SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16943/03 by F ı rat TAŞ C IG İ L against Turkey

The European Court of Human Rights (Second Section), sitting on 16 October 2007 as a Chamber composed of:

Mrs F. Tulkens , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Mrs A. Mularoni , Mr D. Popović, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 9 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr F ı rat Ta şçı gil , is a Turkish national who was born in 1981 and was detained in Mardin Prison at the time of the application to the Court . He is represented before the Court by Mr M. Nacak, a lawyer practising in Diyarbakır .

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

On 14 March 1999 the police carried out an operation against Hizbullah, an illegal organisation, in Mardin. At around 3 a.m. the police raided a flat on receipt of information given by a certain A.T., who was allegedly a member of Hizbullah . During the search conducted in the apartment three weapons, their cartridges and three computer hard discs, among other objects, were found. According to the information found on one of these hard discs, the applicant was allegedly involved in Hizbullah and had been giving religious lessons to children in the Kuba mosque in Diyarbakır .

On 5 June 1999 the public prosecutor at the Diyarbakır State Security Court drew up a list of the materials seized during the raid in Mardin in order to place them in the custody of the State Security Court . The list included the computer hard discs.

On 18 October 1999 at around 8.30 p.m. the applicant was arrested while leaving the Kuba mosque in Diyarbakır along with four other persons. According to the arrest report, he was arrested as part of the investigation being conducted into Hizbullah.

On 19 October 1999 the security forces conducted a search of the applicant ’ s house. According to the house search and seizure report signed by three police officers and the applicant ’ s father, nine books with religious content and four tapes were found in the apartment.

On 26 October 1999 the applicant was brought before the public prosecutor and subsequently a single judge at the Diyarbakır State Security Court and was questioned about his affiliation to Hizbullah. The applicant maintained that he was not a member of Hizbullah and denied that he had given religious lessons on behalf of this organisation. As regards the books found in his apartment, the applicant contended that he had been a student in an İmam Hatip High School [1] and that he had bought them at a book fair. On the same day, the judge remanded the applicant in custody.

On 5 November 1999 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against six persons, including the applicant, charging them with membership of Hizbullah.

On 8 November 1999 the first hearing in the case before the Diyarbakır State Security Court was devoted to procedural matters.

On 16 December 1999 the applicant made statements before the first-instance court. He maintained that one of the other accused was his schoolmate and that he did not know the other persons. He stated in this connection that he had no affiliation with Hizbullah. The applicant also denied the accuracy of his police statements, alleging that they had been made under duress. He contended that he had been in the mosque for prayer and that he had not given religious lessons to children there. The applicant finally submitted that the tapes that had allegedly been found in his apartment did not belong to him.

On the same day, the State Security Court ordered the applicant ’ s release pending trial.

On 17 January 2000 the police carried out operations against Hizbullah in Istanbul . Security forces raided an apartment where three leaders of Hizbullah lived. One of the leaders was killed and two others were captured. The police also found several hard discs containing information about the organisation. On one of these hard discs a personal history form belonging to the applicant was found.

Subsequently, on 8 June 2000 the Diyarbakır State Security Court issued a summons requiring the applicant and two other accused to make statements before it. On 10 August 2000 the court repeated its order.

On 5 August 2000 the applicant was arrested by officers from the Anti ‑ Terrorism Branch of the Diyarbakır Police Headquarters. He was kept in police custody and made statements to two police officers on 10 August 2000. The applicant was not however brought before the trial court.

On 19 October 2000 the Diyarbakır State Security Court ordered the detention of the applicant in absentia since he had not appeared before it.

On 21 July 2001 at 8.15 p.m. the applicant was arrested under the detention order of 19 October 2000 and subsequently detained on remand.

On 16 May 2002 the Diyarbakır State Security Court convicted the applicant of membership of Hizbullah and sentenced him to twelve years and six months ’ imprisonment. It noted that according to the information found in one of the computer hard discs in Mardin, the applicant was giving religious lessons to children and that according to his personal history form found on a hard disc in Istanbul , he was involved in Hizbullah activities in the Aksakal mosque. The court further observed that five persons who had also been accused of membership of Hizbullah had mentioned the applicant in their statements to the police and that books written by Ayatollah Khomeini, the founder of the Islamic Republic of Iran, had been found in the applicant ’ s house. The State Security Court finally noted that the applicant had accepted that he had had an affiliation with Hizbullah in his statements to the police.

The applicant appealed.

On an unspecified date the public prosecutor at the Court of Cassation submitted his written opinion (tebliÄŸname) on the merits of the appeal. This opinion was not served on the applicant.

On 17 December 2002 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court .

COMPLAINTS

The applicant complained under Article 5 §§ 1 (c) and 3 of the Convention that there had been was no reasonable suspicion to justify against him for his arrest and his subsequent detention in police custody between 18 and 26 October 1999, and that its on remand, length had been excessive. He further complained under Article 5 § 5 of the Convention that he had had no right to compensation in domestic law for the alleged violations of Article 5 §§ 1 (c) and 3 of the Convention.

The applicant contended under Article 5 § 4 of the Convention that he had been detained between 18 October 1999 and 16 December 1999 without any decision to extend his detention. He further submitted that he had had no effective remedy in domestic law to challenge the lawfulness of his detention .

The applicant maintained under Article 6 § 1 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time. He further complained under the same provision that the written observations of the public prosecutor at the Court of Cassation on the merits of his appeal had not been served on him.

Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant complained that he had been denied legal assistance while in police custody. He submitted under Article 6 § 2 of the Convention that he had been convicted on the basis of his statements to the police , which had been made under duress.

The applicant further submitted under Article 6 of the Convention that the evidence used against him for his conviction, namely the computer hard discs allegedly found in the flats raided by the police in Mardin and Istanbul , had not been handed over to the judicial authorities promptly, which cast doubt on their reliability as evidence. He further contended under the same head that the transcription of the hard discs had not been undertaken by experts but by the police. The applicant finally submitted under Article 13 of the Convention that although he had requested repeatedly that the hard discs be placed in the custody of the court and their transcription be undertaken by experts, no action was taken by the domestic authorities concerning these requests.

THE LAW

1. The applicant complained under Article 5 §§ 1 (c), 3 and 5 of the Convention of the unlawfulness of his arrest, the length of his detention in police custody between 18 and 26 October 1999 , and his inability to obtain compensation for the alleged violations of Article 5.

The Court notes that the applicant ’ s detention in police custody ended on 26 October 1999, when he was placed in pre-trial detention. The applicant lodged his application with the Court on 9 April 2003, that is more than six months later.

It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant contended under Article 5 § 4 of the Convention that he had had no effective remedy in domestic law to challenge the lawfulness of his detention on remand.

The Court notes that the applicant ’ s detention pending trial continued until the final judgment of the Diyarb akır State Security Court of 16 May 2002 . Following that date, the applicant was detained “after conviction by a competent court ” and no longer “for the purpose of bringing him before the competent legal authority”. However, the application was lodged with the Court on 9 April 2003 , which is more than six months from the end of the detention period complained of (see, among other authorities , Güler v. Turkey (dec.), no. 14152 /0 2 , 28 September 2006 ).

It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant maintained under Article 6 § 1 of the Convention that the length of the criminal proceedings brought against him had been excessive.

The Court notes that the period to be taken into consideration began on 18 October 1999, when the applicant was taken into police custody, and ended on 17 December 2002, when the Court of Cassation upheld the applicant ’ s conviction. It thus lasted three years and two months before two instances.

The Court reiterates that the reasonableness of the length of criminal proceedings is to be assessed in the light of the particular circumstances of the case, including the complexity of the case, the applicant ’ s conduct and the conduct of the competent authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

The Court observes that the case was complex. It involved a number of accused and the charges concerned membership of an illegal organisation. As regards the conduct of the authorities, the Court notes that the applicant failed to mention in his submissions to the Court any period of inactivity that could be attributable to the domestic courts. Furthermore, on appeal, the Court of Cassation decided on the case within seven months.

In the light of the foregoing, the Court concludes that, in the present case, the length of the criminal proceedings cannot be regarded as exceeding the reasonable time requirement of Article 6 § 1 of the Convention. It follows that this part of the application must be r ejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicant complained under Article 6 § 1 of the Convention that the written observations of the public prosecutor at the Court of Cassation on the merits of his appeal had not been served on him.

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 this part of the application to the respondent Government.

5. The applicant complained under Article 6 of the Convention that the evidence used against him for his conviction, namely the computer hard discs allegedly found in the flats raided by the police in Mardin and Istanbul , had not been handed over to the judicial authorities promptly, which would cast doubt on their reliability as evidence. He further submitted under the same provision that the transcription of the hard discs had not been undertaken by experts, but by the police. The applicant maintained under Article 13 of the Convention that although he had requested repeatedly that the hard discs be placed in the custody of the court and that their transcription be undertaken by experts, no action was taken by the trial court or the public prosecutor concerning these requests.

The Court considers that these complaints should be examined under Article 6 § 1 alone. It further considers 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.

6. The applicant submitted under Article 6 §§ 1 and 3 (c) of the Convention that he had been denied legal assistance while in police custody. He further complained under Article 6 § 2 of the Convention that he had been convicted on the basis of his statements to the police, which had been made under duress.

The Court considers that these complaints should be examined under Article 6 §§ 1 and 3 (c) of the Convention. It further considers 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the alleged unfairness of the criminal proceedings against him on account of the use made of computer hard discs which were found in the flats raided by the police; the use of his statements allegedly taken under duress by the Diyarbakir State Security Court ; the alleged unavailability of legal assistance during his detention in police custody; and the non-communication of the observations of the principal public prosecutor at the Court of Cassation ;

Declares the remainder of the application inadmissible.

S. Dollé F. Tulkens Registrar President

[1] Ä°mam Hatip H igh S chools serve the purpose of educating imams to perform religious duties at mosques .