FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39706/98 by Tahsin Ä°PEK against Turkey

The European Court of Human Rights ( First Section) , sitting on 7 November 2000 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 31 December 1997 and registered on 5 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Section’s partial decision of 14 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1943 and living in Vakfıkebir , Turkey. He is represented before the Court by Mr Hasip Kaplan, a lawyer practising in Istanbul.

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

The applicant claims that he was called to the Kürtün gendarme station on 24 October 1991 on suspicion of killing Hasan Bal on 18 July 1991 in a fight. He contends that he was immediately detained and during the first twenty-four hours he was not given anything to eat. He states that he was blindfolded.

The period of his detention was extended by the Torul public prosecutor for fifteen days at the request of Halil Uluyurt , the captain of the Kürtün gendarme regiment. The applicant claims that he was beaten and tortured during his detention.

On 1 November 1991 the Torul Peace Court ordered the applicant’s formal arrest. The applicant’s wife, Halime İpek , applied to the Torul Public Prosecutor’s Office on 12 November 1991 claiming that her husband had been tortured by gendarmes while in custody. The public prosecutor conducted a preliminary investigation. He took statements from Captain Halil Uluyurt as well as 19 other witnesses.

On 31 December 1992 the public prosecutor issued a decision of non-prosecution. The applicant’s wife challenged the decision before the Bayburt Assize Court.

On 12 February 1993 the Bayburt Assize Court accepted her submissions and annulled the non-prosecution decision.

On 31 March 1993 the Torul public prosecutor instituted criminal proceedings before the Torul Criminal Court of First Instance charging Captain Halil Uluyurt and gendarme officers Ahmet Temur , Hasan Çelik and Mahmut Özmen of offences under Article 245 of the Turkish Penal Code.

On 13 May 1993 the Torul Criminal Court of First Instance issued a non-jurisdiction decision and separated the proceedings against Captain Halil Uluyurt from those brought against the other co-accused on the ground inter alia that the charges were more appropriately dealt with under Article 243 of the Penal Code.

The Torul Criminal Court of First Instance sent Captain Halil Uluyurt’s file to the Gümüşhane public prosecutor’s office to obtain the necessary authorisation to prosecute him. Authorisation was given by the General Directorate of Criminal Affairs of the Ministry of Justice and the Gümüşhane public prosecutor subsequently instituted criminal proceedings against Captain Halil Uluyurt before Gümüşhane Assize Court on 30 December 1993.

On 10 February 1994 the court joined the cases of Captain Halil Uluyurt and the other three accused. The applicant joined the case as an intervening third party.

The court had before it two medical reports. According to the first report dated 25 October 1991 no marks of violence had been found on the applicant’s person. However, the second medical report dated 1 November 1991 stated that the following marks were found on his body: an oedema about 4-5 cm in diameter on his right hand, a graze on his left leg of about 1 by 1 cm and a discolouring under his right eye. The medical reports were sent for examination to the Forensic Medicine Institute which concluded that the applicant’s health was not at risk. The applicant was given three days’ sick leave from work. The report of the Forensic Medicine Institute also mentioned that the applicant’s injuries could have been caused by blows.

Although the witnesses called on behalf of the applicant stated before the court that they did not see him being beaten, they affirmed that they observed that he had some violet-coloured bruises on his face and body when he was brought before the substitute judge. The witnesses further maintained that the applicant told them that the commander of the gendarme station had tortured him during interrogation.

In a judgment dated 2 May 1996, the Gümüşhane Assize Court found Captain Halil Uluyurt guilty of an offence under Article 243 of Criminal Code since he had tried to extract incriminating statements from the applicant. The court accepted that the applicant was subjected to ill treatment and to inhuman and degrading treatment in custody. The court relied on the statements of the witnesses, medical reports and the interrogation record signed by Captain Halil Uluyurt which indicated that he had questioned the applicant. The court sentenced Captain Halil Uluyurt to ten-months’ imprisonment and debarred him from duty for a period of two months and fifteen days. The court suspended the prison sentence since it considered that the accused would not commit any similar offences in the future. The court acquitted the other three accused on account of lack of evidence.

Captain Halil Uluyurt appealed against conviction. On 7 May 1997 the Court of Cassation dismissed his appeal and sent its judgment to the Gümüşhane Assize Court on 5 June 1997 where it was deposited with the Registry.

The applicant maintains that he was notified of this decision on 26 December 1997 when he went to the court to obtain a copy.

COMPLAINTS

The applicant complains that Captain Halil Uluyurt only received a suspended sentence although the domestic court found him guilty of, inter alia , ill-treatment. The applicant invokes Article 3 of the Convention.

The applicant further alleges that the length of the proceedings against Captain Halil Uluyurt was excessive and in breach of the reasonable-time requirement laid down in Article 6 § 1 of the Convention.

THE LAW

The applicant complaints of the leniency of the sentence imposed on Captain Halil Uluyurt , who was convicted of ill-treating him, and of the unreasonable length of time taken to convict him. He invokes Articles 3 and 6 of the Convention in this respect.

The Government’s preliminary objections

The Government, with reference to domestic law, maintain that the applicant failed to avail himself of civil and administrative law remedies in order to obtain compensation for the treatment to which he was subjected in custody.

The Government also assert that the applicant chose not to appeal against the judgment of the Gümüşhane Assize Court even though he had joined the proceedings as an intervening third party and notwithstanding the fact that such an appeal was available to him under Article 369 § 2 of the Code on Criminal Procedure.

In the Government’s further submission, the applicant should have lodged his complaint under the Convention within six months of the date of the decision of the Gümüşhane Assize Court, namely 2 May 1996. In the event, the applicant only introduced the complaint on 31 December 1997. Accordingly the applicant failed to comply with the six-month rule contained in Article 35 § 1 of the Convention.

The applicant replies that by joining the criminal proceedings against Captain Halil Uluyurt as an intervening party he had pursued the most effective remedy available for seeking redress in respect of his Article 3 complaint. That remedy was exhausted on 26 December 1997 when he received a copy of the Court of Cassation’s decision upholding the sentence handed down by the Gümüşhane Assize Court. He was not obliged to pursue any other remedy.

As to compliance with the six-month rule, the applicant states that the final decision in the domestic proceedings was the decision of the Court of Cassation of 7 May 1997. However, since he only received a copy of that judgment on 26 December 1997 the six month period should be considered to run as from date. On that understanding his application, introduced on 31 December 1997, fulfilled the requirements of the six-month rule.

The Court considers that it does not have to pronounce on the Government’s argument that the applicant, as an intervening party, could have contested before the Court of Cassation the leniency of the sentence imposed on Captain Halil Uluyurt . It is of the opinion that the application must be rejected for non-respect of the six-month rule laid down in Article 35 § 1 of the Convention.

The Court notes in this regard that the applicant awaited the outcome of Captain Halil Uluyurt’s appeal to the Court of Cassation rather than introducing his application under the Convention within six months of the date of the trial court’s decision on sentence. The Court does not consider that the applicant can be faulted for his decision having regard to the obvious interest which he had in the criminal proceedings against Captain Halil Uluyurt and his wish to see him found guilty and punished in a manner commensurate with the gravity of his offence. He joined the criminal proceedings as an intervening party with this in mind. However, the applicant must be taken to have appreciated that domestic law did not entitle him either to be served with a copy of the Court of Cassation’s judgment on Captain Halil Uluyurt’s appeal or to be notified that judgment had been adopted.

The Court observes that, in accordance with established practice, the judgment of the Court of Cassation of 7 May 1997 was sent to the Gümüşhane Assize Court and deposited with that court’s Registry on 5 June 1997. In the Court’s opinion, it was incumbent on the applicant to follow the proceedings on appeal with due diligence in order to keep himself informed of the date on which the appeal judgment was rendered or deposited with the lower court. In the event, the applicant allowed time to pass and only procured a copy of that judgment on 26 December 1997, more than six months after it had been deposited with the Registry of the Gümüşhane Assize Court. The application under the Convention was introduced on 31 December 1997. In the circumstances the application must be considered time-barred in application of Article 35 § 1 of the Convention.

The Court observes that in reaching this decision it has based itself on a date different from that relied on by the respondent Government. However, it recalls that the six month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question, after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and state authorities the period beyond which such supervision is no longer possible (see no. 9587/81, Comm. Dec. 13.12.82, D.R. 29, 228 at §§13 and 16; no. 10416/83, Comm. Dec. 17.5.84, D.R. 38, 158 at § 6).

It is therefore open to the Court to determine a date for the running of the six-month rule which is at variance with that identified by the respondent Government and which has not been the subject of observations by the applicant.

Having regard to the above considerations, it follows that the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm    Registrar President