European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29361/07
by Şahap DOĞAN
against Turkey

The European Court of Human Rights (Second Section), sitting on 9 December 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 3 July 2007,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Şahap Doğan, is a Turkish national who was born in 1974 and lives in Tekirdağ. He is represented before the Court by Mr M. Filorinali and Ms Y. Başara, lawyers practising in Istanbul.

The circumstances of the case

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

On 19 June 1996 the applicant was taken into police custody by police officers from the anti-terrorism branch of the Istanbul police headquarters.

On 2 July 1996 a single judge at the Istanbul State Security Court ordered the applicant's detention on remand.

On 2 December 1996 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him under Article 125 of the former Criminal Code.

On 13 June 2001 the Istanbul State Security Court convicted the applicant under Article 125 of the former Criminal Code of carrying out activities for the purpose of bringing about the secession of part of the national territory and sentenced him to the death penalty.

On 12 February 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court. The opinion which the principal public prosecutor had submitted to the Court of Cassation was not communicated to the applicant.

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 14^th Chamber of the Istanbul Assize Court.

On 12 April 2007 the applicant objected to his detention during the judicial proceedings and requested his release.

On 28 May 2007 the 9^th Chamber of the Istanbul Assize Court dismissed his objection, having regard to the nature of the offence in question, the existence of a strong suspicion that the applicant had committed the offence and the sentence that would be imposed if he were to be found guilty.

At a hearing held on 4 June 2008, the 14^th Chamber of the Istanbul Assize Court ordered the applicant's continued detention in view of the nature of the offence, the existence of a strong suspicion that the applicant had committed the offence and the possibility that he would abscond if released.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that his detention during criminal proceedings against him had breached the “reasonable time” requirement and that his request to challenge its lawfulness had been rejected on grounds which failed to provide any relevant and sufficient reasons justifying the continuing deprivation of his liberty.

He maintained under Article 5 § 4 that his detention in police custody for thirteen days had breached the requirement of “speediness” for the purposes of that provision.

He argued under Article 5 § 5 that he had had no right to compensation in domestic law for the alleged violations of Article 5 §§ 3 and 4 of the Convention.

The applicant contended under Article 6 of the Convention that the length of the criminal proceedings brought against him had been in breach of the “reasonable time” requirement.

He further alleged under Article 6 that the opinion which the principal public prosecutor had submitted to the Court of Cassation had not been communicated to him; that he had been denied a fair trial by an independent and impartial tribunal on account of the lack of independence and impartiality of State Security Court judges and of the presence until June 1999 of a military judge on the bench of the Istanbul State Security Court which had tried him; that he had not been provided with legal assistance during his detention in police custody, or before the public prosecutor and the judge who had subsequently questioned him; that his defence rights had not been duly observed; and that his right to attend the hearings had been denied arbitrarily.

Lastly, the applicant contended under Article 6 § 2 that his right to be presumed innocent had been violated because he had been detained on remand for an excessive length of time.

THE LAW

The Court deems it appropriate to examine the complaints under Article 5 § 3 and Article 6 § 2 of the Convention from the standpoint of Article 5 § 3 alone as they mainly concern the length of the applicant's detention on remand.

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.

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 reiterates at the outset that, according to the established case law of the Convention organs, where no domestic remedy is available the six-month period runs from the date of the act alleged to constitute a violation of the Convention (Ege v. Turkey (dec.), no. 47117/99, 10 February 2004; Dogan v. Turkey (dec.), no. 67214/01, 7 June 2005).

The Court observes that the applicant's police custody ended on 2 July 1996. However, the application was lodged with the Court on 3 July 2007, that is, more than six months later.

It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The Court observes that these proceedings are still pending. The applicant's complaints under this provision are 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 complaints concerning his right to be released pending trial under Article 5 § 3 of the Convention, his right to compensation under Article 5 § 5 of the Convention and his right to a fair hearing within a reasonable time under Article 6 § 1 of the Convention;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President