European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18623/03
by Cahit DEMIREL
against Turkey

The European Court of Human Rights (Second Section), sitting on 11 September 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 29 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Cahit Demirel, is a Turkish national who was born in 1972 and, at the time of lodging his application, he was detained in the Diyarbakır E Type Prison. He is represented before the Court by Mr M. Beştaş and Mrs M. Beştaş, lawyers practising in Diyarbakır.

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

On 1 April 1996 the applicant was arrested by gendarmerie officers while he was leaving the south-eastern city of Batman. He was then transferred to the Anti-Terrorist Branch of the Batman Security Headquarters on suspicion of involvement in the activities of the PKK (the Kurdistan Workers’ Party), an illegal organisation.

On 10 April 1996 the applicant made statements to the police in the absence of his lawyer.

On 18 April 1996 the applicant was brought before the Batman public prosecutor and the judge at the Batman Magistrates’ Court. He maintained that his police statements had been taken under torture and denied the allegations against him. The judge remanded the applicant in custody.

On an unspecified day the Batman public prosecutor issued a decision of non-jurisdiction and sent the case file to the public prosecutor’s office at the Diyarbakır State Security Court.

On 22 May 1996 the public prosecutor filed a bill of indictment against the applicant, along with other persons, charging him with membership of the PKK under Article 168 § 2 of the former Criminal Code.

On 30 July 1996 the Diyarbakır State Security Court held the first hearing on the merits of the case.

On 25 December 2001 the Fourth Chamber of the Diyarbakır State Security Court convicted the applicant as charged and sentenced him to twelve years and six months’ imprisonment.

Throughout the proceedings, the applicant’s lawyer repeatedly requested that the applicant be released pending trial. At the end of each hearing the State Security Court rejected the applicant’s requests having regard to the nature of the offence, the state of the evidence and the content of the case file.

On 9 October 2002 the Court of Cassation quashed the judgment of the first-instance court. The case was subsequently remitted to the Diyarbakır State Security Court.

On 13 May 2003 the Diyarbakır State Security Court ordered the applicant’s release pending trial.

By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court.

On 2 May 2005 the Diyarbakır Assize Court decided that the proceedings against the applicant should be terminated on the ground that the statutory time limit under Article 102 of the Criminal Code had expired. This decision to terminate the case became final as neither the applicant nor the public prosecutor appealed.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that he had been detained pending trial for an excessive length of time. He further stated, under Articles 5 § 4 of the Convention, that there was no effective domestic remedy to challenge the remand decisions of the first-instance court. In this connection, the applicant said that he had not lodged objections to these orders as the remedy in question was ineffective.

The applicant alleged that the length of the criminal proceedings against him had been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention. The applicant further complained under the same head that he had not been tried by an independent and impartial tribunal, owing to the creation and procedure of the State Security Courts. In this connection, he complained about the presence of a military judge on the bench of the Diyarbakır State Security Court. He further maintained under Article 6 § 1 of the Convention that he had been convicted on the basis of his statements taken under duress by the police.

The applicant finally complained under Article 6 of the Convention that he had been deprived of his right to legal assistance while in police custody and that he had had no opportunity to examine as witnesses those who had drawn up the records of the police interview.

THE LAW

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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. As regards the applicant’s other complaints under Article 6 of the Convention, the Court reiterates that a person may not claim to be a victim of a violation of the right to a fair hearing under Article 6 of the Convention in respect of criminal proceedings which ended with an acquittal or discontinuance (see, in this respect, I.I. v. Bulgaria (dec.), no. 44082/98, 25 March 2004, and Yılmaz and Others v. Turkey, (dec.), no. 38370/02, 25 August 2005).

The Court observes in the instant case that on 2 May 2005 the criminal proceedings against the applicant were discontinued because the statutory time-limit had expired. Consequently, the applicant cannot claim to be a victim of these other alleged violations of Article 6 of the Convention, within the meaning of Article 34 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

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

Declares the remainder of the application inadmissible.

S. Dollé F. Tulkens
Registrar President