European Court of Human Rights

SECOND SECTION

DECISION

Application no. 28658/10
Ali KARTAL
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 January 2012 as a Chamber composed of:

Françoise Tulkens, President,
Danutė Jočienė,
Dragoljub Popović,
Işıl Karakaş,
Guido Raimondi,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 19 April 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ali Kartal, is a Turkish national who was born in 1976 and is currently being detained pending trial in Edirne F Type Prison.

A.  The circumstances of the case

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

On 18 April 2002 the applicant was arrested by the police on suspicion of setting up and leading a criminal organisation, homicide, extortion and contravening the Firearms Act. The applicant was questioned by the police officers and a statement was taken from him. There is no indication in the statement whether the applicant waived his right to a lawyer.

On 22 April 2002, having regard to the nature of the offences with which the applicant had been charged and the contents of the file, a duty judge at the Istanbul State Security Court ordered his detention pending trial.

On 14 May 2002 the Istanbul public prosecutor lodged a bill of indictment against the applicant and twenty-seven others, and charged them with the above-mentioned offences, together with a number of other offences, including criminal damage.

At the hearing held on 20 January 2003 the applicant repudiated the statement he had made whilst in police custody, and claimed that he had been subjected to intensive torture during police custody. He also stated that he had had to make a similar statement when he had been brought before the prosecutor and the duty judge at the end of his police custody. It appears that no investigation was ever instituted ex officio into the applicant’s allegations following the hearing. There is also no information in the case file to show that the applicant himself lodged a complaint with the public prosecutor’s office.

On 28 March 2007 the Istanbul Assize Court with special jurisdiction under Article 250 of the Criminal Procedure Code no. 5271, which replaced the State Security Court, convicted the applicant as charged, save for the offence of criminal damage. The court accordingly sentenced the applicant to 38 years and 39 months’ imprisonment in total and further imposed a judicial fine of 18.000.000 Turkish Liras. In view of the length of the sentence imposed on him, the time he had already spent in pre-trial detention, and the fact that the offences were among those listed in Article 100 of the Criminal Procedure Code, the Assize Court ordered the continuation of the applicant’s detention. The applicant was present at that hearing.

In its judgment, the Assize Court did not make any reference to the applicant’s allegation of ill-treatment.

On 3 June 2009 the Court of Cassation, without examining the merits, quashed the judgment in respect of the applicant and a number of other defendants. It considered that the statutory requirement to appoint a lawyer for two of the defendants had not been observed, despite the fact that the maximum sentence foreseeable for the offences exceeded five years.

According to the case file, the proceedings are still pending before the Istanbul Assize Court. It is not clear whether the applicant is still in pre-trial detention.

B.  Relevant domestic law and practice

A description of the relevant domestic law and practice prior to the entry into force of the new Criminal Procedure Code no. 5271 on 1 June 2005 may be found in Çobanoğlu and Budak v. Turkey, (no. 45977/99, §§ 29-31, 30 January 2007). The current practice under the new Criminal Procedure Code no. 5271 is outlined in Şayık and Others v. Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§ 13-15, 8 December 2009).

COMPLAINTS

The applicant complained under Article 3 of the Convention that while he was detained in police custody he had been subjected to ill-treatment amounting to torture.

Relying on Article 5 §§ 3, 4 and 5 of the Convention, the applicant also alleged that the length of his pre-trial detention had been excessive.

The applicant challenged, under Article 6 of the Convention, the length of the criminal proceedings against him. Under the same heading, the applicant contended that he had not been allowed to request the assistance of a lawyer and, accordingly, no lawyer had been present when his statement had been taken by the police.

Finally, relying on Article 8 of the Convention, the applicant argued that the prolongation of his trial had adversely affected his private and family life.

THE LAW

The Court notes at the outset that the applicant can be considered to have brought the substance of his complaint to the notice of the authorities during the hearing on 20 January 2003 (see Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7 September 1999).

The Court also observes that no action was taken by the trial court with a view to opening an investigation into the applicant’s allegation after the above-mentioned hearing. In the circumstances of the present case, the Court considers that the failure of the judicial authorities to act must have been apparent to the applicant by 28 March 2007, when the Istanbul Assize Court gave its judgment without addressing the matter. In any event, the applicant must have become aware of the ineffectiveness of the remedies available in domestic law on that date, since the Assize Court did not make any reference in its judgment to his complaint about ill-treatment. Accordingly, the six-month period provided for in Article 35 of the Convention should be considered to have started to run no later than 28 March 2007 (see Mehmet Reşit Arslan v. Turkey, no. 31320/02, §§ 23 25, 31 January 2008). However, the application was lodged with the Court on 19 April 2010, more than six months later.

It follows that this part of the application has been lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

The Court considers that the complaint relating to the applicant’s detention should be examined from the standpoint of Article 5 § 3 of the Convention alone. In this connection, it notes that the applicant did not elaborate on his remaining complaints under Article 5 §§ 4 and 5 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application 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.

The Court notes that, according to the information in the case file, the criminal proceedings against the applicant are currently pending before the Istanbul Assize Court. For this reason, this complaint is premature and must, therefore, be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).

The Court observes that the complaint was submitted in a very general manner and that the applicant did not provide sufficient details to allow an examination to be made of the merits. Therefore, the Court considers that the applicant’s allegation under this head is unsubstantiated.

It follows that this complaint is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

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

Declares the remainder of the application inadmissible.

Stanley Naismith Françoise Tulkens Registrar President