European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30326/03
by Ergin ERKUŞ
against Turkey

The European Court of Human Rights (Second Section), sitting on 20 May 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 12 August 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ergin Erkuş, is a Turkish national who was born in 1982 and lives in Izmir. He is represented before the Court by Mr S. Çetinkaya, a lawyer practising in Izmir.

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

While he was serving his military service in Kırklareli, on 19 November 2002 the applicant got 10 days’ leave and went to Izmir to see his family. He did not go back to his barracks afterwards.

On 22 February 2003 he was caught by the police in Izmir during a police search. The next day he was handed over to the Izmir Military Command, where he was kept in custody until 6 March 2003.

On 6 March 2003 the applicant was taken to his army command in Kırklareli and kept in custody there until 11 March 2003.

On 11 March 2003 he was brought before the Çorlu Military Court, which remanded him in custody.

On 12 March 2003 the Çorlu Military Prosecutor filed an indictment charging the applicant with exceeding his leave (“izin tecavüzü”).

On 14 April 2003 the Çorlu Military Court convicted the applicant as charged and sentenced him to ten months’ imprisonment. In its judgment, the court noted that it would be open to the parties to lodge an appeal.

On 22 April 2003 the judgment of the Çorlu Military Court became final as neither the military prosecutor nor the applicant appealed.

COMPLAINTS

The applicant complained under Article 5 §§ 1 and 3 of the Convention that he had been detained in custody for seventeen days without being brought before a judge, whereas, according to the Law on Criminal Procedure, any arrested person had to be brought before a judge within forty-eight hours at the latest.

The applicant further maintained under Article 13 of the Convention that, although the Çorlu Military Prosecutor and the Çorlu Military Court had been aware of his unlawful detention, they had failed to initiate an investigation.

Relying on Article 6 § 3 (c) of the Convention, the applicant submitted that he had been denied legal assistance throughout the proceedings brought against him, including the pre-trial stage.

THE LAW

The applicant further complained under Article 13 of the Convention that, although the Çorlu Military Prosecutor and the Çorlu Military Court had been aware of his unlawful detention, they had failed to initiate an investigation.

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 reiterates that Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law (see Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002).

The Court observes that on 14 April 2003 the Çorlu Military Court convicted the applicant. However, the applicant failed to lodge an appeal against the judgment of the Çorlu Military Court within the required time-limit or to raise this grievance before the Military Court of Cassation.

It follows that this complaint 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 complaints concerning the lawfulness and length of his detention without judicial authorisation and the absence of an investigation into this matter;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President