by Ayşe Nur DEMİREL
The European Court of Human Rights (Second Section), sitting on 5 May 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 27 July 2001,
Having deliberated, decides as follows:
The applicant, Ms Ayşe Nur Demirel (Esenler), is a Turkish national who was born in 1957 and lives in Istanbul. She is represented before the Court by Mr Z. Kılınçlar, a lawyer practising in Istanbul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 September 2000 the applicant was taken into police custody on suspicion of membership of a criminal profit-making organisation, an offence proscribed by Law no. 4422.
On 2 October 2000 a single judge at the Ankara State Security Court ordered her pre-trial detention.
On 23 February 2001 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, charging the applicant with forming an organisation for the purpose of committing a crime or participating in such an organisation, an offence proscribed by Article 313 (1) of the former Criminal Code.
On 9 November 2001 the applicant was released. The Istanbul State Security Court reviewed the legality of the applicant’s detention every thirty days until her release, but neither the applicant nor her representative could participate in these review proceedings.
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.
According to the information in the case file, the case is still pending before the Istanbul Assize Court.
The applicant complains under Article 5 § 1 of the Convention that she was detained unlawfully. She argues that, although her initial detention had been based on Law no. 4422, she was not later indicted for an offence under this Law but was charged under Article 313 (1) of the former Criminal Code.
She further alleges under Article 6 § 1 of the Convention that she could not duly challenge the lawfulness of her detention as she was not allowed to participate in the review proceedings.
Lastly, the applicant maintains under Article 6 § 3 (c) that she did not benefit from the assistance of a lawyer during her detention in police custody or at the time she was questioned by the public prosecutor.
The Court deems it appropriate to examine this complaint from the standpoint of Article 5 § 4 of the Convention.
The Court further 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 that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on suspicion of his or her having committed an offence (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000 IX). A “reasonable suspicion”, referred to in Article 5 § 1 (c) of the Convention, that a criminal offence has been committed presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence.
The Court observes in the present case that, at the time of her arrest, the applicant was suspected of membership of a criminal profit making organisation, an offence proscribed by Law no. 4422, on the basis of the evidence collected against her at that initial stage of the proceedings. In the bill of indictment filed approximately five months later with the Istanbul State Security Court, however, the accusation against her was qualified slightly differently. She was accordingly charged under Article 313 (1) of the former Criminal Code with forming an organisation for the purpose of committing a crime or participating in such an organisation.
The Court considers that the charge levelled against the applicant in the bill of indictment of 23 February 2001 was not so radically different from the initial reason given for her arrest as to raise doubts regarding the genuineness or the reasonableness of the initial suspicion leading to the arrest. The Court acknowledges that the further investigation conducted by the authorities into the alleged offences in the five-month period between the applicant’s arrest and her indictment might have revealed new evidence necessitating the amendment of the original charge.
In the light of the above, and bearing in mind that the applicant did not contest the existence or accuracy of the events leading to her arrest or subsequent trial, it follows that this complaint is manifestly ill founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
The Court observes that the criminal proceedings against the applicant are still pending. The applicant’s complaint under this provision 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).
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning her right to challenge the lawfulness of her pre-trial detention;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens