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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Gabor Kalman FABIAN v Turkey - 18428/03 [2008] ECHR 547 (3 June 2008 ) URL: http://www.bailii.org/eu/cases/ECHR/2008/547.html Cite as: [2008] ECHR 547

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FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18428/03
by Gábor Kálmán FÁBIÁN
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 3 June 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Işıl Karakaş, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 3 February 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gábor Kálmán Fabián, is a Hungarian national who was born in 1962 and lives in Hungary.

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

On 12 November 1998 the applicant, who was driving a car, was arrested by officers from the narcotics bureau of the Istanbul police headquarters in the course of an operation. The police found 18.5 kg of heroin, in 36 packages, in the car.

The applicant was subsequently taken to the Istanbul police headquarters.

On 13 November the applicant and ten other persons were examined by a doctor, who noted that there was no trace of physical violence on their persons.

On 16 November 1998 the applicant made statements to the police with the assistance of an interpreter and in the presence of the Consul-General of Hungary in Istanbul. According to the document signed by three police officers, the applicant, the interpreter and the Consul-General of Hungary, the applicant stated that he had worked for a Hungarian national who had sent him to Turkey three days prior to his arrest to transport a “gift” back to Hungary. He maintained that three Turkish nationals gave him the packages of heroin and paid him.

On 17 November 1998 the applicant and other suspects were once again examined by a doctor, who did not observe any sign of physical violence on their persons.

On 19 November 1998, following his release from police custody, the applicant was examined by a doctor. According to the first page of the medical report, the applicant did not complain of any ill-treatment. It is to be noted that the second and third pages of the medical report were not submitted to the Court.

On the same day, the applicant made statements to the public prosecutor at the Istanbul State Security Court with the help of an interpreter. He stated that he had not known that he had been transporting drugs. The applicant reiterated these statements before a single judge at the Istanbul State Security Court later the same day. The judge remanded the applicant in custody. The applicant was subsequently placed in Bayrampaşa prison.

On 10 December 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and thirteen other persons and charged them with drug trafficking.

On 29 January 1999 the applicant requested the prison authorities to provide him with information about the proceedings that would be brought against him. He wished to know, in particular, the date of the first hearing.

On 10 March 1999 the Istanbul State Security Court held the first hearing on the merits and heard the accused, including the applicant, who made statements with the help of an interpreter.

Between 26 May and 10 December 1999 the first-instance court held four hearings. During this time, at each hearing the court heard some of the accused and witnesses and requested documents from various authorities with a view to completing the case file.

On 10 December 1999 the public prosecutor submitted his observations on the merits of the case. On the same day the first-instance court adjourned the hearing as it requested the defendants to lodge their defence submissions.

Between 16 February and 6 September 2000 the Istanbul State Security Court adjourned the hearings as some of the defendants had failed to lodge their defence submissions.

On 25 October 2000 the Consul-General of Hungary in Istanbul sent a letter to the Istanbul State Security Court. The Consul-General stated that the applicant had no knowledge of the details of the case brought against him and that he did not have sufficient means to hire a lawyer. The Consul General requested the court to appoint a lawyer to defend the applicant. The Consul-General also stated in his letter that the applicant had informed him that he felt well and had been well treated by the Turkish authorities.

On 13 November 2000, at the request of the Istanbul State Security Court, the Istanbul Bar Association appointed a lawyer to represent the applicant in the proceedings brought against him.

On 15 November 2000 the applicant's lawyer attended the hearing and requested the court to adjourn the hearing as he wished to submit some documents in support of the applicant's defence. The first-instance court granted his request.

On 21 February 2001 the first-instance court requested the applicant's lawyer to submit the applicant's defence submissions by the date of the next hearing and adjourned the trial.

On 30 May 2001 the applicant's lawyer lodged their defence submissions. On the same day the first-instance court adjourned the trial as it requested further evidence from the public prosecutor's office.

On 7 September 2001 some of the accused, including the applicant, made their final submissions on the merits of the case. Between 7 September and 19 December 2002 the first-instance court adjourned the hearings as some of the accused did not attend the hearings.

On 10 April 2002 the Istanbul State Security Court concluded the proceedings against fourteen accused, including the applicant. The court convicted the applicant of drug trafficking and sentenced him to seventeen years and six months' imprisonment. The first-instance court based its judgment on, inter alia, the applicant's statements to the police.

During the proceedings, the applicant benefited from the assistance of an interpreter except for the hearing held on 13 October 1999.

On an unspecified date the applicant was transferred to Bilecik M-type Prison.

On 12 April 2002 the applicant lodged an appeal against the judgment of 10 April 2002. He stated that the punishment imposed had been disproportionate and requested to be released.

On 15 May 2003 the Court of Cassation held a hearing in respect of some of the applicant's co-accused at their representatives' request.

On the same day the Court of Cassation upheld the judgment of the first instance court in respect of the applicant.

On 29 August 2003 the applicant was informed that his conviction had become final on 15 May 2003 by the Court of Cassation's decision.

On 21 February 2005 the applicant was released conditionally and returned to Hungary.

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had seen the other suspects being tortured and had therefore been forced to sign the police statements.

Without relying on any Article of the Convention, the applicant complained about the poor detention conditions in Bilecik M-type Prison.

The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time. He further submitted under the same head that he had not had a fair trial since he had been denied legal assistance until 13 November 2000 and as the interpreter had been absent during the hearing of 13 October 1999.

In a letter submitted to the Court on 13 February 2006, the applicant alleged, without relying on any Article of the Convention, that he had not been given the opportunity to attend the hearing held by the Court of Cassation. He further alleged in the same letter that he had been wrongly convicted and had fallen ill due to the prison conditions.

THE LAW

The Court considers that the applicant's complaint concerning the conditions of detention should also be examined from the standpoint of Article 3 of the Convention. The Court observes in this connection that the applicant raised no complaint in any forum, or before any domestic authority, about the threats that he had allegedly received while in police custody and about the alleged inhuman conditions in which he was detained. On the contrary, he informed the Consul-General of Hungary in Istanbul that he had been well treated by the national authorities. Accordingly, the Court is not satisfied that the applicant took reasonable steps to bring his complaints to the attention of the authorities (see, for example, Hudson v. the former Yugoslav Republic of Macedonia (dec.), no. 67128/01, 24 March 2005, and Duman v. Turkey (dec.), no. 803/04, 11 December 2007). It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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.

The court considers that this complaint should be examined from the standpoint of Article 6 §§ 1 and 3 (c) of the Convention. It further 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.

The Court observes that the applicant was provided with the help of an interpreter during his detention in police custody and at every stage of the proceedings brought against him except for the hearing held on 13 October 1999. Furthermore, the applicant failed to give an explanation as to how the absence of the interpreter on one occasion had affected his defence rights. The Court therefore considers that this complaint is unsubstantiated.

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

The Court reiterates that it may only deal with a matter within a period of six months from the date on which the final decision was taken. The Court observes that the criminal proceedings against the applicant ended on 29 August 2003, whereas these complaints were lodged with the Court on 13 February 2006, more than six months later.

It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 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 the criminal proceedings brought against him and the absence of legal assistance to him;

Declares the remainder of the application inadmissible.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President