THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 13007/02 and 5994/03
by İbrahim ŞAHİN
Applications nos. 13924/02 and 5995/03
by Erdoğan SÜRGEÇ
against Turkey
The European Court of Human Rights (Third Section), sitting on 4 September 2003 as a Chamber composed of
MrG. Ress, President,
MrI. Cabral Barreto,
MrL. Caflisch,
MrR. Türmen,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above applications lodged on 26 February 2002 (applications nos. 13007/02 and 13924/02), 2 December 2002 (application no. 5995/03) and 29 December 2002 (application no. 5994/03),
Having deliberated, decides as follows:
THE FACTS
The applicants, İbrahim Şahin and Erdoğan Sürgeç, who were born in 1979 and 1973 respectively, are both Turkish nationals and live in Tunceli. They are represented before the Court by Hüseyin Aygün and Özgür Ulaş Kaplan, lawyers practising in Tunceli.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 1 November 2001 the applicants were taken into custody on account of an operation concerning the PKK.
On 9 November 2001 the Tunceli Magistrate’s Court decided that the applicants be detained on remand.
On 7 December 2001 the Public Prosecutor attached to the Malatya State Security Court filed a bill of indictment against the applicants, charging the first applicant of being a member of a terrorist organisation and the second applicant of aiding and abetting the terrorist organisation. The charges were brought under section 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no 3713) for the first applicant, and under section 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no 3713) for the second applicant.
On 10 September 2002 the Malatya State Security Court convicted the applicants and sentenced the first applicant to 16 years and 3 months’ imprisonment and the second applicant to 3 years and 9 months’ imprisonment.
The cases are still pending before the Court of Cassation.
COMPLAINTS
In applications nos. 13007/02 and 13924/02, the applicants complain under Article 5 § 3 of the Convention that they were held in police custody for an excessive period of time.
In applications nos. 5994/03 and 5995/03, the applicants complain under Article 6 § 1 of the Convention that they were deprived of their right to a lawyer in police custody and that their lawyer was searched and his defence materials examined by the prison guards during their detention on remand. They also complain that they were tried by the State Security Court which was neither independent nor impartial.
In the same two applications, they complain under Article 8 of the Convention that they had difficulties in meeting with their lawyer during their detention on remand and that the authorities had interfered with their right to respect for their correspondence.
THE LAW
1. The applicants complain under Article 5 § 3 of the Convention on account of the length of their police custody.
The Court considers that it cannot on the basis of the case files, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this to the respondent Government.
2. The applicants complain under Article 6 § 1 of the Convention that they did not receive a fair trial and were not tried by an independent and impartial tribunal.
The Court points out that, in accordance with Article 35 § 1 of the Convention, “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”.
It notes that the cases are still pending before the Court of Cassation and, thus, finds that the applicants did not exhaust the remedies available to them under Turkish law in respect of this complaint.
It follows that this part of the applications must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. The applicants complain under Article 8 of the Convention that they had difficulties in meeting with their lawyer during their detention on remand and that the authorities had interfered with their right to respect for their correspondence.
The Court notes that the applicants did not substantiate their claims concerning their complaints under Article 8. It follows that this part of the applications is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants’ complaint concerning the length of the applicants’ police custody;
Declares the remainder of the applications inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy