SECOND SECTION

DECISION

Application no . 60375/11 Hüseyin ASLAN against Turkey

The European Court of Human Rights ( Second Section ), sitting on 19 November 2013 as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş , Peer Lorenzen , Dragoljub Popović , András Sajó , Paulo Pinto de Albuquerque, Helen Keller, judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 22 August 2011 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Hüseyin Aslan , is a Turkish national, who was born in 1978 and is currently serving a prison sentence in Malatya . He was represented before the Court by Mr K. Akgüneş , a lawyer practising in Malatya .

A. The circumstances of the case

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

3. On 30 July 2002 a committee of nine doctors drew up a medical report in respect of the applicant at the Diyarbakır State Hospital. The report noted that the applicant, who had been receiving treatment at the Hospital for the previous three years, suffered from panic disorder and did not respond to treatment. It concluded that the disorder rendered him permanently disabled and that his work capability had been reduced by 60 % .

4. On 22 March 2004 the applicant underwent another medical examination at the Lice Polyclinic. The doctor performing the examination indicated in his report that the applicant could not be confined in enclosed spaces as he suffered from panic disorder.

1. Criminal proceedings concerning assault and possession of unlicensed arms

5. On 2 April 2009 the Diyarbakır Magistrates ’ Court found the applicant guilty of causing injury to a third person and being unlawfully in possession of a knife pursuant to Article 86 of the Criminal Code (Law no. 5237) and Section 15 of the Law on Firearms and Knives (Law no. 6136). The court sentenced the applicant to a total of seven months ’ imprisonment and a fine and deferred the sentence pursuant to Article 51 of the Criminal Code ( hapis cezasının ertelenmesi ) on the condition that he did not reoffend during the following one year. It stated that the sentence would be executed in the event that the applicant committed an offence during the one-year period.

6. The applicant did not appeal against the judgment and it became final on 4 May 2009.

2. Criminal proceedings concerning buying, transferring and possessing unlicensed arms

7. On 3 June 2010 the Diyarbakır Criminal Court of General Jurisdiction sentenced the applicant to a fine for unlawfully being in possession of a firearm, pursuant to Section 13 of Law no. 6136. The court also noted that the applicant had a previous conviction which had been deferred and forwarded its judgment to the Diyarbakır Magistrates ’ Court in order for it to execute its previous judgment.

8. On 25 March 2011 the applicant filed an appeal. However, on 8 April 2011 the court rejected his appeal as it was out of time. It noted that as the applicant had not filed an appeal on time, the judgment had become final on 14 September 2010.

9. That decision was upheld by the Court of Cassation on 14 December 2011.

10. On 22 November 2011 the Diyarbakır Magistrates ’ Court decided that the sentence (seven months ’ imprisonment and a fine ) was to be executed as the applicant had committed an offence during the one-year period following its judgment.

3. Criminal proceedings concerning providing arms to an illegal organisation and falsifying official documents

11. On 21 December 2010 the applicant was arrested on suspicion of providing arms to an illegal organisation, namely the PKK ( the Kurdistan Workers ’ Party ) and falsifying official documents.

12. On 23 December 2010 the Diyarbakır Assize Court held that he should be detained pending trial.

13. On 15 February 2011 the Diyarbakır public prosecutor issued an indictment, accusing the applicant of providing arms to an illegal organisation and falsifying official documents, pursuant to Articles 315 and 204 of the Criminal Code (Law no. 5237), respectively. The prosecutor noted that according to the information provided by a certain M.A., who had been arrested while transferring explosives, and the statements of an anonymous witness, the applicant had organised the transfer of the explosives and had run away when he heard of M.A. ’ s arrest. He had been in possession of falsified identity cards when he was found.

14. During his detention on remand, on 3 July 2012 the applicant requested his release, submitting the medical reports drawn up in his respect, which indicated that he could not stay in enclosed spaces.

15. On 18 July 2012, having regard to the minimum penalty foreseen for the offence the applicant was being tried for and the evidence in support of the accusations against him, the Malatya Assize Court rejected the applicant ’ s request.

16. During the course of the criminal proceedings, the applicant did not make any submission with regard to his medical condition.

17. On 18 October 2012 the Malatya Assize Court sentenced the applicant to imprisonment for eighteen years for buying and transferring arms for the illegal organisation PKK and seven years and six months for falsifying official documents. Having regard to the previous sentences given against him, the court noted that recidivism provisions would be applied in the execution of the applicant ’ s sentence. In convicting the applicant, the court took account of various evidence, including the statements of M.A. and the anonymous witness, expert reports, video records, train tickets and identification records .

18. On 7 June 2013 the Court of Cassation upheld the judgment of the Assize Court.

B. Relevant domestic law

19. The relevant paragraphs of Sections 4, 16, 78 and 81 of the Penal Enforcement Law (Law no. 5275) read as follows:

“Section 4 - The condition for execution

Sentences of conviction shall not be executed until they are finalised .”

“Section 16 - Deferral of execution due to illness ( hapis cezasının infazının hastalık nedeniyle ertelenmesi )

(1) The prison sentence of a mentally ill convict shall be deferred and the convict shall be placed under protection and treatment in the health institution specified in Article 57 of the Criminal Code until he is rehabilitated. The period of time spent in the health institution shall be deemed to have been spent in prison.

(2) In any other case of illness, the execution of the prison sentence shall be continued in those parts of official health institutions which are allocated for convicts. However, if the execution of the prison sentence even in this way presents an absolute danger for the life of the convict, it shall be deferred until he is cured.

(3) The decision of deferral as provided for in the paragraphs above shall be made by the public prosecutor ’ s office in the place of execution, upon a report issued by the Forensic Medicine Institution or by the health committee of a fully equipped hospital designated by the Ministry of Justice and approved by the Forensic Medicine Institution. The decision of deferral shall be notified to the convict and to his legal representative, stating the obligations to which he shall be subject. The place where the convict will reside during the period of deferral shall be notified by the convict or by his legal representative to the relevant public prosecutor ’ s office. The public prosecutor ’ s office that has made the decision of deferral or, upon request by the convict, that in the place where he is located or treated, shall have the convict ’ s health condition examined in accordance with the procedure described in this paragraph at the intervals of time specified in the health report or, if no such intervals are specified therein, annually. According to the results of such examination, the public prosecutor ’ s office shall decide whether the deferral should continue or not. Upon request by the public prosecutor ’ s office, measures for the monitoring of the convict shall be carried out by the law enforcement authorities and officers located in the place where the applicant previously notified the authorities of. In the event of acting in breach of the obligations mentioned in this paragraph, the decision of deferral shall be cancelled by the public prosecutor ’ s office. An appeal may be filed with the Execution Court ’ s judge against that decision.

...”

“Section 78 - Examination and treatment of the convict

(1) The arrangement of the health conditions in the institution and the ... examination and treatment of convicts shall be carried out by the doctor of the institution. The results of all examinations and treatments performed ... shall be recorded on the health monitoring card and kept in the relevant file.

...”

“ Section 81 - Illness which can prevent execution

If examinations and tests performed by the institution doctor or another doctor in charge show that the convict has an illness that can prevent the execution of his sentence, the situation shall be reported to the administration.”

COMPLAINTS

20. The applicant complained under Article 3 of the Convention that his being in prison constituted inhuman treatment in that he had a medical report indicating that he was suffering a 60% disability and could not be held in enclosed spaces .

21. Relying on Articles 6 and 14 of the Convention, the applicant complained about the outcome of the criminal proceedings against him before the Diyarbakır Assize Court and maintained that the court relied on false expert reports produced by the gendarmerie. He also argued that the execution of the sentence given by the Diyarbakır Magistrates ’ Court, which had initially been deferred, had been unlawful and that he had been discriminated against due to his Kurdish origins.

THE LAW

A. Complaint under Article 3 of the Convention

22. The applicant maintained under Article 3 of the Convention that he was ill-treated and was under psychological duress as a result of his detention in prison. In this respect, he argued that he had medical reports certifying that he was disabled by 60% and could not be held in enclosed spaces.

23. The Court notes that pursuant to Section 16 of the Penal Enforcement Law (Law no. 5275), the public prosecutor ’ s office in the place of execution, Malatya in the instant case, is the competent authority to issue a decision for the deferral of the execution of a prison sentence. Such deferral may be granted on the condition that the convict obtains a medical report from the Forensic Medicine Institution or by the health committee of a fully equipped hospital designated by the Ministry of Justice and approved by the Forensic Medicine Institution (see paragraph 19 above) .

24. In the present case, the Court observes that the applicant did not apply to the Malatya public prosecutor ’ s office in order to have the execution of his sentence deferred. He did not seek to obtain a report as described above or have his previous reports, which had been issued by the Diyarbakır State Hospital in 2002 and by the Lice Polyclinic in 2004, approved by the Forensic Medicine Institution either.

25. The Court notes that the applicant only raised the issue once before the Diyarbakır Assize Court, when the latter examined his request for release during his detention on remand. However, he did not bring his disability to the attention of the domestic authorities following his conviction in any way. In this connection, the Court points out that under domestic law, a decision for the deferral of the execution of a sentence due to health reasons can only be given after the conviction becomes final.

26. The Court further notes that following his conviction, the applicant had the opportunity to apply to the doctor of the Malatya Prison as well. However, he appears not to have done so as he did not make any submissions before the Court with regard to the medical examinations he underwent in the prison.

27. The Court notes that the applicant did not submit any reasons for failing to comply with the requirement to exhaust domestic remedies by raising and pursuing his complaints first before domestic authorities. Nor is there anything in the case file to suggest that the applicant was prevented from doing so by intimidation or otherwise .

28. It follows that the applicant has failed to exhaust domestic remedies and that the complaint under Article 3 of the Convention must be rejected as being inadmissible under Article 35 §§ 1 and 4 of the Convention (see Aslan v. Turkey ( d ec. ), no. 38940/02, 1 June 2006, Tilki v. Turkey ( dec. ), no. 39420/08, 6 July 2010, and Armağancı v. Turkey ( dec. ) , no. 30637/06, 13 September 2011).

B. Complaints under Articles 6 and 14 of the Convention

29. The applicant alleged under Articles 6 and 14 of the Convention that the Diyarbakır Assize Court found him guilty of an offence which he had not committed and that the expert reports it relied on had been falsified. He further argued that the execution of his sentence, which had been deferred by the Diyarbakır Magistrates ’ Court, was unlawful and discriminatory.

30. The Court observes that in sentencing the applicant to a total of twenty-five years and six months ’ imprisonment for buying and transferring arms for an illegal organisation and for falsifying official documents, the Diyarbakır Assize Court relied on a wide range of evidence, including the statements of M.A., who had been arrested while transferring explosives, and the anonymous witness, as well as video records, train tickets, identification records and expert reports. In this respect, the Court notes that the applicant did not submit any document or put forward any argument to substantiate his allegation that the expert reports had been falsified.

31. The Court reiterates that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance, for the decisions of domestic courts. According to the case-law, the latter are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, among many others, Vidal v. Belgium , 22 April 1992, § 32, Series A no. 235-B, and Edwards v. the United Kingdom , 16 December 1992, § 34, Series A no. 247-B). In the instant case, it notes that there is nothing in the case file which might lead to the conclusion that the domestic court acted in an arbitrary or unreasonable manner in assessing the evidence, establishing the facts or interpreting the domestic law.

32. In so far as the applicant complains about the execution of the sentence delivered by the Diyarbakır Magistrates ’ Court, the Court notes that the domestic court clearly indicated in its judgment that it deferred that sentence pursuant to Article 51 of the Criminal Code on the condition that the applicant did not reoffend during the following one year. However, on 3 June 2010, that is, within one year after the deferral, the Diyarbakır Criminal Court of General Jurisdiction found the applicant guilty of unlawfully being in possession of a firearm. Accordingly, the execution of the applicant ’ s sentence was in line with the domestic law and there is nothing to indicate that it was done on a discriminatory basis.

33. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President