CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 juin 2009

.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 } .sD49B706 { width:19.95pt; 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 } .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 } .s29100277 { font-family:Arial; font-weight:bold } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s635176F2 { width:141.94pt; display:inline-block } .s6FDB9D1F { width:194.97pt; display:inline-block } SECOND SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 34170/07 by Gökhan AYDIN against Turkey The European Court of Human Rights (Second Section), sitting on 16   June 2009 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 regard to the above application lodged on 31 July 2007, Having deliberated, decides as follows: THE FACTS The applicant, Mr Gökhan Aydın, is a Turkish national who was born in 1983 and is currently detained in Tekirdağ F-type prison. He is represented before the Court by Mr M. Filorinalı and Mrs Y. Başara Filorinalı, lawyers practising in Istanbul. The facts of the case, as submitted by the applicant, may be summarised as follows. On 11 November 2002 the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Istanbul police headquarters on suspicion of membership of TKP/ML-TIKKO, an illegal organisation. On 14 November 2002 the Istanbul State Security Court ordered the applicant’s pre-trial detention. On 26 December 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant and ten other persons with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. Following the promulgation of Law no. 5190 of 16 June 2004, the case against the applicant was transferred to the 10 th Chamber of the Istanbul Assize Court. According to the information in the case file, the proceedings against the applicant are still pending before the Assize Court. During the proceedings, the first-instance courts examined the applicant’s continued detention at the end of every hearing, either on their own motion or upon the applicant’s request. On each occasion, the courts ordered the applicant’s continued detention having regard to the nature of the offence, the state of the evidence, the current length of his detention and the content of the file. On one occasion, on 26 December 2007, the applicant filed an objection against the order for his continued detention issued by the 10 th Chamber of the Istanbul Assize Court. On 27 December 2007 the 11 th Chamber of the same court dismissed his objection. COMPLAINTS The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had exceeded the “reasonable time” requirement. The applicant contended under Article 5 § 4 of the Convention that there was no remedy in domestic law by which he could challenge the lawfulness of his pre-trial detention. He made the same allegation in relation to his detention in police custody. The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation for his excessively long detention. The applicant maintained under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time. He finally complained under Article 6 § 1 that he had not had access to legal assistance while in police custody and that he was not tried by an independent and impartial tribunal. THE LAW 1.     The applicant complained under Article 5 § 3 of the Convention that the length of his detention pending the criminal proceedings had been excessive. He further maintained under Article 5 § 4 that there had been no effective domestic remedy to challenge the lawfulness of his pre-trial detention. Relying on Article 5 § 5, the applicant complained that he had not had an enforceable right to compensation for his pre-trial detention. Moreover, he complained under Article 6 § 1 of the length of the criminal proceedings brought against him. 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 this part of the application to the respondent Government. 2.     The applicant complained under Article 5 § 4 of the Convention that there was no remedy in domestic law by which he could challenge the lawfulness of his detention in police custody. The Court observes that the applicant’s police custody ended on 14   November 2002 whereas this complaint was introduced on 31 July 2007, more than six months later. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention (see Bakay v. Turkey (dec.), no. 9464/02, 28   September 2006). 3.     Finally, the applicant maintained under Article 6 § 1 of the Convention that he had not had access to a lawyer while in police custody and that he was not tried by an independent and impartial tribunal. The Court observes that the criminal proceedings against the applicant are still pending before the Istanbul Assize Court. The applicant’s complaint under this provision is therefore premature. It follows that it must be rejected under 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 the length of his pre-trial detention and the criminal proceedings brought against him, his rights to take proceedings to challenge the lawfulness of his detention and to have an enforceable right to compensation; Declares the remainder of the application inadmissible. Françoise Elens-Passos   Françoise Tulkens    Deputy Registrar   President