GECGEL proti Turecku

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8747/02
by Halis GEÇGEL
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 8 June 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr R. Türmen,
Mr M. Pellonpää,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 27 November 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Halis Geçgel, is a Turkish national who was born in 1977 and lives in Diyarbakır. He is represented before the Court by Mrs M. Beştaş and Mr M. Beştaş, lawyers practising in Diyarbakır.

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

On 26 October 1996 the applicant was taken into custody by police officers from the Diyarbakır security directorate. During his police custody, statements were taken from him under duress.

On 15 November 1996 he was taken before the public prosecutor at the Diyarbakır State Security Court and, subsequently, a single judge of the State Security Court who ordered the applicant’s detention on remand.

On 25 November 1996 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and three other persons. The public prosecutor charged the applicant under Article 125 of the Criminal Code with carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State’s control.

On 31 January 1997 the 2nd Chamber of the Diyarbakır State Security Court held the first hearing in the case and heard the applicant and the other co‑accused. The applicant maintained before the court that his statements had been taken under duress by the police.

On 9 December 1997 the 2nd Chamber of the Diyarbakır State Security Court requested the 1st and 4th Chambers of the same court to submit the files in two cases brought against A.A. and S.K., which were related to the case before it. It further requested information concerning a certain M.K. from the Siverek public prosecutor’s office.

On 10 September 1998 the trial court sent further letters to the 1st and 4th Chambers requesting the case-files.

On 22 April 1999 and 28 September 2000 the case-files concerning A.A. and S.K. respectively were submitted to the trial court.

On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, on 31 August 1999 the military judge sitting in the Diyarbakır State Security Court hearing the applicant’s case was replaced by a civilian judge.

On 16 December 1999 the Siverek public prosecutor submitted the required information.

On 9 November 2000 the public prosecutor submitted his observations on the merits of the case.

On 15 February and 24 May 2001 the applicant did not attend the hearings. On both occasions, the trial court decided to notify the applicant that it would render its judgment at the next hearing, without having his submissions on the merits of the case if he failed to appear before it.

Between 5 April 2001 and 27 September 2001 the 2nd Chamber of the Diyarbakır State Security Court adjourned the trial to allow it to examine the case-file.

On 27 September 2001 the public prosecutor maintained before the court that certain documents were not included in the case-file and, consequently, had not been examined by the trial court. The court requested these documents and once again adjourned the trial.

On 29 November 2001 the requested documents were included in the case-file.

On 6 December 2001 the public prosecutor submitted his observations on the merits of the case for the second time.

On 16 December 2001 the applicant requested to be granted an extension in order to submit his final defence submissions.

On 14 February 2002 he submitted his observations.

On 11 April 2002 the trial court requested information from the Ministry of the Interior as to whether one of the accused was entitled to benefit from Law no. 3419 on Repentance (Pişmanlık Yasası).

On 30 July 2002 the Ministry submitted the information requested. The State Security Court adjourned the trial once again holding that it would examine the case-file with a view to rendering a judgment.

On 10 October 2002 the State Security Court granted an extension to the applicant’s co-accused for the preparation of their final defence submissions.

On 24 October 2002 the accused submitted their defence submissions.

On the same day, the Diyarbakır State Security rendered its judgment. The applicant was convicted as charged and sentenced to life imprisonment, subsequently commuted to sixteen years and eight months’ imprisonment. When commuting the sentence, the court took into account the age of the applicant at the time the offence was committed.

The applicant requested to be released pending trial at various times before the trial court. The Diyarbakır State Security Court dismissed his requests. At the end of every hearing, the court ordered the applicant’s continued detention on remand, taking into consideration the nature of the offence that he was charged with and the state of the evidence.

On 11 March 2003 the Court of Cassation upheld the judgment of the first-instance court.

Subsequent to promulgation of Law no. 5190 on 16 June 2004, which abolished the State Security Courts, the Diyarbakır Assize Court acquired jurisdiction over the applicant’s case.

On 12 October 2004 the new Criminal Code (Law no. 5237) was published in the official gazette.

On 15 March 2005 the Diyarbakır public prosecutor requested the Diyarbakır Assize Court to release the applicant, maintaining that the sentence for the offence of which the applicant had been convicted had been amended in favour of the applicant by Law no. 5237.

On 17 March 2005 the Diyarbakır Assize Court decided that the execution of the applicant’s sentence should be terminated and ordered his release.

On 1 June 2005 Law no. 5237 entered into force.

On 27 July 2005 the Diyarbakır Assize Court issued a further decision in which it ordered that the applicant’s original sentence should be executed. It held, in its decision, that Article 302 of Law no. 5237, which is the equivalent of Article 125 of the previous Criminal Code, provided a heavier sentence for the offence committed by the applicant and that, therefore, the provisions of the previous Criminal Code should be applied in his case.

According to a document submitted to the Court on 17 February 2006, the applicant has not yet begun serving the remainder of his prison sentence.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was threatened and subjected to coercion while in police custody. He further complains under the same head that he was not allowed to consult a lawyer while in police custody. The applicant finally submits under Article 3 of the Convention that during his trial he had to live with the fear of the death penalty.

The applicant contends under Article 5 of the Convention that he was kept in police custody for twenty days without being brought before a judge or other officer authorised by law to exercise judicial power.

The applicant further complains under Articles 5 § 3 and 6 § 2 of the Convention that the length of his detention on remand was excessive.

The applicant alleges under Article 6 § 1 of the Convention that he did not have a fair trial as the creation and procedure of the State Security Courts were not in accordance with the principle of a “lawful” judge.

The applicant finally complains under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time.

THE LAW

1. The applicant complains under Article 3 of the Convention that he was not allowed to consult a lawyer while in police custody.

The Court considers that this complaint should be examined from the standpoint of Article 6 §§ 1 and 3 (c) of the Convention. It further 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 complains under Article 5 § 3 of the Convention that he was detained on remand for an unreasonable length of time.

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.

3. The applicant contends under Article 6 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time.

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.

4. As regards the applicant’s other complaints under Articles 3, 5, 6 §§ 1 and 2 of the Convention, the Court finds that these complaints 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 application should be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of his detention on remand, the length of the criminal proceedings against him and the absence of legal assistance to him while in police custody;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza
Registrar President