European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33155/04
by Kibar DOĞRU
against Turkey

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

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

Having regard to the above application lodged on 3 August 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Kibar Doğru, is a Turkish national who was born in 1973 and lives in Istanbul. She is represented before the Court by Mr M. Filorinali and Mrs Y. Başara, lawyers practising in Istanbul.

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

On 5 November 1992 the applicant was arrested and taken into custody on suspicion of being involved in the activities of an illegal organisation, the TKP-ML/TIKKO, in Istanbul.

On 17 November 1992 she was brought before the investigating judge at the Istanbul State Security Court, who remanded her in custody.

On 10 February 1993 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and seven other persons. The applicant was charged with membership of an illegal organisation under Article 168 § 2 of the former Criminal Code.

On 26 May 1995 the Istanbul State Security Court ordered the applicant's release pending trial.

On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of State Security Courts were replaced by civilian judges.

On 12 June 2000 the Istanbul State Security Court convicted the applicant as charged and sentenced her to twelve years and six months' imprisonment.

On 15 May 2001 the Court of Cassation quashed the judgment of the first-instance court. The case was remitted to the Istanbul State Security Court for further examination.

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 subsequently resumed before the Istanbul Assize Court.

On 31 January 2005 the Istanbul Assize Court convicted the applicant for a second time under Article 168 § 2 of the former Criminal Code.

On 20 March 2006 the Court of Cassation quashed the judgment of the Istanbul Assize Court.

On 21 May 2008 the Istanbul Assize Court held that the criminal proceedings against the applicant should be discontinued on the ground that prosecution was time-barred (zamanaşımı).

According to the information in the case file, the public prosecutor appealed against the judgment of 21 May 2008 and the proceedings are currently pending before the Court of Cassation.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that she had not been brought promptly before a judge or other officer authorised by law to exercise judicial power. The applicant further complained under Article 5 §§ 4 and 5 of the Convention that there were no domestic remedies available under Turkish law whereby she could challenge the unlawfulness of her detention in police custody and obtain compensation.

The applicant submitted under Article 5 § 3 of the Convention that the length of her detention on remand had been excessive.

The applicant maintained under Article 6 §§ 1 and 3 that she had not been tried within a reasonable time by an independent and impartial court. She submitted, in particular, that the 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. She further maintained that the execution procedures for offences tried before the State Security Court were different from those for offences tried in other courts. The applicant also complained that she had not been provided with legal assistance during her detention in police custody. She alleged that the opinion of the Principal Public Prosecutor had not been communicated to her, in contravention of the principle of equality of arms. The applicant lastly argued that the statements taken by the investigating judge had not been included in the case file, thus depriving her of access to them.

THE LAW

The Court reiterates that 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 (Yüksektepe v. Turkey, no. 62227/00, § 31, 24 October 2006, and Özden Bilgin v. Turkey, no. 8610/02, § 23, 14 June 2007).

The Court notes that the applicant's detention in police custody ended on 17 November 1992, whereas the application was introduced with the Court on 3 August 2004, that is, more than six months later. It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The Court notes that the applicant's pre-trial detention ended on 26 May 1995, whereas the application was introduced with the Court on 3 August 2004, that is, more than six months later (see, among other authorities, Ege v. Turkey (dec.), no. 47117/99, 10 February 2004). It follows that this part of the application was also introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

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.

It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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