SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9192/04 by Süleyman DENİZ against Turkey

The European Court of Human Rights ( Second Section ), sitting on 6 September 2011 as a Chamber composed of:

Françoise Tulkens , President, Danutė Jočienė , Dragoljub Popović , Giorgio Malinverni , Işıl Karakaş , Guido Raimondi , Paulo Pinto de Albuquerque , judges, and Françoise Elens-Passos , Deputy S ection Registra r ,

Having regard to the above application lodged on 16 January 2004 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr S ü leyman Deniz , the son of Mehmet Emin Deniz , who is mentally incapable of managing his affairs, lodged the application on his father ’ s behalf. The applicant is a Turkish national, was born in 1966 and lives in İ zmir . He is represented before the Court by Mr S. Cengiz , a lawyer practising in İzmir .

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

On 12 April 2003 the applicant ’ s father was taken into police custody on suspicion of stabbing a person. After his statement was taken by the police, he was released on the same day.

As the victim ’ s medical report revealed that he had sustained life-threatening injuries and had been unfit to work for twenty-five days, on 9 May 2003 the Magistrates ’ Court decided to detain the applicant ’ s father pending trial on account of the severe nature of the offence.

On 14 May 2003 the public prosecutor filed a bill of indictment charging him with aggravated assault.

At the first five hearings, the lawfulness of his pre-trial detention was reviewed by the Ä°zmir Criminal Court.

At the hearing held on 16 May 2003, the applicant ’ s father confirmed his statement given to the police and admitted the offence.

At the hearing held on 12 June 2003, due to the appearance of his state of health, the court had doubts as to whether he was capable of comprehending the charges against him and defending himself in the proceedings. Accordingly, the court appointed an attorney for him and decided to have his mental capabilities examined by a competent authority.

Having regard to the absence of a hea l th report in the case file, the severity of the offence and the state of the evidence, at the hearing held on 10 July 2003 the court decided to continue the detention of the applicant ’ s father.

The first medical report lodged in the case file having stated that Mehmet Emin Deniz was mentally fit and that he had criminal liability, at the hearing held on 26 August 2003 the defence attorney objected to the findings of the report and requested the court to obtain another medical report. The court dismissed the request but in order to clarify the medical condition of the applicant ’ s father, as his speech was unclear and incomprehensible, it ordered a sign language and a Kurdish interpreter to be made available at the next hearing in order to assess whether he was deaf and dumb or could only communicate in Kurdish.

At the next hearing, on 15 September 2003, the Kurdish interpreter stated that the applicant ’ s father had not given comprehensible responses and had not shown any sign of understanding Kurdish. Although his medical condition had not been clarified completely, the court decided to release him on bail, as the state of the evidence had been sufficiently established in the proceedings.

On 23 February 2004 the court ordered an examination of his hearing by Forensic Medicine Institute . However, only on 22 February 2005 did he comply with the order and appear for an expert examination.

The second medical report found that while the applicant ’ s father ’ s hearing was significantly deficient, he could not be considered either deaf or dumb. In line with the medical report, suggesting a need for further examination, on 2 March 2006 the court requested another assessment by the Specialised Chamber of the Forensic Medicine Institute concerning the his mental capacity.

The applicant ’ s father failed to appear at the I nstitute for the medical examination until 21 June 2007.

The final medical report dated 18 July 2007 revealed that he was mentally incapable.

On 23 October 2007 the court followed the findings of the medical report and found that the father was mentally incapable and unfit to be held criminally responsible and it consequently discontinued the criminal proceedings against him.

COMPLAINTS

The applicant complained under Article 5 §§ 1(c) and 2 that Mehmet Emin Deniz had been arrested without a reasonable suspicion and that the authorities had failed to inform him adequately about the reason of arrest.

Invoking Articles 5 § 3 and 8, the applicant claimed that the length of his father ’ s detention on remand had been excessive and that after this detention his mental health had deteriorated significantly, which adversely affected his family life and relations.

The applicant relied on Articles 5 §§ 4 and 5 and 13 and complained that there had been no effective remedy to challenge the lawfulness of the pre-trial detention.

Relying on Article 6 §§ 1 and 3(a), (c) and (e) the applicant further complained that his father had not been informed about the charges against him in a way he could have understood and that he had not benefited from legal assistance until 10 July 2003.

Finally, the applicant complained under the same Article of the Convention that the length of the criminal proceedings against his father was unreasonable.

THE LAW

1. The applicant complained under 5 §§ 1(c) and 2 that there had been no reasonable suspicion to justify Mehmet Emin Deniz ’ s arrest and that he had not been adequately informed about the reasons for his arrest and about any charges against him. The Court notes that the applicant ’ s father was arrested on 12 April 2003 and released on the same day. This part of the application is to be rejected as being out of time, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. As regards to the complaint under Articles 5 § 3 and 8, alleging that the length of the pre-trial detention was excessive, which adversely affected Mehmet Emin Deniz ’ s health, the Court finds it appropriate to examine it solely under Article 5 § 3.

In the course of the proceedings, the domestic court held hearings frequently to review the lawfulness of the father ’ s detention and demonstrated an adequate concern over the clarification of his uncertain medical condition. In this regard, the domestic authorities satisfied the requirement of acting with due diligence. Moreover, the first instance court provided relevant and sufficient grounds justifying his detention of four months and six days and as soon as the state of evidence was duly established, it released him pending trial. In the light of these circumstances, the Court holds that the length of Mehmet Emin Deniz ’ s detention did not exceed the “reasonable time” requirement.

Consequently, this part of the application should be rejected as being manifestly ill-founded.

3. The applicant relied on Article 6 § 3(a), (c) and (e) and complained that his father had not been adequately informed about the charges against him and had been deprived of an interpreter and a legal assistant during the proceedings.

The Court recalls that the criminal prosecution against the applicant ’ s father was discontinued after it was established that he had no criminal liability due to his mental incapacity. This part of the application should be rejected as being manifestly ill-founded, as he has no victim status .

4. The applicant complained under Article 5 §§ 4 and 5 that there was no effective remedy to challenge the lawfulness of his father ’ s pre-trial detention and that his father had been denied compensation. 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.

5. The applicant lastly complained about the length of the proceedings and invoked Article 6 § 1 in this regard. The Court notes that the proceedings before the first instance court lasted four years and five months and finds it necessary in 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the applicant ’ s father ’ s right to take proceedings to challenge the lawfulness of his detention, to an enforceable right to compensation and to a trial within a reasonable time ;

Declares the remainder of the application inadmissible.

Françoise Elens - Passos Françoise Tulkens              Deputy Registrar              President