmir State Security Court.
COMPLAINTS
1. The applicants complain that they were held in police custody for
ten days as they were accused of crimes that fall within the
jurisdiction of the State Security Courts. 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. They also allege 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 contend under Article 6 of the Convention that
their right to a fair trial was breached as they were deprived of their
right to defend themselves through legal assistance during the 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 promptly brought before a judge since
they were held in police custody for ten days.
They also allege 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 complain under Article 6 (Art. 6) of the
Convention that they could not enjoy their right to a fair trial since
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, which has
made amendments to the Code of Criminal Law, did 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 ten 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