European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2009/732.html
Cite as: [2009] ECHR 732
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SECOND SECTION
PARTIAL DECISION
Application no.
6644/08
by Fırat CAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 14 April 2009 as a Chamber composed of:
Ireneu
Cabral Barreto,
President,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and
Françoise Elens-Passos, Deputy
Section Registrar.
Having regard to the above application lodged on 24 January 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Fırat Can, is a Turkish national who was born in 1974 and lives in Kırklareli. He is represented before the Court by Mr E. Kanar, a lawyer practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 February 1997 the applicant was taken into police custody by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters. The applicant was subjected to ill-treatment during his detention in police custody. The report issued by the forensic medical institute following his detention in police custody was not provided to the applicant, nor was it included in the case file.
On 19 February 1997 a single judge at the Istanbul State Security Court ordered the applicant’s pre-trial detention.
On 20 May 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with the latter, charging the applicant with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code.
On 8 February 2002 the Istanbul State Security Court convicted the applicant as charged and sentenced him to death.
On 15 October 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court.
In the meantime on 4 September 2002 the Head Office of the Institute of Forensic Medicine issued a report where it noted that the applicant was suffering from the Wernicke-Korsakoff syndrome and recommended the suspension of the execution of his sentence for a period of six months for medical reasons. The Istanbul State Security Court did not take this report into account.
State Security courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was transferred to the Istanbul Assize Court.
On an unspecified date the applicant was temporarily transferred from the Kırklareli E-type Prison to the Istanbul H-type Prison to attend take final exams at Marmara University, where he was registered as a student. On 11 June 2007, when the applicant was being brought back from Istanbul to Kırklareli, he was subjected to ill-treatment by the Istanbul gendarmerie.
On 12 June 2007 the applicant made a complaint to the Kırklareli public prosecutor against the gendarmes who had allegedly ill-treated him, and requested to be referred to the forensic medical institute for examination.
On the same date a doctor at the forensic medical institute examined the applicant and noted a slight abrasion on the right inner corner of the upper lip, ecchymosis (bruising) and oedema on the biceps, pain on the tenth, eleventh and twelfth right ribs, widespread hyperaemia and pain on the right axial region caused by physical trauma, pain and oedema on the metatarsal bones of the left foot, and pain in the waist area. The report noted that the symptoms were likely to be the result of beatings or violence, and requested the applicant’s referral to the Kırklareli State Hospital for the verification of any fractured bones.
On 10 September 2007 the applicant repeated his allegations of ill treatment against the gendarmes before the Fourteenth Chamber of the Istanbul Assize Court.
At the hearing held on 6 August 2008, the applicant requested to be released in view of the excessive amount of time he had already spent in pre-trial detention. The Fourteenth Chamber of the Istanbul Assize Court, however, ordered the applicant’s continued detention in view of the nature of the offence, the existence of a strong suspicion that the applicant had committed the offence and the possibility that he would abscond if released.
On 13 August 2008 the applicant objected to the decision of 6 August 2008 and again requested his release.
On 25 August 2008 the Ninth Chamber of the Istanbul Assize Court dismissed the applicant’s objection. Neither the applicant nor his representative was brought before this court.
According to the information in the case file, the case is still pending before the Istanbul Assize Court.
B. Relevant domestic law
Article 102 (2) of the new Code of Criminal Procedure (Law no. 5271), which entered into force on 1 June 2005, reads as follows:
“For offences that come within the jurisdiction of the assize court, the length of pre trial detention shall not exceed two years. This term may be extended where it is imperative, by providing justifications. The extension may not exceed three years in total.”
Section 12 (1) of the Law on the Enforcement and Application of the Code of Criminal Procedure (Law no. 5320) reads as follows:
“Article 102 of the Code of Criminal Procedure shall come into effect on ‘31 December 2010’ for offences ... that come within the jurisdiction of the assize court.”
COMPLAINTS
The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment on two occasions: firstly during his detention in police custody in 1997 and later during his transfer from Istanbul to Kırklareli by the Istanbul gendarmerie in 2007.
The applicant maintained under Article 5 § 3 of the Convention that both the length of his detention in police custody and the length of his pre-trial detention had been excessive, and that his requests to challenge its lawfulness had been rejected on grounds which failed to provide any relevant and sufficient reasons justifying the continued deprivation of liberty.
He alleged under Article 5 § 4 and Article 6 § 3 (b), (c) and (d) that the manner in which the domestic courts had reviewed his detention pending trial had breached the Convention as neither he nor his representative had been able to attend the proceedings and the decisions had been delivered solely on the basis of the case file, in breach of the principle of equality of arms.
The applicant complained under Article 6 § 1 of the Convention that he had not been tried within a reasonable time by an independent and impartial tribunal on account of his trial before the State Security Court until its abolition.
He contended under Article 6 § 2 that his right to be presumed innocent had been violated because he had been detained on remand for an excessive length of time.
He alleged under Article 13 of the Convention that there were no effective remedies to challenge pre-trial detention and that the domestic courts’ refusal to order his release, despite the Wernicke-Korsakoff diagnosis of the Head Office of the Institute of Forensic Medicine, had also breached the Convention.
The applicant further complained under Article 13 that the failure of the national authorities to provide him with a copy of the forensic medical institute’s report issued after his release from detention in police custody, and to include this document in the case file, had violated his right to an effective remedy.
Lastly, the applicant maintained that the postponement by Law no. 5320 of the date of the enforcement of Article 102 of the new Code of Criminal Procedure, which regulates the maximum authorised length of pre-trial detention, until 31 December 2010 for certain types of offences, including his own, had violated Article 14 of the Convention in conjunction with Article 6.
THE LAW
As regards the complaint concerning the alleged ill-treatment inflicted on the applicant during his detention in police custody and the failure of the authorities to provide him with a copy of the relevant medical report, the Court notes that at the outset that the applicant brought the substance of his complaint to the notice of the Istanbul State Security Court, which appears to have taken no action in this regard. The Court reiterates that, according to its settled case-law, an applicant must apply to the Court within six months of the date on which he or she became aware, or should have become aware, of the ineffectiveness of the remedy. In the present case, this would have been at the latest by 8 February 2002 when the Istanbul State Security Court gave its judgment (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003). However the applicant did not file his application with the Court until 24 January 2008.
It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As regards the complaint concerning the alleged ill-treatment inflicted on the applicant in 2007 by members of the Istanbul gendarmerie, 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 the application to the respondent Government.
The Court deems it appropriate to examine all these complaints from the standpoint of Article 5 § 3 alone as they mainly concern 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 this part of the application 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.
The Court deems it appropriate to examine these complaints from the standpoint of Article 5 § 4 alone as they all mainly concern the lack of procedural guarantees in the review of the applicant’s detention by the domestic courts pending his trial.
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 the 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 the application to the respondent Government.
The Court reiterates at the outset 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 (see Ege v. Turkey (dec.), no. 47117/99, 10 February 2004; Doğan v. Turkey (dec.), no. 67214/01, 7 June 2005).
The Court observes that the applicant’s police custody ended on 19 February 1997, and recalls that the application was lodged on 24 January 2008, more than six months later.
It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court notes 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 alleged ill-treatment during his transfer from Istanbul to Kırklareli in June 2007, his right to be released pending trial, his right to challenge the lawfulness of his pre-trial detention and his right to a fair hearing within a reasonable time;
Declares the remainder of the application inadmissible.
Françoise Elens-Passos Ireneu Cabral Barreto
Deputy
Registrar President