SECOND SECTION

CASE OF UYANIK AND KABADAYI v. TURKEY

( Application no. 7945/05 )

JUDGMENT

STRASBOURG

22 September 2009

FINAL

22/12/2009

This judgment may be subject to editorial revision.

In the case of Uyan ı k and Kabaday ı v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Vladimiro Zagrebelsky , Danutė Jočienė , Dragoljub Popović , András Sajó , Işıl Karakaş , judges, and Sally Dollé , Section Registrar ,

Having deliberated in private on 1 September 2009 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 7945/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Özgür Uyan ı k and Mr Ozan Kabadayı (“the applicants”), on 8 February 2005 . The applicants were detained on remand in Kartal Prison, İstanbul , when they lodged the case .

2 . On 27 March 2008 the Court declared the application partly inadmissible and decided to communicate to the Government the applicants ’ complaint s concerning the length of their detention and the length of the criminal proceedings brought against them . I t also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3) .

3 . The Turkish Government (“the Government”) were represented by their Agent. On 8 July 2008 the Government submitted their observations which were sent to Mr. E . Olcaytu , the applicants ’ lawyer practicing in Istanbul , who was requested to submit his replies to the Government ’ s observations and just satisfaction claims. The Registry did not receive a reply.

4 . By a letter dated 23 February 2009, Mr V. Gültaş , a lawyer practising in Izmir , informed the Court t hat Mr Olcaytu no longer practis ed law and he was the new representative. Upon the Re gistry ’ s subsequent request, Mr Gültaş presented a power of a ttorney in respect of the first applicant. Consequently, o n 31 March 2009 , the Registry sent the case file to Mr Gültaş (by fax and mail) and to t he second applicant in Kartal Prison, setting a new time limit for their replies to the Government ’ s observations and just satisfaction claims. The Registry has not received a reply from either the first applicant ’ s new representative or the second applicant.

THE FACTS

5 . On 16 May 1996 the applicants were arrested and taken into police custody by officers of the Ä°stanbul security police in connection with an investigation into an illegal organisation . On 30 May 1996 the applicant s w ere brought before the Ä°stanbul public prosecutor and the investigating judge respectively, who remanded the applicant s in custody .

6 . By an indictment dated 27 June 1996 , the public prosecutor at the Ä°stanbul State Security Court initiated criminal proceedings against the applicant s and a number of others, accusing them, inter alia , of membership of an illegal armed organisation and of taking part in its activities.

7 . On 4 June 2003 the İstanbul State Security Court sentenced the applicants to life imprisonment, pursuant to Article 1 46 § 1 of the Criminal Code . On 20 January 2004 the Court of Cassation qu ashed the judgment of the first- i nstance court and remitted the case. State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. Subsequently, the applicants ’ case was resumed before the 12 th Assize Court of İstanbul .

8 . Referring to recent amendments in domestic law, on 27 December 2004 the applicants requested to be released pending trial. Relying on the accusations against the applicants, the length of their detention and the content of the case file, the 12 th Assize Court of İstanbul refused the applicants ’ request on 29 December 2004. The applicants appealed. On 18 January 2005 the 13 th Assize Court of İstanbul dismissed their appeal without further reasoning.

9 . On 1 February 2006 the applicants were released pending trial.

10 . On 30 April 2008 the 12 th Assize Court of Ä°stanbul sentenced the applicants as charged. According to the information in the case file, as submitted by the parties, the proceedings are pending before the Court of Cassation.

THE LAW

A. In respect of the second applicant

11 . Although not explicitly stated in the Government ’ s observations, the Court observes from the annexed documents that the applicants were released pending trial on 1 February 2006. The last communication in respect of the second applicant dates back to 2005 when the application was lodged with the Court. No other addresses are indicated in the Registry ’ s records and the applicant has not to date resumed his correspondence with the Court.

12 . The Court recalls that, pursuant to Rule 47 § 6 of the Rules of Court, “the applicants shall keep the Court informed of any change of address ... ” In the present case, although released from prison, the applicant has failed to inform the Court of his new address. Therefore, he may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) in fine . Moreover, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this aspect of the case. In view of the above, it is appropriate to strike the second applicant ’ s case out of the list (see Dariusz Ostapiuk v. Poland ( dec .), no. 71628/01, 27 June 2006; Knez and Others v. Slovenia , no. 48782/99, § 124 , 21 February 2008 ).

B. In respect of the first applicant

13 . Th e first applicant complained under Article s 5 § 3 and 6 § 1 of the Convention that the length of his detention on remand and the length of the criminal proceedings brought against him had been excessive. The Government contested th ese argument s .

14 . The Court notes that the se complaint s are not manifestly ill- founded within the meaning of Article 35 § 3 of the Convention. It further notes that t hey are not inadmissible on any other grounds. They must therefore be declared admissible.

15 . The Court observes that the applicant ’ s detention, for the purposes of Article 5 § 3 of the Convention, began when he w as taken into police custody on 1 6 May 1996 and continued until he was convicted by the trial court on 4 June 2003 . From this date until his conviction was quashed by the Court of Cassation on 20 January 2004 , he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) . T herefore that period of his detention falls outside the scope of Article 5 § 3 (see Cahit Solmaz v. Turkey , no. 34623/03, § 34, 14 June 2007 and the cases cited therein). From 20 January 2004 until his release pending trial on 1 February 2006 , however, the applicant was once more in pre-trial detention for the purposes of Article 5 § 3 of the Convention. It follows that the applicant spent a total of nine years and one month as a remand prisoner.

16 . As for the period to be taken into consideration for the purposes of Article 6 § 1, the Court observes that the proceedings began on 16 May 1996 and are still pending. Thus they have so far lasted some 13 years and 3 months for two levels of jurisdiction, delivering three judgments.

17 . The Court has frequently found violations of Articles 5 § 3 and 6 § 1 of the Convention in cases raising similar issues to those in the present application (see, for example, Güveç v. Turkey , no. 70337/01, § 108, 20 January 2009 , Ütebay v. Turkey , no. 40555/04, § 35 , 17 July 2008 ).

18 . Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant ’ s detention on remand and the length of the criminal proceedings against him was excessive .

19 . There has accordingly been a breach of Article 5 § 3 and Article 6 § 1 of the Convention.

20 . As for the just satisfaction award under Article 41 of the Convention, the Court observes that the applicant failed to submit the just satisfaction claims in time. Accordingly, the Court considers that there is no call to make an award of compensation.

However, having regard to the fact that the proceedings in question are still pending before the domestic courts, the Court considers that the most appropriate form of redress would be to bring them to a conclusion as speedily as possible, while taking into account the requirements of the proper administration of justice and Article 6 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to strike the application out of its list of cases in respect of the second applicant.

2 . Declares the complaint s concerning the length of the first applicant ’ s detention on remand and the length of the criminal proceedings brought against him admissible ;

3 . Holds that there has been a violation of Article 5 § 3 of the Convention .

4 . Holds that there has been a violation of Article 6 § 1 of the Convention .

Done in English, and notified in writing on 22 September 2009 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Sally Dollé Françoise Tulkens Registrar President