European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2008/705.html
Cite as: [2008] ECHR 705
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SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos.
19637/05, 43197/06 and 39164/07
lodged by Barış İNAN
and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 17 June 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 applications lodged on 30 May 2005, 13 October 2006 and 27 August 2007 respectively,
Having deliberated, decides as follows:
THE FACTS
A. Application no. 19637/05 lodged by Mr Barış İnan
The applicant, Mr Barış İnan, is a Turkish national who was born in 1973 and is currently detained in the Kandıra F-type prison, in Kocaeli. He is represented before the Court by Mr F.N. Ertekin, Mr K. Öztürk, Mr T. Ayçık, Mr İ.C. Halavurt and Mrs F. Kılıçgün, lawyers practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 September 1998 the applicant was arrested within the context of a police operation conducted against the MLKP (Marxist-Leninist Communist Party).
On 14 September 1998 he was brought before a single judge at the Istanbul State Security Court who ordered the applicant’s detention on remand.
On 18 September 1998 the public prosecutor at the Istanbul State Security Court lodged a bill of indictment charging the applicant with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code.
On 4 December 1998 the Istanbul State Security Court held the first hearing on the merits of the case (case no. 1998/259).
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 and his co-accused was transferred to the Istanbul Assize Court.
According to the information in the case file, the criminal proceedings against the applicant are still pending before the Fourteenth Chamber of the Istanbul Assize Court and the applicant is still detained on remand.
During the proceedings, the first-instance courts examined the applicant’s continued detention at the end of every hearing, either on their own motion or upon the applicant’s request. The courts ordered the applicant’s continued detention on remand, given the content of the file and the state of evidence on each occasion.
B. Application no. 43197/06 lodged by Mrs Muhabbet Kurt
The applicant, Mrs Muhabbet Kurt, is a Turkish national who was born in 1978 and is currently detained in the Gebze prison, in Kocaeli. She is represented before the Court by Mr E. Kanar, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 September 1998 the applicant was arrested during a police operation conducted against the MLKP (Marxist-Leninist Communist Party). During her detention in police custody, the applicant was allegedly subjected to ill-treatment. In particular, she was raped by police officers.
On 14 September 1998 she was brought before a single judge at the Istanbul State Security Court who ordered the applicant’s detention on remand.
On 18 September 1998 the public prosecutor at the Istanbul State Security Court lodged a bill of indictment charging the applicant with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code.
On 4 December 1998 the Istanbul State Security Court held the first hearing on the merits of the case (case no. 1998/259).
During the hearing on 8 December 1999, the applicant alleged before the first-instance court that she had been raped while in police custody. At the end of the hearing, the state security court requested the public prosecutor’s office to initiate an investigation into the applicant’s allegation of rape.
On 20 December 1999 the public prosecutor’s office at the Istanbul State Security Court public prosecutor issued a decision based on a lack of jurisdiction and passed transmitted the investigation to the Fatih public prosecutor’s office.
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 and her co-accused was transferred to the Istanbul Assize Court.
According to the information in the case file, the criminal proceedings against the applicant are still pending before the Fourteenth Chamber of the Istanbul Assize Court and the applicant is still detained on remand.
During the proceedings, the first-instance courts examined the applicant’s continued detention at the end of every hearing, either on their own motion or upon the applicant’s request. The courts ordered the applicant’s continued detention on remand, given the content of the file and the state of evidence on each occasion. On one occasion, the applicant filed an objection against the first-instance court’s decision to prolong her detention, which was subsequently dismissed by another assize court on 23 August 2006.
C. Application no. 39164/07 lodged by Mr Azimet Ceyhan
The applicant, Mr Azimet Ceyhan, is a Turkish national who was born in 1970 and is currently detained in Kandıra F-type prison, in Kocaeli.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date in 2000 criminal proceedings were brought against the applicant before the Istanbul State Security Court on the charge of attempting to undermine the constitutional order, an offence proscribed by Article 146 of the former Criminal Code. The state security court ordered the applicant’s detention on remand.
Subsequently, the case against the applicant (case no. 2000/30) was joined to case no. 1998/259 pending before the Istanbul State Security Court.
On 21 February 2000 the applicant was arrested and brought before a single judge at the Istanbul State Security Court who ordered the applicant’s detention pending trial.
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 and his co-accused was transferred to the Istanbul Assize Court.
According to the information in the case file, the criminal proceedings against the applicant are still pending before the Fourteenth Chamber of the Istanbul Assize Court and the applicant is still detained on remand despite his numerous requests to be released pending trial.
COMPLAINTS
The second applicant (Muhabbet Kurt, application no. 43197/06) alleges under Article 3 of the Convention that she was raped while in police custody.
She further alleges under Article 5 § 3 of the Convention that she was kept in police custody between 8 and 14 September 1999 without being brought before a judge.
The first applicant (Barış İnan, application no. 19637/05) complains under Article 5 §§ 1 and 3 of the Convention that the length of his detention on remand has been excessive. The second applicant also complains about the length of her detention on remand invoking Articles 5 § 3 and 6 § 2 of the Convention. The third applicant (Azimet Ceyhan, application no. 39164/07), relying solely on Article 5 § 3, similarly complains about the excessive length of his detention on remand.
The second applicant alleges, under Article 6 § 3 (b) and (c) and Article 13 of the Convention, that there was no remedy in domestic law by which she could challenge the lawfulness of her detention on remand.
The second and third applicants complain under Article 6 § 1 of the Convention that the criminal proceedings against them have not been concluded within a reasonable time.
Finally, the third applicant complains under Article 6 § 1 of the Convention that he has not had a fair trial by an independent and impartial tribunal.
THE LAW
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 application to the respondent Government.
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; however, where it concerns a continuing situation, the period of six months runs from the end of the situation concerned (see, for example, Canseven v. Turkey (dec.), no. 70317/01, 1 September 2005).
The Court notes that the applicant’s detention in police custody ended on 14 September 1999, when she was detained on remand. The applicant introduced her application to the Court on 13 October 2006, i.e. more than six months later.
It follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court considers that the applicants’ complaints concern their right to be released pending trial and that therefore they should be examined from the standpoint of Article 5 § 3 of the Convention alone. 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 applications to the respondent Government.
The Court considers that this complaint should be examined under Article 5 § 4 of the Convention. 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 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 applications to the respondent Government.
The Court observes that the criminal proceedings against the applicant are still pending. This complaint is therefore premature. Consequently, this part of 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 join the applications;
Decides to adjourn its examination of the applicants’ following complaints:
a) their right to be released pending trial;
b) the alleged rape of the second applicant while in police custody;
c) an alleged lack of an effective domestic remedy whereby the second applicant could challenge the lawfulness of her detention and
d) the right of the second and third applicants to a hearing within a reasonable time;
Declares the remainder of the applications inadmissible.
Sally Dollé Françoise Tulkens
Registrar President