SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 2694/06 and 31610/08 by Nihat ATEÅž and Veli Ä°smail ALTINOK against Turkey

The European Court of Human Rights (Second Section), sitting on 17 November 2009 as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Danutė Jočienė , András Sajó , Nona Tsotsoria , Işıl Karakaş , Kristina Pardalos , judges, and Fran ç oise Elens-Passos , Deputy S ection Registrar ,

Having deliberated, decides as follows:

THE FACTS

The applicants, who are Turkish nationals, lodged their applications against Turkey on 29 December 2005 and 19 June 2008 respectively .

The first applicant, Nihat Ateş, was arrested on suspicion of committing assault and battery with a fire arm and subsequently detained pending criminal proceedings. The second applicant, Veli İsmail Altınok, was arrested and detained pending criminal proceedings brought against him on charges of counterfeiting and defrauding a bank. Both applicants were released pending trial and, according to the information provided by the applicants in letters dated 24 September 2009 and 4 February 2009, the criminal proceedings against them are still pending before the Gaziosmanpaşa Assize Court (2008/1899 E.) and the Court of Cassation respectively.

The information concerning the dates of the applicants ’ arrests, orders for their pre ‑ trial detention, the bill of indictment, the dates of their release pending trial, the decisions of domestic court s , the total period of pre-trial detention, the grounds for continued detention and the total length of criminal proceedings, as submitted by the applicants, is set out in the table annexed.

COMPLAINTS

Invoking Article 5 § 3 and 6 § 2 of the Convention, the applicant s complained that the length of their detention on remand had been excessive and infringed their right to the presumption of innocence.

Relying both on Articles 5 § 4 and 13 of the Convention, t hey alleged that there was no effective remedy to challenge the lawfulness of their pre-trial detention and that the proceedings, by which they had challenged the decisions for their continued detention, were unfair as they were conducted without any hearings .

The second applicant further contended under Article 5 § 5 of the Convention that he had not had an enforceable right to compensation for the alleged breaches of Article 5 of the Convention.

The applicants complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against them was unreasonably long. In this connection, the second applicant also complained under Article 13 of the Convention that there was no effective remedy in the domestic system to be sought for the excessive length of the proceedings.

THE LAW

1. In view of the similarity of the cases, the Court finds it appropriate to join and examine them together.

2. The applicants complained under Articles 5 § 4 and 13 of the Convention that there was no effective domestic remedy whereby they could challenge the unlawfulness of their pre-trial detention. Relying on Article 5 § 5, the second applicant alleged that there was no compensatory remedy in the domestic system for the alleged violations of Article 5. Relying on Article 6 § 1 of the Convention, the first applicant also complained that his right to be tried within a reasonable time had been violated.

The Court considers that the applicants ’ complaints under Articles 5 § 4 and 13 of the Convention should be examined from the standpoint of Article 5 § 4 alone. It further considers that it cannot, on the basis of the case file s , 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 s to the respondent Government.

3. Relying on Articles 5 § 3 and 6 § 2 of the Convention, the applicants complained about the length of their pre-trail detention.

The Court reiterates at the outset that no separate issue normally arises under Article 6 § 2 of the Convention in cases concerning the length of detention on remand as Article 5 § 3 absorbs the respect for the principle of presumption of innocence ( see Yavuz v . Turkey (dec.), no. 47043/99, 5 October 2004). Therefore, it is appropriate to examine the applicants ’ complaint solely under Article 5 § 3.

The Court observes from the annexed table that the first applicant was held in pre-trial detention for six months (27 June 2005 to 21 December 2005) and the second applicant for fourteen months (12 April 2007 to 23 June 2008) . H aving regard to the charges against them, the Court does not find that these periods were unreasonably lengthy. This part of the application must, therefore, be rejected for being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The second applicant further complained under Articles 6 § 1 and 13 of the Convention that the length of the criminal proceedings against him had exceeded the reasonable time requirement, for which he had had no effective domestic remedy.

According to the information in the case file, the Court observes that the proceedings , which have lasted one year and eight months before the first level of jurisdiction , are now pending at the Court of Cassation. It hold s that the length in question, which has been two years and six months up to date before the two levels of jurisdiction , is not excessive having regard to the subject matter of the case and the serious nature of the offences with which the applicant was charged . Moreover, the applicant has not demonstrated that there have been any substantial periods of inactivity attributable to the domestic authorities. In these circumstances, the applicant does not have an arguable claim of a breach of the Convention, requiring a remedy under Article 13.

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

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicants ’ complaints concerning their right to challenge the lawfulness of their pre-trial detention, the right of Veli İsmail Altınok to have an enforceable right to compensation and the right of Nihat Ateş to have a fair trial within a reasonable time;

Declares the remainder of the application s inadmissible.

F rançoise Elens-Passos Françoise Tulkens Deputy Section Registrar President

Information concerning the application

Date of arrest

Date of the pre-trial detention order

Date of the bill of indictment

The date of release pending trial

Date of the judgments of the first instance court

Date of the decisions of the Court of Cassation

Total period of pre-trial detention (on the basis of the information in the case file)

Total length of the criminal proceedings (on the basis of the information in the case file)

1- 2694/06 introduced on 29 December 2005 by Nihat AteÅŸ represented by Ä°nan AkmeÅŸe

27 June 2005

28 June 2005

14 November 2008

21 December 2005

-

-

6 months

4 years and 3 months (until the applicant ’ s last l e tter dated 24 September 2009)

2 - 31610/08 introduced on 19 June 2008 by Veli İsmail Altınok represented by Sedat Yüksel

12 April 2007

13 April 2007

29 June 2007

23 June 2008

29 December 2008 (conviction)

Pending

1 year and 2 months

2 years and 6 months (until the present time, September 2009)