Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30492/96

by Esma ERAT and Metin SAGLAM

against Turkey

The European Commission of Human Rights sitting in private on

1 December 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 December 1995

by Esma Erat and Metin Saglam against Turkey and registered on 19 March

1996 under file No. 30492/96;

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 applicants are Turkish citizens, born in 1965. They are

represented before the Commission by Naciye Kaplan, a lawyer practising

in istanbul.

The facts of the present case, as submitted by the applicants,

may be summarised as follows.

The applicants were taken into police custody in istanbul on

suspicion of being members of the PKK on 27 February 1995 in the case

of the first applicant and on 8 March 1995 in the case of the second

applicant.

On 6 March 1995 the first applicant, and on 16 March 1995 the

second applicant, signed statements before the police which referred

to their activities in the PKK and their connections with other PKK

members.

The applicants were questioned by the Public Prosecutor at the

istanbul State Security Court on 13 March 1995 in the case of the first

applicant and on 20 March 1995 in the case of the second applicant. In

the course of questioning they denied their statements made to the

police.

The applicants were brought before a judge of the State Security

Court on 13 March 1995 in the case of the first applicant and on 20

March 1995 in the case of the second applicant. Before the judge they

reiterated their statements to the Public Prosecutor. The judge, having

regard to the nature of the accusations and the evidence already

available, placed them in detention on remand.

In an indictment dated 24 April 1995, the Public Prosecutor at

the istanbul State Security Court charged the applicants with being

members of an armed organisation (PKK) and carrying out acts aimed at

the separation of a part of the territory of the State. The Public

Prosecutor gave a detailed account of the acts in which the accused

were allegedly involved. He requested that the applicants be convicted

and sentenced under Article 168 of the Turkish Criminal Code and

Article 5 of the Anti-Terror Law.

On 13 March 1995 the first applicant was examined by the Istanbul

Institute of Forensic Medicine. In a report to the Public Prosecutor

of istanbul, a doctor from the institute noted briefly that there were

some bruises and ecchymosis on different parts of her body,

particularly on the right arm. The report also mentioned that these

injuries could have occurred seven to ten days previously and were not

life threatening. On 14 March 1995 the first applicant was again, upon

her request, examined by the prison doctor, who, in his provisional

report, identified haematomas 2 cm in diameter on both legs, ecchymoses

2 cm in diameter on her breast and bruising to both armpits. The prison

doctor however concluded that the detailed medical report should be

given by the istanbul Forensic Medicine Institute.

On 20 March 1995, the second applicant was examined by the prison

doctor who, in his report, noted the presence of some bruises on the

left arm biceps and right leg, and pain in the penis. He also observed

that the applicant felt pain when breathing. The prison doctor,

however, concluded that the detailed medical report should be given by

the Istanbul Forensic Medicine Institute.

On 1 June 1995 the first applicant, and on 25 May 1995 the second

applicant, filed complaints with the Public Prosecutor of Fatih

alleging that they had been ill-treated while in police custody.

On 21 September 1995 the Public Prosecutor of Fatih dismissed the

first applicant's allegations, pointing out that there was insufficient

evidence to bring any criminal proceedings against the istanbul

Security Directorate officers.

On 14 September 1995 the Public Prosecutor of Fatih dismissed the

second applicant's allegations, pointing out that there was

insufficient evidence to bring any criminal proceedings against the

istanbul Security Directorate officers.

On 13 October 1995 the applicants applied to the Assize Court of

Beyoglu to have the dismissal order by the Public Prosecutor of Fatih

set aside.

On 14 December 1995 the Assize Court of Beyoglu, ruling on the

evidence submitted to the court, rejected the applications.

The criminal proceedings against the applicants before the State

Security Court are still pending and they are still in detention.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention that

they were ill-treated in police custody.

The first applicant alleges that during her detention by the

police, she was stripped naked and sexually assaulted, that she was

subject to Palestinian hanging and given several electric shocks,

seriously beaten up and threatened with being shot dead, deprived of

adequate food and not allowed to use toilet facilities.

The second applicant alleges that during his detention by the

police, he was physically and mentally abused. He claims that he was

stripped naked and on many occasions high pressure water-hoses,

discharging cold water, were turned on him, particularly onto his

genitalia, that he was subject to Palestinian hanging and given several

electric shocks, that his genitalia were squeezed during

interrogations, that he was threatened with being shot dead and that

in the course of such treatment he was repeatedly forced to confess to

criminal conduct while he was kept blindfolded.

2. The applicants further complain under Article 5 para. 3 of the

Convention that they were kept in police custody between twelve and

fourteen days without being brought before a judge.

The applicants also complain of a violation of Article 14 in

conjunction with Article 5 of the Convention since they were unable to

use before the State Security Court the remedies available to detained

persons under the Code of Criminal Procedure.

3. The applicants lastly complain under Article 6 paras. 1 and 3 (c)

of the Convention that they were not permitted the assistance of a

lawyer during their questioning by the police and later by the public

prosecutor.

THE LAW

1. The applicants complain under Article 3 (Art. 3) of the

Convention that they were ill-treated in police custody. They allege

that during their detention by the police they were physically abused.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of these complaints to the

respondent Government.

2. The applicants further complain under Article 5 para. 3

(Art. 5-3) of the Convention that they were not brought promptly before

a judge. They also complain 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 deal only 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 applicants

were 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 their police custody (Sakik and others

v. Turkey, Comm. Report 23.5.1996, para. 73, p. 14, to be published in

Reports of Judgments and Decisions). The situation complained of ended

on 13 and 20 March 1995 respectively, whereas the application was

submitted to the Commission on 19 December 1995, that is more than six

months later.

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.

3. The applicants lastly complain under Article 6 paras. 1 and 3 (c)

(Art. 6-1, 6-3-c) of the Convention that they did not have a fair trial

and were deprived of their right to have contact with a lawyer during

their police custody and during their interrogation by the Public

Prosecutor.

The Commission notes, however, that the criminal proceedings

against the applicants are still pending.

The Commission recalls its constant case-law according to which

it is necessary to take into consideration the criminal proceedings in

their entirety in order to express an opinion as to whether or not they

comply with the requirements of Article 6 (Art. 6) of the Convention.

It further notes that, under Turkish law, the applicants can submit to

the first instance court and the Court of Cassation the complaints

which they now raise before the Commission.

The introduction of these complaints accordingly appears

premature, given the current stage of the proceedings before the

domestic courts. The applicants cannot therefore complain at this stage

of any violation of the Convention. They may re-submit the case to the

Commission if, following the outcome of the criminal proceedings

against them, they still consider themselves victims 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).

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicants' complaints

related to alleged ill-treatment during their police custody,

by a majority,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

ERAT AND SAGLAM v. TURKEY

ERAT AND SAGLAM v. TURKEY

LEXI