SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 803/04 by Hüseyin DUMAN against Turkey

The European Court of Human Rights (Second Section), sitting on 11 December 2007 as a Chamber composed of:

Mrs F. Tulkens , President, Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mrs A. Mularoni , Mrs D. Jočienė , judges, and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 15 October 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hüseyin Duman, is a Turkish national who was born in 1974 and is currently being detained in prison in Diyarbakır . He is represented before the Court by Mr M ahmut Vefa , a lawyer practising in Diyarbakır .

The circumstances of the case

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

On 16 December 1994 the applicant was arrested in the city of Van and placed in police custody in the same city.

On 22 December 1994, while he was still in police custody, the applicant was questioned by police officers. When questioned by the police the applicant apparently confessed to being a member of the PKK [1] and also to having taken part in the killing of a person.

On 28 December 1994 he was brought before a duty judge who remanded the applicant in custody pending the introduction of criminal proceedings against him.

The applicant claims that when he was questioned by the police and by the judge a lawyer was not present.

On 24 January 1995 the prosecutor at the Diyarbakır State Security Court filed an indictment with that court, charging the applicant with the offences of membership of an illegal organisation, aiding and abetting that organisation and carrying out armed activities on its behalf.

In the criminal proceedings before the Diyarbakır State Security Court (hereafter “the trial court”), the applicant denied having committed any offences, and retracted his earlier statements.

On 4 December 2001 the trial court found the applicant guilty as charged and sentenced him to death. This sentence was commuted to life imprisonment. The applicant appealed.

On 20 November 2002 the Court of Cassation quashed the trial court ’ s judgment.

A retrial commenced. Following the dissolution of the State Security Courts, the case file was transferred to the Diyarbakır Assize Court .

On 22 February 2007 the applicant was found guilty and sentenced to life imprisonment. He appealed.

The proceedings before the Court of Cassation are continuing and the applicant, who was arrested and detained on 16 December 1994, is still in prison. All his requests for release have been refused.

COMPLAINTS

Relying on Article 5 § 3 of the Convention, the applicant complained that, after his arrest on 16 December 1994, he had not been brought promptly before the judge.

Relying on Article 5 § 2 of the Convention, the applicant alleged that he had not been informed promptly of the reasons for his arrest.

Under Article 6 § 3 (c) of the Convention, the applicant complained that he had not had access to a lawyer at the initial stages of the criminal proceedings.

He also complained that the trial had not been concluded within a reasonable time, contrary to Article 6 § 1 of the Convention.

Relying on that same Article, the applicant further complained that a military judge had sat on the bench of the trial court for the first eight years of the criminal proceedings.

The applicant alleged that for a period of ten years he had been detained in a prison in Gaziantep which was 600 kilometres from Diyarbakır , where the trial court was located. In order to attend the hearings he had had to be transported in a prison van between Gaziantep and Diyarbakır , handcuffed. The cold in winter and the heat in summer had been unbearable during these transfers. When he had finally arrived at the trial court, he had been exhausted and no longer in a state to follow the hearings actively. In relation to this complaint, the applicant relied on Article 3 of the Convention.

Finally, relying on Article 13 of the Convention, the applicant alleged that he had not had an effective remedy in respect of his complaints above.

THE LAW

1 . Relying on Articles 5 § 2 and 5 § 3 of the Convention, the applicant complained that he had not been informed of the reasons for his arrest and that he had not been brought promptly before the judge.

The Court observes that the applica nt’s police custody ended on 28 December 1994 but he did not lodge his appl ication with the Court until 15 October 2003. He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention in respect of these complaints. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2 . The applicant complained that the criminal proceedings against him had not been concluded within a reasonable t ime, as required by Article 6 § 1 of the Convention. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

3 . Under Article 6 § 3 (c) of the Convention the applicant complained that he had not been able to consult a lawyer at the initial stages of the proceedings. The applicant also complained that the presence of a military judge on the bench of the criminal proceedings for the first eight years of the proceedings had infringed his right to a fair hearing, within the meaning of Article 6 § 1 of the Convention.

The Court observes that the criminal proceedings against the applicant are still pending before the Court of Cassation . These complaints are therefore premature . Consequently, this part of t he application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4 . Under Article 3 of the Convention, the applicant complained that over a period of ten years he had been transported 600 kilometres in a prison transport van, handcuffed, to attend hearings before the trial court.

The Court observes that the applicant has not submitted any documents to show that he brought this complaint to the attention of the national authorities. Consequently, the Court finds that the applicant cannot be considered to have complied with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention. This complaint must also be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

5 . Relying on Article 13 of the Convention, the applicant complained that he had not had an effective remedy in relation to his complaints above.

In respect of those complaints which are inadmissible, the Court considers that the applicant has no arguable claim under Article 13 of the Convention. This aspect of the case should therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

However, insofar as the complaint relates to the absence of an effective remedy for the allegedly undue length of the criminal proceedings, the Court considers that it cannot, on the basis of the case file, determine its admissibility at the present stage, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint s concerning his right to a fair trial within a reasonable time and his right to an effective remedy in respect of this complaint ;

Declares the remainder of the application inadmissible.

S . Dollé F. Tulkens Registrar President

[1] The Kurdistan Workers’ Party, an illegal organisation.