European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38734/04
by Mehmet GÜNGÖRMEZ
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,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 19 July 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Güngörmez, is a Turkish national who was born in 1962 and lives in Istanbul. He is represented before the Court by Mrs E. Çıtak, 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 10 April 1981 the applicant was arrested on the charge of membership of Dev-Sol (Revolutionary Left), an illegal organisation. In 1981 criminal proceedings were brought against the applicant, along with 1242 other persons, on the charge of attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code.

On 1 November 1991 the Istanbul Martial Law Court gave its judgment in the case. The applicant was found guilty as charged and sentenced to ten years’ imprisonment.

Following promulgation of the Law of 26 December 1994 abolishing the jurisdiction of the martial law courts, the Court of Cassation acquired jurisdiction over the case.

On 18 June 2003 the Court of Cassation quashed the judgment of the martial law court since it was impossible to examine the case on the merits on account of the loss of a great number of evidentiary documents, and remitted the case to the Üsküdar Assize Court.

According to the information in the case file, the criminal proceedings against the applicant and 1242 other persons are still pending before the Üsküdar Assize Court (case no. 2004/393).

COMPLAINTS

The applicant complained under Article 6 of the Convention that the length of the criminal proceedings brought against him had exceeded the “reasonable time” requirement.

The applicant also maintained under the same head that his right to a fair hearing had been breached as he had been tried by a martial law court which lacked independence and impartiality.

THE LAW

1.  The applicant complained under Article 6 of the Convention that he had not been tried within a reasonable time.

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 contended under Article 6 of the Convention that he had not been tried by an independent and impartial tribunal.

The Court observes that the criminal proceedings against the applicant are still pending. This complaint is therefore premature. Consequently, this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).

For these reasons, the Court unanimously

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

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President