European Court of Human Rights

SECOND SECTION

Application no. 29978/11
Ümüt DEMIR
against Turkey
lodged on 7 March 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Ümüt Demir, is a Turkish national who was born in 1974 and is currently being detained in Kandira F Type Prison pending the outcome of proceedings.

A.  The circumstances of the case

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

On 19 November 2005 the applicant was remanded in custody on suspicion of setting up and being a member of a criminal organisation and of several counts of armed extortion.

On an unspecified date the public prosecutor filed a bill of indictment with the 10th Chamber of the Istanbul Assize Court, which had jurisdiction under Article 250 of the Code of Criminal Procedure (the CCP) against nine suspects including the applicant. They were accused of restriction of liberty in addition to the above-mentioned offences.

Throughout the proceedings the Assize Court apparently ordered the applicant’s continued detention.

On 3 January 2011 the applicant requested his release in accordance with Article 102 of the CCP governing the maximum limits of detention. On 5 January 2011 the 10th Chamber of the Istanbul Assize Court dismissed his request.

On 17 January 2011 the applicant challenged the Assize Court’s refusal. On 2 February 2011 the 11th Chamber of the Istanbul Assize Court rejected the applicant’s challenge with a two-thirds majority. The court noted that although a single arrest warrant had been issued, the applicant had been arrested for a number of separate offences, and that both the continuation and length of pre-trial detention had to be considered individually for each alleged offence.

In his dissenting opinion, the President of the court argued that there was no indication either in the relevant legislation or in the decisions of the Court of Cassation and European Court of Human Rights that the length of detention should be assessed separately in respect of each offence. He also added that, even according to the court’s (the 10th Chamber’s) interpretation, it should have been indicated for which specific offence the applicant had been detained, and in respect of which offence the five-year time-limit had been running or had expired. The President stated that the majority’s interpretation had exceeded the purpose of the lawmaker to the applicant’s detriment. As a conclusion, he asserted that the applicant should have been released owing to the expiry of the five-year time-limit.

On 29 March 2011 and 4 August 2011 the 10th Chamber of the Istanbul Assize Court held two hearings, at the end of which it ordered the continuation of the applicant’s detention. The court relied on the nature of the offence, the state of the evidence, the existence of a strong suspicion that the offences in question had been committed, the persistence of grounds as provided in Article 100 of the CCP, particularly on the fact that the offence in question was one of the offences listed in Article 100 § 3. In addition, the Assize Court held that the detention period should be considered separately for each offence the applicant had been charged with. The court referred to its decision of 5 January 2011.

According to the case file, the proceedings are still pending before the first-instance court.

B.  Relevant domestic law

Article 102 §§ 2 and 3 of the Criminal Procedure Code, which entered into force as of 31 December 2010, reads as follows:

“(2)  For the matters falling within the jurisdiction of assize courts, the length of detention shall be two years at most. This period may be extended by giving reasons for it; the length of extension shall not exceed three years.

(3)  The extension decisions envisaged in this Article shall be delivered after the opinions of the public prosecutor, the suspect or accused and the defence counsel have been obtained.”

COMPLAINTS

Without relying on any Convention Articles, the applicant complains that the length of his pre-trial detention was excessive and that the courts did not take into account his defence in this regard. The applicant further argues that the domestic courts’ decision concerning the interpretation of Article 102 of the Code of Criminal Procedure was contrary to the Court’s case-law.

QUESTIONS TO THE PARTIES

1.  Were the domestic courts’ decisions determining the maximum time-limit for the applicant’s detention in line with the domestic legislation and practice? If the answer is in the affirmative, did such an interpretation comply with Article 5 § 1 of the Convention?

2.  Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?