THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9043/02 
by Zafer ŞAHİN 
against Turkey

The European Court of Human Rights (Third Section), sitting on 1 June 2006 as a Chamber composed of:

Mr B.M. Zupančič, President, 
 Mr L. Caflisch, 
 Mr R. Türmen, 
 Mr C. Bîrsan, 
 Mr V. Zagrebelsky, 
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges, 
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 16 January 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zafer Şahin, is a Turkish national who was born in 1976 and was detained in Kocaeli F-type prison at the time of his application to the Court. He is represented before the Court by Mr M. Filorinali and Mrs Y. Başara, lawyers practising in Istanbul.

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

On 29 October 1995 the applicant was taken into custody by police officers from the anti-terror branch of the Istanbul Security Directorate on suspicion of membership in the DHKP-C (Revolutionary People’s Liberation Party-Front).

On 2 November 1995 he was brought before a judge at the Istanbul State Security Court who ordered his detention on remand.

On 7 November 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, charging the applicant with attempting to undermine the constitutional order, under Article 146 § 1 of the Criminal Code.

On 13 November 1995 the 5th Chamber of the Istanbul State Security Court held the first hearing and decided to join the case to case no. 1995/376 as it found that these two proceedings were linked.

On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the Istanbul State Security Court hearing the applicant’s case was replaced by a civilian judge.

In 2000 the public prosecutor at the Istanbul State Security Court submitted his opinion concerning the merits of the case maintaining that the applicant should be convicted of membership of the DHKP-C under Article 168 § 2 of the Criminal Code.

Between 21 August 1997 and 4 December 2001 the applicant requested to be released various times before the trial court. The 5th Chamber of the Istanbul State Security Court dismissed his requests on all occasions having regard to the content of the file and state of the evidence. The first-instance court also referred to the nature of the offence, the manner in which the offence was committed and the stage of the proceedings in some of its decisions. Between the hearings, on various occasions, the first-instance court also examined the case file on its own motion, and prolonged the applicant’s detention on remand.

On 6 December 2001 the applicant filed an objection against the decision of 4 December 2001 with the 6th Chamber of the Istanbul State Security Court. In his petition he maintained, inter alia, that the length of his detention on remand was in violation of Article 5 § 3 of the Convention and that there was no danger of fleeing.

On 14 December 2001 the 6th Chamber of the Istanbul State Security Court dismissed his request. The court held that the decision to prolong the applicant’s detention on remand had been lawful having regard to the nature of the offence, the state of evidence, the content of the case-file and the dates of the offence and the decision to detain the applicant on remand.

On 25 March 2002 the 5th Chamber of the Istanbul State Security Court convicted the applicant under Articles 168 § 2 and 264 of the Criminal Code.

On 15 October 2002 the Court of Cassation quashed the judgment of the first-instance court and remitted the case to the Istanbul Assize Court, since by Law no. 5190 of 16 June 2004, the State Security Courts had been abolished.

On 28 October 2004 the applicant was released pending trial.

The proceedings are still pending before the 13th Chamber of the Istanbul Assize Court.

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention that the length of his detention on remand was excessive.

The applicant alleges under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time.

The applicant further maintains under Article 6 of the Convention that he was not allowed to consult a lawyer while in police custody. He complains under the same head that he was denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court until June 1999. The applicant finally contends under Article 6 of the Convention that he was prevented from consulting the documents concerning his defence as the prison administration seized some documents that his lawyer brought to the prison.

THE LAW

1. The applicant contends under Article 5 § 3 of the Convention that the length of his detention on remand was unreasonably long.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

2. The applicant complains that the length of the proceedings brought against him is incompatible with the “reasonable time” requirement provided in Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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 maintains under Article 6 of the Convention that he was not allowed to consult a lawyer while in police custody. He further complains under the same head that he was denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court until June 1999. The applicant finally contends under Article 6 of the Convention that he was prevented from consulting the documents concerning his defence as the prison administration seized some documents that his lawyer brought to the prison.

The Court observes that, on 15 October 2002 the Court of Cassation quashed the first-instance court’s judgment and remitted the case to the Istanbul Assize Court since the State Security Courts had been abolished by Law no. 5190 of 16 June 2004. It further observes that the proceedings are still pending before the first-instance court.

The Court is consequently not in a position to make an overall examination of the proceedings against the applicant. It considers that it cannot speculate either on what the national courts will decide or on what the outcome of a second appeal on points of law might be since that remedy would still be available to the applicant if he was to consider that his trial had ultimately infringed the rights on which he relied before the Court (see Dikme v. Turkey, no. 20869/92, § 111, ECHR 2000-VIII).

It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

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

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

ZAFER ŞAHİN v. TURKEY DECISION


ZAFER ŞAHİN v. TURKEY DECISION