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URL: http://www.bailii.org/eu/cases/ECHR/2012/372.html
Cite as: [2012] ECHR 372

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SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10108/10
Mustafa İKE
against Turkey

The European Court of Human Rights (Second Section), sitting on 7 February 2012 as a Chamber composed of:

Françoise Tulkens, President,
Danutė Jočienė,
Dragoljub Popović,
Isabelle Berro-Lefèvre,
András Sajó,
Işıl Karakaş,
Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 25 January 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mustafa İke, is a Turkish national who was born in 1980 and lives in Cizre. He is represented before the Court by Mr A.U. Ekinci, a lawyer practising in Ankara.

A. The circumstances of the case

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

Following incidents that took place on 5 December 2009 in Cizre, a city in south-eastern Turkey, on 12 January 2010 the applicant was arrested at his home and taken into police custody on suspicion of being a member of a terrorist organisation, disseminating terrorist propaganda and having participated in an illegal demonstration. At the same time other police officers searched the applicant’s home.

On the same day at 9.55 am while the applicant was being detained in police custody, he had a meeting with his lawyer. The minutes of this meeting were examined and signed by the applicant, his lawyer and a police officer. The applicant’s lawyer wrote down under his signature that he was making an objection against the applicant being held in police custody.

On 15 January 2010 the applicant was questioned by the public prosecutor. On the same day, the Cizre Magistrates’ Court in Criminal Matters placed the applicant in detention on remand after having heard him and his legal representative. The court based its decision on the strong suspicion that the applicant had committed the alleged offences, the ongoing evidence-collection process and the fact that the alleged offences fell within the category of offences enumerated in Article 100(3)(a) of the Code of Criminal Procedure.

On 18 January 2010 the objection lodged by the applicant’s lawyer against this decision was referred by the Cizre Magistrates’ Court in Criminal Matters to the Cizre Criminal Court of General Jurisdiction.

On 19 January 2010 the Cizre Criminal Court of General Jurisdiction upheld the decision on the applicant’s detention pending trial in accordance with the written observations of the public prosecutor. The court dismissed the objection on the basis of the case file without having heard the applicant or his legal representative.

B. Relevant domestic law

According to Article 271 of the Code of Criminal Procedure, the objection against the decision to place or keep a person in detention on remand is to be examined without holding a hearing, without prejudice to the circumstances provided for in the law. However, if deemed necessary, the public prosecutor and thereafter the legal representative of the person concerned could be heard.

Under Article 91 of the Code of Criminal Procedure, the suspect, his legal representative, his wife or a first or second-degree blood relative can lodge an objection with the Magistrates’ Court in Criminal Matters against arrest or police custody.

Rule 15 of the Regulation Regarding Arrest, Police Custody and Questioning provides that the suspect’s objection should be promptly referred to the judge.

COMPLAINTS

Relying on his right to a fair trial, the applicant alleges that the proceedings by which the lawfulness of his detention on remand was reviewed failed to offer procedural guarantees such as the principle of reasoned judgment or the possibility to be heard in person at an oral hearing.

The applicant contends that his initial arrest was illegal since the police officers entered his home without any warning. In addition, he complains that the applicable laws and regulations concerning police custody were not complied with while he was detained by the police. He maintains in particular that instead of his parents, his wife should have been informed of his arrest. He also submits that his objection against his being held in police custody was not duly dealt with. The applicant relies on Article 5 of the Convention.

The applicant maintains that the search carried out in his home was unlawful and that as a result the material found therein should not have been admitted as evidence in the criminal proceedings. In this regard, he relies on Articles 6 and 8 of the Convention.

THE LAW

The applicant complains that the judicial review in the Turkish courts of the decisions on detention does not constitute an effective remedy to challenge their lawfulness. The Court points out that this complaint falls to be examined under Article 5 § 4 of the Convention. However, in light of its case-law on the procedural guarantees to be afforded under that Article (see among others, Assenov and Others v. Bulgaria, 28 October 1998, § 162, Reports of Judgments and Decisions 1998 VIII; Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005 XII and Nikolova v. Bulgaria [GC], no. 31195/96, §§ 58 and 61, ECHR 1999 II) the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint. Accordingly, the Court holds that it is necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of it to the respondent Government.

The applicant alleges that his initial arrest was carried out in contravention of the relevant laws and regulations. The applicant also argues that his wife should have been informed of his arrest. He further submits that his objection against his being held in police custody was disregarded by the domestic authorities.

As for the allegation that the applicant’s initial arrest was carried out in contravention of the relevant laws and regulations, there is no document in the case file which might substantiate this allegation. In any event, the Court observes that the alleged irregularities in the applicant’s initial arrest have not been duly brought to the attention of the competent domestic authorities.

With regard to the claim that the applicant’s wife should have been informed of the arrest, it is noted that there is no dispute as to the fact that the applicant’s parents who were at home at the material time were informed of the applicant’s arrest. The Court is of the view that within the framework of the relevant laws and regulations, it is in principle enough that one of the relatives of the arrestee is informed of the situation. It is also observed that the applicant does not make any submission suggesting that his parents, having been informed of his arrest, rendered the requirement ineffective in the specific circumstances of this case.

As regards the applicant’s objection against his being held in police custody, the Court observes that the only document submitted in that connection by the applicant is the minutes of the meeting he had with his lawyer after he had been taken into police custody. The Court reiterates that it is for the applicant to abide by the procedural requirements in bringing his complaints before domestic authorities. In view of the applicable provisions mentioned above, the minutes of the meeting and the remark by the applicant’s lawyer written down therein cannot be held to be a duly submitted objection. Neither does the applicant specify any reason why he, his lawyer or one of his relatives did not lodge an objection against his being held in police custody with the Magistrates’ Court in Criminal Matters following the procedure prescribed by law for that purpose.

Having regard to the foregoing considerations, this part of the application must be rejected, pursuant to Article 35 §§ 1, 3 and 4 of the Convention for being manifestly ill-founded and for non-exhaustion of domestic remedies.

The applicant asserts that the search of his home was unlawful. The Court notes that as far as understood from the case file the applicant has not yet lodged a complaint in this regard. Concerning the evidence obtained during the impugned search, it should be pointed out that the applicant’s complaint is premature since the criminal proceedings are still ongoing and accordingly, the admission of the material found as evidence has not yet been decided upon.

In view of the foregoing, the Court holds that this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning Article 5 § 4 of the Convention;

Declares the remainder of the application inadmissible.

Stanley Naismith Françoise Tulkens
Registrar Président