SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26662/05
by Erdal KILIÇÖZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 14 September 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 12 July 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Erdal Kılıçöz, is a Turkish national who was born in 1968 and lives in İstanbul. He is represented before the Court by Mr Y. Kömürcü, a lawyer practising in İstanbul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 19 June 2003 the applicant was taken into police custody on suspicion of attempted murder.
On 23 June 2003 the applicant was examined by a doctor. He told the doctor that he had been suffering from pain in his arms as his hands had been tied behind his back for a long time and he had lost his footing and hit his head against the wall. He further indicated that his arms and head still hurt. The doctor drew up a medical report indicating that there were no signs of injury on the applicant's body.
On the same day the judge at the Bakırköy Magistrates Court ordered his pre-trial detention. The applicant stated that he had been tortured in police custody without giving any details.
On 16 July 2003 the Bakırköy Public Prosecutor filed a bill of indictment against the applicant and four other persons, charging them with attempted murder, forming an organisation with intention to commit a crime, fraud and forgery.
On 13 October 2003 the Bakırköy Assize Court issued a decision of non-jurisdiction (görevsizlik kararı) and transferred the case to the İstanbul State Security Court.
By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was subsequently resumed before the İstanbul Assize Court.
On 8 March 2005 the applicant was released pending trial.
On 8 November 2006 the İstanbul Assize Court acquitted the applicant for lack of evidence in respect of certain crimes. The court issued a decision of non-jurisdiction on ground of ratione loci and transferred the case to the Bakırköy Assize Court.
On 5 February 2007 the Court of Cassation overturned the decision of non-jurisdiction and decided that the court with jurisdiction was the İstanbul Assize Court.
On 2 September 2007 the Court of Cassation quashed the judgment of 8 November 2006.
On 26 December 2007 the court sentenced the applicant to three months and three days' imprisonment for attempted assault.
On 7 March 2008 the applicant lodged an appeal against the judgment of 26 December 2007.
According to the information in the case file, the proceedings are still pending.
COMPLAINTS
The applicant complained under Articles 2 and 3 of the Convention that he had been subjected to ill-treatment while in police custody.
The applicant submitted under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
The applicant maintained under Article 6 § 1 of the Convention that he has not been tried within a reasonable time.
THE LAW
1. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been unreasonable.
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 these parts of the application to the respondent Government.
2. The applicant complained under Articles 2 and 3 of the Convention that he had been subjected to ill-treatment while in police custody. The Court considers that the complaint concerning the ill-treatment in police custody must be examined from the standpoint of Article 3 alone.
The Court observes that the applicant was medically examined on 23 June 2003, when no signs of ill-treatment were found. The Court notes that the applicant did not lodge a complaint with the public prosecutor regarding his allegations. At his request, an investigation could have been initiated by the public prosecutor. He could also have availed himself of the right to appeal against the public prosecutor's decision (Nuray Şen v. Turkey (dec.), no. 41478/98, 30 April 2002; Muzaffer Sünük v. Turkey (dec.), no.9610/03, 27 November 2007).
Consequently, the Court finds that in the circumstances of this case the applicant cannot be considered to have exhausted domestic remedies, as required by Article 35 § 1 of the Convention. The applicant's complaint under Article 3 of the Convention must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
3. The applicant alleged under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
The Court notes that the applicant's pre-trial detention lasted from 19 June 2003 to 8 March 2005, that is, approximately one year and nine months.
The Court observes that, given the nature of the offence the applicant was charged with and the short period of pre-trial detention, the length of time he spent in detention was not unreasonable. Furthermore, the applicant did not submit any document or argument demonstrating that the length of his detention on remand was attributable to a lack of special diligence on the part of the authorities. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint concerning the length of the criminal proceedings against him;
Declares the remainder of the application inadmissible.
Stanley NaismithFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy