European Court of Human Rights

SECOND SECTION

Application no. 32009/11
Enis ÜNLÜ
against Turkey
lodged on 23 February 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Enis Ünlü, is a Turkish national who was born in 1967 and is currently being detained pending trial in Pasakapi Prison.

A.  The circumstances of the case

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

Following a criminal complaint by an individual that money had been extorted from him by third persons who had introduced themselves as police officers, the Istanbul Security Directorate of Police requested the tapping of six mobile telephones used by those persons to communicate with the alleged victim.

On 9 October 2006 the Bakirköy Magistrates’ Court granted leave for the tapping of the telephones for three months under Article 135 of the Code of Criminal Procedure (the CCP). The court based its decision on the impossibility of gathering evidence in other ways and the strong suspicion that the offence in question had been committed.

On 16 October 2006 the applicant, then a police officer, and seven others were arrested by the police.

On 19 October 2006 the Bakirköy Magistrates’ Court ordered the detention of the applicant on suspicion of membership of a criminal organisation and extortion of money by making threats. The court had regard to the nature of the offence, the state of the evidence, the fact that more than three persons were involved, the sentence envisaged in the applicable legislation, the existence of a risk of absconding, and the existence of a strong suspicion that evidence would be concealed, destroyed or tampered with.

On 25 January 2007 the public prosecutor filed a bill of indictment against the applicant and ten others, accusing them mainly of the establishment and membership of a criminal organisation, two counts of qualified extortion and abuse of power.

Between 14 June 2007 and 28 December 2010 the Istanbul Assize Court held eleven hearings and it scheduled the next one for 19 April 2011.

Throughout the proceedings, the Assize Court examined the applicant’s continued detention at the end of every hearing, either of its own motion or upon the applicant’s requests. On each occasion, the court ordered the applicant’s continued detention, having regard to the contents of the file and the existence of a strong suspicion that he had committed the offence. The Assize Court also decided to examine the applicant’s continued detention of its own motion at thirty-day intervals between the hearings.

According to the case file as it stands, the criminal proceedings are still pending before the Istanbul Assize Court.

Meanwhile, a disciplinary investigation was instituted by the National Police Directorate into the applicant’s actions.

On 23 September 2008 the Police Inspection Board dismissed him from the profession as a disciplinary sanction. In its decision, the board considered it proved that the applicant had committed the offences of extortion and abuse of power. There is no further information in the case file as to whether the applicant brought any case against his dismissal. Nor did he raise any arguments in his submissions on that matter.

B.  Relevant domestic law

Article 102 §§ 2 and 3 of the Criminal Procedure Code 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 decisions of extension envisaged in this Article shall be given after the opinions of the public prosecutor, the suspect or accused and their defence counsel have been taken.

COMPLAINTS

Without relying on any Convention provisions, the applicant complains that his arrest by the Bakirköy Magistrates’ Court was unlawful since the criminal case was subsequently instituted before the Assize Court as the competent court and that the decisions taken for the review of his continued detention of the court’s own motion were not served on him, in breach of Article 108 of the Code of Criminal Procedure.

The applicant also maintains that no decision was taken to prolong his detention beyond the two-year period as required by Article 102 of the CCP, and that the length of his detention is excessive.

The applicant argues that the tapping of his phone conversations in accordance with a court decision violated his rights under Article 8 of the Convention.

The applicant further maintains that his dismissal from office on the ground that he had committed the offences in question was in breach of his right to the presumption of innocence.

Lastly, the applicant complains that, in the light of the above-mentioned claims, Article 5 §§ 3, 4 and 5, Article 6 §§ 1, 2 and 3, and Article 8 § 1 of the Convention were breached.

QUESTIONS TO THE PARTIES

1.  Was a separate decision taken in respect of the applicant in order to be able to extend his detention beyond the two-year period as laid down in Article 102 of the Code of Criminal Procedure? If the answer is in the negative, was the absence of such a decision compatible 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 of Article 5 § 3 of the Convention?