SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24267/07
by Rıfat DEMİR
against Turkey
The European Court of Human Rights (Second Section), sitting on 2 March 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 regard to the above application lodged on 12 December 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Rıfat Demir, is a Turkish national who was born in 1973, and is currently remanded in custody at Diyarbakır prison.
On 30 November 2001 the applicant was arrested by police officers from the anti-terrorism branch of the Istanbul Security Directorate and was taken into police custody on suspicion of membership of the Hizbullah, an illegal organisation.
On 7 December 2001 the applicant was brought before a single judge at the Diyarbakır State Security Court, who ordered his pre-trial detention. The applicant was subsequently placed in Diyarbakır Prison.
On 8 December 2001, at the request of the Governor of the State of Emergency Region and the public prosecutor, pursuant to Article 3 (c) of the Law-Decree no. 430, enabling them to take further measures within the state of emergency, a single judge at the State Security Court authorised the applicant's further interrogation at the anti-terrorism branch of the Diyarbakır Security Directorate.
On 10 December 2001 the applicant was transferred back to the prison.
In a medical report drawn up on 14 December 2001 by the Diyarbakır Hospital, it was observed that the applicant had sustained injuries and bruises on his person. On the same date, the applicant lodged a criminal petition with the Fatih public prosecutor's office, alleging that he had been tortured while in police custody.
On 7 May 2002 the Fatih public prosecutor issued a decision not to prosecute on the ground that there was insufficient evidence in support of the applicant's allegations.
On 24 September 2003 the Beyoğlu Assize Court rendered its decision dismissing the applicant's objection to the public prosecutor's decision not to prosecute. (The notification date of this decision to the applicant or his lawyer was not submitted.)
On an unspecified date, the public prosecutor filed a bill of indictment with the Diyarbakır State Security Court against the applicant and other persons, charging them under Article 146 § 1 of the former Criminal Code with attempting to undermine the constitutional order.
At the hearing on 11 June 2002, the applicant stated before the Diyarbakır State Security Court that he had been ill-treated in police custody and that his statements had been extracted under duress.
Following the entry into force of Law no. 5190, the case against the applicant was transferred to the Diyarbakır Assize Court.
On 3 July 2008 the Diyarbakır Assize Court ordered the applicant's continued detention on the basis of the nature of the offence and the reasonable suspicion against the applicant.
According to the information in the case file, the proceedings are currently pending before the Diyarbakir Assize Court (2000/171 E.).
COMPLAINTS
Without relying on any Article of the Convention, the applicant complained that he had been tortured while in police custody.
He next alleged under Articles 5 § 3 and 6 §§ 1 and 2 of the Convention that the length of his pre-trial detention had been excessive which was also in breach of his right to a fair trial and the presumption of innocence.
Without relying on any Article, the applicant argued that the criminal proceedings against him were not concluded within a reasonable time and that there was no domestic remedy by which he could challenge the first‑instance court's decisions prolonging his detention and the length of the criminal proceedings.
The applicant further claimed that he had been denied access to legal assistance while in police custody.
Finally, without relying on any Article of the Convention, he complained that his family members had not been informed about his arrest in 2001.
THE LAW
1. Without referring to any Article of the Convention, the applicant complained that he had been subjected to ill-treatment in police custody.
The Court considers that this matter may fall within the ambit of Article 3 of the Convention, but that, on the basis of the present state of the case file, it cannot determine the admissibility of the complaint. 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. Relying on Articles 5 § 3 and 6 §§ 1 and 2 of the Convention, the applicant complained about the length of his pre-trial detention and the alleged absence of an effective domestic remedy by which he could have challenged the unlawfulness of his continued detention.
The Court considers that these complaints should be examined under Article 5 §§ 3 and 4 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 the Rules of Court, to give notice of this part of the application to the respondent Government.
3. The applicant alleged that the criminal proceedings against him, which were still pending before the first-instance court, were not concluded within a reasonable time and that there was no domestic remedy whereby he could challenge the excessive length of the proceedings.
The Court considers that this matter falls within the ambit of Articles 6 § 1 and 13 of the Convention, but that, on the basis of the present state of the case file, it cannot determine the admissibility of the complaint. 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.
4. Without relying on any Article of the Convention, the applicant claimed that his family had not been informed about his arrest.
The Court considers that such a complaint might raise an issue under Article 8 of the Convention (see, mutadis mutandis, Sarı and Çolak v. Turkey, nos. 42596/98 and 42603/98, ECHR 2006 ... (extracts)). However, it observes that the applicant's arrest ended on 10 December 2001, whereas, the complaint was lodged with the Court only on 12 December 2007. In the absence of a domestic remedy, this complaint must be rejected for non-compliance with the six-month rule, pursuant to Article 35 §§ 1 and 4 of the Convention (see Doğan v. Turkey (dec.), no. 38114/03, 13 May 2008).
5. The applicant complained, without relying on any Article of the Convention, that he had not been provided with legal assistance while in police custody.
The Court considers that this complaint, which should be examined from the standpoint of Article 6 § 3 (c) the Convention, is premature, as the criminal proceedings against the applicant are still pending before the first-instance court. 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 alleged ill-treatment in police custody, the length of his continued pre-trial detention and the criminal proceedings against him, as well as the alleged absence of effective domestic remedies in that respect;
Declares the remainder of the application inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy