ABA proti Turecku

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 7638/02 and 24146/04
by Sakine ABA
against Turkey

The European Court of Human Rights (Second Section), sitting on 26 September 2006 as a Chamber composed of:

Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above applications lodged on 12 September 2001 and 27 May 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Sakine Aba, is a Turkish national who was born in 1965 and lives in Istanbul. She is represented before the Court by Mr A.A. Talipoğlu, a lawyer practising in Istanbul.

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

The applicant was working as a nurse at the Şişli Etfal Hospital at the time of the events giving rise to the present applications.

On 1 April 2001 T.K., a terrorist suspect, was taken into custody by police officers from the anti-terror branch of the Istanbul Security Directorate. Following T.K’s questioning, the security forces arrested the applicant and nine other persons on suspicion of membership of the DHKP‑C (Revolutionary People’s Liberation Party-Front). It is to be noted that, according to the search, arrest and seizure protocol, the applicant was apprehended on 2 April 2001 and a number of publications were found in her house. The protocol was signed by the applicant and three police officers.

On 2 April 2001 the director of the anti-terror branch of the Istanbul Security Directorate sent a letter to the public prosecutor at the Istanbul State Security Court, requesting permission to keep the suspects, including the applicant, in custody. In his letter, the director maintained that T.K. had been arrested on 31 March 2001 and brought to the anti-terror branch on 1 April 2001 and that the security forces had established that T.K. had been in contact with the nine detainees. The public prosecutor granted four days of custody.

On 2 April 2001 a scene of crime protocol (yer gösterme tutanağı) was drafted, according to which the applicant handed over to the police officers two firearms and several cartridges which she had kept at the hospital.

On 3 April 2001 the applicant made statements to the police, according to which she provided medical treatment to a member of the DHKP-C, V.D., and hid the firearms belonging to V.D. at her workplace.

On the same day, the applicant’s lawyer requested the public prosecutor at the Istanbul State Security Court to provide information concerning the applicant, whereupon the public prosecutor informed him that the applicant was in police custody.

The applicant’s lawyer subsequently filed a petition with the Istanbul State Security Court requesting that the lawfulness of the applicant’s arrest be determined and that the applicant be released.

On 4 April 2001 the Istanbul State Security Court held that the applicant’s arrest was lawful and dismissed the lawyer’s request.

On the same day, the Istanbul Security Directorate requested the Istanbul State Security Court to extend the custody period for a further three days. The single judge of that court decided to extend the custody period for six days starting from 4 April 2001.

On the same day, the applicant’s lawyer filed a further petition with the public prosecutor’s office, requesting information as to whether the applicant’s custody period had been extended. He further sought permission to visit the applicant. The public prosecutor informed the lawyer that the applicant’s custody period had been extended, but did not reply to the visiting request.

On 7 April 2001 the applicant’s lawyer filed a petition with the Istanbul State Security Court, requesting access to the investigation file. This was immediately refused by a single judge.

On the same day, the applicant and five other accused were brought before the single judge. The applicant maintained before the judge that she had signed police statements and made statements before the public prosecutor under duress. She contended, inter alia, that she did not know that V.D. was a member of the DHKP-C. The judge subsequently ordered the applicant’s detention on remand.

On 13 April 2001 the applicant’s lawyer filed an objection to the remand order.

On 17 April 2001 the Istanbul State Security Court dismissed the objection.

On 7 May 2001, the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and seventeen other persons. The applicant was charged with membership of the DHKP-C under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713.

On 2 August 2001 the Istanbul State Security Court held the first hearing on the merits of the case. The applicant and her co-accused made statements before the court. The applicant denied the allegations against her. She maintained, inter alia, that she had found the firearms and cartridges next to her house and put them in a closet at work. She further contended that she was not aware that V.D. was a member of the DHKP-C.

On 20 December 2001, during the second hearing, the applicant’s representative maintained that the applicant’s arrest had not been lawful and requested that she be released pending trial. The request was dismissed.

On 30 April 2002 the public prosecutor at the Istanbul State Security Court submitted his observations on the merits of the case and changed the characterisation of the applicant’s offence. He requested that the applicant be convicted of aiding and abetting members of the DHKP-C under Article 169 of the Criminal Code. On the same day, the first-instance court ordered that the accused submit their defence submissions by 4 July 2002.

On 4 July 2002 the applicant’s lawyer requested additional time in order to prepare the defence. The court granted an extension until 12 September 2002.

On 12 September 2002 the applicant put forward her defence submissions. On the same day, the court granted an extension to the applicant’s co-accused for the submission of their defence.

On 26 November 2002 the court once again granted additional time to some of the applicant’s co-accused.

The applicant requested to be released pending trial at various times, until 4 March 2003. She maintained, inter alia, that she had health problems due to her detention in prison. It is to be noted that the applicant was diagnosed as having bronchitis and while in prison she underwent medical treatment. The Istanbul State Security Court dismissed the applicant’s requests on all occasions, having regard to the state of the evidence and the nature of the offence.

On 4 March 2003 the first-instance court ordered the applicant’s release pending trial.

On 27 March 2003 the Istanbul State Security Court rendered its judgment. It convicted the applicant of aiding and abetting members of the DHKP-C under Article 169 of the Criminal Code and sentenced her to three years and nine months’ imprisonment. In its judgment, the first-instance court took into consideration the applicant’s statements before the police, the public prosecutor and the single judge, as well as her statements before it. The court further referred to the evidence found in her house and at her workplace, and the statements of some of her co-accused before the police, the public prosecutor and the single judge at the Istanbul State Security Court.

On 15 December 2003 the Court of Cassation upheld the judgment of 27 March 2003 in respect of the applicant.

On an unspecified date, the public prosecutor at the Istanbul State Security Court issued an arrest warrant concerning the applicant.

COMPLAINTS

A. Complaints submitted on 12 September 2001 in application no. 7638/02

The applicant complains under Article 5 § 1 (c) of the Convention that she was unlawfully and arbitrarily deprived of her liberty as there was no reasonable suspicion for her arrest.

She further contends under Article 5 § 2 of the Convention that she was not informed promptly of the reasons for her arrest.

The applicant maintains under Article 5 § 3 of the Convention that she was held in police custody for an excessive period of time.

The applicant alleges under Article 5 § 5 of the Convention that there was no remedy in domestic law to obtain compensation for the alleged violation of Article 5 §§ 1 (c), 2 and 3 of the Convention.

The applicant complains under Article 6 of the Convention that she was not tried by an independent and impartial tribunal, having regard to the procedures concerning the appointments of the civil judges sitting on the Istanbul State Security Court. She further contends under the same head that she was denied legal assistance while in police custody.

B. Complaints submitted on 25 May 2004 in application no. 24146/04

The applicant complains under Article 5 § 3 of the Convention that she was detained on remand for an excessive length of time.

The applicant further maintains under Article 6 of the Convention that the criminal proceedings brought against her were not concluded within a reasonable time. She complains under the same head that her conviction under Law no. 3713 for a terrorist crime meant that she was not entitled to automatic parole until she had served three quarters of her sentence, unlike prisoners sentenced under ordinary criminal law, although there was no evidence that she had been involved in a terrorist organisation.

THE LAW

1. The Court notes that the two applications brought by the applicant concern the continuation of the same proceedings. Accordingly it finds it appropriate to examine them jointly.

2. The applicant alleges a violation of Article 5 § 3 of the Convention in that she was kept in police custody between 1 April 2001 and 7 April 2001 without being brought before a judge. She further complains under Article 5 § 5 of the Convention that there was no remedy in domestic law to obtain compensation for this alleged violation of Article 5 § 3 of the Convention.

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 cases to the respondent Government.

3. The applicant contends under Article 6 of the Convention that she was denied legal assistance while in police custody.

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, also to give notice of this part of the cases to the respondent Government.

4. As regards the applicant’s other complaints, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and in so far as the matters complained of are within its competence.

It follows that this part of the respective applications should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn examination of the applicant’s complaints concerning the length of her detention in police custody, the alleged violation of her right to compensation for that grievance and the alleged unavailability of legal assistance during that period;

Declares the remainder of the applications inadmissible.

S. Dollé J.-P. Costa
Registrar President