Přehled
Rozhodnutí
SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39857/03
by Ali KAHRAMAN and Kemal KAHRAMAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 3 October 2006 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 17 November 2003,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ali Kahraman and Kemal Kahraman, are Turkish nationals who were born in 1967 and 1972, respectively, and live in İstanbul. They are represented before the Court by Mr I. Kahraman, their brother.
The facts of the case, as submitted by the applicants, may be summarised as follows.
Criminal proceedings against the first applicant
On an unspecified date, on the basis of the statements given by certain detainees, the police sought the applicant on suspicion that he had committed an armed robbery on behalf of the IBDA-C (the Great East Islamic Raiders’ Front). The police also held information that the applicant had previously contacted the Kartal municipality, threatening the mayor and the deputy mayor for money.
On 9 July 1999, around 3.45 p.m., police officers arrested the applicant when he was walking up the stairs of the Kartal municipal offices. The police officers found, among other things, a pipe-style bomb wrapped in a newspaper in the applicant’s possession. He was accordingly taken to the police station and the same day was handed over to the Anti-Terrorism Branch of the Istanbul Security Directorate.
On 12 July 1999 the police took a statement from the applicant, in which he admitted membership of the IBDA-C. He further stated that he had previously commanded the bombing of the municipality’s car park, intending to intimidate the mayor, that on 30 June 1999 he had detonated a hand made bomb outside the flat of the deputy mayor in order to secure financial aid for the IBDA-C, and that he had been involved in an armed robbery. He maintained that on the day of the incident he was planning to take the mayor hostage by using the bomb.
On 13 July 1999 the applicant was brought before the public prosecutor, when he denied the charges against him.
On the same day he was examined by a medical expert at the Forensic Medicine Institute. The applicant’s medical report noted a bruise of 2cm on his right shoulder and three bruises of 0.5cm on the inner part of his upper left arm. It concluded that these injuries would render him unfit for work for two days. The applicant was then brought before the investigating judge, who ordered his detention on remand.
On 28 July 1999 the public prosecutor filed a bill of indictment with the Istanbul State Security Court, accusing the applicant of membership of the IBDA-C, of armed robbery and of bombing, pursuant to Article 168 § 2 of the Criminal Code and section 5 of Law No. 3717 (the Anti-terrorism Act).
On 2 August 2001 the applicant addressed the court, stating that slanderous accusations had been made against him, and he asked if he could bring witnesses before the court to prove this. The court found that the applicant’s request for witnesses to be heard would not contribute to establishing the merits of the case, regard being had to the stage of the proceedings and the evidence in the case file.
On 29 April 2002 the applicant’s lawyer submitted a written defence to the court, in which he challenged the authenticity of the statement which the applicant had made to the police, allegedly under duress, and asked the court to exclude it from the evidence.
On 13 June 2002 the Istanbul State Security Court found the applicant guilty as charged. The court took note of the documents concerning the bombing of the car park, the incident reports regarding the bomb detonated outside the flat of the deputy mayor, the photographs concerning the armed robbery, the arrest reports, the reports prepared after the procedure for identification by confrontation, the statements of the co-accused of the applicant, as well as his statements before the court. It accordingly convicted the applicant and sentenced him to thirty-three years and six months’ imprisonment.
On 18 July 2002 the applicant’s lawyer appealed to the Court of Cassation. The appeal petition did not contain the allegation of ill-treatment.
On 17 April 2003 the Court of Cassation dismissed the applicant’s appeal and upheld the judgment of the State Security Court.
Criminal proceedings against the second applicant
On 10 June 1999 the second applicant was arrested by police officers from the Anti-Terrorism Branch of the Istanbul Security Directorate on suspicion of membership of the IBDA-C. He was believed to have been involved in the bombing of bars and clubs in Istanbul on three different occasions, which had caused casualties. The police found the instructions on how to make bombs, the necessary materials and explosives for so doing, as well as photographs in which the applicant was covered in the organisation’s flag whilst holding a Kalashnikov-type rifle, at the applicant’s residence. The applicant admitted to the charges in the statement which he made to the police.
On 14 June 1999 the applicant was brought before the public prosecutor at the Istanbul State Security Court, where he repudiated the content of his police statement, alleging that it had been extracted from him under duress.
On the same day, he was examined by a medical expert at the Forensic Medicine Institute. The medical report recorded an ecchymosis of 2cm on his left upper leg, an ecchymosis of 1.5cm on the inner part of his right upper arm, a hyperemic[1] area of 2cm on the right elbow, an ecchymosis of 1.5cm on the inner part of the left upper arm, a scab-covered lesion of 1cm on the left elbow, and a complaint of pain in the back and arms. The doctor certified the applicant as being unfit for work for two days. The applicant was then brought before the investigating judge, who ordered his detention on remand.
On 18 September 1999 the public prosecutor filed a bill of indictment with the Istanbul State Security Court, accusing the applicant of being a member of the IBDA-C. The public prosecutor sought the death penalty under Article 146 § 1 of the Criminal Code against the applicant, for participating in that organisation’s activities, and aiming to undermine the constitutional order of the State and replace it with a theocratic regime.
In the course of the criminal proceedings, the applicant petitioned the court, stating that he had been ill-treated by the police.
On 21 May 2002 the applicant’s lawyer, in his written defence to the court, recalled the medical report of 14 June 1999 and repeated the allegation of ill-treatment.
On 1 October 2002 the State Security Court found the applicant guilty as charged. The court relied on the evidence gathered from the applicant’s residence, such as the photographs showing him wrapped in the IBDA-C banner whilst holding a gun, materials for making bombs, as verified by a criminal expert report, and the applicant’s handwriting on some of the papers, giving instructions on how to make bombs, as well as the statements made by the applicant’s co-accused. It accordingly convicted the applicant and sentenced him to life imprisonment.
In his petition to the Court of Cassation, dated 7 November 2002, the applicant’s lawyer repeated the allegation of ill-treatment and referred to the medical report in that respect.
On 23 September 2003 the Court of Cassation dismissed the appeal and upheld the judgment of the Istanbul State Security Court.
COMPLAINTS
The applicants allege under Article 3 of the Convention that they were ill-treated whilst in police custody.
They further complain under Article 6 of the Convention about the unfairness of the domestic courts’ decisions, which according to them were not based on any concrete evidence. The first applicant also alleges that the State Security Court refused to hear his witnesses.
THE LAW
1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment during their detention in police custody.
In respect of the first applicant, the Court recalls that, pursuant to Article 35 § 1 of the Convention, 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 absence of domestic remedies, the six-month period runs from the date of the act of which complaint is made (see Hazar and others v. Turkey, (dec.) no. 62566/00, ECHR 2002-...).
However, the Court further recalls that special considerations could apply in exceptional cases where an applicant avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective.
The Court observes that the applicant’s lawyer, in his petition to the court dated 29 April 2002, mentioned the alleged ill-treatment. However, that mention was solely aimed at challenging the reliability and admissibility of the statement taken from the applicant in police custody as evidence.
Nevertheless, the Court notes that a public prosecutor who is informed by any means whatsoever of a situation which gives rise to a suspicion that an offence has been committed, is obliged, under Article 153 of the Code of Criminal Procedure, to investigate the facts by conducting the necessary inquiries to identify the perpetrators. The Court is prepared to accept that the applicants did avail themselves of a domestic remedy by submitting to the trial court their allegations of torture, and that this interrupted the running of the six-month period.
The Court further notes that the applicant did not pursue the allegations of ill-treatment in the course of the trial, nor did he reiterate his complaint of ill-treatment in his appeal petition to the Court of Cassation.
In the light of the above, the Court considers that the failure of the judicial authorities to act must have become gradually apparent to the applicant up until 13 June 2002, i.e. the date on which the Istanbul State Security Court rendered its final judgment on the matter. Therefore the applicant should have been aware of the ineffectiveness of the remedies in domestic law by that date. Accordingly, the six-month period prescribed by Article 35 § 1 of the Convention should be considered to have started running not later than 13 June 2002 for the first applicant (see İçöz v. Turkey, (dec.), no. 54919/00, 9.1.2003, unreported, and, mutatis mutandis, Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7 September 1999, unreported). On that account, his application should have been introduced not later than January 2003. In the instant case, it was lodged with the Court on 17 November 2003.
It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
In respect of the second applicant, 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.
2. The applicants further maintain under Article 6 § 1 of the Convention that the domestic courts unfairly convicted them. The first applicant also alleges that the Istanbul State Security Court refused to hear his witnesses.
The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. The Court’s supervisory jurisdiction is limited to ensuring whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair and that the decision reached by the domestic court was not arbitrary or manifestly unreasonable (see, among other authorities, Edwards v. the United Kingdom, judgment of 6 December 1992, Series A, no. 247-B, pp. 34-35, § 34; Kostovski v. the Netherlands judgment of 20 November 1989, Series A, no.166, p.19, § 39).
The Court further draws attention to the fact that Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of a witness in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see among other authorities, Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V); its essential aim, as indicated by the words “under the same conditions”, is to ensure full equality of arms between the parties in the matter.
The Court first observes that in the present case the applicants’ complaint is not related to the use of the statements which were allegedly extracted from them under duress. They stated in a general manner that the State Security Courts unfairly convicted them without any concrete evidence before them. However, the Court notes that the domestic courts had a wealth of evidence in their possession upon which to convict the applicants, such as the circumstances of their arrest, with the first applicant being caught red-handed in possession of a potential bomb on municipal premises. The courts took account of the evidence gathered on the applicants’ arrests, such as instructions on how to make bombs, the necessary materials and explosives for that purpose and photographs. The courts also considered the statements made by the applicants’ co-defendants and the reports prepared on the procedure for their identification by confrontation. The applicants confined themselves to challenging the admissibility of that evidence whilst the courts had the opportunity of observing the applicants’ demeanour and their response to the prosecution case under adversarial conditions. The domestic courts were convinced that the applicants had committed the above-mentioned offences, as confirmed by the contents of the case files as a whole. The Court finds no appearance of arbitrariness in the conclusions of the domestic instances.
As to the second limb of the complaint, the Court also notes that the domestic court gave sufficient reasons for the refusal of the first applicant’s request to hear other witnesses.
Accordingly, in the present case, the Court concludes that there is no appearance that the domestic courts violated the applicants’ right to a fair hearing under Article 6 § 1 of the Convention.
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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the complaint of ill-treatment in respect of the second applicant;
Declares the remainder of the application inadmissible.
S. Dollé J.-P. Costa
Registrar President
[1] relating to or caused by hyperemia (increased blood in an organ or other body part)