CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28324/95                       by Mehmet SAHiN                       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 8 August 1995 by Mehmet Sahin against Turkey and registered on 25 August 1995 under file No. 28324/95;        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 applicant, born in 1973, is a Turkish citizen and is imprisoned in the province of Usak. He is represented before the Commission by Mrs Sibel Bilge Uslu, a lawyer practising in Izmir.        The facts of the present case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        On 5 April 1994 the applicant, along with his friends A.Ö., M.Ö., Ü.B. and F.K., found 5 million Turkish liras in the Karsiyaka neighbourhood of the province of Izmir. As the applicant, A.Ö. and F.K. did not agree to share the money with the other two, on 6 April 1994 the latter went to the police station in Karsiyaka and complained that they could not get their share. On the night of 6 April 1994 the applicant and A.Ö. were arrested by policemen and placed in custody on suspicion of having committed extortion.        On 7 April 1994 the applicant was brought before the Public Prosecutor of Karsiyaka. According to the record from that occasion, he was informed of his right to have the assistance of a lawyer, to which he responded by stating that he did not want a lawyer but preferred to defend himself. On the same day he was also brought before the Karsiyaka Criminal Justice of the Peace before whom he stated that he confirmed the statements he had made before the Public Prosecutor. He was remanded in prison on account of the nature of the alleged offence and the evidence in the file.        On 20 April 1994 the Chief Public Prosecutor of Karsiyaka filed an indictment with the Assize Court accusing the applicant and his accomplices of having committed extortion with a weapon. In particular, the Public Prosecutor alleged that the applicant and his accomplices A.Ö. and F.K. had threatened to kill M.Ö. and Ü.B., while they were at a café, with a knife and a toy gun, that they had asked M.Ö. and Ü.B. to bring 5 million Turkish liras to them and that the latter had felt compelled to give them the money.        On 21 October 1994 the Karsiyaka Assize Court sentenced the applicant to 14 years and 7 months' imprisonment and permanently debarred him from public service, under Article 497 para. 1 and Article 31 of the Turkish Penal Code, on the ground that he and his accomplices had extorted 5 million Turkish liras and a watch from M.Ö. and that they had wounded Ü.B., thereby preventing him from working during five days, the reason being that he had not given them 3 million Turkish liras. Before the Karsiyaka Assize Court the applicant denied the accusations brought against him. He stated that M.Ö. had found 5 million liras, that they had taken the money from him as he had not agreed to share it with them, that he did not know anything about the knife and that the toy gun had not been used against Ü.B.        On 31 October 1994 the applicant, through his lawyer, lodged an appeal with the Court of Cassation against the judgment delivered by the Karsiyaka Assize Court.        On 22 February 1995 the Court of Cassation decided on the appeal. It agreed with the Karsiyaka Assize Court as regards its reasoning and assessment of the evidence.   B.    Relevant Domestic Law        The relevant domestic law in the present case is contained in Articles 138, 139 and 140 of the Turkish Constitution, the text of which is set out below:        The Turkish Constitution        Article 138        <Translation>        "Judges shall be independent in the exercise of their functions      and shall give judgments in accordance with the Constitution, the      law and their own conscience.        No organ, authority or individual shall give orders or      instructions, send circulars, offer advice or make suggestions      to courts or judges in connection with the exercise of judicial      power.        No question shall be asked, no debates be held or statements be      made in the Legislative Assembly concerning the exercise of      judicial power in a case which has not yet been decided.        Legislative and executive organs and the administration shall      comply with court decisions; they shall neither alter them in any      respect, nor delay their execution."        Article 139        <Translation>        "Judges and prosecutors shall not be removed from office or      compelled to retire without their consent before the age      prescribed by the Constitution, nor shall they be deprived of      their salaries, allowances or other rights relating to their      status, even following the abolition of a court or a post.        Exceptions may be made in cases where a judge or prosecutor is      convicted of an offence requiring his dismissal from the      profession, where his inability to exercise his functions on      account of ill-health is clearly established or where his      continuation in the profession is found to be undesirable."        Article 140        <Translation>        "Judges and prosecutors shall perfom their functions in the      ordinary and administrative courts. These functions shall be      exercised by professional judges and prosecutors.        Judges shall discharge their duties in accordance with the      principles of the independence of the courts and the security of      tenure of the judiciary.        The qualifications, appointment, rights, duties, salaries and      allowances of judges and prosecutors, their promotion, their      temporary or permanent assignment to other duties or posts, the      initiation of disciplinary proceedings against them and the      subsequent imposition of disciplinary penalties, the conduct of      investigations concerning them and the subsequent decision to      prosecute them on account of offences committed in connection      with, or in the course of, their duties, the offences or      instances of incompetence requiring their dismissal from the      profession, their in-service training and other matters relating      to their status shall be regulated by law in accordance with the      principles of the independence of the courts and the security of      tenure of the judiciary.        Judges and prosecutors shall exercise their functions until they      reach the age of sixty-five; the maximum age, promotion and      retirement of military judges shall be prescribed by law.        Judges and prosecutors shall not assume official or private      functions other than those prescribed by law.        Judges and prosecutors shall be administratively subordinate to      the Ministry of Justice.        Judges and prosecutors exercising administrative functions in the      legal service shall be subject to the same provisions as other      judges and prosecutors. Their categories and grades shall be      determined in accordance with the principles applicable to other      judges and prosecutors and they shall enjoy all the rights      granted to judges and prosecutors."     COMPLAINTS   1.    The applicant complains under Article 5 paras. 1(c), 2, 3 and 5 of the Convention that there was no reasonable suspicion of his having committed a criminal offence when he was arrested, that he was not informed promptly of the reasons for his arrest or of any criminal charge against him when he was in custody, that he was not released pending trial although there was insufficient evidence and that he was not given any compensation although he was a victim of unlawful arrest and detention.   2.    The applicant alleges under Article 6 para. 1 of the Convention that he was not given a fair hearing by an independent tribunal as the the judges had been appointed by the Supreme Council of Judges and Prosecutors of which the Minister of Justice is a member and whose decisions are not reviewed by a judicial organ pursuant to Article 159 of the Turkish Constitution.   3.    He complains under Article 6 para. 3(c) of the Convention that he was not entitled to legal assistance when he was questioned by the Public Prosecutor and when he appeared before the Criminal Justice of the Peace.     THE LAW   1.    The applicant complains under Article 5 paras. 1(c), 2, 3 and 5 (Art. 5-1-c, 5-2, 5-3, 5-5) of the Convention that there was no reasonable suspicion of his having committed a crime when he was arrested, that he was not informed promptly of the reasons for his arrest and or any criminal charge against him when he was in custody, that he was not released pending trial although there was insufficient evidence and that he was not given any compensation although he was a victim of unlawful arrest and detention.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5, as Article 26 (Art. 5, 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".        The Commission notes that the applicant was taken into custody on 6 April 1994 and was detained on remand until 21 October 1994, whereas the application was introduced with the Commission on 8 August 1995, i.e. more than six months later.        It follows that the complaints under Article 5 (Art. 5) of the Convention have been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant alleges under Article 6 para. 1 (Art. 6-1) of the Convention that he was not given a fair hearing by an independent tribunal as the judges had been appointed by the Supreme Council of Judges and Prosecutors of which the Minister of Justice is a member and whose decisions are not reviewed by a judicial organ pursuant to Article 159 of the Turkish Constitution.        The Commission observes that the applicant does not object to the subjective impartiality of the judges in his case. He only objects to the fact that they had been appointed by the Supreme Council of Judges and Prosecutors of which the Minister of Justice is a member.        The Commission recalls that "in order to establish whether a body can be considered 'independent', regard must be had, inter alia, to the manner of appointment of its members (cf., Eur. Court HR, Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32; Campbell and Fell judgment of 28 June 1984, Series A, no. 80, p. 39-41, para. 78).        The Commission notes that the judges who dealt with the applicant's case had been appointed, like all other judges in Turkey, by the Supreme Council of Judges and Prosecutors. It is true that the Minister of Justice is a member of this Council. However, this element cannot be sufficient to create any legitimate doubt as to the independence of the courts. Moreover, the applicant adduces no other evidence to show that the independence of the courts could be questioned.        The Commission therefore considers 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.   3.    The applicant complains under Article 6 para. 3(c) (Art. 6-3-c) of the Convention that he was not entitled to legal assistance when he was questioned by the Public Prosecutor and when he appeared before the Criminal Justice of the Peace.        The Commission observes that when the applicant was brought before the Public Prosecutor to be questioned he was informed of his right to legal assistance. However, he stated that he did not wish to have a lawyer but preferred to defend himself. On the same day he appeared before the Justice of the Peace and confirmed his statements before the Public Prosecutor. There is no indication that on this occasion he requested to be assisted by a lawyer.        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, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber