CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 décembre 2006

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Costa , President ,   Mr   A.B. Baka ,   Mr   R. Türmen ,   Mr   M. Ugrekhelidze ,   Mrs   E. Fura-Sandström ,   Ms   D. Jočienė ,   Mr   D. Popović, judges , and Mr S. Naismith , Deputy Section Registrar , Having regard to the above applications lodged on 2 January 2003, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together. Having regard to the partial decision of 20 September 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Mr Sinan Yıldız and Şidar Sönmez are Turkish nationals who were born in 1977 and 1979 respectively. They both live in Tunceli. They were represented before the Court by Mr H. Aygün and Mr Ö. U. Kaplan, lawyers practising in Tunceli. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 14 January 2001 the applicants were arrested and placed in police custody by officers from the anti-terrorism branch of the Tunceli Security Directorate, on suspicion of involvement in the activities of an illegal armed organisation, namely the TKP/ML ( Türkiye Komünist Partisi-Marksist Leninist , the Turkish Communist Party-Marxist Leninist). Following their arrest, the applicants signed a form whereby their rights as detainees were explained to them. The form included a right to request the assistance of a lawyer. However, as they were arrested on suspicion of having committed a crime falling within the jurisdiction of State Security Courts, it was noted in the form that they could only have access to legal assistance if they were subsequently detained on remand or a court decided to prolong their detention in police custody. On 18 January 2001 the applicants were questioned by the police about their activities in the illegal organisation. The first applicant explained that the TKP/ML was an illegal party which supported communism. He stated that he was not a member of this party but he was involved in the activities of its youth branch. He maintained that, in order to help the organisation, he had distributed a newspaper called Revolutionary Democracy , tried to convince people to become members of the TKP/ML and sprayed slogans on walls. He further admitted that he had attended the funeral of F.K., who had burnt himself to protest against F-type prisons. In his police interrogation the second applicant stated that the aim of TKP/ML was to undermine the constitutional order and to replace it with a Marxist-Leninist regime. He explained that he had been involved in the formation of the youth branch of this organisation in Tunceli. He also admitted that, in order to protest against F-type prisons, he had taken part in hunger strikes and painted slogans on walls. He further stated that he had participated and chanted slogans at the funeral of F.K. On 19 January 2001 the applicants were brought before the public prosecutor, where they repeated their statements taken by the police. The same day the applicants were brought before the investigating judge at the Tunceli Magistrate’s Court. Before the judge, the first applicant accepted his statements given before the public prosecutor, whereas the second applicant denied his earlier statements. The investigating judge ordered that both applicants be placed in detention on remand. The applicants and four others filed a petition with the court requesting their release pending trial. On 23 January 2001 the court dismissed their request. In an indictment dated 20 February 2001, the public prosecutor initiated criminal proceedings against the applicants and 25 others before the Malatya State Security Court, accusing them, inter alia , of membership of an illegal armed organisation. The prosecution asked the court to sentence the applicants pursuant to Article 168 of the Criminal Code. Both applicants were represented before the court by two lawyers. On 27 March 2001 the applicants denied their statements given in police custody, as they alleged that they had been signed under duress. They accepted their statements given before the investigating judge at the Tunceli Magistrate’s Court. One of the applicants’ lawyers requested the court to release the applicants pending trial as the only evidence against them was their statements given in police custody, which were taken under duress. The court dismissed the request and ordered the continuation of the applicants’ detention on remand. On 19 June 2001 the court heard a witness who stated that he did not know the applicants. The applicants’ lawyers, who were present in the court, did not put any questions to this person. On 9 April 2002, considering the applicants’ concurring statements given in police custody, their confessions made before the public prosecutor and the judge at the magistrate’s court, the statements of other accused given during the criminal proceedings, and the confrontation which had taken place between the accused and the witnesses, as well as other relevant evidence such as photographs taken of the incidents, video recordings and the incident reports, the Malatya State Security Court found the applicants and two others guilty of aiding and abetting an illegal organisation, and sentenced them each to three years and nine months’ imprisonment pursuant to Article   168 of the Criminal Code. It acquitted 23 other accused. On 12 November 2002 the Court of Cassation upheld the judgment of the Malatya State Security Court, finding that the applicants’ grounds of appeal were unfounded. COMPLAINT The applicants complained that they were deprived of a fair hearing as they did not have access to legal assistance during their detention in police custody contrary to Article 6 § 3 (c) of the Convention. THE LAW The applicants claimed that at the material time the relevant regulations provided that people who were suspected of crimes falling within the jurisdiction of State Security Courts did not have the right to have legal assistance during their detention in police custody. The Government alleged that the applicants neither requested legal assistance during their detention in police custody nor made any complaints before the judicial authorities. Moreover, they maintained that, if the applicants claimed that domestic remedies were ineffective, then they should have brought their complaint before the Court within six months of the end of their custody period. The Court is not required to examine the arguments raised by the parties as the applications are in any event inadmissible for the following reasons. According to the Court’s case-law, Article 6, especially paragraph 3, may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see, Imbrioscia v. Switzerland judgment of 24   November 1993, Series A no.   275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. The question is whether the lack of legal representation during the preliminary investigation, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing ( John Murray v. the United Kingdom , judgment of 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I, §   63). In the present case, the Court finds that the lack of legal assistance in police custody did not deprive the applicants of a fair hearing. In reaching this conclusion, the Court has taken into account the entirety of the proceedings, in particular the fact that the applicants were represented by lawyers throughout the major part of the proceedings - before the Malatya State Security Court and the Court of Cassation. Moreover, the Court notes that the Malatya State Security Court based its final decision not only on the applicants’ statements given in police custody, but also on their statements given at later stages and the statements of the other accused. Moreover, the domestic court relied on the outcome of the confrontation which had taken place between the accused and the witnesses, as well as other relevant evidence, such as photographs taken of the incidents, video recordings and the incident reports (see, mutatis mutandis, Mamaç and Others v. Turkey , nos. 29486/95, 29487/95 and 29853/96, §   48, 20 April 2004; Sarıkaya v. Turkey , no. 36115/97, §   67, 22 April 2004). The applicants’ lack of access to legal assistance during the police custody cannot, therefore, be considered to have deprived them of a fair hearing, within the meaning of Article 6 §§ 1 and 3 (c) of the Convention. The Court concludes that the applications are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must, therefore, be rejected pursuant to Article 35 § 4. Consequently, it is appropriate to end the application of Article 29 § 3 of the Convention to the present case. For these reasons, the Court unanimously Declares the remainder of the applications inadmissible.   S. Naismith   J.-P. Costa Deputy Registrar   President   [1] Joined at the stage of the partial inadmissibility decision of 20   September 2005