AS TO THE ADMISSIBILITY OF
by Tuncer EROL
The European Court of Human Rights (Second Section), sitting on 24 March 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 8 October 2004,
Having deliberated, decides as follows:
The applicant, Mr Tuncer Erol, is a Turkish national who was born in 1981 and lives in Istanbul. He is represented before the Court by Mr M. Filorinalı and Ms F. Köstak, lawyers practising in Istanbul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 March 1999 the applicant was taken into police custody by police officers from the Anti-Terrorist Branch of the Istanbul police headquarters.
On 12 March 1999 a single judge at the Istanbul State Security Court ordered the applicant’s pre-trial detention.
On 19 March 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, charging the applicant, inter alia, under Article 168 § 2 of the former Criminal Code with membership of an illegal organisation.
On 11 December 2001 the 5th Chamber of the Istanbul State Security Court found the applicant guilty as charged.
On 1 October 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court. The opinion which the principal public prosecutor had submitted to the Court of Cassation was not communicated to the applicant.
On 22 June 2004 the applicant objected to his detention during the judicial proceedings and requested his release.
On 25 June 2004 the 6th Chamber of the Istanbul State Security Court dismissed his objection, having regard to the content of the case file.
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 transferred to the 13th Chamber of the Istanbul Assize Court.
On 7 September 2004 the 13th Chamber of the Istanbul Assize Court ordered the applicant’s release pending trial.
On 21 November 2006 the 13th Chamber of the Istanbul Assize Court found the applicant guilty as charged.
According to the information in the case file, the case is still pending before the Court of Cassation.
The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had breached the “reasonable time” requirement and that his requests for release had been rejected on grounds which failed to provide any relevant and sufficient reasons justifying the continuing deprivation of his liberty. He also complained that his right to be presumed innocent had been violated because he had been detained for an excessive length of time during the judicial proceedings.
The applicant further contended under Article 5 § 3 of the Convention that the length of his detention in police custody had been excessive.
He maintained under Article 5 § 4 that his detention in police custody for seven days had breached the requirement of “speediness” for the purposes of that provision.
He argued under Article 5 § 5 that he had had no right to compensation in domestic law for the alleged violations of Article 5 §§ 3 and 4 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.
Lastly, the applicant alleged under Article 6 that the opinion which the principal 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; and that his defence rights had not been duly observed during the questioning of the witnesses.
The Court deems it appropriate to examine the complaint concerning the right to presumption of innocence from the standpoint of Article 5 § 3 as it mainly concerns the length of the applicant’s pre-trial detention.
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 observes that the applicant’s detention in police custody ended on 12 March 1999. However, the application was lodged with the Court on 8 October 2004, that is more than six months later (see, for example, Canseven v. Turkey (dec.), no. 70317/01, 1 September 2005).
It follows that these complaints were lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court observes that these proceedings are still pending. The applicant’s complaints under this provision are 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).
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning his right to be released pending trial under Article 5 § 3 of the Convention, his right to compensation under Article 5 § 5 of the Convention and his right to a fair hearing within a reasonable time under Article 6 § 1 of the Convention;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens