SECKIN AND OTHERS v. TURKEY

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56016/00
by Burak SEÇKIN and Others
against Turkey

The European Court of Human Rights (Third Section), sitting on 30 June 2005 as a Chamber composed of:

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrR. Türmen,
MrsM. Tsatsa-Nikolovska,
MrV. Zagrebelsky,
MrE. Myjer, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 15 December 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants, Burak Seçkin, Hakan Kocaoğlu and Uğur Erdoğan, are Turkish nationals who were born in 1981, 1979 and 1979 respectively and live in Samsun. They are represented before the Court by Mr M. Karaoğlu, a lawyer practising in Samsun.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 15 November 1996 the applicants were arrested and taken into police custody by police officers from the Samsun Security Directorate. The first and the third applicant were released from police custody on 16 November 1996 and the second applicant on 18 November 1996. The first applicant was fifteen and the second and third applicant were seventeen at the time of the events.

On 18 November 1996 Hakan Kocaoğlu appeared before the Samsun public prosecutor where he denied that he was member in an illegal organisation. He stated that he was merely a bystander when the first applicant and a certain U.Ş. wrote slogans on the walls.

According to the medical reports drafted by the Samsun Forensic Medical Institute on 18 November 1996, the applicants did not bear any signs of ill-treatment.

On 9 December 1996 the public prosecutor at the Ankara State Security Court filed a bill of indictment with that court, accusing the applicants of aiding and abetting an illegal organisation, namely the DHKP/C. The public prosecutor accused the first applicant of being an accessory to writing slogans on behalf of an illegal organisation in March 1996 on the walls of a primary school and on the walls of the Şifayurdu Street. The second applicant was accused of writing slogans on behalf of an illegal organisation on the walls of a primary school and of being an accessory to writing slogans on behalf of an organisation on the walls of the Şifayurdu Street and on the walls of a Hospital. The third applicant was accused of having distributed leaflets on 9 October 1995 in the Atakul High School and having written slogans on 20 December 1995 on behalf of an illegal organisation. He requested that the applicants be convicted and sentenced under Article 169 of the Criminal Code and Article 5 of Law no. 3713.

On 23 December 1996 the Ankara State Security Court commenced the trial of the applicants together with twelve other co-accused. The applicants were represented by a lawyer.

In his observations on the merits, the public prosecutor requested that the second applicant be charged with membership of an illegal organisation and requested that he be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713.

On 10 July 1997 the Ankara State Security Court convicted the applicants as charged and sentenced the second applicant to eight years and four months' imprisonment, the first applicant to two years and six months' imprisonment and the third applicant to three years and nine months' imprisonment.

On 2 July 1998 the Court of Cassation quashed the judgment of the first‑instance court in respect of the applicants and another co-accused. It held that the court had not taken into account the age of the first and the third applicants at the time of the commission of the offence. It further considered that the first-instance court had misinterpreted the offence in respect of the second applicant. It upheld the judgment in respect of the other co-accused.

On 31 July 1998 the Ankara State Security Court commenced the trial of the applicants together with another co-accused.

On 8 December 1998 a medical report drafted by the Samsun Psychiatric Hospital, according to which the first applicant was considered to be mentally fit at the time of the commission of the offence, was submitted to the court.

In his written defence submission to the court, the first applicant argued that he was twelve years old at the time of the alleged commission of the offence and that the medical report of Samsun Mental Hospital examining him four years after the alleged commission of the offence could not be considered to be scientifically conclusive. He claimed that his statement before the police was taken under torture.

In his written defence submission to the court, the second applicant claimed that there was no other evidence to convict him apart from his statement given in police custody. He relied on the police statement of deceased U.Ş. who had stated that the applicants had left the organisation. He claimed that his statement before the police was taken under torture.

In his written defence submission to the court, the third applicant denied the accusations brought against him. He submitted that he had stopped seeing the other co-accused as soon as he understood that they wanted him to enter the illegal organisation. He also claimed that he never took part in the events for which he was charged with and that his statement before the police was taken under torture.

On 22 December 1998 the Ankara State Security Court convicted the applicants as charged and, taking into account the ages of the applicants at the time of the commission of the offence, sentenced the second and the third applicant to two years and six months' imprisonment and the first applicant to one year, ten months and fifteen days' imprisonment.

The applicants appealed against this judgment. In their appeal petition, the applicants submitted that their right to a fair trial by an independent and impartial tribunal as guaranteed by Articles 6 and 10 of the Convention was breached. They claimed that their statements given in police custody had been taken under duress and torture. Furthermore, they pointed out that the first applicant was twelve and the second and the third applicant was fifteen at the time of the alleged commission of the offence.

Following a hearing, held on 29 June 1999, the Court of Cassation dismissed the applicants' appeal and upheld the judgment of the Ankara State Security Court. The decision of the Court of Cassation was pronounced on 7 July 1999 in the absence of the applicants' representative. On 23 July 1999 the judgment of the Court of Cassation was sent to the registry of the first-instance court.

On an unspecified date, the applicants filed an application with the principal public prosecutor at the Court of Cassation and requested the rectification of the decision of the Court of Cassation. They submitted that following the entry into force of Law no. 4390, they should be re-tried by the State Security Court without the presence of a military judge sitting on the bench.

On 27 September 1999 the principal public prosecutor at the Court of Cassation dismissed the applicants' request for a rectification of judgment. It held that, pursuant to provisional Article 3 of the Law no. 4390, the cases which were pending at the date of entry of the new law would continue to be tried as such.

COMPLAINTS

The applicants complain under Article 3 of the Convention that their statements in police custody were taken under physical and psychological pressure. By a letter dated 22 February 2000, the applicants submitted that while they were held in police custody, they were blindfolded, deprived of adequate food, water and sleep, threatened, shouted at and made to listen to other peoples' screams. In the same letter, the applicants further claimed that the first applicant's testicles were squeezed.

The applicants submit under Article 5 §§ 1 (a), (b), (d), 2, 3 and 4 of the Convention that none of the guarantees set out in the aforementioned Article was respected when they were held in police custody and throughout the proceedings. In this connection, they argue that they were deprived their right to an assistance of a lawyer and that their families were not contacted and that they were unable to see them.

The applicants contend under Article 6 of the Convention that they did not receive a fair hearing by an independent and impartial tribunal on account of the presence of the military judge sitting on the bench of the Ankara State Security Court. They claim that the charges brought against them cannot be considered as aiding and abetting an illegal organisation but concern their right to freedom of expression. They argue that the principal public prosecutor's decision to dismiss their request for a rectification of judgment was unlawful.

Finally, the applicants complain that the Ankara State Security Court did not take into account the ages of the applicants and did not apply the procedures pertaining to the trial of juveniles. They rely on Articles 5 and 6 of the Convention.

THE LAW

1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment while they were held in police custody.

The Court notes that in the initial application form the applicants did not provide any details as to the kind of ill-treatment which was allegedly inflicted on them and that it was only in their letter dated 22 February 2000 that they elaborated on the details of the alleged ill-treatment. The Court observes that throughout the criminal proceedings, the applicant only argued that their statements in police custody was taken under duress and torture without giving any descriptions or details as to the kind of ill‑treatment they were allegedly subjected to.

The Court further observes that the applicants have not been able to substantiate their allegations of ill-treatment. Accordingly, the Court concludes that the applicants have not laid the basis of an arguable claim that they were ill-treated at the hands of the police officers while they were held in police custody. For these reasons, the Court finds that their complaints under Article 3 of the Convention are inadmissible as being manifestly-ill founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicants submit under Article 5 §§ 1 (a), (b), (d), 2, 3 and 4 of the Convention that none of the guarantees set out in the aforementioned Article was respected when they were held in police custody and throughout the proceedings and that their families' were not contacted and that they were unable to see them.

a) As regards the applicants' complaints pertaining to their detention in police custody, the Court notes that it is not required to decide whether the facts alleged by the applicants disclose any appearance of a violation of Article 5 §§ 1, 2, 3 and 4 since Article 35 § 1 of the Convention provides that the Court “may only deal with the matter ... within a period of six months from the date on which the final decision was taken”.

In the instant case the Court observes that the applicants were arrested pursuant to the Law on the Procedures of State Security Courts and that there were no domestic remedies available in order to challenge the lawfulness and the length of their police custody (see, mutatis mutandis, Sakık and Others v. Turkey, judgment of 26 November 1997, § 53, Reports of Judgments and Decisions 1997-VII).

The Court points out that, according to the established case-law, when the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place (see, among others, Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII).

The Court notes that in the present case, the applicants' detention in police custody ended on 16 November and 18 November 1996, whereas the application was introduced to the Court on 15 December 1999. It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

b) As regards the applicants' complaints under Article 5 of the Convention that none of the guarantees set out in the aforementioned Article was respected throughout the proceedings, the Court observes that the applicants' complaint as laid out in the application form pertains to their detention in police custody. In this connection, the Court points out that the applicants have contended themselves to invoke the aforementioned complaint without giving any further explanations. In light of the above, the Court considers this part of the application inadmissible as being manifestly ill‑founded within the meaning of Article 35 §§ 3 and must be rejected pursuant to Article 35 § 4.

3. The applicants complain under Article 5 of the Convention that they were deprived of their right to a lawyer while they were held in police custody.

The Court considers that this part of the complaint should be examined under Article 6 § 3 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint under Article 6 and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicants contend under Article 6 of the Convention that they did not receive a fair hearing by an independent and impartial tribunal on account of the presence of the military judge sitting on the bench of the Ankara State Security Court.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints under Article 6 and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicants claim under Article 6 of the Convention that the charges brought against them cannot be considered as aiding and abetting an illegal organisation but concern their right to freedom of expression.

The Court considers that this complaint should be examined under Article 10 of the Convention.

The Court is not required to decide whether the applicants' conviction amounted to an interference with their freedom of expression since it considers that their claims under Article 10 of the Convention are in any event inadmissible for the following reasons.

The Court reiterates that under the terms of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised, at least in substance, during the proceedings in question (see, among others, Çakar v. Turkey, no. 42741/98, § 30, 23 October 2003).

In the instant case, the Court observes that according to the documents provided by the applicants, at no time did they allege, rely on or raise any arguments in respect of their right to freedom of expression. The Court notes that, throughout the criminal proceedings, the applicants merely denied the allegations against them, claiming that they had never taken part in any of the activities which were the subject of the charges against them and put forward arguments which were based solely on domestic law not related to their right to freedom of expression.

Even assuming that the national courts were able, or even obliged, to examine the case of their own motion under the Convention, this could not dispense the applicants from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem they intended to submit subsequently, if need be, before the Court (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 19, § 39, and Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports 1996 -V, § 33).

In view of the considerations above, the Court holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

6. They applicants argue under Article 6 of the Convention that the principal public prosecutor's decision to dismiss their request for a rectification of judgment was unlawful.

The Court observes that an application for rectification of a judgment as provided for in Turkish law is a special remedy against decisions of the Court of Cassation by which that court can be requested to review its own judgments where it is alleged that it has failed to rule on a ground which had been submitted to it and/or an error of law by the trial court which is likely to be decisive for the outcome of the trial.

Under Article 322 of the Code of Criminal Procedure, only the principal public prosecutor can use that remedy, either of his own motion or at the request of the convicted person. It is not therefore a domestic remedy directly accessible to persons triable in the courts (see Çıraklar, cited above, pp. 3070-71, §§ 29-32, and also Kucherenko v. Ukraine (dec.), no. 41974/98, 4 May 1999).

In this connection, the Court reiterates that guarantees of Article 6 of the Convention do not apply to proceedings in which re-opening of the proceedings terminated by a final decision are sought (see, among many other authorities, Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001 and Wierciszewska v. Poland, no. 41431/98, § 35, 25 November 2003). The Court therefore concludes that Article 6 of the Convention is not applicable to this part of the proceedings.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

7. The applicants complain that the Ankara State Security Court did not take into account the ages of the applicants and did not apply the procedures pertaining to the trial of juveniles. They rely on Articles 5 and 6 of the Convention.

The Court considers that this complaint should be examined under Article 6 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints under Article 6 and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

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.

Vincent BergerBoštjan M. Zupančič
RegistrarPresident

Full & Egal Universal Law Academy