AS TO THE ADMISSIBILITY OF
Application No. 30453/96
by Güven ÖZATA and others
against Turkey
__________
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 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 3 February 1996
by Güven ÖZATA, Sait KIZAR, Ali ÖZMEN, ibrahim TEKiN, Sabri ÖNER and
Enver SÖNMEZ against Turkey and registered on 14 March 1996 under file
No. 30453/96;
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 applicants, Güven Özata, Sait Kizar, Ali Özmen, ibrahim
Tekin, Sabri Öner and Enver Sönmez, are all Turkish citizens, born in
1945, 1952, 1968, 1958, 1963 and 1959 respectively, who reside in
Antalya. They are represented before the Commission by Mehmet Nur Terzi
and Kemal Bilgiç, lawyers practising in izmir.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Following a number of investigations carried out by the Antalya
police, the applicants were taken into police custody on various dates
between 16 and 21 November 1995 on suspicion of being members of an
illegal armed organisation, the PKK.
The details are as follows:
The applicant Period of police custody
Güven Özata 21.11.1995
29.11.1995
Sait Kizar 16.11.1995
29.11.1995
Ali Özmen 16.11.1995
29.11.1995
ibrahim Tekin 16.11.1995
29.11.1995
Sabri Öner 16.11.1995
29.11.1995
Enver Sönmez 16.11.1995
29.11.1995
As the Antalya Public Prosecutor found that he had no
jurisdiction to examine the case, the file was sent to the Izmir Public
Prosecutor's office. On 29 November 1995 the applicants were brought
before a judge of the izmir State Security Court. The judge, having
regard to the nature of the accusations and the evidence already
available, placed them in detention on remand.
In an indictment dated 27 December 1995, the Public Prosecutor
at the izmir State Security Court charged the applicants with being
members of an illegal organisation, the PKK, and carrying out acts
aimed at the separation of part of the State territories.
The criminal proceedings against the applicants are still pending
before the State Security Court and the applicants remain in detention.
COMPLAINTS
1. The applicants complain under Article 5 para. 3 of the Convention
that they were kept in police custody without being brought before a
judge for periods between 9 and 14 days.
2. The applicants further complain under Article 6 para. 3 (b) of
the Convention that during their police custody they were deprived of
any possibility of contacting a lawyer and did not have a chance to
defend themselves through legal assistance.
3. They complain lastly under Article 14 in conjunction with
Article 6 para. 3 (b) of the Convention that they were treated in a
discriminatory manner as regards the enjoyment of their rights under
Article 6 para. 3 (b) of the Convention. They observe that, according
to the Code of Criminal Procedure, persons charged with offences to be
tried by the ordinary courts 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.
They maintain that this difference of treatment is completely
unjustified and constitutes discrimination within the meaning of
Article 14.
THE LAW
1. The applicants complain under Article 6 para. 3 (b) (Art. 6-3-b)
of the Convention that during their police custody they were deprived
of any possibility of contacting a lawyer and did not have a chance to
defend themselves through legal assistance.
They also complain under Article 14 in conjunction with Article 6
para. 3 (b) (Art. 14+6-3-b) of the Convention that they were treated
in a discriminatory manner as they were suspected of offences which
fall within the jurisdiction of the State Security Courts.
The Commission notes, however, that the criminal proceedings
against the applicants are still pending.
The Commission must take into consideration the entire criminal
proceedings before it can express an opinion as to whether they comply
with the requirements of Article 6 (Art. 6) of the Convention. It notes
that, under Turkish law, the applicants can submit to the first-
instance court and the Court of Cassation the complaints which they now
raise before the Commission.
The introduction of the above complaints therefore appears
premature, given the current stage of the proceedings before the
domestic courts. The applicants cannot therefore complain at this stage
of any violation of the Articles of the Convention which they invoke.
They may re-submit the case to the Commission if, following the outcome
of the criminal proceedings against them, they still consider
themselves victims of the alleged violations. This part of the
application must therefore be rejected as being manifestly ill-founded
pursuant to Article 27 para. 2 (Art. 27-2) of the Convention (Nos.
23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec.
25.5.95, D.R. 81-B p. 94).
2. The applicants also complain under Article 5 para. 3 (Art. 5-3)
of the Convention that they were kept in police custody without being
brought before a judge for periods between 9 and 14 days.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of this complaint to the respondent
Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicants' complaint
related to the length of their police custody,
unanimously,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy