SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8036/02 by Mehmet SAĞAT, Aydın BAYRAM and Hasan BERK against Turkey

The European Court of Human Rights (Second Section), sitting on 6 March 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 , Ms D. Jočienė , judges, and Mrs S. Dollé , Section Regis trar ,

Having regard to the above application lodged on 31 January 2002,

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

Having regard to the partial decision of 5 January 2006 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The case originated in an application lodged by three applicants , namely, Mr Mehmet Sağat, Mr Aydın Bayram and Mr Hasan Berk (“t he applicants”) . On 5 January 2006 the Court declared the application partly inadmissible as regards the first two applicants, but retained the case concerning the third. In this connection, it decided to communicate the complaint concerning Mr Berk ’ s detention on remand to the Government . The applicant Hasan Berk was born in 1981 and lives in Adana . He was represented before the Court by Ms Y. Dora Şeker , a lawyer practising in Adana .

A. The circumstances of the case

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

On 20 March 1999 Hasan Berk was arrested and taken into custody by police officers from the Ceyhan Security Directorate. The applicant, together with two others, was suspected of setting three vehicles on fire by throwing Molotov cocktails, with the aim of protesting the arrest of the PKK [1] leader Abdullah Öcalan.

During his questioning by the police he confessed to having taken part in some of the incidents, but denie d any involvement with the illegal organisation .

On 22 March 1999 the applicant was taken to the Ceyhan Public Prosecutor ’ s office where he refuted his statements given in police custody. Later , he was taken before the investigating magistrate at the Ceyhan Magistrates Court where he confessed to having participated in some of the incidents. The court ordered his detention on remand.

On 6 April 1999 the Ceyhan Public Prosecutor filed an indictment with the Ceyhan Assize Court , accusing the applicant and four others, of damaging other persons ’ property, under Article 516 of the Criminal Code. On 8 April 1999 the Public Prosecutor at the Adana State Security Court also filed an indictment, accusing the applicant and four others of aiding and abetting a terrorist organisation, and charging them under Article 264 of the Criminal Code and Article 5 of the Law on the Prevention of Terrorism. The two cases were later joined before the Adana State Security Court .

At the hearings held on 6 May 1999 and 1 June 1999 the Adana State Security Court examined the case file on its own motion and, in view of the state of evidence and the seriousness of the charges, decided to prolong the applicant ’ s detention on remand.

On 5 July 1999 the court held a hearing in order to decide on the applicant ’ s detention on remand. Following the opinion of the public prosecutor and in view of “the nature of the offences charged, the state of evidence and the content of the case file” , the court ordered the applicant ’ s continued detention.

On 27 July 1999 the public prosecutor submitted his opinion on the merits of the case that the applicant ’ s involvement in the fire bomb incidents was esta blished beyond reasonable doubt . He further proposed to the court to continue to detain the applicant on remand in view of the nature of the offences charged and the length of the probable imprisonment. The court ordered the prolongation of the applicant ’ s detention .

On 21 September 1999 the court convicted the applicant as charged and sentenced him to imprisonment.

On 25 April 2000 the Court of Cassation quashed the decision of the State Security Court .

On 4 July 2000 the case was resumed before the Adana State Security Court . Pointing out the age of the applicant and the length of the period which he had already spent on remand, the applicant ’ s lawyer requested the court to release her client pending trial. The court dismissed her request and ordered the prolongation of the applicant ’ s detention on remand conside ring the nature of the offences, the state of evidence and the content of the case file.

At the hearings of 1 August 2000, 29 August 2000 and 10 October 2000 , the applicant ’ s lawyer repeated the request for the applicant ’ s release pending trial. The court dismissed the motion for the same reasons as before .

On 22 December 2000, subsequ ent to the enactment of Law no. 4616 on the suspension of proceedings regardi ng offences committed before 23 April 1999, the Adana State Security Court postponed the trial regarding the charges under Article 516 of the Criminal Code. However, i t convicted the applicant under Article 168 of the Criminal Code and sentenced him to imprisonment .

On 21 June 2001 the Court of Cassation quashed the decision of the Adana State Security Court , holding that the State Security Court had to develop further the facts concerning the applicant ’ s involvement in the incriminating incidents.

The case was resumed before the Ankara State Security Court . On 11 September 2001, the court convicted the applicant of being a member of an illegal terrorist organisation and sentenced him to imprisonment. Moreover, in accordance with Law no. 4616, it decided to suspend the prosecution against the applicant concerning the offence of damaging property.

On 4 March 2002 the Court of Cassation upheld this decision.

B. Relevant domestic law

According to Law no. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999, proceedings could be suspended and subsequently dropped if no crime of the same or more serious kind was committed by the offender within a five year period.

COMPLAINT

The applicant complained under Article 5 § 3 of the Convention about the allegedly unreasonable length of his pre-trial detention .

THE LAW

The applicant complained under Article 5 § 3 of the Convention that his detention on remand exceeded a “reasonable time” within the meaning of this provision. Article 5 § 3 reads as follows, in so far as relevant:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court observes that the applicant ’ s detention on remand began when he was arrested on 22 March 1999. He was detained within the meaning of Article 5 § 3 of the Convention until his conviction by the Adana State Security Court on 21 September 1999. As from that date until 25 April 2000, when the Court of Cassation quashed the decision of the first instance court, he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see B. v. A ustria , ju dgment of 28 March 1990, Series A no. 175, § § 33 ‑ 39 , and KudÅ‚a v. Poland [GC], no. 30210/96, § 104, ECHR 2000 ‑ XI).

From 25 April 2000 until his second conviction on 22 December 2000, the applicant was in pre-trial detention, falling under Article 5 § 3 of the Convention. On 21 June 2001 the decision of the first instance court was quashed once aga in. Furthermore, from this date until 11 September 2001, the date on which the first instance court gave its third decision of conviction, the applicant was again in pre-trial detention, within the meaning of the third paragraph of Article 5.

Therefore, the overall period of the applicant ’ s detention on remand lasted nearly one year and six months.

The Government contended that the application should be rejected for failur e to exhaust domestic remedies. They argued that the applic ant had lodged his application on 6 February 2002, while the last decision of the domestic authorities was given on 4 March 2002. The y further maintained that the applicant ’ s detention on remand should be considered as reasonable in the circumstances of the case. The applicant disagreed.

The Court re call s that the last stage of domestic remedies may be reached shortly after the lodging of the application, but before the Court is called upon to pronounce on admissibility (see, mutatis mutandis , Ringeisen v. Austria , judgment of 16 July 1971, Series A no. 13, § 91). The Court therefore dismisses the Government ’ s preliminary objection.

It notes however that whether the length of detention pending trial is reasonable cannot be determined in abstracto . It is primarily on the basis of the reasons stated in the decisions relating to applications for release and of the facts mentioned by the applicant in his appeals that the question of a violation must be considered (see Neumeister v. Austria , judgment of 27 June 1968, Series A no. 8, p. 37, § 5).

The Court observes that the applicant was prosecuted for two separate charges, before two different courts. The se cases were later joined before the Adana State Security Court . At the end of the proceedings he was sentenced to imprisonment on account of being a member of an illegal terrorist organisation . His prosecution concerning the offence of damag e to property was suspended in accor dance with the Law no. 4616.

It notes from the material in the case file that the Adana State Security Court considered the applicant ’ s detention on remand, either on its own motion or upon the request of the applicant, at the end of each hearing, which took place approximately once a month .

The Court f urther notes that the offences o n which the applicant was charged were of a serious nature, since they concerned membership of an illegal organisation and damaging other people ’ s property by throwing Molotov cocktails for the purpose of a terror campaign.

H aving regard to the complexity of the case and the serious nature of the offences he was convicted of, the Court finds that the reasons given by the authorities for refusing release were relevant and sufficient to justify the applicant ’ s continued detention, and that the length of time in detention was not unreasonable.

Accordingly, the Court considers that, in the particular circumstances of the case, the applicant ’ s detention was in conformity with the “reasonable time” requirement of Article 5 § 3 of the Convention.

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

Accordingly, Article 29 § 3 of the Convention should no longer apply to the case.

For th ese reasons, the Court unanimously

Declares the remainder of the application inadmissible.

S. Dollé F . Tulkens Registrar President

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