European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34499/03
by Cengiz BAYIR
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 September 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A. Mularoni,
Mr D. Popović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 28 July 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Cengiz Bayır, is a Turkish national who was born in 1973 and lives in Istanbul. He is represented before the Court by Mr Metin Filorinali, a lawyer practising in Istanbul.

The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows.

The applicant was arrested in Istanbul on 4 April 1996 by police officers from the anti-terrorism branch of the Istanbul Police Headquarters, and was placed in custody.

On 15 April 1996 he was brought before the judge at the Istanbul State Security Court, who ordered his detention on remand pending the initiation of criminal proceedings against him.

The prosecutor at the Istanbul State Security Court filed an indictment on 6 May 1996, charging the applicant with the offences of, inter alia, membership of an illegal organisation and of having thrown molotov cocktails.

On 24 December 1997 the applicant was found guilty as charged and sentenced to a total of eighteen years’ imprisonment.

The applicant’s conviction was quashed by the Court of Cassation on 14 December 1998. The Court of Cassation observed that the applicant had been suffering from epilepsy and held that, before convicting him, the trial court should have obtained medical reports with a view to establishing whether the applicant’s medical problems had had any bearing on the commission of the offences. If that was the case, the applicant could have benefited from Articles 46 or 47 of the Criminal Code, pursuant to which his prison sentence could have been reduced or no punishment imposed at all.

In 1999 the re-trial commenced before the Istanbul State Security Court. According to a medical report obtained from a hospital in Istanbul, the applicant had had criminal capacity at the time of the commission of the offences in 1996.

The applicant was released on 5 April 2002. After the State Security Courts were abolished, the 12^th Chamber of the Istanbul Assize Court took over the trial.

On 20 March 2006 the applicant was found guilty and sentenced to eight years and nine months’ imprisonment.

The applicant appealed against his conviction and the proceedings before the Court of Cassation are currently pending.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention of the length of his detention on remand.

Invoking Article 6 of the Convention, the applicant complained that he had been tried by a State Security Court which had not been independent or impartial, and that the prosecutor’s observations submitted to the Court of Cassation were not communicated to him. Under the same Article, he further complained that he did not have access to a lawyer when he was in police custody and that he was not tried within a reasonable time.

THE LAW

The Court notes that the applicant was released from custody on remand on 5 April 2002. However, he did not lodge his application with the Court before 28 July 2003. He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

The Court observes that the criminal proceedings against the applicant are still pending. These complaints are therefore premature. Consequently, this part of the application is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

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 it to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning his right to a fair hearing within a reasonable time;

Declares the remainder of the application inadmissible.

F. Elens-Passos F. Tulkens
Deputy Registrar President