SECOND SECTION

Application no. 59860/10 Öner AKTAŞ against Turkey lodged on 21 September 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Öner Aktaş , is a Turkish national who was born in 1972 and lives in Istanbul .

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

A. Criminal p roceedings against the a pplicant

Following a criminal complaint by an individual that money had been extorted from him by third persons who had introduced themselves as police officers, the Istanbul Security Directorate requested the tapping of six mobile telephones used by those persons to communicate with the alleged victim.

On 9 October 2006 the Bakırköy Magistrates ’ Court granted permission for the tapping of the telephones for three months under Article 135 of the Code of Criminal Procedure (the CCP). The court based its decision on the absence of other ways to gather evidence and the strong suspicion that the offence in question had been committed.

On 16 October 2006 the applicant, then a police officer, and seven others were arrested by the police. The car belonging to the applicant was impounded as having been used for the commission of the offence and placed in a car park. The applicant claims that he was beaten and held at gunpoint during the arrest. Allegedly, he was only given bread and water while in custody, and was handcuffed to the radiators.

On 19 October 2006 the Magistrates ’ Court ordered the applicant ’ s detention pending the outcome of the proceedings on suspicion of membership of a criminal organisation and extortion of money by making threats. The court had regard to the nature of the offence, the state of the evidence, the fact that more than three persons were involved, the sentence imposable under the applicable legislation, the existence of a risk of escape, and the existence of a strong suspicion that evidence would be concealed, destroyed or tampered with if the applicant were at liberty.

On 25 January 2007 the public prosecutor filed a bill of indictment against the applicant and ten others, accusing them mainly of establishment and membership of a criminal organisation, two counts of qualified extortion and abuse of power.

Between 14 June 2007 and 17 September 2009 the Istanbul Assize Court held seven hearings. On the latter date the public prosecutor submitted his opinion on the merits, in which he argued for the applicant ’ s conviction for the offences save for one count of extortion. The Assize Court held another six hearings before 21 June 2011 and scheduled the next one for 24 November 2011.

Throughout the proceedings, the Assize Court examined the applicant ’ s continued detention at the end of every hearing, either of its own motion or at the applicant ’ s request. On each occasion, the court ordered the applicant ’ s continued detention , having regard to the contents of the file and the existence of a strong suspicion that he had committed the offence. However, the applicant ’ s objection dated 29 December 2010 against the decisions ordering his continued detention allegedly did not receive any response from the courts. His subsequent objections also went unanswered .

On 17 November 2011 the applicant was released from prison as he had been detained for the maximum time allowed under Article 102 § 2 of the Code of Criminal Procedure.

According to the case file as it stands, the criminal proceedings are still pending before the Istanbul Assize Court .

B . Remaining issues

On 20 March 2008 the court ordered the impounded car to be given back to the owner or his legal repr esen tative. The applicant claims that the car was not handed over to his wife following that decision. The applicant was allegedly required to pay a parking fee of 20,000 Turkish liras (TRL) to get the car back after his release, which was beyond his means. On 28 February 2011 he attempted to institute a civil case about the impounding of his car but failed to pay TRL 253,15 in court fees.

On 28 June 2010 the applicant filed a complaint with the Istanbul Security Directorate. Although the applicant argues that the complaint concerned his alleged ill-treatment by the police officers while in custody, no copy of the complaint in question was submitted t o the Court. On 9 July 2010 the Istanbul Security Directorate decided that it was not possible to proceed with an examination of the applicant ’ s complaint, which apparently remained unchallenged.

On 15 September 2010 the applicant complained to the High Council of Judges and Prosecutors about the public prosecutor and judge who had been involved in the taking of the decision to allow the tapping of his mobile phone. On 26 January 2011 the Third Chamber of the High Council decided not to take any action. The applicant claims that he filed an objection against the decision, but has not provided information about any developments.

C . Relevant domestic law

Article 102 §§ 2 and 3 of the Criminal Procedure Code reads as follows:

“ (2) For matters falling within the jurisdiction of assize courts, the length of detention shall be two years at most. This period may be extended provided grounds are given ; the length of extension shall not exceed three years.

(3) Decisions to extend detention in accordance with this A rticle shall be given after the opinions of the public prosecutor, the suspect or accused and their defence counsel have be en heard . ”

COMPLAINTS

Without relying on any Convention provisions, t he applicant referred to the alleged ill-treatment to which he had been subjected in police custody.

The applicant argued that no decision had been taken to extend his detention beyond the two-year period as required by Article 102 of the Code of Criminal Procedure. Relying on Article 5 §§ 1(c) and 3 of the Convention, the applicant also challenged the length of his detention. He claimed that there had not been any grounds to continue the detention and the courts had not sufficiently reasoned their decisions on this matter.

The applicant maintained under Article 5 § 4 of the Convention that his objections to the continuation of his detention had remained unanswered.

The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings were unfair. He questioned the impartiality of the first-instance court and complained that witnesses were not re-examined by the new members of the Assize Court ’ s bench.

The applicant contended that the tapping of his cell phone had been in breach of the applicable domestic legislation and Article 8 of the Convention.

Lastly, relying on Article 1 of Protocol No. 1, the applicant complained that his right to the peaceful enjoyment of his property had been breached due to the impounding of his vehicle in the car park. He argued that the car had not been handed over to his wife following the Assize Court ’ s decision of 20 March 2008 and that he had had to pay an excessive parking fee to get it back, which he could not afford.

QUESTIONS TO THE PARTIES

1. Was a s eparate decision taken in respect of the applicant in order to be able to extend his detention beyond the two-year period as laid down in Article 102 of the Code of Criminal Procedure? If the answer is in the negative , was the absence of such a decision compatible with Article 5 § 1 of the Convention?

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

3 . W ere the applicant ’ s objections against his continued detention examined by the relevant courts? If the answer is in the affirmative, were the decisions taken on this matter served on the applicant? If the answer is in the neg ative, did this comply with the applicant ’ s right to challenge the lawfulness of his detention under Article 5 § 4 of the Convention?