CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 26 mai 2005

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s3CA6E042 { width:12.35pt; display:inline-block } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sE5338F84 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt; text-align:justify } .s29100277 { font-family:Arial; font-weight:bold } .s7714A00D { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sEF8F76C5 { width:20.87pt; display:inline-block } .sCE4C2AA4 { width:212.76pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } THIRD SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 47874/99 by Bilgin YILMAZ and Burhan BARIM against Turkey The European Court of Human Rights (Third Section), sitting on 26   May 2005 as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   J. Hedigan ,   Mr   R. Türmen ,   Mr   C. Bîrsan ,   Ms   R. Jaeger ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 23 March 1999, Having deliberated, decides as follows: THE FACTS The applicants, Mr Bilgin Yılmaz and Mr Burhan Barım, are Turkish nationals who were born in 1972 and 1968 respectively and who were serving their prison sentences at the Bergama prision at the time of the application. They are represented before the Court by Mrs I.G. Kireçkaya, a lawyer practising in Izmir. The facts of the case, as submitted by the applicants, may be summarised as follows. In connection with an investigation carried out by the public prosecutor attached to the Izmir State Security Court against the activities of an illegal organisation, called the Turkish Revolutionary Communist Union (“TİKB”), policemen from the Anti-terror branch of the Izmir Security Department raided several houses between 7 and 10 September 1996. The first applicant together with other suspects was arrested on 7 September 1996 and taken into police custody. On 9 September 1996 the second applicant was arrested and taken into police custody by the Anti-terror branch of the Izmir Security Directorate. On 19 September 1996 the applicants were brought before the public prosecutor at the Izmir State Security Court. They were then brought before the Izmir State Security Court. Before the court, the first applicant acknowledged his statements given before the police and the public prosecutor. He further accepted the contents of the reports of mutual identification and confrontation of suspects, the seizure reports, finger print report and expert reports. Before the court, the second applicant acknowledged his statements given before the police and the public prosecutor. He also accepted the contents of the search and seizure protocol drafted following the search conducted in his house. The Izmir State Security Court ordered their detention on remand. On 22 October 1996 the public prosecutor at the Izmir State Security Court filed a bill of indictment with the latter accusing the applicants and fifteen other suspects of membership in an illegal organisation. He requested that they be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. On 25 October 1996 the Izmir State Security Court commenced the trial against the applicants and fifteen other suspects. On 4 February 1997 the applicants submitted their written defence submissions to the court. They claimed that they had been subjected to various forms of ill-treatment while they were held in police custody. They further denied their submissions given before the public prosecutor and the State Security Court on 19 September 1996. They claimed that they had been threatened by the police officers to confirm their statements in police custody. In a hearing held on 18 March 1997 the first applicant denied the accusations against him. He refuted his earlier statements given in police custody, before the public prosecutor and the State Security Court. He also refuted the remainder of the written evidence against him. In the same hearing, the second applicant also refuted his earlier submissions and the other written evidence contained in the case-file. On 10 December 1997 the applicants submitted their final defence submissions where they reiterated their previous submissions dated 4   February 1997. On 24 December 1997 the Izmir State Security Court taking into account the statements of the applicants given before the police, the public prosecutor and the State Security Court on 19 September 1996, together with other evidence contained in the case-file, i.e. the reports of mutual identification and confrontation of suspects, convicted the applicants as charged and sentenced them to twelve years and six months' imprisonment. On 24 November 1998 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. The decision of the Court of Cassation was pronounced on 2 December 1998. COMPLAINTS The applicants maintain that the length of their detention on remand constituted a breach of Article   5 §   3 of the Convention. The applicants submit under Article 6 of the Convention that they did not receive a fair trial by an independent and impartial tribunal. They contend that the judges sitting on the bench of the State Security Court cannot be considered as independent and impartial as the military judge is attached to the Military Service and the latter attached to the Supreme Council of Judges and Public Prosecutors. The applicants allege that the court relied on their statements given under duress in police custody and that it did not take into account the arguments presented by them in the course of the proceedings. They further submit that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. The applicants complain under Article 14 of the Convention that they were discriminated against since the criminal procedures and the sentences for the offences tried before the State Security Courts were different from the offences tried in other courts. THE LAW 1.     The applicants maintain that the length of their detention on remand constituted a breach of Article   5 §   3 of the Convention. In the present case the applicants were arrested and taken into custody on 7 and 9 September 1996 respectively and were convicted by the judgment of the Izmir State Security Court of 24 December 1997. On 24 November 1998 the Court of Cassation upheld the judgment of the Izmir State Security Court. Following 24 December 1997, the applicants were detained “after conviction by a competent court” and no longer “for the purpose of bringing her before the competent legal authority” (see Turan v. Turkey (dec.), no.   879/02, 27 January 2005). Accordingly, the period that has to be taken into consideration under Article   5   §   3 of the Convention started on 7 and 9   September 1996 respectively and ended on 24 December 1997. As the applicants lodged their application with the European Court of Human Rights on 23 March 1999, this complaint has been introduced out of time. Accordingly, this part of the application should be rejected for non ‑ compliance with the six-month time limit pursuant to Article 35 §§ 1 and   4 of the Convention. 2.     The applicants complain under Article 6 of the Convention having regard to the presence of a military judge on the bench of the Izmir State Security Court. In addition, the applicants complain that the fairness of the criminal proceedings was also undermined by other shortcomings. The Court considers that it cannot on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of them to the respondent Government. 3.     The applicants contend under Article 6 of the Convention that they were not tried by an independent and impartial tribunal having regard to the fact that the civil judges sitting on the bench of the Izmir State Security Court are attached to the Supreme Council of Judges and Public Prosecutors. The Court reiterates that it has already rejected similar complaints concerning the issue of the independence and the impartiality of the civil judges on account of their attachment to the Supreme Council of Judges and Public Prosecutors (see, among many others, Imrek v. Turkey (dec.), no.   57175/00, 28 January 2003). The Court finds no particular circumstances in the instance case which would require it to depart from its findings in the above ‑ mentioned case. Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 4.     The applicants complain under Article 14 of the Convention that they were discriminated against since the criminal procedures and the sentences for the offences tried before the State Security Court were different from the offences tried in other courts. The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, p.   29,   § 56). In the instant case, the distinction was made not between different groups of people, but between different types of offence, according to the legislature's view of their gravity (see, among many others, mutatis mutandis , Gerger v. Turkey [GC], no.   24919/94, § 69, 8 July 1999 and Kömürcü v. Turkey (dec.), no. 77432/01, 28 November 2002). The Court sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention. Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 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 Berger   Boštjan M. Zupančič   Registrar   President