AS TO THE ADMISSIBILITY OF
by Şenay YILDIZ
The European Court of Human Rights (Second Section), sitting on 20 October 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 5 May 2006,
Having deliberated, decides as follows:
The applicant, Ms Şenay Yıldız, is a Turkish national who was born in 1973 and lives in Diyarbakır. She is represented before the Court by Mr M.A. Altunkalem, a lawyer practising in Diyarbakır.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 July 1993 the applicant was taken into custody on suspicion of membership of an illegal organisation, namely Dev-Sol.
On 29 July 1993 the applicant’s statements were taken. The same day, she identified a location where she had posted a banner in support of the imprisoned members of Dev-Sol on hunger strike.
On 2 August 1993 the applicant was brought before the investigating judge at the Diyarbakır State Security Court, who ordered her detention on remand.
On 11 August 1993 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing her, with several others, of membership of an illegal armed organisation and of praising the offenders. The prosecution requested that the applicant be sentenced pursuant to Article 168 § 2 of the Criminal Code and Article 5 of the Anti-Terrorism Law.
The trial commenced before the Diyarbakır State Security Court. In the subsequent hearings, the court refused to release the applicant on account of the nature of the alleged offence and the state of evidence.
On 26 March 1996 the Diyarbakır State Security Court sentenced the applicant to six years and three months’ imprisonment under Article 146 of the Criminal Code for involvement in activities that undermined the constitutional order of the State. The court decided that Article 5 of the Anti-Terrorism Law would not be applied as the sentence already covered that offence. With the same judgment, the court released the applicant, taking into account the period she had spent in detention.
On 28 May 1996 the applicant appealed against the judgment, requesting acquittal.
On 25 December 1997 the Court of Cassation quashed the judgment of the Diyarbakır State Security Court in respect of three defendants, including the applicant. The higher court found that the first instance court had erred in its evaluation of the offence and that the applicant should have been sentenced for membership of an illegal armed organisation under Article 168 § 2 of the Criminal Code.
Following the decision of the Court of Cassation, on 3 February 1998 the trial commenced once more before the Diyarbakır State Security Court. The applicant was present at the first hearing.
On 7 May 2004, following a constitutional amendment, State Security Courts were abolished and the applicant’s case was transferred to the Diyarbakır Assize Court.
On 14 March 2006 the Diyarbakır Assize Court, taking into account the favourable clauses of the recently adopted Criminal Code, sentenced the applicant to six years and three months’ imprisonment for membership of an illegal armed organisation.
On 24 April 2006 the applicant appealed against the judgment.
On 5 July 2007 the Court of Cassation upheld the judgment of the Diyarbakır Assize Court.
The applicant complained under Article 3 of the Convention that she had been subjected to ill-treatment during custody.
Relying on Article 5 § 3 of the Convention, the applicant maintained that her pre-trial detention had exceeded the reasonable time requirement of this provision.
Invoking Articles 6 § 1 and 6 § 2 of the Convention, the applicant complained about the length of proceedings. She submitted, in particular, that the total length of proceedings had violated the principle of the presumption of innocence.
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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning her right to a fair hearing within a reasonable time;
Declares the remainder of the application inadmissible.
Deputy Registrar President