SECOND SECTION
DECISION
Application no. 34368/04
Mustafa ESEN
against Turkey
The European Court of Human Rights (Second Section), sitting on 31 May 2016 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Milan Blaško, Acting Deputy Section Registrar,
Having regard to the above application lodged on 13 May 2004,
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 Mustafa Esen, is a Turkish national, who was born in 1948 and lives in Mardin. He was represented before the Court by Mr M. Beştaş, a lawyer 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 23 November 2003 a search was conducted at the applicant’s house and the police seized several envelopes each of which had names and numbers on it and also a pistol whose possession permit had expired. At the same day, the applicant was arrested on suspicion of fundraising on behalf of PKK, an illegal armed organisation.
5. On 24 November 2003 the Derik Magistrates’ Court placed the applicant in detention on remand having regard to the state of the evidence and the nature of the offence.
6. On 4 December 2003 the applicant’s representative applied for the applicant’s release from detention on remand. On an unspecified date this application was dismissed. The related decision was not submitted to the Court.
7. On 29 December 2003 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing the applicant of aiding and abetting a terrorist organisation, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).
8. On an unspecified date the applicant’s representative again applied for the applicant’s release from detention on remand.
9. On 31 December 2003 the State Security Court held a preparatory hearing and dismissed the applicant’s application for release.
10. On 12 February 2004 the first hearing was held and the State Security Court released the applicant.
11. According to the information in the file, on an unspecified date the applicant was acquitted.
THE LAW
A. Alleged violation of Article 5 § 4 of the Convention
12. Relying on Articles 5 § 4 and 13 of the Convention, the applicant complained that there had been no effective remedy provided by the domestic legal system whereby he could effectively challenge his detention on remand.
13. The Court considers that the applicant’s complaint under Article 13 should be examined under Article 5 § 4 of the Convention, being the lex specialis in the matter.
14. The Court reiterates that Article 5 § 4 entitles an arrested or detained person to institute proceedings for review bearing on the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009). Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see A. and Others, cited above, § 203, and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012). In the context of the review of a detained person’s continued detention pursuant to Article 5 § 4 of the Convention, the proceedings must be adversarial and must ensure “equality of arms” between the parties, namely the prosecutor vis-à-vis the detained person (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II ; A. and Others, cited above, § 204 ; and Mooren v. Germany [GC], no. 11364/03, § 124, 9 July 2009).
15. Turning to the facts of the present case, the Court notes that, without giving any details, the applicant merely alleged the violation of Article 5 § 4 of the Convention. The Court observes that the applicant applied for his release from detention on remand on 4 December 2003 and on a later, unspecified date. These applications were examined and dismissed by the State Security Court. The applicant did not object to these decisions.
16. In that regard, the Court considers that the applicant submitted his complaint in very general terms and failed to provide any explanations why the remedy provided by the domestic legal system should be considered ineffective. He thereby failed to lay the basis of an arguable claim, which might have allowed its effective examination by the Court.
17. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of other Convention rights
18. The applicant complained under Article 5 § 1 of the Convention that there was no reasonable suspicion that he had committed an offence within the meaning of this article and that therefore his detention could not be considered lawful.
19. The applicant further complained under Article 11 of the Convention that he was detained because of his membership of an association of the detainees’ families.
20. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court considers that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto.
21. It follows that these parts of the applications are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 June 2016.
Milan BlaškoPaul Lemmens
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy