SECOND SECTION
Application no. 41111/08
Ali Ekber AKYILDIZ
against Turkey
lodged on 20 August 2008
STATEMENT OF FACTS
The applicant, Mr Ali Ekber Akyıldız, is a Turkish national, who was born in 1966 and lives in Elazığ. He is represented before the Court by Mr H. Aygün, a lawyer practising in Tunceli.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 June 2007 an armed clash took place between members of the PKK, an illegal armed organisation, and members of the security forces. Subsequently criminal proceedings were initiated by the Military Prosecutor against the suspected persons.
On 10 June 2007 8th Corps Military Court (hereinafter referred to as “the military court”) rendered a decision restricting access to the investigation file.
On 13 July 2007, with a search warrant issued by the military court, security forces conducted a search of the applicant’s house and a Kalashnikov with a charger, several bullets and one shell were found in the house.
On the same day, the applicant was arrested and taken into custody.
On 14 July 2007 the applicant appeared before the military court. His statement was taken concerning membership of an illegal armed organisation and illegal possession of firearms and explosives. He reiterated that he had not been involved in any of those offences. The applicant was remanded in custody on strong suspicion of having committed those offences.
On 27 August 2007 the applicant’s representative lodged an objection against the decision on the applicant’s detention. The applicant’s lawyer requested that the applicant be released. He also submitted that they had not had access to the investigating file due to the decision to restrict access, as a result of which they had been deprived of the opportunity to respond to the accusations. He further contended that the military courts had not had jurisdiction and competence to try the applicant and requested that the case file be sent to the Erzurum Public Prosecutor’s office.
On 3 September 2007 the military court dismissed the objection, holding that the decision in issue was in accordance with the law and procedure.
On 31 October 2007 the military court, having found that the offences had not been committed by members of the armed forces in the performance of their military duties, decided that it lacked jurisdiction and sent the file to the Erzurum Public Prosecutor’s office.
Upon the transfer of the case file, the criminal proceedings continued before the Erzurum Assize Court.
On 16 June 2008 the applicant’s lawyer filed a petition with the Erzurum Assize Court and requested that the applicant be released. On 19 June 2008 the request was rejected on the basis of the case file, and having regard to the nature of the offence and the state of the evidence.
On 25 July 2008, upon the request of the public prosecutor, the Erzurum Assize Court released the applicant in respect of the offence of membership of an illegal armed organisation, but remanded him in detention for illegal possession of firearms and explosives.
On the same day, the Erzurum public prosecutor disjoined the investigation proceedings concerning illegal possession of firearms and explosives and, having declared lack of jurisdiction, sent that part of the investigation to the Pülümür Public Prosecutor’s office.
On 25 September 2008 the Pülümür public prosecutor filed a bill of indictment against the applicant. He was charged with illegal possession of firearms and explosives.
On 6 November 2008 the applicant was released pending trial.
On 12 March 2009 the Pülümür Assize Court convicted the applicant as requested and sentenced him to four years and two months’ imprisonment.
On 12 December 2012 the Court of Cassation upheld the decision.
B. Relevant domestic law
The relevant domestic law can be found in the case of Uludağ v. Turkey (application no. 21292/07).
COMPLAINTS
Relying on Article 5 § 2 of the Convention the applicant maintains that the decision restricting access to the investigating file prevented him from effectively objecting to the decision to remand him in custody.
The applicant complains under Article 5 § 3 of the Convention that his detention during the judicial proceedings exceeded the “reasonable time” requirement.
ITMarkFactsComplaintsEND
QUESTIONS TO THE PARTIES
1. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his pre-trial detention, as required by Article 5 § 4 of the Convention? In particular, did the inability of the applicant and his lawyer to have access to the file at the investigation stage deprive the applicant of the possibility to effectively challenge the decision?
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