SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 34396/05, 8753/06, 25853/06, 37432/06,
37435/06, 2873/07, 24664/07 and 44938/08
by Bülent ALP and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 9 June 2009 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above applications lodged on 21 September 2005, 16 February 2006, 12 June 2006, 19 September 2006, 19 September 2006, 6 June 2007, 8 December 2006 and 29 August 2008 respectively,
Having deliberated, decides as follows:
THE FACTS
The applicants are Turkish nationals who were arrested and subsequently detained pending judicial proceedings. They have now been released except for the applicants Serpil Cabadan and Hüseyin Durmaz (applications nos. 37432/06 and 37435/06), who are still in detention pending trial. The information concerning the dates of the arrests, the dates of the orders for the applicants’ pre‑trial detention, the dates of the bills of indictment, the dates of the domestic court decisions, the total period of pre-trial detention, the dates of release and the grounds for continued detention, as submitted by the applicants, is set out in the table annexed.
COMPLAINTS
All the applicants (except Heval Öztürk in application no. 2873/07) complained under Article 5 §§ 1 and 3 and Article 6 §§ 1 and 2 of the Convention that the length of their pre-trial detention had been excessive. The applicants Serpil Cabadan and Hüseyin Durmaz, in applications nos. 37432/06 and 37435/06 submitted under Article 3 of the Convention that the excessive length of pre-trial detention amounted to ill-treatment.
The applicants Abdulmecit Öztürk and Metin Sarıgül, in applications nos. 2873/07 and 24664/07, further complained under Articles 5 § 3 and 13 of the Convention that they had not had an opportunity to take proceedings by which the lawfulness of their pre-trial detention could be decided.
The applicant Abdulmecit Öztürk, in application no. 2873/07, contended under Article 5 § 5 of the Convention that he had not had an enforceable right to compensation for his detention in alleged contravention of Article 5 § 3.
The applicants in applications nos. 34396/05, 8753/06, 25853/06, 37432/06, 37435/06, 2873/07 and 44938/08 complained under Article 6 § 1 of the Convention that the criminal proceedings against them were unreasonably long.
The applicants in application no. 2873/07 further submitted, under Article 13 of the Convention, that there had been no effective remedy in domestic law by which they could challenge the excessive length of the criminal proceedings in question.
The applicants in applications nos. 34396/05 and 8753/06 alleged a violation of Article 5 §§ 3, 4 and 5 of the Convention in relation to their detention in police custody.
The applicants finally alleged a number of violations of Article 6 of the Convention during the criminal proceedings brought against them.
THE LAW
1. In view of the similarity of the cases, the Court finds it appropriate to join them and examine them together.
2. All the applicants (except Heval Öztürk in application no. 2873/07) complained under Articles 3, 5 §§ 1 and 3, and Article 6 §§ 1 and 2 of the Convention that their pre-trial detention had exceeded the “reasonable time” requirement. The applicants Abdulmecit Öztürk and Metin Sarıgül, in applications nos. 2873/07 and 24664/07, further complained, under Articles 5 § 3 and 13 of the Convention, that they had not had an opportunity to take proceedings by which the lawfulness of their pre-trial detention could be decided. The applicant Abdulmecit Öztürk, in application no. 2873/07, further contended under Article 5 § 5 of the Convention that he had not had an enforceable right to compensation for his detention in alleged contravention of Article 5 § 3.
The Court considers that the complaint concerning the length of the applicants’ pre-trial detention must be examined from the standpoint of Article 5 § 3 alone. It further notes that the applicants’ complaint under Article 13 should be examined under Article 5 § 4 of the Convention, being the lex specialis in the matter (see Elğay v. Turkey (dec.), no. 18992/03, 11 September 2007).
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 applications to the respondent Government.
3. The applicants in applications nos. 34396/05, 8753/06, 25853/06, 37432/06, 37435/06, 2873/07 and 44938/08 maintained under Article 6 § 1 of the Convention that the length of the criminal proceedings against them was excessive. The applicants in application no. 2873/07 further submitted, under Article 13 of the Convention, that there had been no effective remedy in domestic law by which they could challenge the excessive length of the criminal proceedings in question.
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, also to give notice of this part of the application to the respondent Government.
4. The applicants in applications nos. 34396/05 and 8753/06 complained under Article 5 § 3 of the Convention that the length of their detention in police custody had been excessive. They further submitted under Article 5 § 4 that there had been no remedy under Turkish law allowing them to challenge the lawfulness of their detention in police custody. They claimed under Article 5 § 5 of the Convention that they had not had any domestic remedy whereby they could obtain compensation for their detention in police custody.
The Court observes that the applicants’ police custody ended on 26 March 1999 and 12 January 2001 whereas these applications were lodged with the Court on 21 September 2005 and 13 February 2006 respectively, that is, more than six months later (see Ege v. Turkey (dec.), no. 47117/99, 10 February 2004, and Doğan v. Turkey (dec.), no. 67214/01, 7 June 2005). Insofar as the applicants complain of an absence of appropriate remedies under Article 5 §§ 4 and 5 of the Convention, the six months rule laid down in Article 35 § 1 of the Convention runs from the date of the events from which the complaint originates, i.e. also the aforementioned date of release from police custody. It follows that these complaints have been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
5. The applicants alleged that a number of their rights under Article 6 of the Convention had been breached in the criminal proceedings brought against them.
The Court observes that the criminal proceedings against the applicants are still pending. The applicants’ complaints under this provision are therefore premature. Consequently, this part of the applications must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).
6. The applicants in application no. 2873/07 alleged under Article 6 of the Convention that their families were not informed about their arrest and detention.
The Court considers that this complaint should be examined from the standpoint of Article 8 of the Convention (see Sarı and Çolak v. Turkey, nos. 42596/98 and 42603/98, §§ 33-37, ECHR 2006-... (extracts)). In this connection, it observes that the applicants’ detention in police custody ended on 18 and 20 August 1998 respectively, whereas the application was introduced on 8 December 2006, i.e. more than six months after the detention complained of (see Doğan v. Turkey (dec.), no. 38114/03, 13 May 2008). It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the following complaints:
(i) the complaint under Article 5 § 3 concerning the length of all the applicants’ pre-trial detention (except that of Heval Öztürk in application no. 2873/07);
(ii) the complaint under Article 5 § 4 concerning the alleged lack of a remedy to challenge the lawfulness of the applicants’ pre-trial detention brought by Abdulmecit Öztürk (application no. 2873/07) and Metin Sarıgül (application no. 24664/07);
(iii) the complaint under Article 5 § 5 regarding the alleged lack of an enforceable right to compensation for the allegedly lengthy pre-trial detention brought by Abdulmecit Öztürk (application no. 2873/07);
(iv) the complaint under Article 6 § 1 concerning the length of the criminal proceedings against the applicants brought by Bülent Alp (application no. 34396/05), Fahri Önder (application no. 8753/06), Salim Bitkay (application no. 25853/06), Serpil Cabadan (application no. 37432/06), Hüseyin Durmaz (application no. 37435/06), Heval Öztürk (application no. 2873/07), Abdulmecit Öztürk (application no. 2873/07) and Metin Karaman (application no. 44938/08);
(v) the complaint under Article 13 regarding the alleged lack of an effective remedy in respect of the complaint under Article 6 § 1 brought by Heval Öztürk and Abdulmecit Öztürk (application no. 2837/07);
Declares the remainder of the applications inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Information concerning the application
Date of the arrest
Date of the pre-trial detention order
Date of the bill of indictment
Date of the judgments of the first-instance court
Date of the decisions of the Court of Cassation
Date of release of the applicant where applicable
Total period of pre-trial detention (on the basis of the information in the case file)
Grounds for continued detention
1 - 34396/05 introduced on 21 September 2005 by Bülent ALP represented by Metin Filorinalı
22 March 1999
26 March 1999
12 April 1999
12 June 2008
Pending
1 November 2005
6 years and 7 months
- state of the evidence
- content of the case file
- nature of the offence
- overall period of pre-trial detention
2 - 8753/06 introduced on 13 February 2006 by Fahri ÖNDER represented by Metin Filorinalı
6 January 2001
12 January 2001
16 January 2001
7 November 2002
15 December 2005
8 May 2007
27 March 2003
(set aside)
16 October 2006
(set aside)
15 December 2005
4 years and 6 months
Record of hearing not submitted by the applicant
3 - 25853/06 introduced on 12 June 2006 by Salim BİTKAY represented by Kamber Soypak
3 December 1997
9 December 1997
22 December 1997
24 February 2004
1 May 2008
20 October 2004 (set aside)
29 December 2005
7 years and 5 months
Record of hearing not submitted by the applicant
4 - 37432/06 introduced on 19 September 2006 by Serpil CABADAN represented by Eylem Erkaslan
24 September 1998
1 October 1998
19 November 1998
22 June 2001
17 July 2003
Pending
7 March 2002
(set aside)
28 January 2004 (set aside)
6 years and 9 months
- state of the evidence
- nature of the offence
-strong suspicion of having committed the offence in issue
5 – 37435/06 introduced on 19 September 2006 by Hüseyin DURMAZ represented by Eylem Erkaslan
24 September 1998
1 October 1998
19 November 1998
22 June 2001
17 July 2003
Pending
7 March 2002
(set aside)
28 January 2004 (set aside)
6 years and 9 months
- state of the evidence
- nature of the offence
-strong suspicion of having committed the offence in issue
6 - 2873/07 introduced on 8 December 2006 by Abdulmecit ÖZTŰRK and Heval ÖZTŰRK represented by Mehmet Erbil
14 August 1998
18 August 1998 for Abdulmecit Öztürk
20 August 1998 for Heval Öztürk
22 December 1998
8 June 2006
23 May 2008
17 April 2007 (set aside)
24 December 2003 for Heval Öztürk
1 October 2007 for Abdulmecit Öztürk
5 years and 4 months for Heval Öztürk
8 years and 3 months for Abdulmecit Öztürk
Record of hearing not submitted by the applicants
7 - 24664/07 introduced on 6 June 2007 by Metin SARIGŰL represented by Sevgi Epçeli
27 March 2001
30 March 2001
3 April 2001
7 June 2007
Pending
25 December 2006
5 years and 9 months
- state of the evidence
- stage of the trial (dosyanın geldiği aşama)
- content of the case file
- overall period of pre-trial detention
- persistence of the grounds for continued detention indicated in Article 100 of the Code of Procedure (CoP)
- strong suspicion of having committed the offence in issue
8 - 44938/08 introduced on 29 August 2008 by Metin KARAMAN represented by Yeşinil Yeşilyurt Karakoç
29 November 1995
8 December 1995
9 May 1996
30 May 2008
Pending
29 February 2008
12 years and 3 months
Record of hearing not submitted by the applicant
Full & Egal Universal Law Academy