CASE OF SEVGİN AND İNCE v. TURKEY
No violation of Art. 3;Violation of Art. 5-3;Not necessary to examine Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1 (composition of state security court);Not necessary to examine remaining complaints under Art. 6;No violation of Art. 13;No violation of Art. 14;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
4. The applicants were born in 1960 and 1967 respectively and live in Diyarbakır. 5. On 16 November 1993 the applicant was taken into custody by the security forces at the Sağırsu Gendarmerie Command. 6. In a report drafted by the gendarmes and signed by the applicant on the same day, it was stated that he was taken into custody on the basis of information contained in a document found on a PKK terrorist. 7. In his statement taken by the gendarmes on 30 November 1993 the applicant confessed in detail to his involvement in the activities of the PKK. 8. On 1 December 1993 the applicant and five others were examined by a doctor at the Siirt Forensic Department, who concluded there were no traces of blows on their bodies. 9. Later on the same day, the applicant was first brought before the Siirt Public Prosecutor then before the judge at the Siirt Magistrates Court where he refuted his statements dated 30 November 1993 and he contested his involvement in the activities of the PKK. He confessed to having possessed a Kalashnikov rifle without a permit. The court ordered his detention on remand. 10. In his petition dated 2 December 1993 filed with the Siirt Assize Court, the applicant alleged that he had been severely tortured for eighteen days while in police custody. He stated that he had been told to strip, blindfolded, severely beaten and strung up by his arms. Moreover, he objected to the court’s decision to detain him on remand. 11. On an unspecified date the Siirt Public Prosecutor issued a decision of non-jurisdiction as the charges against the applicant fell within the competence of the State Security Courts. 12. On 21 December 1993 the Public Prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicant with engaging in acts aimed at the separation of a part of the territory of the State, under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. 13. At the hearing held on 24 February 1994, the applicant denied the allegations against him and claimed that he had been forced to sign the statements drafted in police custody. The court refused the applicant’s request for release pending trial, in view of the state of the evidence and the nature of the offence of which he was accused. It further decided to join the applicant’s case to the second applicant’s case, as they raised similar issues. 14. On 24 October 1993 the applicant was taken into custody by the security forces at the Siirt Gendarmerie Command. According to the arrest report drafted by the gendarmes and signed by the applicant, he was taken into custody in the village of Koçlu in the course of an investigation concerning the PKK. 15. On 26 October 1993 the applicant took the police officers of the Prevention of Terrorism Department of the Siirt Security Directorate to where he was hiding weaponry, namely a Kalashnikov rifle, a hand grenade and bullets. The police officers later drafted an on-site inspection report, describing the location of the hideout and the weapons found there. 16. In his statement taken by the gendarmes on 3 November 1993, the applicant confessed in detail to his involvement in the activities of the PKK. 17. On 5 November 1993 the applicant and six other suspects were taken to the Siirt Forensic Department for an examination. According to the medical report drafted on the same date, no traces of blows were found on the applicant’s body. 18. On the same day, the applicant was brought before the Siirt Public Prosecutor where he accepted having possessed a rifle, a hand grenade and bullets, but denied having participated in the activities of the PKK. Later he was brought before the Siirt Magistrates Court where he reiterated that he had no involvement in the activities of the PKK. The court ordered his detention on remand. 19. In a petition dated 30 November 1993 filed with the Siirt Assize Court, the applicant refuted all the charges brought against him and requested to be released. He alleged that while he was held in police custody, he had had to accept all the allegations against him as he had been severely tortured. Moreover, he maintained that, as the police officers had threatened him, he was afraid to complain about these acts before the public prosecutor and the judge at the criminal court. 20. On an unspecified date, the Siirt Public Prosecutor issued a decision of lack of jurisdiction as the charges against the applicant fell within the competence of the State Security Courts. 21. On 6 December 1993 the public prosecutor filed a bill of indictment with the Diyarbakır State Security Court, accusing the applicant and six others of having engaged in acts aimed at the separation of a part of the territory of the State. The public prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. 22. On 24 March 1994, upon the request of the judge at the Diyarbakır State Security Court, the Siirt Assize Court took the statements of eight police officers from the Prevention of Terrorism Department of the Siirt Security Directorate, who had questioned the second applicant and had drafted the on-site inspection report. The police officers described the course of events during the on-site inspection. They also maintained that no pressure had been inflicted on the accused. 23. At the hearing of 29 March 1994, the applicants were not present before the Diyarbakır State Security Court. It therefore issued summonses to them for the next hearing, scheduled for 10 May 1994. The court requested that a ballistic examination be carried out by the Diyarbakır Forensic Institute concerning the rifle found in the possession of the second applicant. It continued the applicants’ remand in custody pending trial, but released four other accused persons. 24. At the hearing of 10 May 1994, some of the accused, including the applicants, were present in court. The statements of the police officers who had signed the on-site inspection report were submitted to the court. The court also heard two defence witnesses and asked the accused for their comments. The lawyers of both applicants maintained that they did not have any comments to make concerning these statements. They also demanded the applicants’ release pending trial, contending that the accusations brought against them were unfounded. The court ordered the prolongation of their detention on remand considering the nature of the charges and the content of the case-file. 25. At the nine subsequent hearings which were held between 10 May 1994 and 5 July 1995, the Diyarbakır State Security Court was unable to reach a decision as the relevant ballistic report had not been received. At each hearing, the court rejected the applicants’ requests for release pending trial, in view of the state of the evidence and the nature of the offence. 26. On 25 September 1995 the court received the ballistic report. At the following hearing, held on 21 November 1995, the public prosecutor submitted his opinion on the merits. He proposed that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The court rejected once again the applicants’ request for release pending trial because of the serious nature of the charges and the state of the evidence. 27. At the hearing of 5 December 1995, the Diyarbakır State Security Court was unable to give a final decision as the prison authorities had failed to bring the first applicant to court. On 26 December 1995 and 27 February 1996, the court rescheduled the hearing to a later date in order to obtain this applicant’s final statements. 28. On 26 March 1996 the prison authorities again failed to bring the first applicant before the Diyarbakır State Security Court. His lawyer maintained that the applicant was absent against his will and requested the court to postpone the hearing in order to take his last statements. The second applicant repeated his previous statements. The court convicted the applicants of engaging in acts aimed at the separation of a part of the territory of the State. The court sentenced them to twelve years and six months’ imprisonment under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The decision was given in the absence of the first applicant. 29. The applicants appealed against the decision of the Diyarbakır State Security Court. 30. On 12 May 1997 the Court of Cassation quashed the decision on the ground that the Diyarbakır State Security Court did not respect the rights of defence during the proceedings. It emphasized in its decision that the court had convicted the first applicant in his absence, depriving him of his right to submit his final defence. It held that, due to the close connection between the accused, it was appropriate to quash the decision in favour of all the accused. 31. On 1 July 1997 the Diyarbakır State Security Court served a summons on the applicants for the following hearing. 32. On 27 August 1997 the court sent a notice to the Public Prosecutor to ascertain the prison in which the applicants were detained and the address of two of the accused who were released pending trial. Moreover, it requested the population registry office to confirm the apparent death of one of the accused. 33. At the hearing of 7 October 1997 the court requested the transfer of the applicants, who were detained in Amasya and Bartın prisons, to the Diyarbakır Prison. 34. On 18 November 1997 the court postponed the hearing once again as the applicants were still not present and the addresses of the other accused were not yet known to the court. 35. On 27 January 1998 and 10 March 1998 the applicants were present before the court. They submitted their opinion concerning the decision of the Court of Cassation. However, as the other accused, who had been released pending trial, failed to appear, the court was once again unable to reach its final decision. 36. The applicants did not attend the following nine hearings. According to the prison records it was their express wish to not to attend. Moreover during this period neither the office of the public prosecutor nor the population register office submitted to the court the requested information concerning the other accused. 37. At the hearing of 6 April 1999, in the presence of only the applicants’ lawyers, the Diyarbakır State Security Court gave its final decision. It convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment. It acquitted one of the accused and decided to sever the case concerning the others whose addresses were still unknown to the court. 38. On 2 June 1999 the applicants appealed to the Court of Cassation. In their petition they maintained that, according to Article 135 (a) of the Code on Criminal Procedure, statements that are obtained using forbidden methods, such as torture, pressure or ill-treatment, cannot be taken into consideration by the court. They contended that they had signed their statements under pressure, without knowing their contents. They therefore requested the quashing of the State Security Court’s decision, arguing that it was mainly based on their statements taken in police custody. 39. On 9 November 1999 the Court of Cassation upheld the decision of the first instance court.