SECOND SECTION

DECISION

Application no . 6593/08 by Bekir KILIÇASLAN against Turkey

The European Court of Human Rights ( Second Section), sitting on 17 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 25 January 2008 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bekir Kılıçaslan , is a Turkish national who was born in 1972 and lives in İzmir . He is represented before the Court by Mr İ. Akmeşe , a lawyer practising in Istanbul .

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

On 29 November 2004 the applicant and four others were arrested on suspicion of involvement in an illegal organisation.

On 3 December 2004 he was taken before the public prosecutor and the investigating judge, E.C., at the Istanbul Assize Court , who remanded the applicant in pre-trial custody on the basis of the nature of the charges, the state of the evidence in the case file and the risk of absconding.

On 7 December 2004 the public prosecutor at the Istanbul Assize Court filed a bill of indictment against the applicant and four others, charging them with membership of an illegal organisation under Article 168 § 2 of the former Criminal Code (No.765).

The applicant alleged that the investigating judge who had ordered his pre-trial detention had taken part in the criminal proceedings as a judge member of the trial court.

According to the submissions in the case file, Judge E.C. was present at the first hearing as a judge member of the trial court, and was then replaced by another member in the course of the proceedings.

On 14 March 2006 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation and sentenced him to six years and three months ’ imprisonment.

On 24 January 2007 the Court of Cassation quashed the judgment, observing that the trial judges ’ signatures were missing from the draft judgment.

During the proceedings, the Istanbul Assize Court refused several requests by the applicant to be released pending trial, having regard to the nature of the charge, the existence of a reasonable suspicion against him, the state of the evidence and the time the applicant had spent in detention.

Following the trial court ’ s decision of 19 July 2007 to extend the applicant ’ s pre-trial detention, the applicant lodged an objection to this decision with a higher court, requesting to be released.

The applicant alleged that the public prosecutor ’ s written opinion had not been communicated to him during the proceedings before the 11 t h Istanbul Assize Court .

On 7 August 2007 the 11 th Chamber of the Istanbul Assize Court dismissed the applicant ’ s objection, taking into account the nature of the criminal charge brought against him and the state of the evidence in the case file.

On 6 November 2007 the Istanbul Assize Court once again convicted the applicant of membership of an illegal organisation under Article 314 § 2 of the Turkish Criminal Code (No. 5237). In its judgment, the court ordered the release of the applicant, having taken into consideration the total length of his pre-trial detention.

According to the submissions in the case file, t he criminal proceedings are currently pending before the Court of Cassation.

COMPLAINTS

The applicant complained under Article s 5 § 3 and 6 § 2 of the Convention that the length of his pre-trial detention had been excessive and in breach of his right to be presumed innocent before any conviction .

Relying on Article 5 § 4 of the Convention, the applicant alleged that he had been denied a fair and adversarial hearing in the proceedings reviewing the lawfulness of his continued detention. In this connection, he maintained that he had not been given an opportunity to submit arguments to the domestic court, as the public prosecutor ’ s opinion had not been notified to him, nor had any oral hearing been held.

The applicant next complained under Article 5 § 5 of the Convention that there was no enforceable right to compensation under the domestic law for his complaints under Article 5.

The applicant submitted under Article 6 § 1 that the Istanbul Assize Court was not an impartial and independent court, due to its special jurisdiction on certain offences. Under the same heading, the applicant contended that the same judge, having decided to place him in pre-trial detention, had also taken part in the trial as a judge member. In addition, the applicant complained that there had been no oral hearing before the Court of Cassation in the appeal proceedings, and that the length of the criminal proceedings against him had been excessive.

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

THE LAW

1. The applicant complained under Article 5 §§ 3 and 4 of the Convention that the length of his pre-trial detention had exceeded the reasonable-time requirement and that he had been denied effective review proceedings to challenge his continued detention. The applicant further complained under Article 5 § 5 of the Convention that there was no enforceable right to compensation for the alleged contravention to Article 5. The Court cannot, on the basis of the case file, determine the admissibility of these complaints at the present stage. 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 in that respect. The Court notes that the proceedings have lasted almost seven 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 § 1 of the Convention that he had been denied a fair trial due to the lack of impartiality and independence of the trial court as a whole, and of one judge member in particular. Under the same head, he also complained that there had been no oral hearing before the Court of Cassation.

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. For this reason, the complaints concerning the alleged denial of a fair trial are premature and 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 complaint s concerning the right to be released pending trial, to take proceedings to challenge the decision extending his pre-trial detention, to enforceable compensation for the alleged breach of Article 5, the length of criminal proceedings and the alleged lack of an effective domestic remedy for undue length of judicial proceedings ;

Declares the remainder of the application inadmissible.

Stanley Naismith Françoise Tulkens              Registrar              President