Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 29920/96
by Mehmet YASAK
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 October 1995 by
Mehmet YASAK against Turkey and registered on 23 January 1996 under
file No. 29920/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1956 and resides in Batman. He is represented before the Commission by
Naciye Kaplan and Filiz Köstak, both lawyers practising in istanbul.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 7 May 1994 the applicant was taken into police custody in
istanbul on suspicion of being a member of an armed organisation, the
PKK. During his interrogation the applicant signed a statement which
referred to his activities in an illegal organisation.
On 17 May 1994 he was questioned by the Public Prosecutor at the
istanbul State Security Court. In his replies he denied the statement
he had made to the police. He alleged that he had been ill-treated in
police custody.
On the same day he was brought before a judge of the State
Security Court and a doctor from the istanbul Forensic Medicine
Institution. The institution noted in its certificate the presence of
a lesion on the right scapula and concluded that the above-mentioned
finding did not constitute a danger to life but would prevent the
applicant from working for three days. Before the judge the applicant
denied all the charges and denied his interrogation statement, saying
that it had been signed under duress. The judge, having regard to the
nature of the accusations, placed him in detention on remand.
On 15 July 1994 the applicant requested a medical examination by
an expert concerning his allegations of ill-treatment. He applied to
the Public Prosecutor of istanbul and underwent a medical examination
in the Eyüp Forensic Medicine Institution (EFMI). In a report to the
Public Prosecutor of istanbul, the EFMI doctor noted the prison
doctor's findings and recorded the presence of a lesion on the right
scapula. He also observed lesions on the patient's arms and referred
to the applicant's statement in which he stated that he had suffered
a relapse of his epidermic disease during his detention. The Report
concluded that these findings did not constitute a danger to life but
would prevent the applicant from working for five days.
On 27 March 1995 the applicant lodged a complaint with the Public
Prosecutor of istanbul and alleged that he had been ill-treated while
in police custody.
On 8 June 1995 the Public Prosecutor of istanbul charged three
police officers under Article 243 of the Turkish Criminal Code which
prohibits the maltreatment of individuals by public officers and
terminated the proceedings against another person, R.A.
On 29 June 1995 the applicant applied to the Assize Court of
Beyoglu to have the order by the Public Prosecutor of istanbul
terminating the proceedings against the R.A set aside. On 4 August 1995
the Assize Court of Beyoglu, ruling on the evidence submitted to it,
rejected the application. It held that in the absence of sufficient
evidence against the accused, the measures taken by the Public
Prosecutor were in keeping with the law and procedure.
The criminal proceedings against the three accused police
officers are still pending before the Assize Court.
The criminal proceedings against the applicant before the State
Security Court are also still pending and the applicant is still in
detention.
COMPLAINTS
1. Under Article 5 of the Convention, the applicant alleges
violations of:
- para. 1 in that his detention was unlawful;
- para. 2 in that he was not informed promptly of the reasons for
his arrest and of any charge against him;
- para. 3 in that he was kept in police custody for ten days
without being brought before a judge;
- para. 4 in that Turkish law does not afford any effective remedy
by which the lawfulness of his police custody could be decided speedily
by a court.
2. The applicant also complains of a violation of Article 14, in
conjunction with Article 5 of the Convention. In this connection he
claims that he was treated in a discriminatory manner as regards the
enjoyment of his rights under Article 5 of the Convention. He observes
that the provisions in the Code of Criminal Procedure regulating the
procedure and the period of police custody on remand are different from
those contained in the special legislation under which he was tried
before the State Security Court. He was therefore unable to use the
remedies available to accused persons under the above-mentioned Code.
The applicant maintains that his differential treatment was completely
unjustified and constituted discrimination within the meaning of
Article 14.
3. Under Article 6 of the Convention the applicant alleges
violations of:
- para. 1 in that he did not have a fair and public trial;
- para. 3 (c) in that he was deprived of any possibility to contact
a lawyer and did not have a chance to defend himself through legal
assistance during the ten days in which he was in police custody.
THE LAW
1. The applicant complains under Article 5 para. 1 and para. 3
(Art. 5-1, 5-3) of the Convention that his detention was unlawful and
that he was not brought promptly before a judge. He also complains
under para. 2 and para. 4 of the same article (Art. 5-2, 5-4) that he
was not informed promptly of the reasons for his arrest or of any
charge against him and that Turkish law does not afford any effective
remedy by which the lawfulness of his police custody could be decided
speedily by a court. The applicant also complains of a violation of
Article 14, in conjunction with Article 5 (Art. 14+5) of the
Convention.
The Commission recalls that according to Article 26 (Art. 26) of
the Convention, it may only deal with applications introduced within
a period of six months after the final domestic decision.
When an act of a public authority is not open to any effective
remedy, the six-month period runs from the date on which the act took
place. In this context the Commission refers to its established case-
law (No. 8007/77, Dec. 10.7.78, D.R. 13 p. 85, at p. 153).
In the present case the Commission observes that the applicant
was arrested pursuant to the Law on the Procedures of State Security
Courts and that no domestic remedy was available in order to challenge
the lawfulness and the length of his police custody. The situation
complained of ended on 17 May 1994, whereas the application was
submitted to the Commission on 3 October 1995, that is more than six
months after the date of the incident.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant complains under Article 6 paras. 1 and 3 (c)
(Art. 6-1, 6-3-c) of the Convention that he did not have a fair trial
and was deprived of his right to have a contact with a lawyer during
the ten days in which he was in police custody.
The Commission notes, however, the criminal proceedings against
the applicant are still pending.
The Commission considers it necessary to take into consideration
the entire criminal proceedings brought against the applicant in order
to express an opinion as to whether they comply with the requirements
of Article 6 (Art. 6) of the Convention. It notes further that, under
Turkish law, the applicant can submit to the first instance court and
the Court of Cassation the complaints which he now raises before the
Commission.
The introduction of these complaints therefore appears premature,
given the current stage of the proceedings before the domestic courts.
The applicant cannot therefore complain at this stage of any violation
of the Convention. He may re-submit the case to the Commission if,
following the outcome of the criminal proceedings against him, he still
considers himself a victim of the alleged violations. The application
must therefore be rejected on this point as manifestly ill-founded
pursuant to Article 27 para. 2 (Art. 27-2) of the Convention (Nos.
23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec.
25.5.95, D.R. 81-B p. 94).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber