SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7945/05 by Özgür UYANIK and Ozan KABADAYI against Turkey

The European Court of Human Rights (Second Section), sitting on 27 March 2008 as a Chamber composed of:

Françoise Tulkens , President, Antonella Mularoni , Ireneu Cabral Barreto , Rıza Türmen , Danutė Jočienė , Dragoljub Popović , Nona Tsotsoria , judges , and Sally Dollé, Section Registrar ,

Having regard to the above application lodged on 8 February 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility a nd merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Özgür Uyanik and Ozan Kabadayı, are Turkish nationals who were both born in 1974 and were detained in Kartal Prison at the time of lodging their application with the Court . They are represented before the Court by Mr E. Olcaytu, a lawyer practising in İ stanbul.

The circumstances of the case

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

On 16 May 1996 the applicants were arrested and taken into police custody by officers of the İstanbul security police in connection with an investigation into an illegal organisation , the THKP / C Devrimci Yol Örgütü (the Turkish People ’ s Liberation Party/Front – Revolutionary Way ).

On 30 May 1996 the applicant s w ere brought before the Ä°stanbul public prosecutor and the n the investigating judge . Taking into account the seriousness of the allegations, the judge remanded the applicant s in custody .

By an indictment dated 27 June 1996 , the public prosecutor at the Ä°stanbul State Security Court initiated criminal proceedings against the applicant s and a number of others, accusing them, inter alia , of membership of an illegal armed organisation and of taking part in its activities.

The trial commenced before the Ä°stanbul State Security Court .

On 18 June 1999 the Constitution was amended and the military judge sitting on the bench of the Ä°stanbul State Security Court wa s replaced by a civilian judge.

On 4 June 2003 the İstanbul State Security Court sentenced the applicants to life imprisonment, pursuant to Article 1 46 § 1 of the Criminal Code .

On 20 January 2004 the Court of Cassation qu ashed the judgment of the first- i nstance court and remitted the case.

State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. Subsequently, the applicants ’ case was resumed before the 12 th Assize Court of İstanbul, where the proceedings are apparently still pending.

Referring to recent amendments in domestic law, on 27 December 2004 the applicants requested to be released pending trial. Relying on the accusations against the applicants, the length of their detention and the content of the case file, the 12 th Assize Court of İstanbul refused the applicants ’ request on 29 December 2004. The applicants appealed. On 18 January 2005 the 13 th Assize Court of İstanbul dismissed their appeal without further reasoning.

COMPLAINTS

The applicants complain ed under Article 5 of the Convention about the length of their police custody and a lack of reasonable suspicion for their arrest . They further stated that they had no remedy under domestic law in respect of their complaint concerning the length of their police custody.

Relying on Article 6 of the Convention, the applicant s maintained that they had not received a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of the İstanbul State Security Court . In this respect they asserted that the court accommodated the public prosecutor ’ s requests whilst rejecting theirs, and that the judgment had been based on their statements taken under duress while in police custody.

They further complained under Article 6 of the Convention about the length of the criminal proceedings as well as the length of their detention, which had infringed t he i r right to b e presumed innocent until proven guilty.

THE LAW

1. Relying on Article 6 of the Convention, the applicants complained that the length of their detention and of the criminal proceedings brought against them has exceeded the reasonable time requirement of the Convention, in breach of the principle of the presumption of innocence.

The Court considers that the applicants ’ complaint concerning the length of their detention falls within the scope of Article 5 § 3 of the Convention.

The Court adds 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. The applicants relied on Article 5 and complained about the length of their detention in police custody. They submitted that they had been arrested when they were not legally suspects. They maintained in this respect that they had no remedy under domestic law in respect of either of their complaints.

The Court observes that the applicants ’ police custody ended on 30 May 1996. However, the application was lodged with the Court on 8 February 2005, which is more than six months after the date of the events giving rise to the alleged violation.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicants maintained under Article 6 of the Convention that they had not been tried by an independent and impartial court.

The Court observes that the criminal proceedings against the applicants are pending before the domestic courts . These complaints are therefore premature. Consequently, this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ’ complaints concerning the length of their detention and the length of the criminal proceedings brought against them ;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens Registrar President