SECOND SECTION

DECISION

Application no. 40365/09 Ahmet EKÄ°NCÄ° against Turkey

The European Court of Human Rights ( Second Section), sitting on 24 January 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 20 July 2009 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ahmet Ekinci , is a Turkish na tional who was born in 1966. The applicant is currently serving a prison sentence in TekirdaÄŸ F ‑ type prison . He is represented before the Court by Ms A. Becerik , a lawyer practising in I stanbul .

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

Following his involvement in the activities of the PKK (the Kurdistan Workers ’ Party), an illegal organisation, and taking part in its camps abroad, in 2000 the applicant surrendered to the Iranian authorities. Having been detained for eighteen months in Iran , the applicant was handed over to the Turkish authorities.

On 9 December 2002 the applicant was taken into police custody in Van, on suspicion of membership of the PKK and committing acts of terrorism.

On 12 December 2002 the applicant was brought before the public prosecutor and the investigating judge, where he stated his wish for the application of Law no. 3419 on Repentance ( Pişmanlık Yasası ). On the same day, the investigating judge ordered the applicant ’ s detention pending trial.

On 27 June 2003 the public prosecutor attached to the Van State Security Court issued a bill of indictment against the applicant, accusing him of carrying out activities with the aim of bringing about the secession of part of the national territory, proscribed by Article 125 of the former Criminal Code.

During the proceedings the applicant ’ s continued detention was reviewed at certain intervals. However, until 24 December 2003 neither the applicant nor his lawyer had an opportunity to appear before the trial court reviewing his detention.

On 28 May 2004, due to the factual and legal connection between the cases, the criminal proceedings against the applicant were joined to a case before the Istanbul State Security Court (2004/111 E.).

By Law no. 5190 of 16 June 2004, the State Security Courts were abolished. The proceedings were subsequently resumed before the Istanbul Assize Court .

The trial court, sitting as a bench of three judges, changed several times in the course of the proceedings.

On the basis of the evidence before it, on 2 November 2007 the Istanbul Assize Court convicted the applicant under Article 125 of the former Criminal Code and sentenced him to strict life imprisonment. In its judgment, the court rejected the applicant ’ s request for the application of Law no. 4959 ( on Reintegration into Society ), observing that he had not fulfilled the conditions set out in law .

On 27 October 2008 the Court of Cassation accepted the applicant ’ s appeal and quashed the first-instance court ’ s judgment.

Following the remittal of the case, on 12 May 2009 the Istanbul Assize Court decided to extend the applicant ’ s detention pending trial, on the basis of the reasonable suspicion that the applicant had committed the offence and the potential criminal sentence at stake.

The applicant lodged an objection against the decision of 12 May 2009 with the 10th Division of the Istanbul Assize Court , claiming that the length of his pre-trial detention had been excessive, contravening the principle of presumption of innocence.

On 26 May 2009 the 10th Division of the Istanbul Assize Court dismissed the applicant ’ s objection to the extension of his pre-trial detention, finding the reasoning of the lower court lawful.

According to the information made public on the official website of the Court of Cassation, on 28 April 2011 the Istanbul Assize Court convicted the applicant. The appeal proceedings, which were subsequently initiated, are currently pending before the former court.

COMPLAINTS

The app licant complained under Article 5 §§ 1 (c) and 3 and Article 6 § 2 of the Convention that the domestic court had not adequately assessed the required level of reasonable suspicion when extending his pre-trial detention. In this connection, he argued that the length of his pre-trial detention had been excessive, in breach of his right to be presumed innocent prior to conviction by any court .

Relying on Article 5 § 4 of the Convention, the applicant alleged that the review of the lawfulness of his continued detention was not effective as it had not taken place at reasonable intervals and the higher court had basically deferred to the same stereotypical reasoning adopted by the lower court. Under the same head , t he applicant also submitted that the review proceedings had been conducted solely on the basis of the case file.

The applicant complained under Article 5 § 5 of the Convention that the compensatory remedy foreseen by the domestic law was not available to him in respect of his allegations under Article 5 , as he was unable to resort to it while the criminal proceedings were pending .

Relying on Article 6 § 1 of the Convention, the applicant argued that the trial court, having decided to detain him for an excessively long time, could not be regarded as impartial. Under the same Article, he next complained that the criminal proceedings against him had been unreasonably lengthy.

Finally, relying on Article 13 of the Convention the applicant alleged that there was no effective remedy provided in the domestic system for his complaints under Articles 5 and 6.

THE LAW

1. Relying on Article 5 §§ 1 (c) and 3 , Article 5 §§ 4 and 5, and Article 6 § 2 of the Convention, the applicant complained that the length of his pre ‑ trial detention had been excessive and that he had been denied an effective review mechanism by which to challenge his continued detention. He further complained that there had been no enforceable right to compensation provided under the domestic law for the alleged contravention of Article 5.

The Court considers that these complaints should be examined from the standpoints of Article 5 §§ 3 and 4 and Article 5 § 5 of the Convention. It further 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. Relying on Articles 6 § 1 and 13 of the Convention, the applicant alleged that the criminal proceedings against him had not been concluded within a reasonable time and that there was no effective domestic remedy by which he could challenge that.

The Court notes that the proceedings have lasted almost nine years at two levels of jurisdiction and finds it necessary at this stage to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

3. The applicant lastly complained under Article 6 of the Convention that he had been denied a fair hearing by an impartial court.

The Court notes that, according to the information in the case file, the criminal proceedings against the applicant are currently pending before the Court of Cassation. This part of the application must therefore be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention (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 right to be released pending trial, the right to bring proceedings to challenge the decision extending his pre-trial detention, the right to an enforceable right to compensation for the alleged breach of Article 5, the length of criminal proceedings and the alleged lack of an effective domestic remedy for lengthy judicial proceedings ;

Declares the remainder of the application inadmissible.

Stanley Naismith Françoise Tulkens              Registrar              President