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SECOND DIVISIONDECISION

ADMISSIBILITYof Application No. 15869/09presented by Ahmet Tuncay OZKANagainst Turkey

The European Court of Human Rights (Second Section), sitting 13 December 2011 as a Chamber composed of:

Tulkens, President,Danut Jo ien ,Dragoljub Popovi ,Isil Karakas,Guido Raimondi,Paulo Pinto of Albuquerque,Helen Keller, Judges,

and Stanley Naismith, Deputy Section Registrar,Given the above application lodged on 24 February 2009Having deliberated, decides as follows:THE FACTSThe applicant, Mr Ahmet Tuncay Ozkan, a Turkish national, born in 1966 and lives in Istanbul. Hewas represented before the Court by Mr A. rtoglu, lawyer in Ankara. At the material time, he was a

journalist, owner of the television Kanalturk and president of the political party "New Party". A. The circumstances of the caseThe facts of the case, as submitted by the applicant, may be summarized as follows.1. The Ergenekon trialIn 2007, the Istanbul prosecutors urged a criminal investigation against suspected members of acriminal organization by the name of "Ergenekon", all suspected of engaging in activities to overthrowthe elected Government by force and violence.According to the prosecution, the accused allegedlyplanned and committed acts of provocation, attacks against well-known personalities, the bombattacks in sensitive areas such as local shrines or higher courts. They have thus aimed to generatean atmosphere of fear and panic among the public and thereby create a climate of insecurity in order to pave the way for a military coup.For several indictments, the prosecutor of Istanbul instituted criminal proceedings before the AssizeCourt of Istanbul against several people, including generals and army officers, members of intelligence, men of business, politicians and journalists. He reproached them with plotting a coup inorder to overthrow the democratic constitutional order, a crime punishable by life imprisonment,primarily under Article 312 of the Penal Code.It appears from the indictment that the first clue revealing the existence of the clandestineorganization Ergenekon was the discovery of a cache of weapons (grenades, assault 26) during asearch conducted in June 2007 mraniye , a district of Istanbul. During several searches conductedas part of the same investigation, evidence highlighting the hierarchical structure of the organizationand its action plans to overthrow the Government by force were seized.The prosecutor explained in the indictments filed in this case that, according to the hierarchical

structure of Ergenekon, soldiers were seen as major players in the organization and that civilianswere instead responsible for providing resources logistical and financial and propaganda.Moreover, according to prosecutors, had established the offending network, to conduct its business,of concrete action plans, some of which had been disclosed. Three of these action plans, Kafes(Cage), Irtica Mcadele island (the fight against fundamentalism) and Sar k z (the blonde), concernedthe period before the military coup and had the primary objective of site preparation to justify thisintervention. The action plan Yakamoz (the reflection of the moon in water) was for the execution of the military coup as such. Finally, the action plan Eldiven (the gauntlet) focused on the restructuringof governmental and political institutions during the period after the military coup.The action plan foresaw Kafes, initially, that the organization members commit acts of violenceagainst citizens belonging to religious minorities, such as threatening phone calls and slogans writtenon walls, installation of explosives in neighborhoods inhabited mostly these people, the attacks


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against defenders of minority rights known to the public, and, finally, the kidnappings of businessmenand artists, members of these minorities. The second step was to plan Kafes manipulate the mediaso that the AKP, the ruling party, was accused of masterminding the violence.The action plan to fight against fundamentalism (irtica island Mcadele Eylem Planner) provided inparticular through the dissemination of false news media concerning the AKP, the ruling party, inorder to tarnish his image and make him lose support from public opinion.The action plan Sar k z as outlined in the journal kept by the former commander of the navy, Admiral. ., Planned to manipulate the press and to encourage students, members of unions andassociations to organize protests against the government and implement advertising campaigns

nationally to pretend to a general discontent against the government. This action plan was developedby the army generals M. . E., A. Y., . .and . F.The action plan Ay (moonlight) was designed primarily to oust or neutralize the Chief of Staff,

Army General H. ., Who was reputed to be hostile to any undemocratic action. The plan also soughtto leave their party to a number of deputies of the AKP, the ruling party.Another objective of the planwas to enlist the support of the president in a military coup against the government, or to neutralizeany opposition on his part.The action plan was Yakamoz including the implementation of the military coup and theestablishment of new government after the overthrow of the government.The action plan Eldiven concerned specific measures to be taken after a successful military coupagainst the government. The action plan focused on the restructuring of the media and politicalparties, the reorganization of the armed forces, to elect a new president, the reorganization of institutions under the Presidency and the reorientation of foreign policy.

According to prosecutors, Ay action plans, and Yakamoz Eldiven, which were described in CDsbelonging to the Army General Mr . E., had been developed by him and his team including senior military personnel.

At the request of prosecutors, the criminal court in Istanbul - before which the proceedings are stillpending - ordered the setting and the continued detention of most of the defendants.2. The applicant's arrest and the criminal proceedings against himOn 23 September 2008, police officers arrested the applicant in Istanbul and took him intocustody. They informed him that he was suspected of being a member of a terrorist organizationknown as Ergenekon and have engaged in activities on behalf of that organization.The interrogation of the person began the Security Directorate of Istanbul September 25, 2008 at22:30 and lasted without interruption until the next day at 18:00. At the end, the applicant feltexhausted and he was hungry and thirsty. During interrogation, the police questioned the applicantparticular on the structure of Ergenekon and relations between its members. They also asked himquestions about his activities and associations and political knowledge in media, army, police and

justice. Part of the interview also carried on the applicant's telephone conversations with other alleged members of the organization.On 27 September 2008, the public prosecutor ("the prosecutor") in Istanbul, after hearing theapplicant, translated it before a judge about the special criminal court, maintaining the same chargesas those which had been made during interrogation by police. The judge ordered the detention onremand.By an indictment filed March 8, 2009 before the Istanbul Assize Court, the prosecutor accused theapplicant of being an active member of the criminal organization known as Ergenekon. According tothe prosecution, the applicant was under the direct authority of some members of the Ergenekonorganization. The prosecutor argued that as part of its membership in it, the applicant had obtainedillegally several minutes and documents from the National Security Council (Milli Gvenlik Kurulu)and the National Intelligence Service (MIT) classified all "secrets", had founded a television station asthe Kanalturk to disseminate information from the Ergenekon organization and had illegally detainedin his home explosives (grenade and grenade capsules) and bullets. In support of its charges, theprosecutor presented to the Assize Court, as evidence, documents and materials seized during thesearches of the homes of the individual and his co-defendants as well as reportsof wiretapping. Finally, the prosecutor sought the applicant's conviction under Article 311 1, 3121, 314 1, 327 1, 334 1 of the Criminal Code and Article 13 1 of Act No. 6136 on firearms andedged weapons.Between November 6, 2008 and December 1, 2009 the applicant lodged appeals to oppose his


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detention and seeking his release on bail. He explained that the particular evidence adduced by theprosecution were not in any way to support accusations that he is a member of a terroristorganization. However, the criminal court in Istanbul dismissed the appeal by the applicant based onthe following grounds: the nature of the offenses alleged against the person, the strong suspicionagainst him, the risk of leakage, the stateevidence and the risk of destruction of the latter, and theassumption that alternative measures to detention would not be sufficient to ensure the applicant'sparticipation in the criminal proceedings.

At present, the case is still pending before the Assize Court of Istanbul and the applicant is detainedat the prison in Silivri.

B. Relevant domestic law1. The provisions of the Criminal Code Article 311 1 of the Criminal Code reads:"Whoever attempts to overthrow the Turkish Grand National Assembly by force and violence or restrict or inhibit his duties will be sentenced to life imprisonment."

Article 312 1 of the Criminal Code reads:"Anyone who attempts to overthrow the government of the Republic of Turkey by force and violenceor restrict or inhibit his duties will be sentenced to life imprisonment."

Article 314 1 and 2 of the Criminal Code, which provides for the crime of belonging to an illegalorganization, reads as follows:"1. Anyone who is or leads an organization to commit offenses under the fourth and fifth sections of this chapter shall be sentenced to ten to fifteen years imprisonment.2. Any member of the organization mentioned in the first paragraph shall be sentenced to five to tenyears imprisonment. "

Article 327 1 of the Criminal Code provides:"Anyone who obtains information which must remain secret for reasons related to security of theState or its political interests outside or inside is sentenced to three to eight years imprisonment."

Article 334 1 of the Penal Code provides:"Anyone who obtains information which competent authorities have prohibited the disclosure inaccordance with law and provisions in the matter and must remain confidential in nature is sentencedto one to three years imprisonment."2. The provisions of the Code of Criminal Procedure

Article 91 2 of the Code of Criminal Procedure provides:"Placement in custody depends on the necessity of this measure for the investigation and evidence tosuggest that the person has committed an offense".Pretrial detention is governed by Articles 100 et seq of the Code of Criminal Procedure.According to

Article 100, a person may be remanded in custody when there are facts showing the existence of astrong suspicion that she committed an offense and that remand is justified by one of the reasonslisted in this provision. Pretrial detention is considered justified in case of leakage and risk of flight, or when the suspect may hide or alter evidence or influence witnesses. The existence of a strongsuspicion that the suspect has committed certain crimes, especially against state security andconstitutional order, may also warrant the detention.Section 101 of the Code of Criminal Procedure provides that pretrial detention is ordered at theinvestigation stage by the single judge at the request of the prosecutor, and to judgment by thecompetent court, ex officio or at the prosecutor's request. Orders for release and continued detentionmay be an opposition. Related decisions should be motivated in law and fact.

According to Article 104 of the Code, the accused or the accused may request at any time of theprocedure to be liberated. The order for continued detention or release is made by a judge or acourt. The decision to reject the request for release is also objectionable.GRIEVANCERelying on Article 3 of the Convention, the applicant alleges that the length of the interrogation to theSecurity Directorate and the conditions under which the interrogation took place amount to aninhuman and degrading treatment against him.Relying on Article 5 1 of the Convention, the applicant complained that his arrest is not inaccordance with domestic law or the Convention since been arrested and detained in the absence of reasonable grounds to suspect of having committed a criminal offense.In addition, the applicant submitted under Article 5 2 of the Convention that after his arrest he was


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not informed nor reason to it or the charges against him.In terms of Article 5 3 of the Convention, the applicant alleges that the length of his detention,currently more than three years, is excessive.Relying on Article 5 4 and 13 of the Convention, the applicant also complained of the lack of aneffective remedy to challenge his continued detention. He blames the judicial authorities to reject hisapplications for release without respecting equality of arms or a hearing.Relying on Article 6 1 of the Convention, the applicant complains first of the excessive length of criminal proceedings against him.Relying on Article 6 1 of the Convention, taken alone or in conjunction with Article 13, the applicant

complains that he does not receive a fair trial before an independent and impartial tribunal - on thegrounds that the trial judges charge of the case have close links with prosecutors and judicial policeand would be subject to the authority of the Superior Council of Magistracy, training chaired by theMinister of Justice - and he does not have any an effective remedy in domestic law by which he couldhave challenged this.THE LAW1. The applicant alleges that his detention was unreasonable within the meaning of Article 5 3 of the Convention.In addition, relying on Article 5 4 and 13 of the Convention, the applicant complained that he hadnot had in law an effective remedy to challenge their continued detention. He noted that, when theyruled on his request for release, the judicial authorities did not respect the adversarial principle andequality of arms.In the current case, the Court found not to be able to rule on the admissibility of these complaints andfinds it necessary to communicate to the respondent Government, under Article 54 2 b) of its rules.2. Relying on Article 5 1 of the Convention, the applicant also complained of having been arrestedand detained in the absence of reasonable grounds to suspect of having committed a criminaloffense.The Court notes that the applicant claims that his arrest and detention are not only contrary to theprovisions of Article 5 1 c) of the Convention, but also "internal channels" within the meaning of

Article 5 1 of the Convention, these pathways to enact similar standards to those of the Conventionas to the existence of reasonable suspicion of his having committed a criminal offense in terms of deprivation of liberty. The Court will therefore examine the complaint first in terms of the notion of "probable cause" within the meaning of Article 5 1 c) of the Convention.The Court recalls that Article 5 1 c) authorizes placing a person in custody in the context of criminalproceedings, for bringing him before the competent legal authority on reasonable grounds to suspecthas committed an offense (c Jecius. Lithuania, No. 34578/97, 50, ECHR 2000-IX and Wloch v.Poland, no. 27785/95, 108, ECHR 2000-XI). The "reasonableness" of suspicion must be based onwhich the arrest is an essential element of the protection afforded by Article 5 1 c). The existence of reasonable suspicion presupposes the facts or information which would satisfy an objective observer that the person concerned may have committed the offense. This may be regarded as plausible,however, depends on all the circumstances (Fox, Campbell and Hartley v.. UK, August 30, 1990, 32, Series A No. 182, O'Hara c. United Kingdom, No. 37555 / 97, 34, ECHR 2001-X, Korkmaz andOthers v. Turkey, no. 35979/97, 24, March 21, 2006, Sleyman Erdem v. Turkey, no. 49574/99, 37, September 19, 2006, and elik and Y ld z v. Turkey, no. 51479/99, 20, 10 November 2005).Moreover, paragraph c) of Article 5 1 does not presuppose that the police should have obtainedsufficient evidence to lay charges at time of arrest. The purpose of questioning during a detentionunder paragraph c) of Article 5 1 is to further the criminal investigation by confirming or dispellingthe concrete suspicion grounding the arrest. Thus, the facts giving rise to suspicion need not be thesame as those needed to justify a conviction or even to lay a charge, which comes at the next stageof the proceedings of the criminal investigation (Murray v. . United Kingdom, October 28, 1994, 55,Series A No. 300-A and Korkmaz and Others, cited above, 26).It should certainly not apply Article 5 1 c) in a manner that would cause the police authorities of theContracting States to combat undue hardship by adequate measures organized crime (see, mutatismutandis, Klass et al. Germany, 6 September 1978, 58-68, Series A No. 28). The task of theCourt is whether the conditions specified in paragraph c) of Article 5 1, including the pursuit of thelegitimate aim prescribed, have been satisfied here. In this context, it is not his normally substitute itsown assessment of the facts for that of domestic courts, better placed to assess the evidence before


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The Court reiterated that to fall within the scope of Article 3, a treatment must attain a minimum levelof severity depends on the appreciation of all the circumstances of the case, including the duration of treatment, its physical effects or mental and, sometimes, gender, age, health status of the victim,etc.. (See, for example, Ireland c. United Kingdom, January 18, 1978, 162, Series A No.25). Moreover, the Court, to assess the value of the evidence before it in determining treatmentcontrary to Article 3 adopts the standard of proof "beyond a reasonable doubt." Such proof mayfollow from a body of evidence, or unrebutted presumptions sufficiently strong, clear and concordant(ibid., p. 64-65, 161).In particular, treatment is "inhuman" within the meaning of Article 3 in particular if it was applied

premeditated for a long time, and it caused either actual bodily injury or intense physical or mentalsuffering (see Among other things, Kud a c. Poland [GC], no 30210/96, 92, ECHR 2000-XI). Furthermore, in considering whether treatment is "degrading" within the meaning of Article 3, theCourt will consider whether the object is to humiliate and debase the person concerned and whether,viewed in its effects, the measure has attained the personality of it in a manner inconsistent with

Article 3 (Albert and Le Compte v.. Belgium, February 10, 1983, 22, Series A No. 58). For the arrestor detention of a person as part of a lawsuit to be degrading within the meaning of Article 3, thehumiliation or debasement to which it gives rise must be at a particular level and in any eventdifferent from the usual element of humiliation inherent in arrest or detention (calan, 181, mutatismutandis, Raninen c. Finland, December 16, 1997, 55, Reports of Judgments and Decisions 1997-VIII) .In this case, the Court held that before it, the person has not produced any evidence or adduced anyevidence to suggest that the length of the interrogation and the conditions under which thequestioning took place reached the level of severity required by section 3 (see, in the same direction,Erda et al. Turkey (dec.), No. 499/02, 1 June 2006).It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 3a) and 4 of the Convention.5. Relying on Article 6 1 of the Convention, the applicant complained of the excessive length of proceedings.The Court notes that the period taken into consideration began on 23 September 2008, the date of his arrest. The procedure is still pending before the special criminal court. To date, it has lasted justover three years.The Court recalls its constant jurisprudence that the reasonableness of the length of proceedingsmust be assessed in the circumstances of the case and having regard to the following criteria: thecomplexity of the case, the conduct of the applicant and the competent authorities and the stake for the person concerned (see, among others, Srmeli c. Germany [GC], no 75529/01, 128, ECHR2006-VII, v. McFarlane. Ireland [GC], no 31333/06 , 140, September 10, 2010).The Court considers that the case was of some complexity, as evidenced on the one hand, the largeamount of evidence referred to by the indictment against the applicant and, secondly, a large number of co-defendants.Regarding the authorities' conduct, the Court notes that the prosecution presented its indictmentwithin six months after the applicant's arrest. She also notes that the applicant does not observe theexistence of significant periods of inactivity during the course of the proceedings before the AssizeCourt of Istanbul and it can not usefully put into question the speed of judicial authorities.Therefore, taking into account all the circumstances of the case, including the complexity of thedispute, the Court considers that the length of the proceedings, taken as a whole, did not exceed, todate, a reasonable time within the meaning of Article 6 1.It follows that this complaint must be dismissed as manifestly ill-founded within the meaning of Article35 3 a) and 4 of the Convention.6. Relying on Article 6 1, taken alone or in conjunction with Article 13 of the Convention, theapplicant complains that he does not receive a fair trial before an independent and impartial tribunaland that it does not an effective remedy in domestic law by which he could have challenged this.However, the Court notes that the criminal proceedings against him is still pending before the AssizeCourt of Istanbul, the first instance in the matter. It is therefore not able to conduct a comprehensivereview of the trial opened against the applicant. The Court also believes it could not speculate on or what will decide the Assize Court on the charges brought against the applicant, nor on the outcomeof an appeal possible.


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It follows that at this stage of the proceedings before domestic courts, the applicant can not thereforecomplain of any violation of the provisions of Article 6 of the Convention. It is nevertheless open to re-enter if the Court continues to believe, after the criminal proceedings against him, he is the victim of the alleged violations. This part of the application is premature (see, among others, Baltaci c. Turkey(dec.), No. 495/02, June 14, 2005).Given its findings on Article 6 1, the Court finds it unnecessary to examine the case under section13 of the Convention; the requirements of this provision are less stringent than the Article 6 1 andabsorbed by, in this case (see, for example, Hentrich v.. France, September 22, 1994, 65, Series ANo. 296-A).

It should therefore also reject this part of the application as manifestly unfounded under section 35 3 a) and 4 of the Convention.For these reasons, the Court unanimouslyDefer consideration of the applicant's complaints of Article 5 3 and 4 of the Convention and onthe length of pretrial detention and the alleged lack of effective remedy to challenge this term;Declares the application inadmissible.Stanley Naismith TulkensRegistrar President

DECISION OZKAN c. TURKEYDECISION OZKAN c. TURKEY

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