ERIS proti Turecku

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28268/02
by Ali ERİŞ
against Turkey

The European Court of Human Rights (Second Section), sitting on 28 November 2006 as a Chamber composed of:

Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mrs A. Mularoni,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 15 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ali Eriş, is a Turkish national who was born in 1932 and lives in Istanbul. He is represented before the Court by Mrs G. Tuncer and Mrs S. Akat, lawyers practising in Istanbul.

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

On 30 September 1999 the applicant attended the funeral of a prisoner who was allegedly killed in an operation by the security forces at the Ulucanlar Prison in Ankara.

During the funeral, police officers intervened and tried to disperse the group. They beat the applicant and several other demonstrators. It is to be noted that, according to the report drawn up five police officers, the police had given the demonstrators a warning and had ordered them to disperse, but the demonstrators continued the demonstration. The demonstrators were subsequently taken into police custody.

On 1 October 1999 they were released.

On 1 October 1999 the Üsküdar public prosecutor filed a bill of indictment with the Üsküdar Criminal Court of First Instance against thirty‑nine persons, including the applicant, charging them with having participated in an illegal demonstration under Article 32 of Law no. 2911.

On 16 April 2001 the Üsküdar Criminal Court of First Instance convicted the applicant and his co-accused as charged. The applicant was sentenced to one year and six months’ imprisonment and a fine of 60,000,000 Turkish liras (TRL)[1]. The first-instance court suspended the execution of the sentences of some of the accused. It considered that the latter would abstain from committing any similar offence. The court did not suspend the execution of the applicant’s sentence.

The proceedings are still pending before the Court of Cassation.

Meanwhile, after having been taken into custody, on 30 September 1999 the applicant was taken to the emergency service of the Haydarpaşa Numune Hospital as he had been injured during the police intervention. The doctor who examined the applicant noted the following in a temporary medical report:

“Sensitivity on the left lumbar region and on the lower part of the left hemithorax has been observed...”

While in hospital, two plainclothes policemen took his statements concerning the incident.

On 30 March 2000 the applicant’s lawyers filed a complaint with the Üsküdar public prosecutor’s office and requested that an investigation be initiated, and subsequently criminal proceedings brought, against the police officers who had allegedly ill-treated the applicant on 30 September 1999. The lawyers submitted the temporary report of 30 September 1999 to the public prosecutor’s office and further requested that the applicant undergo a medical examination by forensic medical experts.

On 27 April 2001 the Üsküdar public prosecutor issued a decision of non-prosecution in respect of the applicant’s complaint. In his decision, the public prosecutor noted that the applicant had maintained that he had been injured as he had fallen during the police intervention. The public prosecutor nevertheless considered that the police intervention during the meeting was lawful in the circumstances of the case.

On 4 December 2001 one of the applicant’s lawyers filed an objection against the decision of 27 April 2001. In her petition, she contended that the public prosecutor had failed to conduct an adequate investigation as he had failed to order a medical examination of the applicant and had not heard the applicant or other witnesses.

On 8 January 2002 the Kadıköy Assize Court dismissed the applicant’s objection.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment, in particular, that he was beaten by the security forces on his head, chest, arms and legs. The applicant further complains under the same head that the investigation conducted into his allegations was inadequate.

The applicant maintains under Article 13 of the Convention that he did not have an effective domestic remedy in respect of his allegations of ill‑treatment.

The applicant contends under Article 14 of the Convention, in conjunction with Article 3, that the treatment which he suffered was imposed on him because of his political opinions.

The applicant complains under Article 5 § 1 of the Convention that there was no reasonable suspicion for his arrest. He further maintains under Article 5 §§ 2 and 3 of the Convention that he was not informed of the reasons for his arrest and did not have access to a lawyer when he made statements to the police in hospital. The applicant alleges under Article 14 of the Convention that he was subjected to an unlawful arrest as he was a Marxist.

The applicant complains under Article 5 of the Convention that the Üsküdar Assize Court did not suspend the execution of his sentence although he was seventy years’ old, whereas it decided to suspend the execution of the sentences of some other accused persons.

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

The applicant complains under Article 6 §§ 1, 2 and 3 of the Convention about the unfairness of the proceedings brought against him on various grounds.

THE LAW

1. The applicant contends under Article 3 of the Convention that he was beaten by the security forces on his head, chest, arms and legs. The applicant further maintains under the same provision that the investigation conducted into his allegations was inadequate.

The applicant complains under Article 13 of the Convention that he did not have a domestic effective remedy in respect of his allegations of ill‑treatment.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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 under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time.

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. As regards the applicant’s other complaints, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and insofar as the matters complained of are within its competence.

It follows that this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning his alleged ill-treatment by security forces, the alleged lack of effective domestic remedies in respect of his allegations of ill-treatment and the length of the criminal proceedings brought against him;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa
Registrar President

[1] Approximately 60 euros (EUR)