SECOND SECTION

DECISION

Application no . 32015/09 Hebun Hakan AKKAYA against Turkey

The European Court of Human Rights (Second Section), sitting on 27 March 2012 as a Chamber composed of:

Françoise Tulkens , President , Danutė Jočienė , Isabelle Berro-Lefèvre , András Sajó , Işıl Karakaş , Paulo Pinto de Albuquerque , Helen Keller, judges , and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 25 May 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hebun Hakan Akkaya , is a Turkish national who was born in 1992 and lives in Diyarbakır . He is represented before the Court by Ms M. Danış Beştaş and Mr M. Beştaş , lawyers practising in Diyarbakır .

1. Criminal proceedings against the applicant

On 14 July 2008 the applicant, who was sixteen years old at the time, was arrested by police officers during a demonstration on suspicion of being involved in the activities of an illegal organisation.

On 17 July 2008 the applicant was questioned by the Diyarbakır Public Prosecutor in the presence of a lawyer.

On the same date, the applicant was brought before the Diyarbakır Investigating Judge, who ordered the applicant ’ s detention pending trial, having regard to the nature of the offence, the state of the evidence and the existence of a strong suspicion that he had committed the offence he was accused of. It appears that the applicant was not represented by a lawyer at this stage.

On 20 July 2008 the Diyarbakır Public Prosecutor issued an indictment charging the applicant with aiding and abetting an illegal organisation under Article 314 of the Criminal Code.

On 23 July 2008 the criminal proceedings against the applicant commenced before the Diyarbakır Assize Court, assize courts having jurisdiction to try aggravated offences enumerated under Article 250 § 1 of the Code of Criminal Procedure.

Over the course of the proceedings, the assize court held eight hearings. The applicant ’ s requests to be released pending trial were rejected by the trial court, having regard to the nature of the offence and the state of the evidence. The applicant ’ s lawyer drew attention to the applicant ’ s age during the hearings.

On 22 April 2009 the trial court sentenced the applicant to a total of six years and eleven months ’ imprisonment. It also ordered the applicant ’ s release, taking into account the total period of his detention and the penalty imposed on him.

According to information obtained from the website of the Court of Cassation, the proceedings are still pending.

2. Disciplinary proceedings concerning the applicant ’ s father

It appears from the case file that on 3 December 2008 the applicant ’ s father (who was a detainee at Diyarbakır E-type Prison) was given a disciplinary sanction, namely a ban on visiting rights, for a period of one year on the grounds that he had provoked detainees and visitors by making the victory sign of an illegal organisation, namely the PKK.

On 10 December 2008 the applicant, who was in the same prison as his father, was not allowed to see his father by the prison authorities on account of the disciplinary sanction imposed on his father.

On 16 February 2009 the applicant ’ s lawyer applied to the Diyarbakır Enforcement Court to have the disciplinary sanction imposed on the applicant ’ s father removed. The application was dismissed on 2 March 2009.

On 16 March 2009 the Diyarbakır Assize Court rejected the applicant ’ s subsequent appeal against that decision.

COMPLAINTS

The applicant complained under Article 5 § 1 of the Convention that he had been unlawfully detained and that his detention had not fallen within the scope of the permissible grounds of detention set out in Article 5 § 1. He maintained under Article 5 § 3 that his pre-trial detention had exceeded the reasonable time requirement, having regard to his age. The applicant alleged that he had not been allowed to contact his lawyer or his relatives within the first twenty-four hours following his arrest.

Relying on Article 6 of the Convention, the applicant complained of the lack of impartiality and independence of the assize courts, which have jurisdiction to try aggravated offences enumerated under Article 250 § 1 of the Code of Criminal Procedure, alleging that these courts were the continuation of the state security courts. He further argued that he had been tried by the assize court, instead of by a juvenile court. The applicant submitted that he had been denied a fair hearing on the basis of a wrongful assessment of the facts and evidence and an inadequate expert report and that he had been convicted despite a lack of evidence. He also contended that his right to be tried within a reasonable time had been violated, having regard to his age.

Relying on Article 7 in conjunction with Article 6 of the Convention, the applicant complained of the application of Articles 220 and 314 of the Criminal Code to his case. In this respect, he challenged the interpretation of certain Articles of the Criminal Code.

The applicant further argued that his rights under Article 8 had been violated as a result of the disciplinary sanction imposed on his father, namely a ban on receiving visitors ( görüş yasağı ) for one year. The applicant concluded that the restrictions on his contact with his father had therefore been unlawful.

Relying on Article 10 of the Convention, the applicant alleged that his freedom of expression had been breached, as the charge had mainly concerned his participation in a demonstration.

Citing Article 13 of the Convention, the applicant complained that he had not had an effective domestic remedy – in particular, for the violation under Article 8 of the Convention – for the violations in his case.

The applicant maintained under Article 14 of the Convention that people who had been charged with a crime concerning the PKK were subjected to different treatment and that they received heavier penalties.

Lastly, the applicant contended under Article 2 of Protocol No. 1 to the Convention that his right to education had been breached on account of his suspension from school during his detention pending trial.

THE LAW

1. The applicant complained of violations of Articles 5 § 3 and 6 § 1 of the Convention, in that the length of his pre-trial detention and the length of the criminal proceedings brought against him had been excessive. He also submitted under Article 8 of the Convention that his right to respect for his private and family life had been breached and that there had been no effective remedy in domestic law for his complaint.

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 the Court, to give notice of them to the respondent Government.

2. The applicant alleged that his detention h ad been contrary to Article 5 § 1.

The Court reiterates that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on suspicion of his or her having committed an offence. A “reasonable suspicion”, referred to in Article 5 § 1 (c) of the Convention, that a criminal offence has been committed presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence.

The Court observes in the present case that the applicant was taken into police custody and then detained on suspicion of being involved in the activities of an illegal organisation . Later, on 22 April 2009 the assize court convicted the applicant. The Court does not consider that the applicant ’ s detention was contrary to Article 5 § 1 of the Convention. It follows that this complaint is manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Under Article 5 of the Convention, the applicant further contended that he had not been allowed to see his lawyer and his relatives within the first twenty-four hours following his arrest.

The Court considers that the complaint concerning the applicant ’ s having been denied access to his lawyer should be examined from the stand point of Article 6 of the Convention (see below). As regards the complaint concerning the applicant ’ s contact with his relatives immediately after his arrest, the Court observes that the applicant ’ s police custody ended on 17 July 2008, whereas he filed his a pplication with the Court on 25 May 2009. Therefore, this complaint was lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention (see Arslan v. Turkey ( dec .), no.31320/02, 1 June 2006).

4. Citing Articles 6, 7, 10 and 14, the applicant complained of the unfairness of the criminal proceedings, about the interpretation of certain Articles of the Criminal Code, of a violation of his freedom of expression and of being subjected to different treatment.

The Court notes that, according to the information in the case file, the criminal proceedings against the applicant are still pending before the Court of Cassation. This part of the application is premature and must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

5. The applicant contended that he had been denied the right to education due to his detention pending trial.

The Court notes that the applicant was only prevented from continuing his education during the period corresponding to his lawful detention pending trial. This cannot be construed as a deprivation of the right to education within the meaning of Article 2 of Protocol No. 1 to the Convention. This part of the application should be rejected within the meaning of Article 35 § 3 as being manifestly ill-founded (see, mutatis mutandis , Georgiou v. Greece ( dec .), no. 45138/98, 13 January 2000).

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the length of both his pre-trial detention and the criminal proceedings against him and concerning the alleged interference with his private and family life and a lack of domestic remedies in that regard;

Declares the remainder of the application inadmissible.

Stanley Naismith Françoise Tulkens Registrar President