European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44319/04
by İbrahim ARAZ
against Turkey

The European Court of Human Rights (Second Section), sitting on 31 March 2009 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 8 November 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr İbrahim Araz, is a Turkish national who was born in 16 July 1981 and lives in Istanbul. He is represented before the Court by Mr M. Filorinalı and Ms Y. Başara, 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 3 July 1999 the applicant, who was seventeen years old at the material time, was taken into police custody by police officers from the Anti-Terrorist Branch of the Istanbul police headquarters.

On 8 July 1999 a single judge at the Istanbul State Security Court ordered the applicant’s pre-trial detention.

On 12 July 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, charging the applicant under Article 168 § 2 of the former Criminal Code with membership of an illegal armed organisation.

On 5 November 2001 the Istanbul State Security Court found the applicant guilty as charged, along with ten other persons.

On 25 June 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court. The case was thus remitted to the Istanbul State Security Court and was registered under case no. 2002/220. The opinion of the principal public prosecutor at the Court of Cassation was not communicated to the applicant.

On 25 September 2003 the Istanbul State Security Court decided to separate the case against the applicant from case no. 2002/220, since he was under eighteen when the offences in question were committed. The Istanbul State Security Court accordingly declared non-jurisdiction and referred the case to the Istanbul Juvenile Court.

On 21 October 2003 the Istanbul Juvenile Court decided that it would be to the applicant’s benefit to be tried alongside the other accused before the State Security Court. The Istanbul Juvenile Court accordingly declared non jurisdiction and referred the case back to the Istanbul State Security Court.

On 10 December 2003 the Istanbul State Security Court accepted the Istanbul Juvenile Court’s decision and joined the applicant’s case to case no. 2002/220 pending before it.

On 11 May 2004 the Istanbul State Security Court ordered the applicant’s release 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 was transferred to the Istanbul Assize Court which, on 27 February 2007, convicted the applicant.

According to the information in the case file, the case is currently pending before the Court of Cassation.

COMPLAINTS

The applicant complained under Articles 5 § 3 and 6 § 1 of the Convention about the length of his pre-trial detention and the criminal proceedings brought against him.

The applicant further contended under Article 5 § 3 of the Convention that his detention in police custody for six days had been excessive and that this had also breached the requirement of “speediness” under Article 5 § 4.

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 also maintained under Article 6 that his detention along with adults had breached his right to a fair trial.

Finally, the applicant alleged under Article 6 as follows

- 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 established by law on account of his trial before the State Security Court until its abolition;

- that he had similarly been denied a fair trial by an independent and impartial tribunal established by law on account of the appointment of judges by the Supreme Council of Judges and Prosecutors;

- that he had been tried before ordinary courts as opposed to a Juvenile Court;

- that that he had not benefited from the assistance of a lawyer in the majority of the hearings; and

- that he had not been provided with legal assistance during his detention in police custody.

THE LAW

1.  The applicant complained under Article 5 § 3 and 6 § 1 of the Convention that the length of his pre-trial detention and the criminal proceedings against him had been excessive. He further contended under Article 5 § 5 that he had had no right to compensation in domestic law for the alleged violation of Article 5 § 3.

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 complained that he had been detained in police custody for seven days in violation of Article 5 §§ 3, 4 and 5 of the Convention. He further contended under Article 6 that his detention together with adults had breached his right to a fair trial.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court does not find that these complaints disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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.

3.  The applicant alleged that a number of his rights under Article 6 of the Convention had been breached in the criminal proceedings brought against him.

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.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President