AS TO THE ADMISSIBILITY OF
Application no. 31170/09
by İhsan GEZENER
The European Court of Human Rights (Second Section), sitting on 24 August 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Kristina Pardalos, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 20 May 2009,
Having deliberated, decides as follows:
The applicant, Mr İhsan Gezener, is a Turkish national who was born in 1977 and lives in Istanbul. He is represented before the Court by Mr İ. Akmeşe, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 July 2000 the applicant was arrested on suspicion of membership of the PKK (Kurdish Workers' Party), an illegal organisation.
The applicant maintains that while in police custody he was psychologically pressurised to make self-incriminating statements.
On 16 July 2000 the applicant was brought before the public prosecutor and then the investigating judge, who subsequently ordered his pre-trial detention. Before those authorities, the applicant denied the veracity of his statements to the police and alleged that he had not been allowed to read them before signing them.
On 20 July 2000 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant with membership of an illegal organisation.
In his defence submissions to the trial court on 30 October 2000 the applicant denied the reliability of his statements to the police, alleging that he had signed them under duress and without having been allowed to read them first.
On 28 December 2001 the 4th Division of the Istanbul State Security Court convicted the applicant as charged.
On 19 November 2002 the Court of Cassation quashed the judgment on account of procedural shortcomings.
Following the abolition of State Security Courts by Law no. 5190, the criminal proceedings against the applicant were resumed by the 12th Division of the Istanbul Assize Court.
On 11 September 2006 the Istanbul Assize Court once more convicted the applicant of membership of an illegal organisation.
On 4 February 2008 the Court of Cassation quashed the decision of the first-instance court on the ground that the latter had erred in applying the provisions of the Criminal Code.
On 6 April 2009, basing its decision on a range of evidence, namely, expert reports, the authorised house search and arrest records and the statements of the witnesses and accused, the Istanbul Assize Court convicted the applicant of aiding and abetting the PKK and sentenced him to three years and nine months' imprisonment.
According to the information in the case file, the criminal proceedings against the applicant are currently pending before the Court of Cassation.
Relying on Article 6 § 1 of the Convention, the applicant complained that the criminal proceedings against him had been excessively lengthy.
Relying on Article 6 §§ 2, 3(b) and 3(c) of the Convention, the applicant contended that he had been denied a fair hearing on account of the alleged absence of legal assistance in the initial period of the proceedings and due to the admission in evidence of his statements, allegedly taken in police custody under coercion. In this connection, the applicant complained that the authorities had disregarded his right to remain silent and not to incriminate himself.
Finally, the applicant argued under Article 13 of the Convention that no effective remedy had been provided by the domestic system with respect to his complaints under Article 6 of the Convention.
1. Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained that the criminal proceedings against him had not been concluded within a reasonable time and that no effective remedy by which he could have challenged the length of those proceedings had been provided by the domestic law.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.
2. Relying on Article 6 §§ 1 and 2 of the Convention, the applicant complained that the domestic courts had relied on statements allegedly extracted from him under duress.
The Court considers that this complaint should be examined from the standpoint of Article 3 of the Convention.
The Court observes that the applicant only denied the veracity of his statement to the police, alleging that he had been psychologically pressurised to make those self-incriminating statements. Nevertheless, neither before the national authorities nor in his application to the Court has the applicant given any details of the alleged acts of coercion. Moreover, according to the submissions in the case file, the applicant last raised the allegation of having been ill-treated at the hearing before the trial court on 30 October 2000 and he does not appear to have pursued this allegation in the course of the proceedings since that date. Even assuming that the applicant has exhausted domestic remedies as it required under Article 35 § 1 of the Convention, the Court notes that the complaint in any event is inadmissible as it has not been supported by any appropriate evidence. The Court thereby considers that the applicant did not lay the basis of an arguable claim that he was subjected to treatment contrary to Article 3 (see Tanrıkolu and Others v. Turkey, no. 45907/99, 22 October 2002, and Mesut Yurtsever v. Turkey (dec.), no. 42086/02, 31 August 2006).
It follows that this complaint must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention, for being manifestly ill-founded.
3. The applicant complained under Article 6 § 3 (c) of the Convention that he had not benefited from legal assistance in police custody, in breach of his right to a fair hearing.
According to the information in the case file, the Court notes that the criminal proceedings against the applicant are currently pending before the Court of Cassation. The applicant's complaint under Article 6 of the Convention is, therefore, premature. Consequently, this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the length of the criminal proceedings against him and the alleged absence of a domestic remedy in that connection;
Declares the remainder of the application inadmissible.
Stanley Naismith Françoise Tulkens
GEZENER v. TURKEY DECISION
GEZENER v. TURKEY DECISION