AS TO THE ADMISSIBILITY OF
Application no. 9984/03
by Yaşar KANBUR
The European Court of Human Rights (Second Section), sitting on 14 February 2006 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr V. Butkevych,
Ms D. Jočienė,
Mr D. Popović, judges,
and and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 4 February 2003,
Having deliberated, decides as follows:
The applicant, Mr Yaşar Kanbur, is a Turkish national who was born in 1960 and lives in Istanbul. He is represented before the Court by Mr Ö. Kavili, a lawyer practising in Istanbul.
On 30 October 2001 the Court found a violation of Article 6 § 1 of the Convention, following an application lodged by the applicant on 21 July 1995 (Kanbur v. Turkey, no. 28291/95) concerning the length of the criminal proceedings brought against the applicant for his membership of the Dev-Yol (Revolutionary Way). By then the proceedings had lasted for over 19 years. The Court awarded the applicant 100,000 French francs (approximately 15,000 euros) in compensation.
At the time of the Court’s judgment, the criminal proceedings against the applicant were still pending before the Ankara Assize Court.
The facts of the case thereafter, as submitted by the applicant, may be summarised as follows:
On 14 May 2002 the applicant attended the hearing before the Ankara Assize Court, gave a statement and submitted the Court’s judgment of 30 October 2001 in order to ensure that his case be heard within a reasonable time.
On 16 July 2002 the Assize Court sentenced the applicant to death, and then commuted this to life imprisonment. The judgment was ex officio subject to appeal.
On 3 August 2002, Turkey abolished the death penalty.
On 13 January 2004 the applicant’s lawyer petitioned the Assize Court for copies of the documents in the case file, which transferred the request to the Court of Cassation.
On 19 March and 30 April 2004 he applied to the Ankara Bar Association and the Ministry of Defence for the payment of photocopying expenses, as the applicant did not have sufficient funds to meet these costs.1 Both rejected the request.
On 28 May 2004 the Court of Cassation quashed the judgment of the first-instance court on the ground that the death penalty had been abolished during the course of the proceedings.
On 23 December 2004 the Ankara Assize Court resumed the trial. On that day it ordered, in absentia, the provisional detention of the applicant in order to secure a statement from him.
On 27 December 2004 the Ankara Assize Court heard a statement from the applicant as regards the new state of the case and revoked the detention order as having served its purpose. In the meantime, the defence had photocopied some of the documents of the case file using its own means.
The next hearing was scheduled for 17 May 2005.
The applicant complains under Article 6 § 1 of the Convention that, despite the Court’s judgment of 30 October 2001, the domestic courts have been unable to conclude the proceedings within a reasonable time.
He alleges, under Article 6 § 3 (b) and (c) of the Convention, that he did not have adequate time and facilities to prepare his submissions as the domestic courts failed to provide him with the copies of the complete case file, of which some of the binders were missing.
1. The applicant complains under Article 6 § 1 of the Convention of the length of the criminal proceedings against him.
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 it to the respondent Government.
2. The applicant alleges that he was unable to make a copy of the documents in the case file due to excessive expense and insufficient funds, and that the court did not provide him with free copies. He further alleges that some of the binders of the case were missing. He invokes Article 6 § 3 (b) and (c) of the Convention in that respect.
The Court reiterates that any claims under Article 6 § 3 (b) and (c) have to be assessed in the light of the proceedings as a whole (see, mutatis mutandis, Dikme v. Turkey, no. 20869/92, §§ 109-111, ECHR 2000-VIII, and Sidlova v. Slovakia (dec.), no. 50224/99, 22 February 2005). The Court notes that, when last informed, the criminal proceedings against the applicant were still pending before the Assize Court.
It follows therefore that this part of the application is premature and must be rejected, pursuant to 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 applicant’s complaint concerning the length of the criminal proceedings;
Declares the remainder of the application inadmissible.
S. Dollé J.-P. Costa
KANBUR v. TURKEY DECISION
KANBUR v. TURKEY DECISION