European Court of Human Rights

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26300/10
Necat ÖZTEKİN and Suna ABAY
against Turkey

The European Court of Human Rights (Second Section), sitting on 24 January 2012 as a Chamber composed of:

Françoise Tulkens, President,
Danutė Jočienė,
Isabelle Berro-Lefèvre,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 13 April 2010,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Necat Öztekin and Ms Suna Abay are Turkish nationals who were born in 1982 and 1990 respectively. Necat Öztekin (“the first applicant”) is currently detained in Tekirdag F-Type Prison and Suna Abay (“the second applicant”) lives in Istanbul. They are represented before the Court by Ms A. Ülker, a lawyer practising in Istanbul.

The circumstances of the case

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

1.  First applicant

The first applicant was apprehended on 7 August 2005 and remanded in custody on 8 August 2005 on terrorism charges. The Magistrates’ Court in Criminal Matters based its decision on the nature and categorisation of the alleged offences under Article 100 §§ 3 and 4 of the Code of Criminal Procedure, the state of the evidence, the ongoing risk that evidence would be tampered with and the inadequacy of alternative control measures.

In an indictment dated 22 August 2005 the first applicant was charged with membership of a terrorist organisation and bombing offences.

The Istanbul Assize Court held more than fifteen hearings and reviewed the first applicant’s detention on remand at the hearings. In its decisions to continue the applicant’s detention, the first-instance court referred to the strong suspicion that he had committed the offences and the severity of the applicable sanctions in the relevant laws. In a letter dated 28 April 2011 the first applicant informed the Court that he was still in detention on remand and that the next hearing before the first-instance court was scheduled for 23 June 2011.

2.  Second applicant

The second applicant, a minor at the relevant time, was apprehended on 7 August 2005 and remanded in custody on 8 August 2005 on terrorism charges. The Magistrates’ Court in Criminal Matters based its decision on the nature and significance of the alleged offences, the severity of the applicable sanctions in the relevant laws, the state of the evidence, the risk that evidence would be tampered with, the strong suspicion of the suspect’s having committed the offences and the inadequacy of alternative control measures.

The second applicant was subsequently charged with membership of a terrorist organisation and bombing offences.

On 8 December 2005 the Bakirkoy Juvenile Court decided to keep the second applicant in detention on remand relying, inter alia, on findings supporting the existence of a risk that he would abscond, without specifying them.

The criminal proceedings initiated against the second applicant in the Bakırköy Juvenile Assize Court, and those being carried out against the first applicant in the Istanbul Assize Court were eventually joined on 27 June 2006.

On 10 October 2006 the Istanbul Assize Court released the second applicant pending trial, considering her age and the length of time she had spent in detention on remand.

It appears from the case file that the criminal proceedings are still pending.

COMPLAINTS

The applicants complained under Article 5 § 3 of the Convention about the length of their detention on remand. In particular, they submitted that the domestic courts had failed to adduce relevant and sufficient reasons to justify extending their detention and to verify whether the stereotyped grounds referred to remained valid. They also invoked their right to compensation for unlawful detention guaranteed by Article 5 § 5 of the Convention.

The applicants alleged under Article 6 § 1 that the length of the criminal proceedings could not be considered reasonable.

They further claimed that Article 6 § 3 (d) had been violated in that the statement of one of the witnesses had been taken on commission and that consequently, they had not had the opportunity to put questions to him.

Lastly, the applicants alleged violations of Article 13 taken in conjunction with Article 5 and Article 6 §§ 1 and 3 (d).

THE LAW

In so far as the first applicant is concerned, 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.

As for the second applicant, in view of the fact that she was released pending trial on 10 October 2006, the complaints she submitted under Article 5 of the Convention are inadmissible for having been lodged out of time. It follows that this part of the application should be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

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.

In determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole. However, it is observed in the present case that the criminal proceedings are still pending. Therefore, the applicants cannot complain of a violation of Article 6 § 3 (d) at this stage of the proceedings. If the applicants still consider themselves to be victims of a violation of Article 6 § 3 (d) after the criminal proceedings in question come to an end, it is open to them to lodge a new application with the Court.

It follows that this part of the application should be rejected for having been introduced prematurely pursuant to Article 35 §§ 1 and 4 of the Convention.

In so far as Article 13 is relied on in relation to an alleged breach of Article 5, this complaint falls to be examined under Article 5 § 4 of the Convention as it is the lex specialis.

However, the first applicant’s complaint consisted in the allegation that the Assize Court had failed to adduce relevant and sufficient reasons to justify extending his detention on remand and to verify whether the stereotyped grounds referred to had remained valid. Moreover, the applicant did not specify in which respect his right to an effective remedy might have been violated. Regard being had to the fact that the applicant’s submissions do not differ from those falling to be examined under Article 5 § 3, the Court considers that no separate examination is needed under Article 5 § 4.

As to the second applicant, it should be reiterated that the complaints she submitted under Article 5 are inadmissible for having been lodged out of time. It follows that this part of the application should also be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

In so far as the applicants rely on Article 13 in respect of the alleged unreasonable length of the criminal proceedings, 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.

With regard to the alleged violation of Article 6 § 3 (d) taken in conjunction with Article 13, given that the applicants’ complaints are inadmissible for having been lodged prematurely, the allegation of a violation of Article 13 in relation thereto should be held to be inadmissible as well. It follows that this part of the application should be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant’s complaints concerning Article 5 §§ 3 and 5 as well as the examination of the complaints concerning the length of proceedings under Article 6 § 1 and the lack of an effective remedy in that respect under Article 13 in conjunction with Article 6 § 1;

Declares the remainder of the application inadmissible.

Stanley Naismith Françoise Tulkens
Registrar President