European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/651.html
Cite as: [2010] ECHR 651
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SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
17579/05
by Ekrem BAYTAP
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 April 2010 as a Chamber composed of:
Françoise
Tulkens, President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
Kristina
Pardalos, judges,
and
Sally Dollé, Section
Registrar,
Having regard to the above application lodged on 16 May 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ekrem Baytap, is a Turkish national who was born in 1964. He is currently detained in Bolu F-type prison and is represented before the Court by Mr H. Tuna, a lawyer practising in İstanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows:
On 6 October 1993 the applicant was arrested on suspicion of carrying out activities on behalf of Islami Hareket Örgütü (the Islamic Movement Organisation), an illegal organisation, including the assassination of two journalists.
The applicant claims that he was subjected to ill-treatment while in police custody and was denied access to legal assistance during his questioning, where he refused to make any statement. At the end of the questioning the police officers drew up a report allegedly containing the applicant's statements. The applicant did not sign the report.
On 20 October 1993, at the end of his detention in police custody, the applicant was examined by a doctor, who observed a lesion of 1 cm on his left upper arm. Subsequently, the applicant was taken before the public prosecutor and the investigating judge. The applicant did not complain of ill-treatment while in police custody. On the same day the judge ordered his detention.
On 27 October 1993 the applicant was examined by the prison doctor, who observed a number of injuries on his person. At the prison administration's request, an expert at the Forensic Medicine Institute of Eyüp drew up a medical report on 1 November 1993, according to which the applicant had bruises and injuries on various parts of his body which appeared to have been inflicted some time before the examination.
On 17 December 1993 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and seven other persons, charging them with membership of an illegal armed organisation.
In his defence submissions to the first-instance court on 2 March 1994, the applicant complained that he had been forced to make incriminating statements under torture in police custody.
On 20 January 1995 the Istanbul State Security Court acquitted six of the accused and decided to join the proceedings against the applicant with another case before the same court (no. 1993/205 E.)
Between 1993 and 1996 several articles were published in various newspapers about the case against the applicant.
On 24 July 2000 the Istanbul State Security Court convicted the applicant of membership of an illegal organisation and attempting to undermine the constitutional order, under Article 146 § 1 of the former Criminal Code. It sentenced him to life imprisonment.
On 18 September 2000 the applicant appealed. In the appeal proceedings he raised the allegation of ill-treatment in police custody.
On 28 February 2002 the Court of Cassation quashed the judgment on the ground that the applicant should have been convicted under Article 168 § 1 of the former Criminal Code, and accordingly remitted the case to the first-instance court.
On 11 September 2003 the public prosecutor filed an additional bill of indictment charging the applicant with abduction.
On 29 December 2003 the case against the applicant was joined to another case before the Ankara State Security Court (no. 2002/139 E.).
Following the abolition of State Security Courts by Law no. 5190 of 16 June 2004, the Ankara Assize Court took over the proceedings.
On 28 July 2005 the Ankara Assize Court convicted the applicant under Article 314 § 1 of the new Criminal Code of commanding an illegal armed organisation, and sentenced him to fifteen years' imprisonment. Considering the amount of time the applicant had spent in detention, the court ordered his release on the same date.
On 8 November 2006 the Court of Cassation quashed the judgment once more, on account of the inadequate examination of the applicant's involvement in the abduction incident.
According to the information in the case file, the proceedings are currently pending before the first-instance court.
COMPLAINTS
The applicant complained under Article 3 of the Convention that he had been ill-treated while in police custody. He further complained, under the same provision, of the conditions during his transfers to the court hearings, due to the high security measures at the court house. In this connection, he maintained that his handcuffs had not been unlocked even when he had used the toilets at the court house.
The applicant complained under Article 5 §§ 1 (c) and 2 of the Convention that he had been unlawfully taken into police custody and had not been duly informed of the charges against him.
Relying on Articles 3 and 5 §§ 3 and 4 of the Convention, the applicant complained that his pre-trial detention had been unreasonably lengthy and that the first-instance court had rejected all his requests for release on identical grounds. In this connection, he also maintained that the court had failed to review the lawfulness of his continued detention at regular intervals. He further complained under Article 5 § 5 and Article 1 of Protocol No. 1 of the Convention that he had sustained a substantial loss of income on account of his detention.
Relying on Articles 6 § 1 and 13 of the Convention, the applicant contended that the criminal proceedings had exceeded the reasonable time requirement and that there had been no domestic remedy available to challenge the length of the proceedings concerned.
Relying on Article 6 §§ 1, 2 and 3 (b), (c), (d) of the Convention, the applicant complained that the proceedings had been unfair. He submitted that he had been denied access to legal assistance in police custody. Nor had he been afforded the rights of an accused person. He further alleged that he had been tried by the State Security Court, which was not an impartial court. The applicant also complained that the domestic courts had unfairly rejected the evidence in his favour and had not heard his witnesses. Referring to the various newspaper articles published between 1993 and 1996, the applicant further claimed that his right to be presumed innocent had been disregarded during the proceedings.
Finally, the applicant complained under Article 8 that, as a result of the media coverage of his case, his family had suffered considerable pressure and distress, violating his right to respect for his family life. Relying on the same provision, he further argued that the prison authorities had interfered with his correspondence, with his family and his attorney.
THE LAW
1. Relying on Articles 3 and 5 §§ 3, 4 and 5 of the Convention and Article 1 of Protocol No.1, the applicant claimed that his pre-trial detention had been unreasonably long. He alleged that the first-instance court had failed to act with due diligence in reviewing his continued detention and had refused his requests for release on stereotypical grounds.
The Court considers that the applicant's complaints regarding the length of his pre-trial detention should be examined under Article 5 §§ 3, 4 and 5 alone. It further 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 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 in his defence submissions made on 2 March 1994 the applicant complained to the trial court of alleged ill-treatment. During the subsequent hearings the trial court took certain procedural decisions in which no mention was made of the allegations of ill treatment, and the applicant did not pursue these allegations in any other court hearings. He did raise the allegations once again before the Court of Cassation. Yet the Court of Cassation did not mention the allegations of ill-treatment in its decision of 28 February 2002.
The Court considers that the failure of the judicial authorities to act must have become gradually apparent by 28 February 2002, the date when the Court of Cassation rendered its first decision in the case against the applicant, and that the applicant should therefore have been aware of the ineffectiveness of the remedies in domestic law at the latest by that date. Accordingly, the six-month period provided for in Article 35 § 1 of the Convention should be considered to have started running not later than 28 February 2002 (see İçöz v. Turkey, (dec.), no. 54919/00, 9 January 2003). This part of the application should therefore have been introduced no later than 28 August 2002. It was in fact introduced on 16 May 2005. It follows that this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
Relying on the same Convention provision, the applicant further complained that his transfer to the court hearings under high security restrictions had amounted to degrading treatment.
The Court observes that the applicant did not provide any evidence demonstrating that such security measures had caused him physical or mental suffering attaining the level of severity proscribed by Article 3 of the Convention. Nor did the applicant submit any document demonstrating that he had raised this complaint before the national authorities. It follows that this complaint should be declared inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
The Court observes that the applicant's detention in police custody ended on 20 October 1993. However, he lodged this application with the Court on 16 May 2005. These complaints must therefore be declared inadmissible for non-compliance with the six-month rule, pursuant to Article 35 §§ 1 and 4 of the Convention.
The Court notes that the criminal proceedings against the applicant are still pending before the first-instance court. These complaints 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).
The Court considers that the applicant has not exhausted domestic remedies available to him under Turkish law before lodging this complaint with the Court. In particular, he could have had recourse to civil and criminal remedies for the alleged interference with his family life. Therefore, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
The Court notes that the applicant does not appear to have availed himself of domestic remedies by lodging a complaint with an execution judge for the alleged interference with his correspondence (see, Tan v. Turkey, no. 9460/03, §§ 29-30, 3 July 2007). Moreover, the applicant submitted this complaint in very general terms and has not provided any detailed explanations. He thereby failed to lay the basis of an arguable claim, which might have allowed its effective examination by the Court.
This part of application must, therefore, be rejected for being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning his right to be released pending trial, to have an enforceable right to compensation, to be tried within a reasonable time and to have an effective remedy to challenge the lawfulness of his continued detention and the length of proceedings;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens
Registrar President