THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21179/02 by Sabri TAÅž against Turkey

The European Court of Human Rights (Third Section), sitting on 8 July 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mr K. Traja, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 15 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sabri Taş, is a Turkish national, who was born in 1964 and lives in Batman. He is represented before the Court by Mr M. Beştaş and Ms M. Beştaş, lawyers practising in Diyarbakır.

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

On 7 February 1993 the applicant was taken into custody in Batman by the police officers from the Batman Anti-Terrorist Branch and he was held in custody until 5 March 1993.

On 5 March 1993, the Batman Magistrate’s Court decided that the applicant be detained on remand.

On 6 April 1993 and on 10 October 1994, the Public Prosecutor at Diyarbakır State Security Court filed two bills of indictment accusing the applicant of being a member of an illegal terrorist organization and undermining the integrity of the State.

On 5 May 1993 Diyarbakır State Security Court commenced the trial against the applicant and twenty-one other suspects and ordered the applicant’s detention on remand.

On 1 December 1995, Diyarbakır State Security Court convicted the applicant and applying Article 125 of the Criminal Code, sentenced him to lifetime imprisonment. The charges were brought under Articles 168 and 125 of the Criminal Code.

On 9 July 1996, upon the applicant’s appeal against the above judgment to the Court of Cassation, the said judgment was quashed and sent back to the court of first instance.

On 11 June 1999, as a result of numerous hearings that were conducted, Diyarbakır State Security Court charged him of the same crime.

On 31 January 2000, upon the applicant’s appeal against the above judgment to the Court of Cassation, the said judgment was quashed and sent back to the court of first instance.

On 28 September 2000, as a result of numerous hearings that were conducted in the applicant’s absence, Diyarbakır State Security Court charged him of the same crime.

On 2 April 2001, upon the applicant’s appeal against the above judgment to the Court of Cassation, the said judgment was quashed and sent back to the court of first instance.

Either on its own motion or at the applicant’s requests, at the end of every hearing, the State Security Court examined and ordered the applicant’s continued detention. The nature of the charges, the state of the evidence and the content of the case file constituted the basis of the applicant’s continued detention.

On 31 January 2002, as a result of numerous hearings that were conducted in the applicant’s absence, Diyarbakır State Security Court charged him of Article 168/2 of the Criminal Code and sentenced him to 12 years and 6 months of imprisonment. Since the time period that the applicant has spent in custody and detention amounted to 9 years, he was released on the same date.

The applicant has not appealed against this judgment. On 7 February 2002 it became final.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was held in police custody incommunicado for 27 days. He further claims under the same heading that during the 9 years that he was tried, he lived with the fear of the death penalty.

The applicant complains under Article 5 § 1 of the Convention of being unlawfully taken into custody. The applicant further complains under Article 5 § 2 of the Convention for not being promptly informed of the actual reasons for being taken into custody. The applicant further complains under Article 5 § 3 of the Convention for being detained for an unreasonable period of time, 9 years, without any reasons which could justify such acts.

The applicant alleges that he was not tried within a reasonable time and that he was not tried by an independent and impartial tribunal in violation of Article 6 § 1 of the Convention on account of being tried and convicted by Diyarbakır State Security.

He further asserts that since he was detained during the whole time he was being tried, he was not presumed innocent by the relevant court, which breached Article 6 § 2 of the Convention.

He finally alleges the breach of Article 6 § 3 of the Convention since he was arrested and tried on account of the allegations against made by a witness, but he was not given the opportunity to testify against such allegations.

THE LAW

1. The applicant alleges that the excessive length of his custody and trial periods coupled with the fact that he had lived with the fear of being sentenced to death for 9 years amounted to torture within the meaning of Article 3 of the Convention.

In the present case there is no indication that the treatment complained of reached the threshold of severity required to bring the matter within the scope of Article 3 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Article 5 § 1 of the Convention that he was unlawfully taken into custody. The applicant further complains under Article 5 § 2 of the Convention for not being informed of the actual reasons for being taken into custody .

T he Court recalls 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 of occurrence of the actual matter. In the absence of domestic remedies, the six-month period runs from the date of the act complained of.

The Court observes that the applicant’s custody period ended on 5 March 1993. The applicant introduced his application on 15 May 2002, i.e. more than six months later.

It follows that these complaints have been introduced out of time and must be rejected under Article 35 § 4 of the Convention.

3. The applicant asserts under Article 5 § 3 that his detention period was unreasonably long.

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.

4. The applicant complains that the criminal proceedings brought against him were not concluded within a “reasonable time” 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 this part of the application to the respondent Government.

5. The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial before the Diyarbakır State Security Court. He further asserts that since he was detained during the whole time he was being tried, he was not presumed innocent by the relevant court, which breached Article 6 § 2 of the Convention. He finally alleges the breach of Article 6 § 3 of the Convention since he was arrested and tried on account of the allegations against made by a witness, but he was not given the opportunity to testify against such allegations.

The Court notes that the applicant has not appealed against the final judgment dated 1 January 2002 which sentenced him to 12 years and 6 months of imprisonment. It follows that this part of the application must be rejected under Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of criminal proceedings and the length of his detention period on remand;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President