European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28485/03
by Habip ÇİFTÇİ
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 21 July 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Habip Çiftçi, is a Turkish national who was born in 1973 and is currently detained on remand in Ümraniye prison, Istanbul. He is represented before the Court by Ms Hacer Çekiç, a lawyer practising in Istanbul.

The circumstances of the case

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

On 4 September 1995 the applicant was arrested in Istanbul on suspicion of membership of an illegal organisation. He was placed in custody at the anti-terrorist branch of the Istanbul Police Headquarters.

On 13 September 1995 he was questioned by police officers and on 17 October 1995 he was handed over to police officers in the south-eastern city of Batman and placed in police custody there. On 30 October 1995 police officers from the Batman Police Headquarters questioned the applicant. When making his statements in Istanbul and Batman, the applicant was not represented by a lawyer. In his statements he submitted that he had been trained at PKK¹ camps before being sent to Istanbul where his health deteriorated.

On 2 October 1995 the applicant was brought before the Batman Chief Public Prosecutor who questioned the applicant. The applicant denied being a member of the PKK and stated that he had spent 15 days in a PKK camp but had not been given any training or instruction. He added that his police custody statements had been extracted from him by ill-treatment.

On the same day the applicant was also questioned by the judge at the Batman Criminal Court of Peace. The applicant repeated the contents of the statements he had made to the prosecutor earlier in the day. The judge ordered his detention in Batman prison pending the initiation of criminal proceedings against him.

On 11 October 1995 the prosecutor at the Diyarbakır State Security Court filed an indictment with that court and charged the applicant with the offence of membership of an illegal organisation, an offence which was defined in Article 168 of the Criminal Code and which carried a maximum sentence of fifteen years’ imprisonment. The prosecutor also requested the prison sentence to be increased by 50%, in accordance with Article 5 of the Prevention of Terrorism Act. The applicant’s trial began before the Diyarbakır State Security Court on 17 October 1995.

In the course of its ninth hearing held on 11 December 1996, the Diyarbakır Security Court noted that another set of criminal proceedings had been initiated against the applicant on 31 July 1996 on the basis of an indictment filed on 23 July 1996, and that those proceedings were pending before the 3rd Chamber of the Istanbul State Security Court. In those proceedings the applicant was being tried for the offence of carrying out activities for the purpose of bringing about the secession of a part of the national territory, an offence which was defined in Article 125 of the Criminal Code and which provided for the death penalty as the sole punishment. The Diyarbakır State Security Court considered that both cases were similar, and decided to join them before the 3^rd Chamber of the Istanbul State Security Court. The judge also ordered the applicant’s transfer to a prison in Istanbul.

A hearing took place before the 3^rd Chamber of the Istanbul State Security Court on 17 January 1997 in the applicant’s absence.

In the course of its sixth hearing held on 7 March 1997, the 3rd Chamber of the Istanbul State Security Court noted that criminal proceedings were pending against a certain İ.K. before the 1st Chamber of the Istanbul State Security Court concerning the killing of a village guard. The court considered that the evidence showed that the applicant had also been involved in the killing of the village guard, and decided to join the cases. The 1st Chamber of the Istanbul State Security Court took over the trial.

After having joined the three cases, the 1st Chamber of the Istanbul State Security Court (hereinafter “the trial court”) held its first hearing of the case on 10 April 1997. The applicant was not present at this hearing.

Between 10 April 1997 and 31 October 2000 – i.e. for a period of more than three and a half years – the trial court continued its hearings in the absence of the applicant because it was unable to find the prison in which the applicant was being detained.

When the authorities finally succeeded in ascertaining where the applicant was being held, the trial court held its first hearing in the presence of the applicant on 31 October 2000. In the course of that hearing the applicant was informed about the additional charges which had been brought against him on 23 July 1996 under Article 125 of the Criminal Code and the joinder of his cases to another case pending against İ.K. The applicant rejected the accusations and submitted that he had been in prison at the time of the commission of the offences. Having regard to “the nature of the offences in question and of the evidence in the file, as well as the date of his arrest and detention and the current stage of the proceedings”, the trial court rejected the applicant’s request for release.

In the course of the hearing on 12 June 2003, the applicant requested that he be released but this request was rejected by the trial court on the basis of “the nature of the offence in question and the evidence in the file”.

On 17 June 2003 the applicant’s lawyer lodged a formal objection against the trial court’s decision to reject his client’s request for release and reminded the court of his client’s rights under Article 5 of the Convention. This objection was examined by the 2^nd Chamber of the Istanbul State Security Court and rejected on 19 June 2003.

During the 38th hearing, the trial court once again rejected the applicant’s request for release.

Following the abolition of the State Security Court, the case file was transferred to the docket of the 9^th Chamber of the Istanbul Assize Court (hereinafter “the trial court”), which held its first hearing on 20 July 2004.

In the course of the hearing on 7 October 2004, the applicant once more reminded the trial court of his rights under Article 5 of the Convention and requested his release. This request was rejected on the same grounds which had been put forward by the previous trial court.

During the hearing on 11 April 2006, the applicant again asked to be released. This request was also rejected by the trial court on account of the “sentence which would be imposed if he were to be found guilty”. The applicant’s objection against the rejection to release him was examined by the 10^th Chamber of the Istanbul Assize Court and was rejected on the basis of “the nature of the offence in question and the existence of a strong suspicion that the applicant had committed the offence in question”.

In its 11th hearing held on 8 February 2007, the trial court once more rejected the applicant’s request for release.

The applicant, who was arrested and detained on 4 September 1995, continues to be detained in prison, and the criminal proceedings, in the course of which there have been a total of 64 hearings, are still pending.

COMPLAINTS

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

He further submitted that, between 11 December 1996 and 31 October 2000, he had not been brought before the trial court which had been trying him in his absence, and he had thus not been able to take proceedings by which the lawfulness of his detention could have been decided. He also alleged that the failure of the trial court to ensure his attendance at the hearings violated his right of access to court, as well as preventing him from defending himself in relation to the charge brought against him under Article 125 of the Criminal Code of which he had not been informed for a number of years. In relation to these complaints he invoked Articles 5 § 4, 6 § 1 and 6 § 3 (a) of the Convention.

Invoking Article 6 § 1 of the Convention, the applicant complained that the trial courts’ decisions rejecting his requests for release had not been adequately reasoned.

He alleged under Article 6 § 2 of the Convention that his detention on remand for the past twelve years has been so long that it may be regarded as a punishment and not a provisional measure.

The applicant also alleged that the length of the criminal proceedings against him has been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention.

THE LAW

The Court deems it appropriate to examine all three complaints under Article 5 § 3 of the Convention only, and considers that it cannot, on the basis of the case file, determine their admissibility at the present stage. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the case to the respondent Government.

The Court considers, again, that it cannot determine the admissibility of this complaint at the present stage 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.

The Court observes that the criminal proceedings against the applicant are still pending. These complaints are therefore premature and must be rejected 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 this part of the case to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning his right to release pending trial, his right to take proceedings to challenge the lawfulness of his detention and his right to a fair trial within a reasonable time.

Declares the remainder of the application inadmissible.

F. Elens-Passos F. Tulkens
Deputy Registrar President