European Court of Human Rights

SECOND SECTION

DECISION

Application no. 32777/09
Civan BOLTAN
against Turkey

The European Court of Human Rights (Second Section), sitting on 27 March 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 1 June 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Civan Boltan, is a Turkish national who was born in 1991 and lives in Diyarbakır. He is represented before the Court by Ms M. Beştaş and Mr M. Beştaş, lawyers practising in Diyarbakır.

On 20 October 2008 the applicant, who was seventeen years old at the time, was arrested by police officers during a demonstration on suspicion of being involved in the activities of an illegal organisation.

On 24 October 2008 the applicant was questioned by the Diyarbakır Public Prosecutor in the presence of a lawyer, at which time he stated his disagreement with the facts as set out in the police incident report. The applicant submitted that he had not participated in the demonstration but had just been walking through the crowd.

On the same date, the applicant was brought before the Diyarbakır Investigating Judge and was questioned about the events and items of evidence in the presence of a lawyer. The judge ordered the applicant’s detention pending trial, having regard to the nature of the offence, the state of the evidence and the existence of a strong suspicion that he had committed the offence he was accused of.

On 6 November 2008 the Diyarbakır Public Prosecutor issued an indictment charging the applicant with committing a crime on behalf of an illegal organisation without being a member, under Article 314 of the Criminal Code.

On 19 November 2008 the criminal proceedings against the applicant commenced before the Diyarbakır Assize Court, assize courts having jurisdiction to try aggravated offences enumerated under Article 250 § 1 of the Code of Criminal Procedure.

At the first and second hearings on 23 December 2008 and 17 February 2009, requests made by the applicant for his release were rejected, having regard to the nature of the offence, the state of the evidence and the fact that the offences in question fell within the categories listed in Article 100 of the Code of Criminal Procedure.

At the third hearing, held on 17 March 2009, the court ordered the applicant’s release pending trial, having taken into account the nature of the offence, the state of the evidence and the total length of the applicant’s pre-trial detention.

On 28 July 2010 the Diyarbakır Assize Court issued a decision indicating that it lacked jurisdiction to try the case.

On 6 October 2010 and 25 November 2010 the Diyarbakır Juvenile Court and the Diyarbakır Juvenile Assize Court decided, respectively, that they were not competent to examine the case.

Upon both juvenile courts declining jurisdiction, the case was transferred to the Court of Cassation to resolve the issue of jurisdiction.

The case is still pending before the Court of Cassation.

COMPLAINTS

The applicant complained under Article 5 § 1 of the Convention that he had been unlawfully detained and that his detention had not fallen within the scope of the permissible grounds for detention set out in Article 5 § 1. He maintained under Article 5 § 3 that his pre-trial detention had exceeded the reasonable time requirement, having regard to his age. The applicant alleged that he had not been allowed to contact his lawyer or his relatives within the first twenty-four hours following his arrest.

Relying on Article 6 of the Convention, the applicant complained of the lack of impartiality and independence of the assize courts, alleging that these courts were the continuation of the state security courts. He further argued that he had been tried by the assize court, instead of by a juvenile court. The applicant submitted that he had been denied a fair hearing on the basis of a wrongful assessment of the facts and evidence and a biased incident report. He also contended that his right to be tried within a reasonable time had been violated, having regard to his age.

Relying on Article 7 in conjunction with Article 6 of the Convention, the applicant challenged the interpretation of Articles 220 and 314 of the Criminal Code and their application to his case.

The applicant further argued that his rights under Article 8 had been violated as he had not been able to see his family during the time he was in detention.

The applicant maintained under Article 14 that he had been subjected to discrimination due to the fact that he had been tried for the alleged crime.

Lastly, the applicant contended under Article 2 of Protocol No. 1 to the Convention that his right to education had been breached on account of his detention pending trial.

THE LAW

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 the Court, to give notice of them to the respondent Government.

The Court reiterates that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on suspicion of his or her having committed an offence. A “reasonable suspicion”, referred to in Article 5 § 1 (c) of the Convention, that a criminal offence has been committed presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence.

The Court observes in the present case that the applicant was taken into police custody and then detained on suspicion of committing a crime on behalf of an illegal organisation. Later, the criminal proceedings against the applicant commenced before the Diyarbakır Assize Court. The Court does not consider that the applicant’s detention was contrary to Article 5 § 1 of the Convention. It follows that this complaint is manifestly ill founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court considers that the complaint concerning the applicant’s having been denied access to his lawyer should be examined from the standpoint of Article 6 of the Convention (see below). As regards the complaint concerning the applicant’s contact with his relatives immediately after his arrest, the Court observes that the applicant’s police custody ended on 24 October 2008, whereas he filed his application with the Court on 1 June 2009. Therefore, this complaint was lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention (see Arslan v. Turkey (dec.), no.31320/02, 1 June 2006).

The Court observes that, according to the information in the case file, the criminal proceedings against the applicant are still pending. The applicant’s complaints under these Articles are therefore premature. Consequently, this part of the application must be rejected pursuant to Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).

The Court notes that the applicant did not raise this issue before the national authorities. Furthermore, the applicant failed to substantiate his allegations. Consequently, this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3.

The Court notes that the applicant was only prevented from continuing his education during the period corresponding to his lawful detention pending trial. This cannot be construed as a deprivation of the right to education within the meaning of Article 2 of Protocol No. 1 to the Convention. This part of the application should be rejected within the meaning of Article 35 § 3 as being manifestly ill-founded (see, mutatis mutandis, Georgiou v. Greece (dec.), no. 45138/98, 13 January 2000).

For these reasons, the Court unanimously;

Decides to adjourn the examination of the applicant’s complaints concerning the length of both his pre-trial detention and the criminal proceedings against him;

Declares the remainder of the application inadmissible.

Stanley Naismith Françoise Tulkens
Registrar President