AS TO THE ADMISSIBILITY OF

Application No. 29874/96

by Bahattin Åžahin

against Turkey

The European Commission of Human Rights (Second Chamber) sitting in private on 9 September 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 December 1995 by Bahattin Åžahin against Turkey and registered on 22 January 1996 under file No. 29874/96;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1958, is a Turkish citizen currently imprisoned in Aydĸn . He is represented before the Commission by Mrs Bengül Ekler Kavak and Mr İsmail Kavak , lawyers practising in İzmir .

The facts of the present case, as submitted by the applicant, may be summarised as follows.

On 20 April 1991 the applicant was taken into custody by policemen from the Anti-Terrorist Branch of the Ä°zmir Security Directorate on suspicion of being a member of an illegal terrorist organisation.

On 30 April 1991 the Ä°zmir State Security Court ordered the applicant to be detained on remand.

On 1 July 1991 the public prosecutor attached to the Ä°zmir State Security Court filed a bill of indictment against the applicant and eleven others. He charged the applicant with being a member of an illegal terrorist organisation, the PKK, and with involvement in certain bombings in public places.

On 28 September 1993 the Ä°zmir State Security Court convicted the applicant on all the charges.

On 18 January 1995 the Court of Cassation quashed the judgment of 28 September 1993 on the ground that some procedural requirements had not been met.

At a hearing on 31 October 1995 the Ä°zmir State Security Court rejected the applicant's request for release pending trial. The court based its decision mainly on the following grounds:

- the nature of the offences alleged against the applicant, which could be                                        categorised as serious crimes and gave rise to a presumption of a danger of                           absconding;

- the date on which the applicant had been taken into custody;

- the state of the evidence.

At a hearing on 27 November 1995 the court again rejected the applicant's request for release pending trial, on the same grounds.

On 29 November 1995 the applicant filed an objection with the court against the refusal of his request for release pending trial.

On 1 December 1995 the Ä°zmir State Security Court reconvicted the applicant and sentenced him to 12 years and 6 months' imprisonment in respect of the first offence and to 5 years 6 months and 20 days' imprisonment, together with a fine of 20,000 Turkish liras, in respect of the second offence. The court did not reply to the applicant's objection of 29 November 1995.

On 10 July 1997 the Court of Cassation upheld the judgment .

COMPLAINTS

1. The applicant complains under Article 5 para . 3 of the Convention that he was detained on remand for an excessive length of time.

2. The applicant also claims not to have had the lawfulness of his detention decided speedily by a court, as required under Article 5 para . 4 of the Convention, as his objection of 29 November 1995 was not considered by the Ä°zmir State Security Court.

3. The applicant also submits that his right to a fair trial was breached as his applications for release pending trial were not considered, or were arbitrarily rejected, by the court. He invokes Article 6 para . 1 of the Convention.

THE LAW

1. The applicant complains under Article 5 para . 3 of the Convention that he was detained on remand for an excessive length of time.

The Commission notes that the applicant was taken into custody on 20 April 1991, that he was first convicted on 28 September 1993, that this conviction was quashed on 18 January 1995, that the applicant was again convicted on 1 December 1995, and that he remained in detention throughout this period.

The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para . 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government.

2. The applicant claims not to have had the lawfulness of his detention decided speedily by a court, as required under Article 5 para . 4 of the Convention, as his objection of 29 November 1995 was not considered by the Ä°zmir State Security Court.

The Commission notes, however, that the applicant's conviction followed only two days later, i.e. on 1 December 1995, and that the applicant was then sentenced to long periods of imprisonment. This judgment created a new basis for the applicant's further detention, and his request of 29 November 1995 must be considered thereby to have become obsolete or to have been implicitly rejected.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

3. The applicant further submits that his right to a fair trial under Article 6 para . 1 of the Convention was also breached as his applications for release pending trial were not considered, or were arbitrarily rejected, by the court.

The Commission notes that Article 6 of the Convention is not applicable to proceedings regarding release from detention. However, the present complaint may be considered to relate in substance to Article 5 para . 4 of the Convention.

In this respect, the Commission finds that the applicant's complaint does not disclose any breach of that provision.

It follows that this complaint is also manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaint that he was detained on remand for an excessive length of time;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

   M.-T. SCHOEPFER                                                               J.-C. GEUS

      Secretary                                                                                  President

to the Second Chamber                                                   of the Second Chamber