SECOND SECTION
DECISION
Application no. 46457/13
Hasan Hüseyin EBEM
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:
Julia Laffranque, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 5 June 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Hasan Hüseyin Ebem, is a Turkish national, who was born in 1961 and lives in Diyarbakır. He was represented before the Court by Ms R. Yalçındağ Baydemir and Mr C. Aydın, lawyers practising in Diyarbakır.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 11 September 2009 the applicant was arrested on suspicion of membership of a terrorist organisation. On 14 September 2009 he was brought before the Diyarbakır Assize Court, who ordered that he be held on remand.
5. Subsequently, the applicant objected to the decision to detain him pending trial. On 17 September 2009, the Diyarbakır Assize Court dismissed the applicant’s objection.
6. On 9 June 2010, the Diyarbakır public prosecutor filed a bill of indictment with the Diyarbakır Assize Court in respect of the applicant and charged him with being a member of a terrorist organisation.
7. On 11 July 2014, the applicant was released pending trial.
8. On an unspecified date, the applicant lodged an individual application with the Constitutional Court and complained, mainly, of a violation of his right to liberty and security. This application is currently pending before the Constitutional Court.
9. According to the information in the case file, the criminal proceedings against the applicant are currently pending before the domestic courts.
COMPLAINTS
10. The applicant complains under Article 5 § 1 of the Convention that he was deprived of his liberty in the absence of any tangible evidence and reasonable grounds for suspicion that he had been involved in illegal activities.
11. The applicant complains under Article 5 §§ 2 and 4 of the Convention that the decision rendered upon his objections to detain him was rendered in the absence of adversarial proceedings and without a hearing. He submits that he was unable effectively to challenge the detention order as he was denied access to the investigation file. For the same reason, he claims also that he was not informed of the reasons for his arrest and detention.
12. The applicant complains under Article 5 § 3 of the Convention that the length of his detention was excessive
THE LAWAs regards the complaints under Article 5 §§ 1 and 3 of the Convention
13. Under Article 5 §§ 1 and 3 of the Convention the applicant complains of his pre-trial detention.
14. The Government maintained that the applicant had not exhausted domestic remedies, as his individual application is pending before the Constitutional Court.
15. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Uzun v. Turkey, (dec.), no. 10755/13, §§ 68-71, 30 April 2013).
16. The Court further notes that the Constitutional Court’s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual application and had carried on after that date.
17. In the present case the applicant’s pre-trial detention commenced on 11 September 2009 and ended on 11 July 2014 when he was released. Accordingly, the applicant’s detention, including the period before 23 September 2012, fell within the Constitutional Court’s temporal jurisdiction (see Koçintar v. Turkey (dec.), no. 77429/12, §§ 15-26 and 39, 1 July 2014, and Levent Bektaş v. Turkey, no. 70026/10, §§ 40-42, 16 June 2015).
18. As a result, taking into account the Government’s preliminary objection, and without prejudice to the possibility that the applicant may bring new proceedings before this Court after exhausting the domestic remedies, the Court finds this part of the application to be premature. Consequently, it must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.As regards the complaint under Article 5 § 2 of the Convention
19. The applicant complains under Article 5 § 2 of the Convention that he was not informed of the reasons for his arrest and detention in police custody.
20. The Government submitted that the applicant had failed to comply with the six-month time-limit referred to in Article 35 § 1 of the Convention.
21. The Court observes that the applicant’s police custody ended on 14 September 2009. However, the application was lodged with the Court on 5 June 2010, which is more than six months from the date of the facts giving rise to the alleged violation.
22. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.As regards the complaint under Article 5 § 4 of the Convention
23. The applicant complained that on account of the restriction placed on his access to the investigation file, he had not been able to challenge the evidence which had been the grounds for the decision to detain him on remand. He also complains about not being able to appear before the court when his petitions were reviewed.
24. The Government contested these arguments.
25. The Court notes that the applicant was placed in pre-trial detention on 14 September 2009. He subsequently filed an objection against this decision, which was eventually dismissed on 17 September 2009 by the Diyarbakır Assize Court. Considering that the application was lodged with the Court on 5 June 2010, this is to say more than six months from the date of the facts giving rise to the alleged violation, these complaints should also be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 November 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy