European Court of Human Rights

SECOND SECTION

Application no. 3704/09
Çetin BALCI and Others
against Turkey
lodged on 25 December 2008

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Çetin Balci, Mr Kasim Kidik and Mr Serhan Eskin, are Turkish nationals who were born in 1982, 1981 and 1988 respectively. They are currently detained in Tekirdag F-type prison while criminal proceedings are pending. The applicants are represented before the Court by Mr H. Çalisçi, a lawyer practising in Istanbul.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 22 and 28 August 2007 the applicants were arrested on suspicion of involvement in the PKK, an illegal organisation, and of throwing a Molotov cocktail at a public bus during a riot.

On 26 August 2007 the first two applicants, and on 1 September 2007 the third applicant, were taken before the public prosecutor and the investigating judge, who subsequently ordered their pre-trial detention.

On 17 December 2007 the public prosecutor at the Istanbul Assize Court issued a bill of indictment charging the applicants with membership of an illegal organisation, and possessing and using explosives.

During the proceedings, the Istanbul Assize Court decided to prolong the applicants’ pre-trial detention a number of times on the basis of the reasonable suspicion established against the applicants, the nature of the criminal charge and the state of the evidence in the case file.

On 20 November 2008 the Istanbul Assize Court heard seven witnesses at a hearing. It also rejected the applicants’ request to be released pending trial.

The applicants challenged the above-mentioned decision.

In the course of the review proceedings of their continued detention, the applicants allege that they were not notified of the public prosecutor’s opinion and the domestic court determined the lawfulness of their continued detention without holding any hearing.

On 28 November 2008 the 11th Chamber of the Istanbul Assize Court rejected the applicants’ objection against the prolongation of their detention, taking into account the nature of the criminal charge brought against them and the state of the evidence in the case file.

According to the latest information available, on 28 November 2011 the criminal proceedings were pending before the Istanbul Assize Court and the applicants’ pre-trial detention was continuing.

COMPLAINTS

The applicants complain under Articles 5 § 3 and 6 § 2 of the Convention that the length of their detention on remand has been excessive and that it has been a punishment in itself, in breach of their right to be presumed innocent.

Relying on Article 5 § 4 of the Convention, the applicants allege that they were denied a fair and adversarial hearing in the proceedings reviewing the lawfulness of their continued detention. In this connection, they maintain that the public prosecutor’s opinion was not notified to them and that no oral hearing was held, depriving them of an opportunity to present their arguments before the domestic court.

The applicants further complain under Article 5 § 5 of the Convention that there is no enforceable right to compensation envisaged by the domestic law for the alleged breach of Article 5.

Relying on Article 6 § 1 of the Convention, the applicants complain about the length of the criminal proceedings brought against them.

Finally, the applicants allege under Article 13 of the Convention that the domestic system does not provide any effective remedies for their complaints under Articles 5 and 6.

QUESTIONS TO THE PARTIES

1.  Has the length of the applicants’ pre-trial detention been in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

2.  Have the applicants had at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?

3.  Have the applicants had an enforceable right to compensation, pursuant to Article 5 § 5 of the Convention, for their detention in the alleged contravention of Article 5?

4.  Has the length of the criminal proceedings in the present case been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

5.  Have the applicants had at their disposal an effective domestic remedy for their complaint of undue length of criminal proceedings, as guaranteed under Article 13 of the Convention?