YURTSEVER proti Turecku

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42086/02
by Mesut YURTSEVER
against Turkey

The European Court of Human Rights (Third Section), sitting on 31 August 2006 as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 26 October 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mesut Yurtsever, is a Turkish national who was born in 1974. He is currently being detained in Ümraniye Prison. The applicant is represented before the Court by Mr M. Beştaş, a lawyer practising in Diyarbakır.

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

On 6 April 1999 the applicant was arrested and taken into custody by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of membership of the PKK (the Workers’ Party of Kurdistan). The same day, the police took the applicant for a medical examination. The medical report drafted on that occasion noted no signs of physical violence on his body.

On 7 April 1999 the police took a statement from the applicant in which the applicant accepted the charges against him.

On 10 April 1999, at the request of the public prosecutor, a single judge of the Istanbul State Security Court extended the custody period by three more days.

On 12 April 1999 the applicant was taken for a further medical examination at the Forensic Medicine Institute. The ensuing report also recorded no signs of ill-treatment on the applicant’s body. The applicant was then brought before the public prosecutor and thereafter the investigating judge at the Istanbul State Security Court. Before both the public prosecutor and the investigating judge, the applicant denied the statement he had made to the police, arguing that it had been extracted from him under duress. Ultimately, the investigating judge ordered the applicant’s detention on remand.

On 13 April 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and two others, accusing them, inter alia, of membership of an illegal armed organisation and of participating in separatist activities. The public prosecutor sought the death penalty for the applicant pursuant to Article 125 of the Criminal Code.

At the hearing of 29 June 1999 before the Istanbul State Security Court the applicant, who was represented by a lawyer, challenged the veracity of his police statement and repeated his allegation of ill-treatment.

On 25 September 2001 the Istanbul State Security Court, having considered the case file as a whole, i.e. the statements of the co-accused of the applicant, the reports of the incidents and the re-construction of events, concluded that although the applicant was in denial of his police statement, the content of it had been verified by the evidence in its possession. Accordingly, the court convicted the applicant of the offence and sentenced him to death, which sentence was later commuted to life imprisonment. The judgment was ex officio subject to appeal.

On 17 January 2002 the Principal Public Prosecutor submitted his written opinion to the 9th Division of the Court of Cassation, in which he had argued that the Court of Cassation should quash the applicant’s conviction on account of the severity of the sentence imposed on the applicant. He opined that the applicant should have been sentenced pursuant to Article 168 § 2 of the Criminal Code, which punishes membership of an illegal organisation, instead of Article 125.

On 20 April 2002 the Court of Cassation differed with the opinion of the Principal Public Prosecutor and upheld the judgment of the Istanbul State Security Court.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated whilst in police custody.

He alleges under Article 5 § 3 of the Convention that the length of his detention in police custody and on remand exceeded the reasonable time requirement of the Convention.

The applicant complains under Article 6 of the Convention that he was denied legal assistance during police custody, and that the domestic court erred in its assessment of the evidence in his case. He also alleges that the written opinion of the Principal Public Prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his arguments.

THE LAW

1. The applicant complains under Article 6 of the Convention that the written submissions of the Principal Public Prosecutor to the Court of Cassation were never served on him.

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 applicant further alleges under Article 3 of the Convention that he was subjected to ill-treatment whilst in police custody.

The Court observes in the first place that the applicant has failed to provide any concrete evidence in support of his allegation of ill-treatment. It notes that the applicant was medically examined before he was placed in police custody on 6 April 1999. His medical report noted no signs of ill-treatment. He again underwent a medical examination after the completion of his police custody. Similarly, the medical report dated 12 April 1999 recorded that there were no signs of the use of force. The Court observes that under these circumstances the national authorities had no evidence whatsoever on which to start an investigation into the applicant’s allegation of ill-treatment.

Accordingly, the Court concludes that there is no evidence before it to suggest that the applicant was ill-treated or that the procedural obligation of the authorities of the respondent State has been breached in contrary to Article 3 of the Convention.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant contends under Article 5 § 3 of the Convention that he was kept in police custody for a long time and that his detention on remand period was excessive.

The Court notes that the applicant was arrested on 6 April 1999 and he was remanded in custody on 12 April 1999. The Istanbul State Security Court delivered its judgment on 25 September 2001. However, the application was introduced to the Court on 26 October 2002, which is more than six months after the end of the police custody and from the delivery of the judgment of the first-instance court.

Accordingly, this part of the application should be rejected for non-compliance of the six-month time limit pursuant to Article 35 §§ 1 and 4 of the Convention.

4. The applicant finally complains under Article 6 of the Convention that the domestic court erred in assessment of the evidence before it, and that he could not benefit from the assistance of a lawyer whilst in police custody.

The Court first reiterates that as a general rule, it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see, among other authorities, Edwards v. the United Kingdom, judgment of 6 December 1992, Series A no. 247‑B, pp. 34-35, § 34, and Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no.166, p.19, § 39).

It further notes that the restriction of the right to benefit from the assistance of a lawyer during the police interrogation has to be assessed in a context of whether this restriction had deprived the accused of a fair trial as a whole (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports of Judgments and Decisions 1996‑I, § 62, and Erdem and Others v. Turkey (dec.), no. 35980/97, 14 December 2000).

The Court observes that, in the present case, the State Security Court took note of the material before it as a whole, as well as giving the applicant the opportunity to challenge the admissibility of the evidence against him. The applicant had a representative during the trial before the State Security Court and could submit his counter-arguments against those of prosecution. The State Security Court was then convinced that the applicant had committed the above-mentioned offences which had been verified by the content of the file. The Court therefore considers that the applicant’s police statement was not the sole basis for his conviction, nor that there is any other element in the case-file which would allow it to conclude that the domestic courts acted in an arbitrary or unreasonable manner in breach of the applicant’s right to a fair hearing under 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the non-communication to the applicant of the submissions of the Principal Public Prosecutor to the Court of Cassation;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič
Registrar President