European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35257/04
by Murat BAHÇELİ
against Turkey

The European Court of Human Rights (Second Section), sitting on 28 August 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 31 August 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Murat Bahçeli, is a Turkish national who was born in 1976. He is represented before the Court by Mr K.T. Sürek, a lawyer practising in Istanbul.

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

On 20 August 1996 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation, namely the DHKP-C, as well as aiding and abetting the said organisation.

On 3 September 1996 the applicant was remanded in custody.

On 6 December 1996 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and charged him with membership of an illegal organisation under Article 168 § 1 of the former Criminal Code.

On 20 May 2002 the Istanbul State Security Court found the applicant guilty of activities carried out for the purpose of bringing about the secession of part of the national territory. The applicant was sentenced to death; his sentence was subsequently commuted to life imprisonment.

On 30 September 2003 the Court of Cassation quashed the judgment of the first-instance court on the ground that the latter had failed to specify the provision of the Criminal Code under which the applicant had been found guilty. The Court of Cassation held that the applicant had been unlawfully held accountable for an event which had not been included in the bill of indictment of 6 December 1996.

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 therefore transferred to the Istanbul Assize Court.

On 31 March 2006 the applicant was released pending trial.

According to the information in the case file, the case is still pending before the Istanbul Assize Court.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that the length of his detention during judicial proceedings had been excessive.

The applicant contended under Article 6 § 1 that the criminal proceedings against him had not been concluded within a reasonable time.

The applicant maintained under the same head that he had not been tried by an independent and impartial tribunal due to the presence of a military judge on the bench of the Istanbul State Security Court until June 1999. The applicant further alleged that, even after the removal of the military judge and the eventual abolition of State Security Courts, the Istanbul Assize Court which tried him had lacked independence and impartiality on account of the appointment of its judges by the Supreme Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu), which was headed by the Minister of Justice.

By a letter dated 16 April 2005, the applicant further alleged that he had been subjected to torture during his detention in police custody in breach of Article 3 of the Convention. The applicant also complained in this letter of the excessive length of his detention in police custody from 20 August 1996 to 3 September 1996.

The applicant argued, lastly, in that letter that the respondent Government had failed to inform him of his rights under the Convention, in particular the right of individual application to the Court, despite their awareness of his complaints of torture.

THE LAW

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.

2. The applicant maintained under Article 6 § 1 of the Convention that he had not had a fair trial by an independent and impartial tribunal.

The Court observes that the criminal proceedings against the applicant are still pending. This complaint is 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).

The Court observes that the applicant has failed to give any details or provide any supporting documents, such as medical reports, to substantiate his allegations of torture despite requests by the Registry of the Court. The limited information in the case file indicates, however, that the applicant raised his complaint under Article 3 before the remand judge and during his trial before the Istanbul State Security Court. It appears that no investigation of the applicant’s complaints was initiated by the national authorities.

The Court considers that the failure of the judicial authorities to act must have become gradually apparent to the applicant by 20 May 2002, when the Istanbul State Security Court gave its judgment on the matter, and that therefore the applicant should have been aware of the ineffectiveness of the remedies in domestic law by that date at the latest. Accordingly, the six month period laid down in the Article 35 § 1 of the Convention should be considered to have started running not later than 20 May 2002 (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; Bakay v. Turkey (dec.), no. 9464/02, 28 September 2006; Karabulut v. Turkey, no. 56015/00, § 31, 24 January 2008; Arslan v. Turkey (dec.), no. 31320/02, 1 June 2006). This complaint should therefore have been introduced no later than November 2002, whereas it was introduced on 16 April 2005.

It follows that this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

4. The applicant contended under Article 5 § 3 of the Convention that he had not been brought promptly before a judge or other officer authorised by law to exercise judicial power, but instead had been held in police custody for an excessive length of time.

The Court reiterates 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; however, where it concerns a continuing situation, the six-month period runs from the end of the situation concerned (see, among other authorities, Ege v. Turkey (dec.), no. 47117/99, 10 February 2004).

The Court observes that the applicant was taken into police custody on 20 August 1996 and that his detention in police custody ended on 3 September 1996. The complaint, however, was lodged with the Court by the applicant’s letter dated 16 April 2005, that is, more than six months later.

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

5. The applicant argued that the respondent Government had failed to inform him of his right under the Convention to submit an application to the Court despite their awareness of his complaints of torture.

The Court notes that the Convention does not impose a general obligation on the State Parties to inform persons within their jurisdiction of their rights under the Convention. Even assuming that the applicant’s complaint may be understood in terms of Article 34 of the Convention, the Court finds no evidence in the case file that the respondent Government sought to hinder in any way the applicant’s right to submit an application to the Court.

It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning his rights to be released pending judicial proceedings and to a fair hearing within a reasonable time;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President