SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26808/08
by Hasan ÇATAL
against Turkey
The European Court of Human Rights (Second Section), sitting on 9 February 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hasan Çatal, is a Turkish national who was born in 1962 and lives in Tokat. He is represented before the Court by Mr A. Yılmaz and Mrs S. Nur Yılmaz, lawyers practising in İstanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows;
On 27 March 1997 the applicant was arrested by police officers of the anti‑terrorist branch of the Istanbul police on suspicion of involvement in an illegal organisation and participation in a bank robbery. The applicant alleges that his relatives were not informed about his arrest and that he was denied medical and legal assistance during his detention in police custody, where he was subjected to ill-treatment.
On 1 April 1997 the applicant was taken before the public prosecutor and the investigating judge. In his statements before the judge, the applicant retracted his statements to the police and alleged that he had been blindfolded and forced to sign those statements. On the same day, the applicant was placed in pre-trial detention.
On 30 April 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, charging the applicant with attempting to overturn the constitutional system by force under Article 146 § 1 of the former Criminal Code.
Before the trial court the applicant stated on a number of occasions that he had been ill-treated while in police custody.
Basing its decision on the evidence before it, on 19 December 2002 the Istanbul State Security Court convicted the applicant as charged and sentenced him to life imprisonment. In its judgment, the court noted the applicant's allegations of ill-treatment. It did not, however, draw any inferences from these allegations and based its judgment on, inter alia, the applicant's statements to the police.
On 16 September 2003 the Court of Cassation quashed the judgment on procedural grounds.
The case was remitted to the first instance court where, according to the information in the case file, the proceedings are still pending.
COMPLAINTS
The applicant complained under Article 3 of the Convention that he had been ill-treated in police custody and compelled to sign incriminating statements. He further argued under the same provision that his arrest had not been notified to his relatives and he had been denied legal assistance in police custody.
Relying on Articles 3, 5 § 3, 6 § 2 and 8 of the Convention, the applicant alleged that his pre-trial detention had been unreasonably long and that the review proceedings as regards to his continued detention had been ineffective as the first-instance court had rejected his requests for release on stereotypical grounds which also violated his right to be presumed innocent. Moreover, the applicant complained that his detention pending trial for an excessive period of time amounted to degrading treatment and had infringed his right to respect for his private and family life.
The applicant next complained under Article 6 § 1 of the Convention that the criminal proceedings had been unfair as the public prosecutor had not conducted a thorough investigation and the trial court had failed to evaluate the evidence adequately. Under the same provision, he further claimed that the length of the criminal proceedings had been excessive as a result of the changes in the bench of the trial court made several times during the course of the trial.
Relying on Article 13 of the Convention, the applicant lastly alleged that there had been no effective domestic remedy whereby he could challenge the unlawfulness of his continued detention and the inordinate delays in the criminal proceedings.
THE LAW
1. Relying on Articles 3, 5 § 3, 6 § 2, 8 and 13 of the Convention, the applicant complained of the excessive length of his pre-trial detention and of the proceedings regarding the review of that detention.
The Court considers that these complaints should be examined under Article 5 §§ 3 and 4 of the Convention. The Court further considers that it cannot, on the basis of the case file, determine their admissibility 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.
2. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him, which were still pending before the first-instance court following the Court of Cassation's decision to quash the judgment, had been unreasonably long. Relying on Article 13 of the Convention, he contended that there had been no effective remedy whereby he could challenge the alleged undue length of these proceedings.
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 application to the respondent Government.
3. Relying on Article 3 of the Convention the applicant alleged that he had been ill-treated in police custody.
The Court points out that under Article 35 § 1 of the Convention it may only deal with a matter within a period of six months from the date on which the final decision was taken in domestic law. However, in a case where an applicant avails himself of a domestic remedy and it becomes clear, at a later stage, that this remedy was not effective, this six-month period should in principle be calculated from the time when the applicant became aware, or should have become aware of, its ineffectiveness (see İçöz v. Turkey, (dec.), no. 54919/00, 9 January 2003).
The Court notes in this connection that the applicant complained before the trial court that he had been subjected to ill‑treatment in police custody. However, no official investigation was initiated by the prosecuting authorities into his complaint. The Court considers that the failure of the judicial authorities to act must have become gradually apparent, particularly by 19 December 2002 when the State Security Court rendered its first judgment on the matter. Therefore, the applicant should have been aware of the ineffectiveness of the remedies in domestic law at least by that date. Accordingly, the six-month period provided for in Article 35 § 1 of the Convention should be considered to have started to run not later than 19 December 2002 (see, İçöz, cited above). The application should therefore have been introduced not later than June 2003. However, it was lodged with the Court on 23 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.
4. The applicant alleged under Articles 3, 6 §§ 1 of the Convention that the criminal proceedings against him had been unfair as the police had taken his statement in the absence of any legal assistance for him, and the domestic court had not evaluated the facts or assessed the evidence adequately.
The Court considers that these complaints should be examined from the standpoint of Article 6 §§ 1 and 3 (c) of the Convention. It further notes that the criminal proceedings against the applicant are still pending before the first-instance court. The applicant's complaints under Article 6 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, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning his right to be released pending trial, to take proceedings to challenge the lawfulness of his continued detention, to be tried within a reasonable time and to have an effective remedy for the alleged unreasonable length of proceedings;
Declares the remainder of the application inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy