FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29874/96 by Bahattin ÅžAHÄ°N against Turkey

The European Court of Human Rights (First Section), sitting on 17 October 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , Mr F. Gölcüklü , ad hoc judge ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 9 December 1995 and registered on 22 January 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 9 September 1998,

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 applicant is a Turkish national, born in 1958 and currently imprisoned in Aydın . He is represented before the Court by Mrs Bengül Ekler Kavak and Mr İsmail Kavak , lawyers practising in İzmir .

A. The circumstances of the case

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

On 21 April 1991 the applicant was taken into custody by police officers from the Ä°zmir Security Directorate on suspicion of being a member of the PKK.

On 30 April 1991 the İzmir State Security Court ordered the applicant’s detention on remand.

On 1 July 1991 the public prosecutor attached to the Ä°zmir State Security Court filed a bill of indictment against the applicant and eleven other accused. He charged the applicant with being a member of the PKK and with involvement in bombing of a fuel station. The prosecutor requested that the applicant be convicted and sentenced under Article 168/2 of the Turkish Criminal Code and Article 5 of Law 3713.

On 28 September 1993 the İzmir State Security Court convicted the applicant on account of his involvement in the PKK and the bombing of a fuel station. The court sentenced the applicant to 12 years and 6 months’ imprisonment under Articles 59, 168/2 and 264/6 of the Turkish Criminal Code and Article 5 of Law 3713.

On 18 January 1995 the Court of Cassation quashed the judgment of 28 September 1993 on procedural grounds.

At a hearing on 31 October 1995 the İzmir State Security Court refused the applicant’s request for release pending trial. The court considered that the applicant’s detention on remand was necessary having regard to the serious nature of the alleged offences, the date on which he had been detained on remand and the state of evidence.

At a hearing on 27 November 1995 the court again rejected the applicant’s request for release pending trail on the same grounds.

On 29 November 1995 the applicant filed an objection with the Ä°zmir State Security Court against the refusal of his request for release pending trail. The applicant emphasised that his detention pending trial constituted a violation of his rights guaranteed under Article 19 of the Convention and Article 5 of the European Convention on Human Rights.

On 1 December 1995 the İzmir State Security Court convicted the applicant on account of his involvement in the PKK and organising and planning to bomb a fuel station. The court sentenced him to 12 years and 6 months’ imprisonment in respect of the first offence under Article 168/2 of Turkish Criminal Code and Article 5 of Law 3713 and to 5 years and 6 months and 20 days imprisonment, together with a fine of 200,000 Turkish liras, in respect of the second offence under Article 264/6 of Turkish Criminal Code and Law 3506. The court did not reply to the applicant’s objection of 29 November 1995. The court also convicted and sentenced eleven other accused.

On 10 July 1997 the Court of Cassation upheld the judgment of the Ä°zmir State Security Court.

B. Relevant domestic law and practice

i. Article 19 of the Constitution provides:

“Everyone has the right to liberty and security of person.

A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”

ii. The relevant provision of the Turkish Criminal Code reads as follows:

Article 168

“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in section 3 of the Act are increased by one half.

iii. Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:

“Compensation shall be paid by the State in respect of all damage sustained by persons

(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;

(2) who have not been immediately informed of the reasons for their arrest or detention;

(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;

(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;

(5) whose close family have not been immediately informed of their arrest or detention;

(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial …, or are acquitted or discharged after standing trial; or

(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only…”

COMPLAINT

The applicant complains under Article 5 § 3 of the Convention that he was detained on remand for an excessive length of time.

THE LAW

The applicant complains that he was detained on remand for an excessive length of time. He invokes Article 5§ 3 of the Convention, which provides:

“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.”

1. Exhaustion of domestic remedies

The Government argue that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

The Government submit that the applicant did not wait the outcome of the domestic proceedings before lodging his application with the European Commission of Human Rights. The Court of Cassation delivered its final judgment on 10 July 1997 whereas the applicant lodged his application with the Commission on 9 December 1995. The Government maintain that the applicant could have availed himself to domestic remedies available under Turkish law.

Accordingly, the Government submit that the applicant has failed to invoke in the national courts Article 19 of the Constitution. It would also have been possible for the applicant to apply for compensation using the procedure laid down in Law 466 for those who had been unlawfully deprived of their liberty or, having been detained in accordance with a procedure prescribed by law, had been acquitted, among other possible outcomes.

The Government finally submit that the applicant had neglected to apply, pursuant to Article 297 of the Turkish Code of Criminal Procedure, to have aside the decisions in which the Ä°zmir State Security Court had ordered that he should continue to be kept in detention.

The applicant submits that the remedies suggested by the Government under Article 19 of the Constitution and Law no. 466 are not relevant in his case since these remedies refer to an action for damages in respect of detainees who had been acquitted. He points out that his conviction was upheld by the Court of Cassation .

As regards the Government’s argument concerning Article 297 of the Turkish Code of Criminal Procedure the applicant points out that the İzmir State Security Court did not reply to his objection of 29 November 1995.

The Court observes that it is not required to decide whether or not the applicant has exhausted domestic remedies as the application is inadmissible for the following reasons stated below.

2. Period to be taken into consideration

The Court reiterates that in principle the conviction by a court marks the end of the period to be considered under Article 5 § 3; from that point on, the detention of a person concerned falls within the scope of Article 5 § 1 (a) of the Convention (see, the Wemhoff v. Germany judgment of 27 June 1968, § 9; the B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 14, § 36 and the I. A v. France judgment of 23 September 1998, Reports 1998-VII, p. 2976, § 98).

In the present case the applicant was detained on remand on 30 April 1991 and was convicted by a judgment of the İzmir State Security Court of 28 September 1993. On 18 January 1995 the Court of Cassation quashed the judgment of the İzmir State Security Court. During that period the applicant was obviously detained “after conviction by a competent court” not “for the purpose of bringing him before the competent legal authority”. Between 18 January 1995 and 1 December 1995 the applicant was tried by the İzmir State Security Court which again sentenced him to 12 years 6 months’ imprisonment. Accordingly, the first period to be considered under Article 5 § 3 of the Convention started on 30 April 1991 and ended on 28 September 1993 whereas the second period started on 18 January 1995 and ended on 1 December 1995. The Court is of the opinion that it is necessary to distinguish between the first and the second period.

As to the first period of detention on remand the Court notes that the applicant lodged his application with the European Commission of Human Rights on 9 December 1995, which is after the six months period.

It follows that the applicant’s complaint that he was detained on remand for an excessive length of time between 20 April 1991 and 28 September 1993 has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention (see also, the Neumeister judgment of 27 June 1968, Series A no. 8, p. 37, § 6).

3. Reasonableness of the length of detention

The Government submit that the applicant was accused of serious crimes which involved collective terrorist offences. There were many accused persons tried together with the applicant before the Ä°zmir State Security Court.

According to the Government, while deciding on the continuation of the applicant’s detention on remand the court considered the nature of the alleged offences against the applicant, the date on which he had been detained on remand and the state of evidence. It is under sole discretion of the national judge to decide on the continuation of the detention on remand.

The applicant maintains that the nature of the offences he was accused of does not justify the fact that he was detained on remand for an excessive length of time.

The Court notes 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 violation must be considered (see, the Neumeister judgment of 27 June 1968, cited above, p. 37, § 5).

The Court notes that the applicant made three applications for release pending trial.

On 31 October and 27 November 1995 the applicant requested release pending trial at two consecutive hearings. The court rejected these two requests because of the serious nature of the alleged offences, the state of evidence and the date of arrest, namely 18 January 1995.

On 29 November 1995 the applicant filed an objection with the Ä°zmir State Security Court against the refusal of his request for release pending trial. It appears that the applicant was convicted on 1 December 1995, shortly after the lodging of the objection of 29 November 1995 and consequently the court did not rule on the detention.

The Court notes that the applicant was detained on remand between 18 January 1995, the date on which the proceedings started before the İzmir State Security Court and 1 December 1995, the date on which the applicant was convicted, approximately 10 months and 12 days. The Court further notes that the applicant was sentenced to 12 years and 6 months’ imprisonment on account of serious terrorist offences.

Given the fact that the applicant was convicted shortly after lodging his objection against the refusal of release pending trial and having regard to 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. The Court therefore concludes that there is no appearance of a violation of Article 5 § 3 of the Convention.

It follows that the applicant’s complaint that he was detained on remand for an excessive length of time from 18 January 1995 to 1 December 1995 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President