FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47116/99 by Ş emsettin GÜMÜŞTEN against Turkey

The European Court of Human Rights (Fourth Section) , sitting on 3 June 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr R. Türmen , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 19 November 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Şemsettin Gümüşten, is a Turkish national, who was born in 1952 and lives in Mardin. He is represented before the Court by Mr Ö. Öneren, a lawyer practising in Ankara.

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

On 22 December 1980 the applicant, accused of membership of an illegal organisation, the PKK , was taken into police custody and held until 10 March 1981.

On 10 March 1981 the Diyarbakır Martial Law Court ordered the applicant’s detention on remand.

On 14 September 1981 the Public Prosecutor filed a bill of indictment with the Diyarbakır Martial Law Court against the applicant. The applicant was accused of membership of an illegal organisation and was charged under Article 168 § 1 of the Turkish Criminal Code.

On 19 February 1985 the Martial Law Court convicted the applicant of the charge against him and sentenced him to 24 years’ imprisonment, pursuant to Article 168 § 1 of the Turkish Criminal Code and Article 17 of Law no. 1402 of the Martial Law Act.

Following the applicant’s appeal, his case was referred to the Military Court of Cassation.

On 10 April 1990 the Military Court of Cassation quashed the judgment of the Diyarbakır Martial Law Court on the ground that the court had failed to apply the legal provision relevant to the offence in question.

On 20 July 1990 the applicant was released.

Subsequent to promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Courts, the Diyarbakır Assize Court ( Ağır Ceza Mahkemesi ) acquired jurisdiction over the case and the file was transmitted to this court.

On 13 July 1998 the Diyarbakır Assize Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under Articles 102 and 104 of the Turkish Criminal Code had expired.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment whilst he was held in police custody.

The applicant further complains that he was not informed of the reasons for his arrest and of the charge against him as required by Article 5 § 2 of the Convention.

The applicant alleges that he was kept in police custody for seventy-eight days without being brought before a judge. In this respect he relies on Article 5 § 3 of the Convention.

The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand.

The applicant complains under Article 5 § 5 of the Convention that he did not have any domestic remedy whereby he could obtain compensation for his detention. He claims that the Court of Cassation ruled that Law no. 466, which guarantees the possibility of payment of compensation in case of unlawful detention, does not apply when the criminal proceedings are terminated on the ground that the statutory time limit had expired.

The applicant lastly 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 LAW

1. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment while he was held in police custody.

The Court observes that the applicant’s detention in police custody ended on 10 March 1981.

The Court reiterates that it can only consider the period that elapsed after 28 January 1987, the date on which Turkey recognised the competence of the Convention organs to examine individual petitions. The Court notes that the above complaint concerns a period prior to 28 January 1987.

Consequently, this part of the application is outside the Court’s competence ratione temporis and must accordingly be rejected as being incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.

2. The applicant complains under Article 5 § 2 of the Convention that he was not informed of the reasons for his arrest and of the charge against him. The applicant further complains that he was kept in police custody for seventy-eight days without being brought before a judge and about the excessive length of his detention on remand under Article 5 § 3 of the Convention . The applicant complains under Article 5 § 5 of the Convention that he had no legal remedies whereby he could obtain compensation for his detention.

Regarding the applicant’s complaint that he was not informed of the reasons for his arrest and of the charge against him and that he was kept in police custody for seventy-eight days without being brought before a judge , t he Court observes that the applicant was held in police custody between 22 December 1980 and 10 March 1981.

As mentioned above, the Court can only consider the period that elapsed after 28 January 1987, the date on which Turkey recognised the competence of the Convention organs to examine individual petitions.

Consequently, these parts of the application is outside the Court’s competence ratione temporis and must accordingly be rejected as incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.

As to the length of the applicant’s detention on remand, the Court reiterates that pursuant to Article 35 of the Convention, it may only deal with an application 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.

The Court notes that the applicant was released from detention on remand on 20 July 1990, whereas the application was introduced with the Court on 19 November 1998, i.e. more than six months later.

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.

As regards the applicant’s complaints under Article 5 § 5 of the Convention, the Court notes that this provision guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention contrary to Article 5 of the Convention (see Benham v. the United Kingdom , judgment of 10 June 1996, Reports 1996-III, p. 755, § 50). In the absence of any such finding in the present case, the Court is of the opinion that no issues arise under this provision of the Convention.

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.

3. The applicant alleges that the criminal proceedings brought against him were not concluded within a reasonable time, as required by Article 6 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of criminal proceedings;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza              Registrar              President