THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35775/02 
by Hasan KIZILKAYA 
against Turkey

The European Court of Human Rights (Third Section), sitting on 9 February 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mr R. Türmen
 Mrs M. Tsatsa-Nikolovska
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 4 September 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hasan Kızılkaya, is a Turkish national who was born in 1978 and at the time of introduction of the application he was living in Istanbul. He is represented before the Court by Mrs F. Karakaş, a lawyer practising in Istanbul.

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

On 3 June 1995 the applicant was arrested in Batman on suspicion of being a member of an illegal terrorist organisation and taken into police custody.

On 23 June 1995 he was handed over to the police officers from the Anti-Terrorism Institute of the Istanbul Security Directorate.

On 29 June 1995 the Public Prosecutor at the Istanbul State Security Court took the applicant’s statements. On the same day, the applicant was also questioned by the judge at the Istanbul State Security Court who ordered his detention on remand.

On 10 July 1995 the Public Prosecutor filed an indictment against the applicant and two others, charging them with being a member of PKK, producing explosives, bombing and extortion, under Articles 168 and 264 of the Criminal Code.

The first hearing was held on 4 September 1995. Considering that there were incriminating statements against the applicant, given by an accused in a different case, the court prolonged the applicant’s detention on remand.

On 27 October 1995 the applicant requested to be released pending trial. In view of the nature of the offence and the state of evidence the court ordered the continuation of the applicant’s detention on remand. Furthermore the court requested the Batman Assize Court, Batman Public Prosecutor and the Batman Security Directorate to submit certain documents.

At the hearing of 8 December 1995 there were no replies from the Batman Assize Court and the Batman Public Prosecutor to the inquiries of the court. The court ordered the continuation of the applicant’s detention on remand and scheduled the next hearing for 7 February 1996.

On 7 February 1996 the court asked the Public Prosecutor at the Diyarbakır State Security Court to give information and submit documents on certain incidents in which the accused were allegedly involved.

At the following seven hearing the court continued to seek information from the Diyarbakır State Security Court and the Public Prosecutor. It prolonged the continuation of the applicant’s detention on remand, reiterating the previous reasons.

On 3 September 1997 the Istanbul State Security Court decided to join the applicant’s case with another one, concerning similar incidents.

At the hearing of 3 December 1997 the court requested the Sakarya Public Prosecutor to inform about two recent decisions of non-jurisdiction concerning the accused. It also requested the incident reports regarding two previous bomb attacks. Additionally, the court summoned five new persons to take their testimonies. The applicant’s detention on remand was prolonged taking into account the state of evidence, the content of the case file and the period that he already spent in detention on remand.

At the following hearing, held on 11 February 1998 only two of the five witnesses were present before the court. There were no replies to the court’s recent inquiries.

On 5 June 1998 the applicant maintained that he had health problems and that his transfer from Bursa Prison to Istanbul for every hearing was deteriorating his condition. The court dismissed the applicant of the obligation to be present at the hearings.

At the hearing of 7 August 1998 the Istanbul State Security Court decided to join the applicant’s case with a similar case. The total number of accused was increased to twenty.

On 1 February 1999 the public prosecutor submitted his written opinion. The court granted the accused one month to submit their observations. It also requested several post mortem and autopsy reports in order to determine the facts of certain incidents.

At the hearing of 12 April 1999 some of the accused requested additional time to submit their observations.

At the hearing of 3 November 1999 the post mortem and autopsy reports were submitted to the case file. The applicant maintained that he was suffering from chronic hepatitis since two years. Considering that he could not be treated in the prison and that it was difficult to be transported to a hospital for each treatment session, the applicant requested either to be released pending trial or to be transferred to a hospital. The court ordered the prolongation of his detention on remand.

On 29 March 2000, after four hearings, the observations of all the accused were submitted to the court. The applicant requested to be released pending trial for health reasons. He also submitted a medical report confirming his illness. The court dismissed his request.

On 28 July 2000 the court requested the Forensic Medicine Institute’s opinion on the applicant’s state of health.

On 25 May 2001 the Forensic Medicine Institute’s report, dated 19 December 2000, was submitted to the court. According to the report the applicant’s detention in prison was not a threat to his health. Consequently, the applicant’s detention on remand was prolonged on the same grounds.

On 8 August 2001 the applicant reiterated his complaints regarding the prison conditions which have deteriorated his health. He requested to be further examined by the Forensic Medicine Institute and to be released in accordance with Article 399 § 2 of the Code on Criminal Procedure, which provided for suspension of the sentence if the convict is suffering from a serious illness. The court ordered the Forensic Medicine Institute to re-examine the applicant.

According to the medical report prepared by the Forensic Medicine Institute the applicant’s condition did not fall within the sphere of application of Article 399 § 2 of the Criminal Code. Accordingly, at the hearing of 24 October 2001 the court ordered the continuation of his detention on remand.

On 26 February 2003 the court convicted the applicant and five others under different articles of the Criminal Code in relation to terrorist activities. It sentenced the applicant to sixteen years and eight months’ imprisonment. Nevertheless, considering the time that the applicant was detained on remand and his state of health, the court ordered his release. The court acquitted three accused and postponed the sentence of eleven others, in accordance with the Law no 4616.

On 15 January 2004 the Court of Cassation quashed the decision of the Istanbul State Security Court on some procedural grounds.

 By Law no. 5190 of 16 June 2004, published in the official journal on 30 June 2004, the State Security Courts have been abolished. The applicant’s case has therefore been resumed before the Istanbul Assize Court and it is still pending.

COMPLAINTS

The applicant complains under Article 3 of the Convention about the prison conditions which seriously deteriorated his state of health. He also maintains that due to his illness he needed special treatment which could not have been provided in prison.

He complains under Article 5 § 3 of the Convention about the length of his detention on remand.

The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings.

He further argues that the fact that the court ordered his detention pending trial, throughout the proceedings, demonstrates that he was not presumed innocent by the judicial authorities, in violation of Article 6 § 2 of the Convention.

Lastly, the applicant alleges that he did not have a fair trial as the domestic authorities did not respect his rights under Article 6 § 3 (b), (c) and (d) of the Convention.

THE LAW

1.  The applicant complains under Article 3 of the Convention about the prison conditions that caused and aggravated his illness. He also maintains that he needed special treatment which could not have been provided in prison conditions.

The Court observes that the applicant did not describe in his application form any prison condition which may be the reason for his illness. Furthermore the medical report prepared by the Forensic Medical Institute concluded that the applicant’s continued detention on remand was not a threat to his health. The Court considers that the applicant failed to establish the existence of conditions that would reach the threshold required to bring them within the scope of Article 3.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complains that the length of his detention on remand was excessive. He also argues that the fact that the court ordered his detention pending trial throughout the proceedings, demonstrates that he was not presumed innocent by the judicial authorities. He invokes Articles 5 § 3 and 6 § 2 of the Convention.

The Court reiterates that continued detention may be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Accordingly, Article 5 § 3 of the Convention also protects, indirectly, the principle of the presumption of innocence (see Olstowski v. Poland (dec.), no. 34052/96, 15 February 2001, and Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV). Consequently, the Court will examine the applicant’s complaint concerning the length of detention on remand under Article 5 § 3 alone.

However, it considers that it cannot, on the basis of the case file, determine the admissibility of this complaint at the present stage and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3.  The applicant also contends that the length of the criminal proceedings was in breach of the reasonable time requirement of Article 6 § 1 of the Convention.

It considers that it cannot, on the basis of the case file, determine the admissibility of this complaint at the present stage and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4.  The applicant complains under Article 6 §§1 and 3 (b), (c) and (d) of the Convention without giving any details, that he did not have a fair trial.

According to its established case-law, the Court deems it necessary to take into consideration the entire criminal proceedings brought against the applicant in order to decide whether they conform to the requirements of Article 6 of the Convention (see Sakık and Others v. Turkey, no. 23878/94, Commission decision of 25 May 1995, Decisions and Reports (DR) 81- B, p. 94). The Court therefore notes that, as the applicant’s case is still pending, he has at his disposal the possibility of submitting his complaints before the domestic courts. In this regard, the applicant’s complaints under this heading appear to be premature. Besides, the Court draws attention to the fact that, after the final ruling is given in domestic law, the applicant may re-submit his complaints to the Court if he still considers himself victim of the alleged violations.

It follows that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of detention on remand and the length of criminal proceedings;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

KIZILKAYA v. TURKEY DECISION


KIZILKAYA v. TURKEY DECISION