European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35392/04
by Yunis BOLUKOÇ and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 16 September 2008 as a Chamber composed of:

Françoise Tulkens, President,
Antonella Mularoni,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 9 July 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Yunis Bolukoç, Ferhat Kıyak and Ayhan Ateş, are Turkish nationals who were born in 1962, 1978 and 1980 respectively and live in Istanbul. They are represented before the Court by Mr M. Filorinali, a lawyer practising in Istanbul.

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

On 11 March 1998 the first applicant was arrested and taken into police custody on suspicion of belonging to an illegal organisation, namely the DHKP-C (the Revolutionary People’s Liberation Party-Front).

On 14 March 1998 he was brought before a single judge at the Sixth Chamber of the Istanbul State Security Court who ordered his detention on remand.

On 30 March 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the first applicant, accusing him of being a member of an illegal armed organisation.

On 13 April 1998 the criminal proceedings against the first applicant commenced before the Fifth Chamber of the Istanbul State Security Court (case no. 1998/128).

On 28 July 1998 the Fifth Chamber of the Istanbul State Security Court decided to join these proceedings to case no. 1997/543 pending before the Sixth Chamber of the Istanbul State Security Court.

On 17 March 1999 the first applicant was released pending trial.

On 11 July 2000 all three applicants were arrested and taken into police custody by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of belonging to the aforementioned illegal organisation.

On an unspecified date a report was drafted by police officers, according to which the first applicant had refused to make statements regarding the charges against him. (This report was not submitted to the Court.)

On 14 July and 15 July 2000 police officers from the anti-terrorist branch of the Istanbul police headquarters took statements from the third and second applicants respectively. Those applicants accepted the charges against them.

On 17 July 2000 the applicants were brought before the public prosecutor and then the investigating judge. Before both the prosecutor and the judge the applicants denied the content of their police statements and alleged that the statements had been extracted from them under duress. The second and third applicants benefited from the legal assistance of their lawyers before the investigating judge.

On the same day, the investigating judge ordered the applicants’ detention on remand.

On 24 July 2000 the public prosecutor at the Istanbul State Security Court indicted the applicants, under Article 168 of the former Criminal Code, for being members of the DHKP-C.

On 1 August 2000 the criminal proceedings against the applicants commenced before the Second Chamber of the Istanbul State Security Court (case no. 2000/207)

On an unspecified date, case no. 1997/543, which was pending against the first applicant before the Sixth Chamber of the Istanbul State Security Court, was joined to case no. 2000/207.

On 28 November 2002 the Second Chamber of the Istanbul State Security Court convicted the applicants as charged.

On 12 January 2004 the Court of Cassation upheld that judgment.

COMPLAINTS

The applicants complained under Article 5 §§ 3 and 4 of the Convention that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power.

The applicants contended that they had been denied the right to compensation in domestic law for the alleged violations of Article 5 §§ 3 and 4, in breach of Article 5 § 5 of the Convention.

The applicants maintained under Article 6 § 1 that they had not been tried within a reasonable time by an independent and impartial court, having regard to their trial before the State Security Court and subsequent conviction. They observed, in particular, that the State Security Court judges were appointed by the Supreme Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu), which was presided over by the Minister of Justice.

The first applicant further complained under Article 6 § 1 that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence until June 1999 of a military judge on the bench of the Istanbul State Security Court which tried him.

The applicants finally alleged under Article 6 § 3 (c) of the Convention that they had not been provided with legal assistance during their detention in police custody.

THE LAW

The Court notes that the applicants’ detention in police custody ended when they were respectively placed in detention on remand on 17 July 2000 and on 14 March 1998 as regards the initial detention of the first applicant. However, the applicants lodged their application with the Court on 9 July 2004, that is to say more than six months later.

It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

a)  The Court considers that, as far as the first applicant is concerned, 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.

b)  As regards the second and third applicants, the Court notes that the relevant period began on 11 July 2000, when they were taken into police custody, and ended on 12 January 2004 upon the Court of Cassation’s decision. It thus lasted three years and six months at two instances.

The Court reiterates that the reasonableness of the length of criminal proceedings is to be assessed in the light of the particular circumstances of the case, including its complexity, the applicant’s conduct and the conduct of the competent authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

The Court observes in this regard that the case was complex, involving several defendants and the activities of an illegal organisation. As regards the conduct of the authorities, the Court notes that the second and third applicants failed to mention in their submissions to the Court any period of inactivity attributable to the domestic courts. Furthermore, on appeal, the Court of Cassation determined the case within thirteen months.

In the light of the foregoing, the Court concludes that, in the present case, the length of the criminal proceedings against the second and third applicants cannot be regarded as having exceeded the reasonable time requirement of Article 6 § 1 of the Convention (see Dağtekin and Others v. Turkey, no. 70516/01, § 25, 13 December 2007). It follows that this part of the application must be rejected as being manifestly ill founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The Court points out that it has already rejected similar complaints concerning the issue of independence and impartiality in relation to the aforementioned appointments procedure (see, inter alia, İmrek v. Turkey (dec.), no. 57175/00, 28 January 2003). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in such earlier cases.

Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

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 application to the respondent Government.

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 applicants’ complaints concerning the lack of legal assistance during detention in police custody and the first applicant’s complaints concerning the length of the proceedings and a lack of independence and impartiality until June 1999 on the part of the State Security Court which tried him;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President