SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31596/07
by Abdullah GÜNAY
against Turkey
The European Court of Human Rights (Second Section), sitting on 12 January 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Abdullah Günay, is a Turkish national who was born in 1979 and is currently serving a prison sentence in Kırıkkale F-type prison. He is represented before the Court by Mr M. Erbil, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 April 1999 the applicant was arrested by the police officers from the anti-terror branch of the Istanbul police headquarters following the bombing of a shopping centre in Istanbul. The applicant alleges that he was arrested in the afternoon and first taken to an unofficial detention centre where he was ill-treated and threatened by death to make confessions, whereas according to the official documents he was taken into custody late at night.
On 30 April 1999 the applicant was examined by a doctor who observed no sign of injuries on his person. It is to be noted that the applicant did not provide the medical report in question. He was subsequently taken before a single judge who ordered the applicant’s pre-trial detention. Before the judge, the applicant denied the veracity of his police statements and alleged that he had been ill-treated while in police custody.
On 6 May 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and two other persons charging them under Article 125 of the former Criminal Code with having carried out activities on behalf of the PKK (the Kurdistan Workers’ Party, an illegal organisation) for the purpose of bringing about the secession of part of the national territory.
In 2004, pursuant to Law no. 5190 abolishing State Security Courts, the case against the applicant was transferred to the Istanbul Assize Court.
In the course of proceedings, the first-instance court ordered the applicant’s medical examination, in response to his allegations of ill-treatment in police custody.
On 17 May 2006 experts from the Forensic Medicine Institution drew up a report according to which it could not be determined whether the applicant had been subject to ill-treatment during his detention in police custody.
On 7 May 2007 the Istanbul Assize Court convicted the applicant as charged and sentenced him to aggravated life imprisonment. In its judgment, the court dismissed the applicant’s allegations of ill-treatment having regard to the findings of the report of 17 May 2006. It further established, in the light of a number of expert reports, witness testimonies and the statements of the accused, that the applicant and two other persons had planned and executed the bombing of the shopping centre in protest at the arrest of the leader of the PKK. The bombing had caused the death of thirteen innocent people and the injury of numerous persons.
On 7 May 2009 the Court of Cassation upheld the judgment.
COMPLAINTS
The applicant complained under Article 5 §§ 1 (c), 3 and 5 of the Convention and Article 2 of Protocol No. 1 that his pre-trial detention had been excessively long and the first-instance court had rejected his requests for release pending trial.
The applicant contended under Article 6 of the Convention that he had been denied a fair trial as the first-instance court had based his conviction on his statement taken by the police under duress, and that he had been unable to prepare his defence adequately due to his pre-trial detention.
Without relying on any Article of the Convention, the applicant further argued that the criminal proceedings against him had not been concluded within a reasonable time.
Lastly, the applicant complained under Article 1 of Protocol No. 12 that his pre-trial detention had been prolonged excessively by virtue of the anti‑terror laws, which conferred a special jurisdiction on the State Security Courts, which was discriminatory.
THE LAW
1. Relying on Article 5 §§ 1 (c), 3 and 5 of the Convention and Article 2 of Protocol No. 1 of the Convention, the applicant complained about the length of his pre-trial detention and the alleged lack of compensation for his detention contravening Article 5.
The Court considers that these complaints should be examined from the standpoint of Article 5 §§ 3 and 5 of the Convention. It further 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.
2. The applicant next complained under Article 6 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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. The applicant further complained under Article 6 § 1 of the Convention that the criminal proceedings were not fair as the first-instance court had convicted him relying only on his police statements allegedly extracted by force.
The Court reiterates that the use of evidence obtained through ill‑treatment in criminal proceedings infringes the fairness of such proceedings even if the admission of such evidence has not been decisive in securing the conviction (see Hacı Özen v. Turkey, no. 46286/99, § 101, 12 April 2007). In the present case, the Court observes that the applicant has failed to submit to the Court any conclusive evidence demonstrating that he had been subjected to ill-treatment while in police custody. Nor has he argued that he was unable to obtain, or was prevented from obtaining, any such evidence, for example in the form of medical reports. Consequently, in the absence of any concrete proof, the Court finds that the applicant has failed to lay the basis of an arguable claim that his conviction had been based on evidence obtained through ill-treatment. It therefore considers that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
4. The applicant also alleged under Article 6 § 3 (b) of the Convention that, on account of his pre-trial detention, he was unable to collect evidence in his favour and be represented adequately in the proceedings.
The Court observes that throughout the criminal proceedings the applicant was represented either by a lawyer of his own choice or an appointed one. It further observes that the applicant does not appear to have complained of the conduct of his representatives before the domestic courts. Moreover, there is nothing in the case file suggesting that the applicant or his lawyer were not given adequate time or facilities to prepare the defence. The Court therefore considers that this complaint must be rejected as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.
5. Relying on Article 1 of Protocol No. 12 of the Convention, the applicant complained that the domestic law had provided for longer periods of pre-trial detention in the prosecution of offences proscribed by anti-terror legislation, which measures had been contrary to the principle of equality and the prohibition on discrimination.
The Court considers that, as Protocol No. 12 has not been ratified by the respondent State, the applicant’s complaint in this regard is incompatible ratione personae with the Convention and must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 5 of the Convention (length of detention on remand or release pending trial, together with an enforceable right to compensation) and under Article 6 (length of proceedings);
Declares the remainder of the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy