THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14152/02 by MaÅŸuk GÃœLER against Turkey

The European Court of Human Rights ( Third Section), sitting on 28 September 2006 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr R. Türmen , Mr C. Bîrsan , Mrs A. Gyulumyan , Mr E. Myjer , Mr David Thór Björgvinsson, judges , and Mr V . Berger , Section Registrar ,

Having regard to the above application lodged on 4 September 1999 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Maşuk Güler, is a Turkish national who was born in 1961 and was serving a sentence in Gaziantep prison at the time of the application to the Court . He is represented before the Court by Mr M. Vefa, a lawyer practising in Diyarbakır .

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

On 7 January 1994 the applicant was taken into police custody in Tatvan on suspicion of being a member of the PKK.

On 18 January 1994 the applicant made statements before the Tatvan public prosecutor and a single judge. On the same day, he was detained on remand.

On 20 January 1994 the Tatvan public prosecutor issued a decision of non-jurisdiction and sent the investigation file concerning the applicant and forty-five other persons to the public prosecutor ’ s office at the Diyarbakır State Security Court .

On 31 January 1994 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant, along with forty-two persons. The applicant was charged with membership of the PKK under Article 168 of the Criminal Code.

On 7 February 1994 the Diyarbakır State Security Court held the first hearing and ordered that twelve of the accused be arrested. The court further ordered that the official records concerning the accused be sent in order to be included in the case ‑ file.

On 31 May 1994 the first-instance court took statements from thirteen accused.

On 22 July 1994 the applicant made statements before the state security court.

Between 22 July 1994 and 23 October 1997 the first-instance court held nineteen hearings and postponed the trial mainly due to the absence of the applicant ’ s co-accused whose arrest had been ordered. In the meantime, it also gathered the evidence concerning the charges against the accused, including a medical report establishing the mental state of the applicant at the time of the commission of the offence in question.

On 23 October 1997 the first-instance court ordered the public prosecutor to submit his observations on the merits of the case and once again postponed the trial.

On 29 November 1997 , following the receipt of the public prosecutor ’ s opinion, the Diyarbakır State Security Court ordered the applicant to submit his defence submissions.

On 18 December 1997 the applicant made his defence submissions. On the same day, the Diyarbakır State Security Court convicted the applicant as charged and sentenced him to twelve years and six months ’ imprisonment.

On 2 March 1999 the Court of Cassation upheld the judgment of the first-instance court.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that he was held in police custody for an excessive length of time without being brought before a judge or other officer authorised by law to exercise judicial power.

The applicant contends under Articles 5 § 3 and 6 § 2 of the Convention that the length of his detention on remand was excessive.

The applicant contends under Article 6 § 1 of the Convention that the criminal proceedings against him were not concluded within a reasonable time. He maintains under the same head that he was denied a fair trial by an independent and impartial tribunal on account of the military judge sitting on the bench of the Diyarbakır State Security Court .

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention that he was not brought promptly before a judge or other officer authorised by law to exercise judicial power following his arrest.

The Court considers that this complaint should be examined from the standpoint of Article 5 § 3 of the Convention.

It further reiterates that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period runs from the date of the act complained of.

In the instant case, the Court observes that the applicant was taken into police custody on 7 January 1994 and that his detention in police custody ended on 18 January 1994 , when the judge ordered his detention on remand. The applicant introduced his application with the Court on 4 September 1999 , i.e. more than six months later.

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.

2. The applicant alleges under Articles 5 § 3 and 6 § 2 of the Convention that the length of his detention on remand was excessive.

The Court reiterates that no separate issue normally arises under Article 6 § 2 of the Convention in cases concerning the length of detention on remand, since in such cases the aim of ensuring respect for that principle is attained through Article 5 § 3 of the Convention (see Yavuz v. Turkey (dec.), no. 47043/99, 5 October 2004). It therefore considers that these complaints should be examined from the standpoint of Article 5 § 3 alone.

The Court notes that the applicant ’ s detention on remand continued until the final judgment of the Diyarbakır State Security Court of 18 December 1997 . 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 4 September 1999 , which is more than six months from the end of the detention period complained of (see, among others, Gök and Güler v. Turkey (dec.), no. 74307/01, 30 August 2005 ).

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

3. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were not concluded within a reasonable time. T he Court notes that the period to be taken into consideration began on 7 January 1994 , when the applicant was taken into police custody, and ended on 2 March 1999 , when the Court of Cassation upheld the judgment of the Diyarbakır State Security Court . The proceedings thus lasted five years and approximately two month s.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see Tanrıkulu and Others v. Turkey (dec.), no. 45907/99, 22 October 2002 ).

After examining the o verall durati o n o f the proceedings, taking into account the complexity of the case and the fact that the case was dealt with at tw o levels o f jurisdiction, as well as the number of the accused, the Court does not consider that the length of the proceedings in the present case was excessive. Moreover, the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

4. The applicant alleges under Article 6 § 1 of the Convention that he was denied a fair trial by an independent and impartial tribunal on account of the military judge sitting on the bench of the Diyarbakır State Security Court.

The Court 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 complaint concerning the independence and impartiality of the Diyarbakır State Security Court ;

Declares the remainder of the application inadmissible.

Vincent Berger Bo š tjan M. Zupančič Registrar President