European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33102/04
by Ayhan IŞIK
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 15 July 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ayhan Işık, is a Turkish national who was born in 1978 and lives in Tekirdağ. He is represented before the Court by Ms H. Çekiç, a lawyer practising in Istanbul.

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

On 27 January 1999 the applicant was arrested and taken into custody on suspicion of being involved in the activities of the PKK (the Kurdistan Workers' Party), an illegal organisation, in Istanbul. The applicant had a forged identity card in his possession.

On 3 February 1999 he was brought before the investigating judge at the Istanbul State Security Court who ordered his detention on remand.

On 11 February 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and nine other persons. The applicant was charged with membership of an illegal organisation under Article 168 § 2 of the former Criminal Code.

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 14 May 2003 the Istanbul State Security Court convicted the applicant as charged and sentenced him to twelve years and six months' imprisonment.

On 9 December 2003 the Court of Cassation upheld the judgment of the first-instance court. The opinion of the Chief Public Prosecutor submitted to the Court of Cassation was not communicated to the applicant.

On 28 April 2004 he was served the with committal order (müddetname) concerning the execution of his sentence.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that his detention during judicial proceedings had breached the “reasonable time” requirement.

He argued under Article 5 § 5 that he had had no right to compensation in domestic law for the alleged violation of Article 5 § 3 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 Chief 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, before the public prosecutor and the judge who had subsequently questioned him; that the medical reports of the Forensic Medicine Institute had not been drawn up properly; that he had been punished severely; that the members of the bench of the State Security Court had changed at almost every hearing to the detriment of fair trial; and that the decision of the Court of Cassation had not been communicated to him.

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.

Under Article 13 of the Convention, the applicant alleged that there had been no effective remedies in domestic law in respect of his Convention grievances.

Finally, he maintained under Article 14 of the Convention that the execution procedures for offences tried before the State Security Court had been different from those for offences tried in other courts.

THE LAW

The Court reiterates that Article 5 § 3 of the Convention also protects, indirectly, the principle of the presumption of innocence (see Olstowski v. Poland (dec.), no. 34052/96, 15 February 2001, and Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV). Consequently, the Court will examine the applicant's complaints concerning the length of his pre-trial detention under Article 5 § 3 of the Convention alone.

The Court notes that the applicant's pre-trial detention ended on 14 May 2003, when he was convicted. From that date until the date of introduction of the application, he was detained under Article 5 § 1 (a) of the Convention, whereas the application was introduced with the Court on 15 July 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 introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The Court reiterates that this provision guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention contrary to Article 5 of the Convention (Benham v. the United Kingdom, 10 June 1996, § 50, Reports of Judgments and Decisions 1996- III). In the absence of any such finding in the present case, the Court is of the opinion that no issues arise under this provision of the Convention.

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 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 them to the respondent Government.

The Court considers that this complaint should only be examined with respect to the applicant's complaint concerning the length of criminal proceedings. It further 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the length of the criminal proceedings brought against him, the non-communication of the opinion of the Chief Public Prosecutor at the Court of Cassation, the absence of legal assistance to the applicant during his detention in police custody and the lack of an effective remedy in respect of his complaint concerning the length of the proceedings;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President