SECOND SECTION

Application no. 58405/10 Mehmet Ali POLAT against Turkey lodged on 6 September 2010

STATEMENT OF FACTS

The applicant, Mr Mehmet Ali Polat , is a Turkish national who was born in 1973 and is currently being detained in Edirne F - Type Prison pending the outcome of proceedings against him. The applicant was repr esen ted before the Court by Mr E. Kanar , a lawyer practising in Ä°stanbul .

A. The circumstances of the case

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

On 8 September 2006 the applicant was arrested in Kayseri on suspicion of membership of a proscribed organisation, namely the MLKP ( Marxist-Leninist Communist Party ). Police forces also conducted operations in seven other cities, including Istanbul , in respect of the activities of the same organisation.

On 12 September 2006 the 14 th Division of the Istanbul Assize Court ordered the applicant ’ s detention pending the outcome of the proceedings.

On 17 May 2007 the public prosecutor filed a bill of indictment with the 10 th Chamber of the Istanbul Assize Court (the Assize Court ) against the applicant and twenty-two others. He was charged with being a leading member of an armed terrorist organisation, breaching the Constitution and a number of other offences related to the activities of the MLKP.

On 26 October 2007 the applicant ’ s lawyer submitted a request for the removal of certain evidence from the case file. In certain parts of the submissions, it was stated that one could not be forced to give evidence against oneself and that an internal or external body search should be based on a person ’ s will. He considered the body search to amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention, as well as of the Turkish Constitution. He further argued that evidence obtained in that way should therefore be regarded as unlawful evidence. He also maintained that it was unlawful to forcibly obtain blood, hair, saliva and nail samples, in view of international law and the relevant provisions of the Constitution. The lawyer also argued that Article 153 of the Code of Criminal Procedure (the CCP), under which a secrecy decision had been taken at the investigation phase, was in contravention of the Constitution. It is not clear what action was taken by the court in respect of this request.

Between 26 October 2007 and 13 October 2011 the Assize Court held thirteen hearings and scheduled the next one for 13 February 2012. At the end of every hearing, the applicant ’ s detention was examined and extended on similar grounds. The court referred in particular to the existence of a strong suspicion that he had committed the offence, the nature of the offence, the state of the evidence , and the existence of the circumstances referred to in Article 100 of the CCP.

In the meantime, at the hearing of 29 July 2010 the Assize Court ordered the continuation of the applicant ’ s detention pending the outcome of the proceedings.

On 13 August 2010 the 11 th Chamber of the Istanbul Assize Court dismissed the applicant ’ s objection to his continued detention merely by reference to the case file, and without holding any hearing ( dosya üzerinden ).

According to the case file, the proceedings are still pending before the first-instance court.

COMPLAINTS

Relying on Article 3 of the Convention, the applicant complained that a body search had been conducted against his will. He argued that forcible internal and external body searches were in breach of the prohibition of inhuman or degrading treatment in that Article. The applicant further maintained that the Assize Court had overlooked his arguments as to the unlawfulness of evidence obtained through such a search and as to the affirmation that no one could be forced to give evidence against himself.

Relying on Article 5 § 3 of the Convention, the applicant argued that his police custody of thirteen days had contravened his right to be brought promptly before a judge. Under this heading the applicant also challenged the length of his detention, and claimed that the courts had used stereotyped reasons to order his continued detention.

The applicant also referred to Article 5 § 4 of the Convention and certain principles laid down therein , but without making any complaints.

The applicant contended under Article 6 § 1 of the Convention that the proceedings against him had been excessively lengthy. He further considered under Article 6 § 2 that the lengthiness of his detention period had violated his right to the presumption of innocence within the meaning of Article 6 § 2 of the Convention.

The applicant argued that the 11 th Chamber had examined his objections to the continued detention only by having regard to the contents of the file and in his absence, which, in his opinion, was in breach of Article 6 § 3 (b) and (c) of the Convention.

Lastly, the applicant complained of breaches of Articles 13 and 14 of the Convention. He argued that the Assize Court had refused to bring his claim of unconstitutionality before the Constitutional Court in respect of Article 252 of the Code of Criminal Procedure.

QUESTIONS TO THE PARTIES

1. Was the length of the applicants ’ pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

2. Has the length of the criminal proceedings in the pr esen t case been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Has there been an interference with the applicant ’ s right to respect for his private life because of the body search, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

The parties are requested to submit all the documents pertaining to the body search of the applicant.