Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24209/94

by Y.F.

against Turkey

The European Commission of Human Rights sitting in private on

7 December 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

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 13 May 1994 by

Y.F. against and registered on 26 May 1994 under file No. 24209/94;

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 is a Turkish citizen, born in 1951 in Kulp district

of Diyarbakir. He lives in Bingol. He is represented before the

Commission by Mustafa Sezgin Tanrikulu, a lawyer practising in

Diyarbakir.

The facts as submitted by the applicant may be summarised as

follows:

On 15 October 1993 the applicant was taken into police custody

in Bingol, on suspicion of being linked to an illegal organisation.

Two days later, the applicant's wife was also taken into police

custody.

On 18 October 1993 the applicant was interrogated by the police.

His statements were placed on record and the applicant signed the

document. According to his statement, the applicant's son, Yetisen, was

a member of the PKK (Labour Party of Kurdistan - a separatist armed

movement). After Yetisen had been wounded during clashes with soldiers,

the applicant took him home, where, for 10 days, he and his wife took

care of him. During and after Yetisen's treatment, the applicant and

his wife met other members of the PKK and assisted them.

On 20 October 1993,

- the applicant was brought before the Public Prosecutor of Bingol.

The same day, he was questioned by the Public Prosecutor and by the

local Justice of Peace (Sulh Ceza Hakimi). The latter placed him in

detention on remand.

- he was examined at the 1st Division of Bingol/Central Infirmary.

The presence of a superficial bruise covering a surface of 3 x 5 cm.

on the applicant's wrist was mentioned in the Medical Examination

Report.

- he signed a statement prepared by the police according to which,

he had bruised himself in the course of police detention.

- his wife was taken to a medical doctor for a gynaecological

examination. The police requested that the report should indicate

whether she had had sexual intercourse by way of coitus or sodomy. A

medical report was drawn up on the results of the examination.

On 28 October 1993 the Chief Public Prosecutor of the State

Security Court of Diyarbakir issued an indictment against the applicant

and his wife and charged them both with assisting the PKK and acting

as their accomplices. Criminal proceedings were initiated against the

applicant and his wife before the 1st Chamber of the State Security

Court of Diyarbakir under file number 1993/727.

On 9 November 1993 the applicant's legal representative submitted

a petition to the Court, asserting that the applicant's statement to

the police had been given under pressure. He also stressed that before

the Public Prosecutor and the local Justice of Peace, the applicant had

only admitted having taken care of his injured son. He also submitted

that the applicant risked losing his job if his detention continued.

He requested the applicant's release. The Court dismissed this

request.

On 15 December 1993 the first hearing took place before the State

Security Court of Diyarbakir in the absence of the applicant. The

applicant's legal representative asserted that the applicant had been

subjected to ill-treatment while he was in police custody and once

again requested the applicant's release. The Court granted the request

and released the applicant.

On 23 March 1994 the applicant was acquitted for lack of

evidence.

COMPLAINTS

The applicant complains of violations of Articles 3, 5 and 8 of

the Convention.

As to Article 3, he claims that he was tortured for 5 days while

he was in police custody. In particular he asserts that he was

subjected to "suspension". He maintains that he was under pressure when

he signed the statements taken by the police.

As to Article 5, he points out that his first request for release

was rejected although he was later released and acquitted on the basis

of the evidence available already from the beginning.

As to Article 8, he alleges that his wife was forced to undergo

a gynaecological examination, the results of which were indicated in

a medical report.

THE LAW

1. The applicant alleges a violation of Article 3 (Art. 3) of the

Convention which provides:

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

treatment or punishment".

To the extent that the applicant complains that he was subjected

to torture while he was in police custody, the Commission considers

that this complaint raises issues as to the exhaustion of domestic

remedies and as to facts and law. It cannot, on the basis of the file,

determine at this stage the admissibility of this complaint and it is

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

of Procedure, to give notice of this part of the application to the

Respondent Government.

2. The applicant further alleges a violation of Article 8 (Art. 8)

of the Convention which, so far as relevant, ensures the right to

respect for private and family life.

To the extent that the applicant complains that the medical

examination which his wife was allegedly forced to undergo constituted

an interference with his private and family life, the Commission

considers that this complaint at this stage raises complicated

questions of fact and law and it cannot, on the basis of the file,

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with rule 48 para 2(b) of the Rules of

Procedure, to give notice of this part of application to the Respondent

Government.

3. The applicant complains under Article 5 (Art. 5) of the

Convention that the Court had no valid reason to reject his first

demand for release and to keep him in detention on remand. Article 5

(Art. 5), so far as relevant, provides:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

c. the lawful ... detention of a person effected for

the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an

offence ...

...

3. Everyone ... detained in accordance with the provisions of

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

a judge ... and shall be entitled to trial within a reasonable

time or to release pending trial...

4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court

and his release ordered if the detention is not lawful". ...

As regards the reasons for the applicant's detention, the

Commission notes that the applicant does not seem to question that he

was initially detained on suspicion of having committed an offence. The

fact that he was subsequently acquitted does not make his initial

detention unlawful (cf. No. 8083/77, Dec. 13.3.80, D.R. 19 p. 223). It

follows that the detention was justified under Article 5 para. 1 (c)

(Art. 5-1-c).

As to the length of his detention on remand, the Commission

observes that the applicant was detained from 15 October 1993 until 15

December 1993. His detention lasted for two months. Such a period

cannot be considered as being contrary to the reasonable time

requirement of Article 5 para. 3 (Art. 5-3).

The Commission notes that, in the present case, a court decided

on the lawfulness of the applicant's detention and ordered release. The

applicant's first demand for the applicant's release was dismissed by

the Court on the same day. The Court, at the first hearing which took

place about five weeks after the dismissal of the first demand, granted

the more recent request of the applicant and released him. Therefore,

there was no breach of Article 5 para. 4 (Art. 5-4).

In light of the above, the Commission considers that this

complaint, as it has been submitted, does not disclose any appearance

of a violation of the rights and freedoms set out in the Convention

and, in particular, in Article 5 (Art. 5) thereof.

It follows that this part of the application in this respect is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The Commission further notes that implicit in the applicant's

Article 5 (Art. 5) complaint, there is also a question whether the

applicant was brought promptly before a judge as required by Article

5 para. 3 (Art. 5-3) of the Convention.

However, the Commission recalls that under Article 26

(Art. 26) of the Convention, it may only deal with a matter within a

period of six months from the date on which the final decision was

taken. It notes that in provinces of Turkey which are ruled under the

State of Emergency Regime the duration of police custody may be

extended up to thirty days. In the present case, the place where the

applicant was detained by the police is under this Regime and therefore

the police custody of five days is in conformity with the domestic law.

Therefore, the applicant did not have any remedy against the length of

his police custody. The period of six months, thus, started to run from

the date on which the police custody ended (c.f. No. 17126/90, Oner v

Turkey, Dec. 30.08.94 unpublished), i.e. on 20 October 1993, whereas

the applicant lodged his application with the Commission on 13 May 1994

which is after the expiry of the period of six months. Therefore, this

aspect of the applicant's Article 5 (Art. 5) complaint is out of time.

It follows that this part of the application in this respect must

be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission by a majority,

DECIDES TO ADJOURN its examination of the complaint under

Articles 3 and 8 (Art. 3, 8) of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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Y.F. v. TURKEY

Y.F. v. TURKEY

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