CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 août 2007

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Tulkens , President ,   Mr   A.B. Baka ,   Mr   I. Cabral Barreto ,   Mr   R. Türmen ,   Mr   M. Ugrekhelidze ,   Mr   V. Zagrebelsky ,   Mr   D. Popović, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above applications lodged on 8 December 2006, 15   February 2007 and 17 February 2007, Having deliberated, decides as follows: THE FACTS The applicants, Mr Cem Demirbaş, Mr Haydar Ceylan and Ms Binnaz Demirbaş, are Turkish nationals who were born in 1977, 1974 and 1974, respectively, and are currently detained in various prisons in Turkey. They are represented before the Court by Ms Gül Altay, Ms Fatmagül Yolcu and Mr   Hakan Karakuş, lawyers practising in Istanbul. The circumstances of the case The facts of the case, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows. 1.     The applicants’ arrest, detention and trial The applicants in the first and second applications were arrested on 18   April 1999, and the applicant in the third application was arrested on 19   April 1999. The reason for their arrests was the suspicion that they were members of an illegal organisation, namely the Türkiye Komunist Partisi/Marksist Leninist - Türkiye İşçi Köylü Kurtuluş Ordusu (the TKP/ML-TİKKO; the Communist Party of Turkey/Marxist Leninist ‑ Workers’ and Peasants’ Liberation Army of Turkey ). They were placed in custody at the anti-terrorist branch of the Istanbul Police Headquarters. On 22 and 23 April 1999, while the applicants were detained in police custody, statements were taken from them by police officers. No lawyer was present during their questioning. On 25 April 1999 the applicants were brought before the prosecutor and subsequently before the duty judge of the Istanbul State Security Court who questioned them further and recorded their statements. When the applicants were questioned by the prosecutor no lawyer was present. The duty judge ordered their remand in custody pending the introduction of criminal proceedings against them. On 3 June 1999 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicants with the offence of attempting to undermine the constitutional order (an offence defined in Article 146 § 1 of the Criminal Code in force at the time). The first hearing in the trial was held by the Istanbul State Security Court (hereinafter “the trial court”) on 25 August 1999. In the course of 12 subsequent hearings, the applicants’ requests for release were rejected by the trial court. On each of those occasions the trial court considered that the reasons justifying the applicants’ detention in prison still obtained on account of the “nature of the offence of which they stood accused, the evidence in the file, and the continuing risk of escape”. In the course of these 12 hearings the actions taken by the trial court were limited to the reading out of the indictment in open court, asking the applicants to submit their defence and obtaining copies of the applicants’ birth certificates and criminal records. The applicants’ request to widen the scope of the investigation by, inter alia , hearing a number of witnesses, was rejected by the trial court. On 22 May 2002 the trial court found the applicants guilty as charged and sentenced them to death. This sentence was commuted to life imprisonment. The applicants appealed against the judgment and argued that their rights of defence had been restricted and that their allegations of torture in police custody had not been examined. The Court of Cassation quashed the judgment on 17 April 2003 and a re ‑ trial commenced on 2 June 2003. In the course of the re-trial there have been 13 hearings so far and the trial is still continuing. The applicants’ requests for release have all been rejected and they are still detained on remand in prison. 2.       The ill-treatment to which the applicant Haydar Ceylan was subjected in police custody Haydar Ceylan, i.e. the applicant in the second application, claims that, in the course of his detention in police custody between 18 and 25 April 1999 he was deprived of food, blindfolded, kept in a dirty cell and subjected to ill-treatment. According to two medical reports drawn up on 19 and 22 April 1999, there were a number of bruised areas and lesions on various parts of Haydar Ceylan’s face and body. In a statement made to the prosecutor on 25   April 1999, the applicant stated that he had been subjected to intensive torture while he was being detained in police custody. In particular, he was suspended from his arms, dosed with water and beaten up. On 25 August 2003 two police officers, who were suspected of ill ‑ treating the applicant, were indicted and charged with the offence of ill ‑ treatment. The Fatih Criminal Court of First Instance decided on 21   March 2006 that it did not have jurisdiction to examine the case and referred the file to the Istanbul Court of Assizes. On 1 December 2006 the Istanbul Court of Assizes dismissed the case against the police officers as, by then, the prosecution had become time ‑ barred. COMPLAINTS Invoking Articles 3 and 13 of the Convention, the applicant in the second application – i.e. Haydar Ceylan – complained that he was tortured in police custody and that the authorities failed to prosecute those responsible for the ill-treatment. He also alleged that the courts delayed the examination of his allegations until the investigation of those allegations had become time ‑ barred. The applicants complained under Article 5 § 3 of the Convention that they have now been detained on remand for over eight years and that they were not released pending trial. Invoking Article 5 § 5 of the Convention, the applicants complained that they did not have an enforceable right to compensation for their excessively long detention. The applicants further complained that their rights under Article 6 § 1 of the Convention were violated in the criminal proceedings against them. Under Article 6 § 3 (b-d) of the Convention, the applicants complained that they were not afforded adequate facilities to prepare their defence, and that they did not have access to a lawyer when they were in police custody or brought before the prosecutor on 25 April 1999. Finally, invoking Article 13 of the Convention, the applicants alleged that they did not have an adequate remedy in relation to their above mentioned complaints under Articles 5 and 6 of the Convention. THE LAW 1.     In view of the similarity of the three applications, the Court finds it appropriate to join them. 2.     The applicant Haydar Ceylan complained under Articles 3 and 13 of the Convention that he was tortured in police custody and that his allegations of torture were not investigated by the national authorities. 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 it to the respondent Government. 3.     The applicants alleged a violation of Article 5 § 3 of the Convention in that they have now been detained for a period in excess of 8 years and were not released pending trial. They further complained under Article   5   § 5 of the Convention that there was no remedy in domestic law to obtain compensation for this alleged violation of Article 5 § 3. 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 them to the respondent Government. 4.     The applicants complained that the manner in which the criminal proceedings were being conducted and the repeated postponement of the hearings violated their rights under Article 6   §   1 of the Convention. The Court deems it appropriate to examine these complaints from the standpoint of the reasonable time requirement of Article 6 § 1 of the Convention and considers that it cannot, on the basis of the case file, determine their admissibility at this stage. Accordingly, it is necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of them to the respondent Government. 5.     Invoking Article 6 § 3 (b-d) of the Convention, the applicants complained that they were not afforded adequate facilities to prepare their defence and that they did not have access to a lawyer when they were in police custody or brought before the prosecutor on 25 April 1999. The Court observes that the criminal proceedings against the applicants are still pending. These complaints are therefore premature. Consequently, this part of the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. 6.     Invoking Article 13 of the Convention, the applicants complained that they did not have an effective remedy in relation to their above complaints under Articles 5 and 6 of the Convention. In so far as the complaint under Article 13 of the Convention is invoked in conjunction with Article 5, the Court deems it more appropriate to examine it from the standpoint of Article 5 § 4 of the Convention. Furthermore, and having regard to its above conclusion in relation to the complaints under Article 6 § 3 (b-d) of the Convention, the Court also considers it appropriate to examine the complaint under Article 13 of the Convention in conjunction with the remaining complaint under Article 6 § 1 concerning the reasonable time requirement. The Court concludes 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 case to the respondent Government. For these reasons, the Court unanimously Decides to join the applications; Decides to adjourn the examination of the complaints made by the applicant in the second application concerning the ill-treatment to which he was allegedly subjected, as well as the complaints concerning the rights of all three applicants to release pending trial, to take proceedings to challenge the lawfulness of their detention, to an enforceable right to compensation, to a fair hearing within a reasonable time and to an effective remedy in respect of the reasonable-time complaint. Declares the remainder of the applications inadmissible.   S. Dollé   F. Tulkens   Registrar   President