THIRD SECTION

PARTIAL DECISION

AS TO THE ADMIS S IBILITY OF

Application no. 38413/02 by Mehmet G Ü NE Ş against Turkey

The European Court of Human Rights (Third Section), sitting on 1 September 2005 as a Chamber composed of:

Mr J. Hedigan , President , Mr L. Caflisch , Mr R. Türmen , Mr C. Bîrsan , Mr V. Zagrebelsky , Mrs A. Gyulumyan , Ms R. Jaeger, judges , and Mr V . Berger , Section Registrar ,

Having regard to the above application lodged on 28 August 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Gü ne ş , is a Turkish national who was born in 1951 and lives in Istanbul . He is represe nted before the Court by Mrs G. Tuncer , a lawyer practising in Istanbul .

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

On an unspecified date the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant charging him under Article 168 § 1 of the Criminal Code with membership in an illegal organisation, the TKP-B (Turkish Communist Party – Union) and assuming responsibility within this organisation.

On 31 May 1991 the applicant submitted written defence submissions to the 2 nd Chamber of the Istanbul State Security Court , upon which the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court charging the applicant with insulting and vilifying the judicial authorities under Article 159 of the Criminal Code. The applicant was not notified of the bill of indictment. Nor was he aware of the criminal proceedings initiated against him before the Assize Court . The relevant parts of his defence submissions read as follows:

“... They (the State Security Courts) are special class courts with the most optimistic regard. They are special revenge courts which protect exploitation of and cruelty upon the people... the judges ’ robes are clean. However, how is their conscience when they mention law and justice?... These institutions of this State, which are expected to punish the offences and to be just and fair have been offenders. But, the justice that I have mentioned is not the justice that you represent: the justice that you represent is blind and mute. It does not have any conscience. The justice you represent is strong only when it comes to the poor, the destitute and unprotected people, those who have to steal bread in order to eat and to the outlaw. However, not to the mafia as they may have connections with the honourable (!) businessmen. They are part of the world of the honourable (!) businessmen. Your justice is strong when it comes to the weak. When it confronts the strong it becomes weak and disappears. The courts of this system cannot try us, the revolutionists. Anyhow, these courts do not have trials: they take revenge by punishing...”

On 25 October 1991 the Istanbul State Security Court acquitted the applicant of the charge under Article 168 § 1 of the Criminal Code. On 4 November 1991 this judgment became final.

On 9 April 1992 the Istanbul Assize Court ordered the applicant ’ s detention in his absence.

In 1993 the applicant was detained on remand within the context of another set of criminal proceedings brought against him before the 1 st Chamber of the Istanbul State Security Court .

On 25 January 2000 the 1 st Chamber of the Istanbul State Security Court ordered the applicant ’ s release pending trial.

On 21 December 2000 Law No. 4616 concerning conditional amnesty came into force. It provided for the suspension of any proceedings and execution of sentences for offences committed before 23 April 1999 .

The Istanbul Assize Court withdrew its order of detention of the applicant and decided to defer the imposition of a final sentence upon the applicant, pursuant to Law no. 4616 on 22 January 2001 and 28 February 2001 respectively. On the latter date, the court held that the criminal proceedings against the applicant would be suspended and a final sentence would only be imposed should the applicant be convicted of a further intentional offence within the five years following this decision.

The decision of 28 February 2001 was not served on the applicant as he could not be found throughout the proceedings before the Assize Court .

On 23 May 2002 Law no. 4758 came into force. The Law provided that when criminal proceedings against an accused were suspended pursuant Law no. 4616, the latter had the right to request the reopening of the proceedings within the three months following the entry into force of Law no. 4758.

On 19 June 2002 the applicant went to the Istanbul Security Directorate in order to request a passport. He was taken into police custody as the Istanbul Assize Court ’ s decision to withdraw the detention order had not been received by the Istanbul Security Directorate.

On the same day, he became aware of the criminal proceedings initiated against him before the Istanbul Assize Court and the latter ’ s decision of 28 February 2001 .

On 20 June 2002 the applicant was released after the Security Directorate received the decision of withdrawal.

COMPLAINTS

The applicant alleges under Article 3 of the Convention that the detention conditions in the Istanbul Security Directorate amounted to inhuman treatment and that he was subjected to psychological pressure.

The applicant contends under Article 5 § 1 of the Convention that his detention in the Istanbul Security Directorate was not lawful. He further contends that he was not brought promptly before a judge and that he was not able to take proceedings by which the lawfulness of his detention in police custody could be decided. He invokes Article 5 §§ 3 and 4 of the Convention.

The applicant maintains under Article 6 § 1 of the Convention that the Istanbul State Security Court was not an independent and impartial court and that the charge brought against him following his written submission to the State Security Court was in violation of his right to a fair trial. He complains that the proceedings before the Assize Court were not concluded within a reasonable time. The applicant alleges under Article 6 § 2 of the Convention that the suspension of the criminal proceedings violated his right to be presumed innocence until proven guilty. He further complains under Article 6 § 3 (b) of the Convention that he did not have adequate facilities for the preparation of his defense before the Istanbul Assize Court .

He alleges under Article 8 of the Convention that his detention in the Security Directorate violated his right to respect for private and family life.

The applicant complains under Article 10 of the Convention that the charge brought against him as a result of his defence submission s and the defer ment of the imposition of a final sentence upon him on the condition that he would not commit any other intentional offence within five years of this decision constituted an unjustified interference with his right to freedom of expression.

The applicant finally complains under Article 13 of the Convention that he did not have a domestic remedy for his grievance under Article 5 of the Convention .

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached as he was tried by the 2 nd Chamber of the Istanbul State Security Court, which lacked independence and impartiality and as criminal proceedings were initiated against him as a result of his submissions to this court.

The Court observes that the applicant was acquitted by the 2 nd Chamber of the Istanbul State Security Court at the end of the proceedings. He therefore cannot claim to be a victim within the meaning of Article 34 of the Convention.

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

2. The applicant maintains under Article 6 § 3 (b) of the Convention that he was deprived of his right to have adequate facilities for the preparation of his defense before the Istanbul Assize Court .

The Court re calls that a person may not claim to be a victim of a violation of the right to a fair hearing under Article 6 of the Convention where the criminal proceedings were halted by a discontinuation ( I.I. v. Bulgaria , no. 44082/98, decision of 25 March 2004 ). The Court finds that the applicants ’ situation is comparable.

The Court observes that on 28 February 2001 the Istanbul Assize Court decided to defer the imposition of a final sentence upon the applicants, pursuant to Law no. 4616 . Consequently, the Court is not in a position to make an examination of the proceedings as whole, as is usually required by complaints under Article 6 of the Convention, because of this conditional termination of the proceedings (see Dikme v. Turkey , no. 20869/92, § 111, ECHR 2000-VIII).

Unless the applicant were to face new criminal charges, thereby reviving the present case, the Court finds that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention at this stage of the proceedings ( cf. Sincar v. Turkey ( dec ), no. 46281/99, 19 September 2002 , and F.A. v. Turkey ( dec ), no. 36094/97, 1 February 2005 ).

It follows that this part of the application should be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 o f the Convention.

3. The applicant complains under Article 6 § 2 of the Convention that the suspension of the criminal proceedings before the Istanbul Assize Court violated his right to presumption of innocence.

The Court observes that the applicant did not avail himself of the remedy which was provided for by Law no. 4758. Accordingly, he cannot be considered to have exhausted the domestic remedies. In any event, the Court reiterates that there is no right under Article 6 of the Convention to a particular outcome of criminal proceedings or, therefore, to a formal conviction or acquittal following the laying of criminal charges. The presumption of innocence is not, therefore, undermined by the fact that the criminal proceedings against him ended without such a formal verdict (see Withey v. the United Kingdom ( dec .), no. 59493/00, ECHR 2003 ‑ X).

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

4. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings before the Istanbul Assize Court were not concluded within a reasonable time.

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 contends under Article 10 of the Convention that the charge brought against him as a result of his defence submissions and the deferment of the imposition of a final sentence upon him on the condition that he would not commit any other intentional offence within five years of this decision constituted an unjustified interference with his right to freedom of expression.

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.

6. The applicant alleges that that his detention in the Istanbul Security Directorate violated his rights guaranteed under Articles 3 and 8 of the Convention.

The Court observes that the applicant failed to submit any document to the Court attesting that he had raised these grievances before the national authorities. In the absence of such proof, the Court considers that the applicant failed to exhaust the domestic remedies available to him within the meaning of Article 35 § 1 of the Convention.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

7. The applicant complains under Article 5 of the Convention that his detention in the Istanbul Security Directorate was unlawful and that he was not brought promptly before a judge. He further complains under the same head that he was not able to take proceedings by which the lawfulness of his detention in police custody could be decided.

The Court reiterates that, under Turkish law, a person who claims to be the victim of an unlawful detention can apply for compensation as of right for damages using the procedure laid down in Law no. 466. This Law provides that compensation shall be awarded to persons, inter alia , who have been unlawfully detained (see ErdoÄŸan v. Turkey , no. 25160/94, Commission decision of 7 September 1995 , Decisions and Reports (DR) 82-A, p. 128). The applicant, in the present case, did not apply for compensation for his unlawful detention in accordance with Law no. 466.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

8. The applicant maintains under Article 13 of the Convention that he did not an effective domestic remedy in respect of his complaint under Article 5 of the Convention.

The Court notes that the applicant could have availed himself of the remedy laid down by Law no. 466, which can be considered to be an effective remedy for those, inter alia , who claim to be the victim of an unlawful deprivation of liberty.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the length of the criminal proceedings before the Istanbul Assize Court and his right to freedom of expression ;

Declares the remainder of the application inadmissible.

Vincent Berger John Hedigan Registrar President