Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24560/94

by ilhan DiKEN

against Turkey

The European Commission of Human Rights sitting in private on

20 January 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

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

Mr. R. NICOLINI

Mr. H.C. KRÜGER, 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 17 May 1994 by

Ilhan Diken against Turkey and registered on 7 July 1994 under file

No. 24560/94;

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 and a doctor, was born in 1960

and lives in Diyarbakir. He is represented before the Commission by

Senal Sarihan, a lawyer practising in Ankara.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

On 10 September 1992 a person N.Ü., who introduced himself as a

friend of the applicant's brother, visited the applicant in his

surgery. He asked the applicant to come with him to his home to examine

a patient. The applicant told him to come back later.

Later that day N.Ü. went back to the applicant's surgery. The

applicant went out with him. Then a taxi stopped beside them. N.Ü. told

the applicant that the taxi driver knew where the patient was. He asked

the applicant to get in the taxi and left. The applicant was then

driven to a house where he met a person with an injured wrist (N.Ö.).

The applicant examined the patient and told him that he should have his

wrist X-rayed. The taxi driver (Y.A.) gave the applicant his telephone

number and asked him to call him if it would be possible to X-ray

N.Ö.'s wrist.

The next day the applicant called Y.A. and asked him to bring

N.Ö. to the Diyarbakir Paediatric Hospital where he was working as a

medical practitioner. At about 8.00 p.m. on the same day the applicant

X-rayed N.Ö.'s wrist. After examining the X-ray he recommended the

necessary treatment.

On 7 October 1992 the applicant was taken into police custody.

On the same day his house was searched by the police and certain PKK

publications were seized.

In his statement to the police, it was recorded that the

applicant accepted that he was a supporter of the PKK and that he also

admitted having known that N.Ö. was a PKK member when he examined him.

On 20 October 1992 the applicant was questioned by the Public

Prosecutor at the Diyarbakir State Security Court. In his questioning

he denied the statement he had made to the police. He stated that he

had signed the statement under duress. He asserted that the

publications found in his home did not belong to him. He also asserted

that he had never met N.Ö. before, nor had he known that he was a PKK

member.

After being questioned by the Public Prosecutor, the applicant

was brought before a judge at the Diyarbakir State Security Court. He

reiterated the statement he had made to the Public Prosecutor. The

judge, having regard to the evidence already available, placed the

applicant in detention on remand.

The applicant was charged with assisting an armed organisation,

the PKK, with the aim of committing an offence. The charge was based

on Article 169 of the Turkish Criminal Code which stipulates that

whoever knowingly gives shelter, assistance, provisions, arms or

ammunition to an armed organisation or band or facilitates its actions

shall be punished by heavy imprisonment for three to five years. N.Ö.,

Y.A. and four other persons were indicted along with the applicant for

various offences.

At his trial before the Diyarbakir State Security Court, the

applicant denied the charges. He reiterated, inter alia, the statement

he had made to the Public Prosecutor and the judge. He asserted that

it was his obligation as a doctor to treat any patient. He argued that

at the time of the incident, he did not know that N.Ö. was a PKK

member. Even assuming that he had known, he was under an obligation,

as a doctor, not to denounce him to the security forces, because he was

a patient who needed treatment.

In a final opinion to the court, the Public Prosecutor requested

that the applicant be acquitted.

In a decision dated 21 June 1993, the court found the applicant

guilty of the offence with which he was charged. The applicant was

convicted and sentenced to three years and nine months' imprisonment.

The court referred to the police statement made by the applicant and

his co-accused. The court noted, however, that the applicant, although

he was not on duty on the date of the incident, had X-rayed N.Ö.'s

wrist and entered a false name in the hospital records. Having regard

also to the accused's evasive replies during the trial and the

particular circumstances of the incident, the court held that the

applicant's attitude could not be regarded as an ordinary doctor-

patient relationship.

The applicant and the Public Prosecutor appealed.

On 2 February 1994 the Court of Cassation dismissed the appeal.

It upheld the cogency of the State Security Court's reasoning and its

assessment of the evidence.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that

during his police custody he was held incommunicado, and that he was

sworn at and insulted.

2. The applicant also complains that he was held in police custody

for 13 days without being brought before a judge, contrary to the

requirements of Article 5 para. 3 of the Convention.

3. The applicant complains lastly under Article 7 para. 1 of the

Convention that he was convicted and sentenced for performing his

obligations as a doctor, i.e., treating a patient, and therefore that

he was held guilty of an act which did not constitute a criminal

offence under national or international law.

captain

THE LAW

1. The applicant complains that he was held in police custody for

13 days without being brought before a judge, contrary to the

requirements of Article 5 para. 3 (Art. 5-3) of the Convention. The

Article reads as follows:

"Everyone arrested or detained in accordance with the provisions

of paragraph 1 (c) of this Article shall be brought promptly

before a judge or other officer authorised by law to exercise

judicial power and shall be entitled to trial within a reasonable

time or to release pending trial. Release may be conditioned by

guarantees to appear for trial."

The applicant also complains that during his police custody he

was held incommunicado. In this context he invokes Article 3 (Art. 3)

of the Convention which provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

However, concerning the above complaints, the Commission is not

required to decide whether or not the facts alleged by the applicant

disclose any appearance of a violation of these provisions, as Article

26 (Art. 26) of the Convention provides that the Commission may only

deal with the matter within a period of six months from the date on

which the final decision was taken.

The Commission refers to its case-law according to which 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 (No.

8007/77, Dec. 10.7.78, D.R. 13 p. 85, at p. 153).

The Commission observes that in the present case the applicant's

police custody was effected pursuant to the Law on the Procedures of

State Security Courts and that he had no domestic remedy against this

procedure.

The Commission notes that the situation complained of ended on

20 October 1992 whereas the application was submitted to the Commission

on 17 May 1994, that is more than six months after that date.

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 further complains under Article 3 (Art. 3) of the

Convention that during his police custody he was sworn at and insulted.

The Commission may leave open the question whether the applicant

has exhausted the domestic remedies in this respect as his complaint

must in any event be rejected for the following reasons.

The Commission recalls that ill-treatment must attain a minumum

level of severity to fall within the scope of Article 3 (Art. 3). The

assessment of this minumum level is, in the nature of things, relative;

it depends on all the circumstances of the case and, in particular, on

the nature and context of the treatment, the duration, physical or

mental effects thereof (Eur. Court H.R., Ireland v. United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 65, para. 162; Tyrer

judgment of 25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30).

The Commission also recalls that under certain circumstances it

can be difficult to prove ill-treatment during imprisonment, but that

the applicant must at least submit a beginning of a sufficient proof

concerning the alleged treatment (No. 17126/90, Öner v Turkey, Dec.

30.8.1994, unpublished).

In the present case the Commission observes that the applicant

did not specify in what kind of language and in which circumstances he

had been sworn at and insulted during his police custody. His

allegation is of a general nature and it does not appear that he

specified the acts complained of before the domestic authorities.

Consequently, in the present case the Commission has not been

presented with any materials which substantiate the applicant's

allegations of ill-treatment or with any details which would allow it

to assess the character and gravity of the alleged abusive language

used against him.

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.

3. The applicant also complains that he was convicted and sentenced

for performing his obligations as a doctor, treating a patient, and

therefore that he was found guilty of an act which did not constitute

a criminal offence under national or international law. He invokes

Article 7 para. 1 (Art. 7-1) of the Convention which provides as

follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed. Nor shall a heavier penalty be imposed than

the one that was applicable at the time the criminal

offence was committed."

However, the Commission observes that the applicant has been

convicted for assisting a PKK member in an illegal manner. It notes

that the domestic court held in its reasoning that there was sufficient

evidence to indicate that the applicant's attitude could not be

regarded as normal for a doctor. The court especially noted that

although the applicant had not been on duty on the date of the

incident, he had taken the patient to hospital and had entered a false

name in the hospital records.

The Commission also observes that the applicant did not deny the

events which constituted the basis of the domestic court's statement

of facts. The Commission finds no element which would allow it to

conclude that the court interpreted the law or established the facts

in an arbitrary or unreasonable manner. Therefore, there is no

appearance that the applicant's conviction was not in conformity with

Article 7 (Art. 7) of the Convention.

It follows that this part of the application is manifestly ill-

founded and must be rejected under Article 27 para. 2 (Art. 27-2) of

the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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DiKEN v. TURKEY

DiKEN v. TURKEY

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