European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38714/04
by Selahattin HUMARTAŞ
against Turkey

The European Court of Human Rights (Second Section), sitting on 18 November 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 20 July 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Selahattin Humartaş, is a Turkish national who was born in 1972 and lives in Diyarbakır. He is represented before the Court by Mr K. Sidar, a lawyer practising in Diyarbakır.

The circumstances of the case

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

On 2 January 1993 the applicant was arrested and taken into custody on suspicion of aiding and abetting the PKK, an illegal organisation.

On 29 January 1993 the applicant was remanded in custody.

On 3 March 1993 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant, accusing him of aiding and abetting the PKK and being a member of that organisation.

On 17 May 1993 the applicant was released pending trial.

On 21 August 1995 the public prosecutor at the Diyarbakır State Security Court filed an additional bill of indictment against the applicant, accusing him of carrying out activities for the purpose of bringing about the secession of part of the national territory in breach of Article 125 of the former Criminal Code (“the Criminal Code”).

On 5 September 1995 an arrest warrant was issued against the applicant in absentia.

On 16 October 1995 the applicant was arrested.

On 25 April 2000 the Diyarbakır State Security Court decided to discontinue the proceedings against the applicant in relation to the charge of membership of the PKK, holding that the prosecution had become time barred. It further held that there was insufficient evidence to find him guilty under Article 125 of the Criminal Code. The State Security Court added that the applicant’s conduct could only be classified as aiding and abetting such activities, the prosecution of which had become time-barred. The State Security Court therefore decided to discontinue the proceedings against the applicant in their entirety.

On the same date the applicant was released from detention.

On 9 October 2001 the Court of Cassation quashed the judgment of the Diyarbakır State Security Court, holding that the nature and intensity of the applicant’s activities called for his conviction under Article 168 § 2 of the former Criminal Code, and remitted the case to the State Security Court.

On 19 March 2004 the Diyarbakır State Security Court decided to discontinue the proceedings against the applicant, holding that the prosecution in relation to the charge under Article 168 § 2 of the former Criminal Code had become time-barred.

The applicant did not appeal against the judgment of the Diyarbakır State Security Court.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time.

The applicant further maintained under the same head that he had not received a fair trial by an independent and impartial tribunal due to the existence of a military judge on the bench of the state security court that tried him until June 1999.

The applicant contended lastly, under Article 5 §§ 1 and 5 of the Convention, that he had been unlawfully deprived of his liberty for approximately four years and ten months and that his grievances could not be redressed under the national law, as the discontinuation of proceedings for being time-barred did not fall within the exhaustive list of situations qualifying for an award of compensation under Law no. 466.

THE LAW

1.  The applicant maintained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him, which was over eleven years and two months, had been excessive.

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.

2.  The applicant complained under Article 6 § 1 of the Convention that he was denied a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of the state security court that tried him until June 1999.

The Court notes that the proceedings against the applicant were discontinued as the prosecution of the offences had become time-barred. Consequently, the applicant was not convicted and cannot, therefore, claim to be a victim of the alleged violation of Article 6 § 1 of the Convention.

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

3.  The applicant alleged under Article 5 §§ 1 and 5 of the Convention that he had been unlawfully deprived of his liberty for approximately four years and ten months and that his grievances could not be redressed under the national law.

As regards the first limb of the applicant’s complaints, the Court notes that the applicant was released from detention on 25 April 2000. However, the applicant introduced his application on 20 July 2004, more than six months later. It follows that this complaint has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

With regard to the second limb of the applicant’s complaints, the Court reiterates that under Article 5 § 5 of the Convention the right to compensation for any material or non-pecuniary damage sustained as a result of detention is conditional upon a breach of one of the paragraphs of Article 5 first being found (see Wassink v. the Netherlands, judgment of 27 September 1990, § 38 Series A no. 185-A,). Accordingly, the Court cannot consider an applicant’s claim based exclusively on Article 5 § 5 unless a breach of Article 5 §§ 1 to 4 has been established directly or in substance, either by the domestic authorities or by the Court itself. As the applicant’s case does not disclose such a breach, his claim under Article 5 § 5 fails.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the criminal proceedings against him;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President