CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 octobre 2005

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; 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 } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s8BD2CFA4 { width:35.21pt; display:inline-block } .s5CDFCC53 { width:229.12pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } SECOND SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 8428/02 by Levent ÖZTÜRK against Turkey The European Court of Human Rights (Second Section), sitting on 18   October 2005 as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   A.B. Baka ,   Mr   R. Türmen ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Ms   D. Jočienė ,   Mr   D. Popović, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 22 January 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Levent Öztürk, is a Turkish national who was born in 1982 and lives in Istanbul. He is represented before the Court by Mrs   Z.   Aytemur, a lawyer practising in Istanbul. The facts of the case, as submitted by the applicant, may be summarised as follows: On 25 June 1999 the applicant was taken into police custody by the police officers from the Prevention of Terrorism Department of the Istanbul Security Directorate, on suspicion of being a member of the PKK [1] and being responsible for two bomb attacks carried out in public places in Gazi Mahallesi, Istanbul. During his custody, the applicant was beaten and threatened by police officers. He was taken to the scenes of incidents, in order to describe the details of the bomb attacks. As he was threatened, he repeated everything the police forced him to say. The on-site inspection was filmed by the police and the tapes were later submitted to the Istanbul State Security Court as evidence. On 30 June 1999 he was examined by a doctor at the Istanbul Forensic Department. According to the medical report there were no signs of blows on the applicant’s body. However, it was also noted in the medical report that the applicant complained of having been beaten, and strung up by his arms which had caused pain to his shoulders. On the same day he was taken before the public prosecutor and the investigating magistrate at the Istanbul State Security Court where he denied all the accusations against him and complained that he had been ill-treated in police custody. Neither the public prosecutor nor the investigating magistrate included his allegations of ill-treatment in their reports. The judge ordered his detention on remand. On 1 July 1999 the public prosecutor at the Istanbul State Security Court filed an indictment against the applicant and another accused, charging them with being members of the PKK and carrying out bomb attacks in two public places. He brought charges against the applicant under Article   168   §   2 of the Criminal Code and Article 5 of the Law on the Prevention of Terrorism. At the first hearing, which was held on 14 September 1999, the applicant refuted all charges brought against him and his police statements. He complained of having been beaten up at the police station. On the same day the applicant’s lawyer submitted his written submissions to the court in which he also complained of the ill-treatment to which his client had been subjected in custody. In view of his young age, his school schedule, and the fact that he had a permanent address, he requested his client’s release pending trial. The court rejected the request given the state of the evidence and the contents of the case file. At the hearing of 16 November 1999, the applicant complained that he had been ill-treated in police custody. He contested the reliability of the on-site inspection report as he was forced to repeat whatever the police asked him to say. The court ordered the continuation of his detention on remand, for the same reasons as before. At the hearing of 10 October 2000, the court took the applicant’s last statements before the final judgment. The applicant refuted the allegations once again and complained that there had been no evidence against him, except his police statements and the on-site inspection report which were taken and drafted under duress. Between the hearings, on twelve different occasions, the court examined the case file on its own motion, and ordered the prolongation of the applicant’s detention on remand. At the hearing of 14 December 2000, the court held that, although the applicant refuted his police statements, these confessions were consistent with the statements of the other accused and the testimonies of the witnesses. As a result, the court found the applicant guilty as charged and sentenced him to imprisonment for eight years four months and fourteen years eleven months, separately for each incident. On 27 June 2001 the applicant appealed against the decision of the State Security Court. In his written submissions he contended that the State Security Court had based its decision on police statements which were taken under duress. In his further submissions to the Court of Cassation, dated 20   February   2001, the applicant complained that he was subjected to ill-treatment in police custody. Moreover, although he had consistently complained of this ill-treatment to the public prosecutor, the investigating magistrate and the State Security Court, the authorities did not carry out an investigation into his allegations. On 28 June 2001 the Court of Cassation dismissed the appeal, after holding an oral hearing, and upheld the Istanbul State Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. COMPLAINTS The applicant complains that he was subjected to various forms of ill-treatment in police custody, in violation of Article 3 of the Convention. Moreover, he contends, under Article 13 of the Convention in conjunction with Article 3, that the authorities failed to react to his allegations of ill-treatment in custody, although he persistently complained before the judicial authorities. The applicant complains under Article 5 § 1 (c) of the Convention that there was no reasonable suspicion to arrest him. Moreover, he alleges a breach of Article 5 § 2 of the Convention in that he was not informed of the reasons for his arrest and the charges against him. The applicant further complains that his detention in police custody, which lasted five days, was in violation of Article 5 § 3 of the Convention. He also contends, under Article   5 § 4 of the Convention, that he was not able to initiate proceedings to challenge the lawfulness of his detention in police custody. He argues that State Security Courts are not tribunals which are independent and impartial, as required by Article 6 § 1 of the Convention. Moreover, he complains of being deprived of a fair trial as the decision of the Court of Cassation was not reasoned. The applicant contends that, throughout the criminal proceedings, the authorities failed to respect the principle of the presumption of innocence, in breach of Article 6 § 2 of the Convention. The applicant alleges, under Article 6 § 3 (b) of the Convention, that the submissions of the Chief Public Prosecutor at the Court of Cassation were never served on him. He also complains under the same provision that he was deprived of his right of defence as he was not allowed to consult his lawyer during his questioning by the police, the public prosecutor and the magistrate. Lastly, the applicant complains under Article 14 of the Convention, taken together with Articles 5 and 6, on account of the difference in the procedure applicable to offences determined by the State Security Court. THE LAW 1.     The applicant complains under Article 3 of the Convention that he had been subjected to various forms of ill-treatment in police custody. Moreover, he contends under Article 13, in conjunction with Article 3, that the authorities failed to investigate his allegations of ill-treatment. 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 Court, to give notice of this part of the application to the respondent Government. 2.     The applicant complains under Article 5 of the Convention that there was no reasonable suspicion on which to arrest him, that he was not informed of the reasons for his arrest and the charges against him, and that his detention in police custody lasted too long. He further complains under the same heading that he was not able to initiate proceedings to challenge the lawfulness of his detention in police custody. The Court observes that the applicant was taken into police custody on 25 June 1999 and placed in detention on remand on   30 June 1999. The applicant, however, lodged his application with the Court on 22   January   2002, i.e. more than six months later. It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 3.     The applicant complains under Article 6 § 1 of the Convention that State Security Courts are, in general, tribunals which lack independence and impartiality. The Court observes that, in the instant case, the applicant’s complaint concerning the lack of a fair trial is not related to his own prosecution before the Istanbul State Security Court. It notes that the applicant’s arguments are far too general in nature and that he does not substantiate them. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 4.     The applicant complains under Article 6 § 1 of the Convention that the Court of Cassation failed to deliver a reasoned judgment on his appeal. The Court reiterates that, while it is true that the rights guaranteed to an applicant under Article 6 of the Convention includes the right to have reasons for the decisions handed down by a domestic court, this cannot be understood as requiring a detailed answer to every argument. The extent to which the duty to give reasons applies may vary according to the nature of the decision at issue ( Helle v. Finland , judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2929 § 56). The Court observes in this connection that the judgment of the Istanbul State Security Court was fully reasoned. As to the limited reasons given by the Court of Cassation, the Court considers that it is implicit in that court’s decision that the applicant failed to make out a case which would have led it to depart from the lower court’s findings on the facts, evidence and applicable law. In the Court’s opinion, the succinct reasoning given by the Court of Cassation was sufficient in the circumstances to comply with the requirements of Article 6 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 5.     The applicant also complains under Article 6 § 2 of the Convention that the proceedings against him were not in compliance with the principle of the presumption of innocence. He argues that the judicial authorities should not only seek to gather evidence against the accused but also evidence which is favourable to the defence. The Court considers that these complaints amount to a submission that he should have been acquitted. However, Article 6 does not guarantee a right to a particular outcome of criminal proceedings. The presumption of innocence is not, therefore, undermined by the fact that the criminal proceedings against him ended in a conviction. The Court finds this complaint to be manifestly ill-founded and rejects it in accordance with Article   35 §§   3 and   4 of the Convention. 6.     The applicant contends under Article 6 § 3 (b) of the Convention that the written opinion of the Chief Public Prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments. 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 Court, to give notice of this part of the application to the respondent Government. 7.     The applicant complains under Article 6 § 3 (c) of the Convention that he was not allowed to consult his lawyer during his questioning by the police, the public prosecutor and the magistrate. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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. 8.     The applicant complains under Article 14 of the Convention taken together with Articles 5 and 6 on account of the difference of procedure applicable for the offences within the jurisdiction of the State Security Court. The Court notes that the distinction is made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity. 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 applicant’s complaints concerning his alleged ill-treatment in police custody, his right to an effective remedy in this regard, the lack of communication of the written opinion of the Chief Public Prosecutor before the Court of Cassation and his lack of legal representation during the preliminary investigation; Declares the remainder of the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President   [1] The Kurdistan Workers’ Party