CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 novembre 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sD73EB0F { width:14.21pt; display:inline-block } .sD6BE18B4 { width:200.44pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } SECOND SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 21377/04 by Ahmet Kenan ER against Turkey The European Court of Human Rights (Second Section), sitting on 18   November 2008 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 30 April 2004, Having deliberated, decides as follows: THE FACTS The applicant, Mr Ahmet Kenan Er, is a Turkish national who was born in 1964 and lives in Istanbul. He is represented before the Court by Mr   H.I.   Er, a lawyer practising in Istanbul. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 30 November 1990 the applicant, who served as a first lieutenant in the Turkish Armed Forces at the material time, was arrested on suspicion of, inter alia , professional misconduct and bribery. On 28 March 1991 the military prosecutor at the 33 rd Infantry Division Commander’s office filed an indictment charging the applicant with twenty-four different offences, including professional misconduct, bribery and assault and battery of his inferiors. On 29 May 1991 the applicant was released from detention pending trial. On 12 May 1993 the Kırklareli Military Court acquitted the applicant in relation to certain charges and found him guilty as charged for the remaining offences. On 19 January 1994 the Military Court of Cassation upheld the judgment of the first-instance court in relation to certain offences and quashed the remainder of the judgment on the grounds of the insufficient investigation and the reclassification of the offence. On 7 November 1995 the Kırklareli Military Court acquitted the applicant in relation to certain charges and found him guilty as charged for the remaining offences. On the same day the applicant was arrested once again. On 6 March 1996 the Military Court of Cassation upheld the judgment of the first-instance court in relation to certain offences and quashed the remainder of the judgment on procedural and substantive grounds. The Military Court of Cassation subsequently referred the case back for a fresh examination. On 16 April 1996 the Kırklareli Military Court acquitted the applicant in relation to certain charges and found him guilty as charged for the remaining offences. On the same day the applicant was released pending trial. On 10 June 1998 the Military Court of Cassation quashed the judgment of the first-instance court on procedural grounds in relation to certain charges and for being time-barred ( zamanaşımı ) in relation to the remaining charges. On 5 August 1999 the Çorlu Military Court found the applicant guilty as charged in relation to those offences which were not time-barred and of which he had not already been acquitted. On 28 March 2001 the Military Court of Cassation quashed the judgment of the first-instance court once again on jurisdictional grounds in the light of a recent amendment of the relevant jurisdictional rules and held that the case should be heard by ordinary criminal courts. On 26 December 2001 the Çorlu Military Court issued a decision of lack of jurisdiction and referred the case to the Kırklareli Assize Court. On 2 December 2003 the Kırklareli Assize Court decided to discontinue the proceedings against the applicant, holding that the prosecution was time ‑ barred ( zamanaşımı ). COMPLAINTS The applicant complained under Article 5 §§ 3, 4 and 5 of the length of his detention pending trial and of the excessive length of time that had passed before the filing of the bill of indictment following his arrest. The applicant maintained under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time. The applicant further contended under Article 6 § 1 that he had not been tried by an independent and impartial tribunal on account of the presence of military judges on the bench of the military courts that had tried him. The applicant lastly alleged that his wrongful detention pending trial had amounted to a breach of Article 3 of Protocol No. 7. THE LAW 1.     The applicant complained that his detention pending trial and the amount of time it had taken the military prosecutor to file the bill of indictment following his arrest exceeded the “reasonable time” requirement and breached Article 5 §§ 3 and 5 of the Convention. The Court notes that the applicant’s detention ended on 16 April 1996, whereas these complaints were submitted on 30 April 2004, more than six months later. It follows that this part of the application has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 2.     The applicant maintained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him, over thirteen years, had been excessive. 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 argued under Article 6 § 1 of the Convention that he had not been tried by an independent and impartial tribunal on account of the presence of military judges on the bench of the military courts that had tried him. The Court notes that the proceedings against the applicant were discontinued as the prosecution of the offences had become time-barred. Consequently, the applicant was not convicted and cannot, therefore, claim to be a victim of the alleged violation of Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 4.     The applicant contended under Article 3 of Protocol No. 7 that his detention pending trial had been wrongful. The Court notes that Turkey did not ratify Protocol No. 7. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 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.       Sally Dollé   Françoise Tulkens   Registrar   President