THIRD SECTION

PARTIAL DECISION

Application no. 17366/02 by Sinan YANAR and Others against Turkey

The European Court of Human Rights ( Third Section), sitting on 19 October 2006 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr R. Türmen , Mr C. Bîrsan , Mrs A. Gyulumyan , Mr David Thór Björgvinsson , Mrs I. Ziemele , judges , and Mr V . Berger , Section Registrar ,

Having regard to the above application lodged on 18 June 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Sinan Yanar , Mr İbrahim Yanar , Ms Fadime Yanar , and Mr Erdal Yanar , are Turkish nation als. Sinan Yanar was born on 28 February 1984 and lives in Germany . They are represented before the Court by Mrs Ayşegül Topuz , a lawyer practising in Istanbul .

A. The circumstances of the case

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

The first applicant, Sinan Yanar , is the son of the second and third applicants, Ä°brahim Yanar and Fadime Yanar , and the brother of the fourth applicant, Erdal Yanar .

On 5 May 2000 Sinan Yanar and two other students were taken into custody by plain-clothes police officers while they were at school. They were suspected of having participated in an illegal demonstration on 21 March 2000 and having illegally put up a banner on a public building on 14 March 2000 . According to the arrest protocol drawn up by the police officers, Sinan Yanar and his friends were taken into custody on suspicion of membership of an illegal organisation, the DHKP-C. The police officers informed the school administration that Sinan Yanar and his friends had been taken into custody on suspicion of consumption of illegal drugs.

Following his arrest, Sinan Yanar ’ s legal representative appealed against the arrest. On 7 May 2000 a single judge at the Istanbul State Security Court dismissed the appeal.

On 9 May 2000 the public prosecutor at the Istanbul State Security Court requested the latter to extend the custody period. On the same day, the Istanbul State Security Court decided to extend the custody period by three days.

On 12 May 2000 the Istanbul State Security Court ordered the applicant ’ s detention on remand. The applicant was subsequently sent to Ümraniye prison.

On 15 May 2000 the Istanbul State Security Court upheld the decision of 7 May 2000 .

On an unspecified date the public prosecutor at the Istanbul State Security Court filed a bill of indictment accusing Sinan Yanar of membership of the DHKP-C under Article 168 of the Criminal Code.

Subsequently, the Üsküdar public prosecutor filed a further indictment with the Üsküdar Criminal Court of First Instance against Sinan Yanar , accusing him of participation in an illegal demonstration.

In October 2000 the inmates in Ãœmraniye Prison, as well as the inmates of other prisons in Turkey , started a hunger strike to protest against the opening of F-type prisons. In December 2000 security forces intervened in the prisons where hunger strikes were taking place. As a result of the operations conducted in Ãœmraniye Prison, Sinan Yanar was seriously injured and hospitalised. He remained in hospital for two days. The applicant was then sent to Edirne F-type Prison. It is to be noted that following the operations neither Sinan Yanar nor his family members filed a complaint against the members of the security forces.

On 23 March 2001 the Üsküdar public prosecutor filed a bill of indictment with the Üsküdar Assize Court against Sinan Yanar and 398 other persons on account of the incidents in Ümraniye Prison and requested the court to convict them under Articles 264, 304, 450, 456 and 457 of the Criminal Code of having started a riot in the prison, of homicide and of having damaged public property.

In the meantime, o n 26 February 200 1 the Istanbul State Security Court ordered Sinan Yanar ’ s release pending trial. However, he was not immediately released as his detention on remand had been ordered within the context of the proceedings brought against him following the incidents of December 2000. The applicant ’ s objection against the detention order was dismissed and he remained in detention for a further six months.

In April 2001 the applicant was transferred to TekirdaÄŸ F-type Prison. He was eventually sent to Kartal Special Type Prison.

On an unspecified date, the applicant was released from prison. He then went to Germany , where he currently lives.

Subsequent to promulgation of Law no. 5190 on 16 June 2004 , which abolished the State Security Courts, the Istanbul Assize Court acquired jurisdiction over the case which had been before the Istanbul State Security Court .

In 2004 the applicant, along with several other persons, filed a complaint against the security forces who conducted the operations in Ümraniye Prison. Subsequently, a case was brought against the members of the security forces. On 29 April 2005 the applicant joined to the case as a civil party ( müdahil ).

Both the criminal proceedings brought against Sinan Yanar and the case brought against the security forces are still pending.

B . Relevant domestic law

Article 107 of the Regulations on the administration of penitentiary institutions and the execution of sentences (no. 6/8517) provides as follows:

...

b) Prisoners detained on remand shall be held in separate institutions or sections than the convicted prisoners.

Women prisoners detained on remand shall be placed separately from men and juveniles shall be placed separately from other prisoners on remand.

...”

COMPLAINTS

The applicants complain under Article 2 of the Convention that Sinan Yanar ’ s right to life was violated as he was seriously injured in the course of the operations in Ümraniye Prison.

They contend under Article 5 of the Convention that Sinan Yanar was kept in police custody for excessive length of time. They further allege under the same heading that as a juvenile he should not have been kept detained in an ordinary prison.

The applicants allege under Article 6 § 3 (c) of the Convention that Sinan Yanar did not receive a fair trial as he was deprived of his right to legal assistance and his right to see his family members during his detention in police custody. They further contend under the same heading that Sinan Yanar had experienced difficulties in communicating with his lawyer due to the video surveillance in the prison.

THE LAW

A. As regards the applicant Fadime Yanar

The Court notes that Fadime Yanar died in March 2003 and that no r equest has been submitted by that applicant ’ s heirs to pursue the examination of the case. In these circumstances, the Court concludes that it is no longer justified to continue the examination of the application insofar as it was brought by Fadime Yanar within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the examination of th is part of the application by virtue of that Article. It therefore decides to strike the application out of its list of cases insofar as it was brought by Fadime Yanar .

B . As regards the applicants Ä°brahim Yanar and Erdal Yanar

The Court recalls that a person, non-governmental organisation or a group of individuals must, in order to be able to lodge a petition in pursuance of Article 34, claim “to be the victim of a violation ... of the rights set forth in the Convention...” While it is true the rules of admissibility governed by Article 35 must be applied with some degree of flexibility and without excessive formalism, Article 34 requires that an individual applicant should claim to have been actually affected by the violation alleged.

In the present case, the Court observes that the complaints brought by the applicants did not concern an interference with İbrahim and Erdal Yanar ’ s Convention rights by the authorities of the respondent State. The Court therefore considers that İbrahim Yanar and Erdal Yanar are not victims of the alleged violations.

It follows that this complaint 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.

C . As regards the applicant Sinan Yanar

1. The applicant complains under Article 5 of the Convention that he was kept in police custody for an excessive length of time. He further complains under the same head that he was detained on remand in prison along with adults.

The Court considers that these complaints should be examined under Article 8 of the Convention and 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 complains under Article 2 of the Convention that he was seriously injured in the course of the incidents in Ãœmraniye Prison.

The Court considers that this complaint should be examined from the standpoint of Article 3 of the Convention. It further reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from having to answer for their acts before an international body prior to having had an opportunity to put matters right through their own legal system (see De Wilde , Ooms and Versyp v. Be lgium , j udgment of 18 June 1971, Series A no. 12, § 50).

In the instant case, the applicant was injured and hospitalised in Ümraniye prison in December 2000 and neither he nor his family members lodged a complaint with the prosecution authorities complaining about the treatment he had suffered prior to the lodging of their application with the Court on 18 June 2001. In this connection, the applicant and his family members maintained that they were threatened and feared reprisal s had they filed a complaint. The Court considers that this submission is unfounded given that they did not face any negative consequences subsequent to Sinan Yanar ’ s joining to the proceedings brought against the security forces as a civil party . The Court further points out that the applicant was represented by a lawyer in the course of the criminal proceedings against him. Accordingly, a criminal complaint could well have been filed by his lawyer before the lodging of the application to the Court.

Even assuming that the applicant ’ s complaint and subsequent joining to the proceedings brought against the security forces in 2004 could be considered to be taking the requisite steps on the applicant ’ s part with a view to exhausting the domestic remedies, the Court observes that these proceedings are still pending.

In view of the above, the Court concludes that the applicant has failed to exhaust domestic remedies and that this part of the application must be rejected as being inadmissible under Article 35 §§ 1 and 4 of the Convention.

3. The applicant alleges under Article 6 § 3 (c) of the Convention that he did not receive a fair trial as he had been deprived of his right to legal assistance and his right to see his family members during his detention in police custody. He further contends under the same head that he had experienced difficulties in communicating with his lawyer due to the video surveillance in the prison.

The Court observes that the proceedings brought against the applicant are still pending before the Üsküdar Criminal Court of First Instance, the Üsküdar Assize Court and the Istanbul Assize Court .

The Court is consequently not in a position to make an overall examination of the pr oceedings against the applicant and considers that it cannot speculate either on what the national courts will decide or on what the outcome of appeal s on points of law might be since that remedy would still be available to the applicant if he was to consider that his trial s had ultimately infringed the rights on which he relied before the Court (see Dikme v. Turkey , no. 20869/92, § 111, ECHR 2000-VIII).

It follows that this part of the application is manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases insofar as brought by the applicant Fadime Yanar ;

Decides to adjourn the examination of the complaints concerning Sinan Yanar ’ s right to be brought promptly before a judge and his detention in prison along with adults insofar as brought by the applicant Sinan Yanar ;

Declares the remainder of the application inadmissible.

Vincent Berger Bo š tjan M. Zupančič Registrar President