SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5138/04 by Nusret AMUTKAN against Turkey

The European Court of Human Rights (Second Section), sitting on 4 January 2008 as a Chamber composed of:

Françoise Tulkens , President, András Baka , Ireneu Cabral Barreto , Rı za Türmen , Mindia Ugrekhelidze , Vladimiro Zagrebelsky , Dragoljub Popović , judges,

and Sally Dollé , Section Registrar ,

Having regard to the above application lodged on 29 December 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nusret Amutkan, is a Turkish national who was born in 1970 and is in prison in Gaziantep . He is represented before the Court by Ms B erivan Özpolat, a lawyer practising in Gaziantep .

The circumstances of the case

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

The applicant joined the PKK [1] in 1995 and was arrested during a military operation carried out by the Turkish armed forces on 27 April 1998. The applicant claims that he has never taken part in any armed activity and that there was no clash between the PKK members and the armed forces at the time of his arrest. According to a military report, however, the applicant and a number of other PKK members were arrested following a clash in a valley near Diyarbakır . A very large number of weapons, ammunition and drugs were recovered by the soldiers. According to that report, five PKK members were killed during the operation.

On the same day the applicant was examined by a doctor who observed no signs of injury on his body. The applicant was detained at a gendarme station where he was questioned and his detailed statement was recorded verbatim.

In the statement the applicant was quoted as having said that he had joined the PKK on 13 February 1995 and that he had carried out a number of armed activities since that date. However, the applicant claims that he is illiterate and therefore he did not know what was written in the statement, which, moreover, was not read out to him. He was forced to make his thumbprint on the statement to authenticate it.

According to the applicant, during his detention at the gendarme station he was subjected to ill-treatment amounting to torture.

On 6 May 1998 the applicant was brought before a prosecutor and then before a judge who ordered his detention in prison, pending the bringing of criminal proceedings against him. When questioned by the prosecutor and the judge the applicant confirmed the accuracy of the information contained in the statement he had made at the gendarme station, and repeated that he had carried out a number of armed activities.

The applicant claims that, although the judge ordered his detention in prison, he was in fact taken back to the gendarme station and was not transferred to the prison until 8 May 1998.

When questioned at the gendarme station and then by the prosecutor and the judge, the applicant was not represented by a lawyer. According to the applicant, at the end of his custody he was taken to a local hospital where a report was drawn up. The doctor stated in the report, at the request of the soldiers present there, and despite the presence of injuries on his body, that the applicant had not been subjected to ill-treatment.

On 15 June 1998 the prosecutor at the Diyarbakır State Security Court filed an indictment, charging the applicant with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.

The trial of the applicant and his seven co-defendants began on 20 August 1998 before the Fourth Chamber of the Diyarbakır State Security Court (hereafter “the trial court”). In the course of the trial the applicant informed the court that he had joined the PKK in 1995 and had received military training. He had taken part in only one armed attack during which he and a number of other PKK members had carried out an armed raid in a village and kidnapped four village guards. At the time of his arrest he had been armed but had not opened fire; he had surrendered to the soldiers. He also informed the trial court that he had been forced to put his thumbprint on the statement taken from him at the gendarme station.

On 28 November 2002 the trial court found the applicant guilty as charged and sentenced him to death. The death penalty was commuted to a life sentence. The trial court found it established, on the basis of, inter alia , the statements taken from the applicant after his arrest and the testimony given by him during the trial, that he had carried out a number of illegal activities and had been involved in the killing and kidnapping of a number of village guards.

The applicant ' s appeal against his conviction was rejected by the Court of Cassation on 16 September 2003.

COMPLAINTS

The applicant alleged that while he was detained at the gendarme station he had been subjected to ill-treatment amounting to torture within the meaning of Article 3 of the Convention .

Relying on Article 5 of the Convention, the applicant complained that he had been detained at the gendarme station for a period of twelve days, two of which had been after the judge ordered his detention in a prison.

Relying on Article 7 of the Convention, the applicant complained that he had not had a fair hearing because the trial court had convicted him on the basis of the statement he had made at the gendarme station in the absence of a lawyer and which he had not read as he was illiterate.

Finally, the applicant complained under Article 18 of the Convention that the trial had continued for a period in excess of five years, during which time his rights had not been protected.

THE LAW

1. Relying on Article 3 of the Convention, the applicant complained that he had been subjected to ill-treatment at the gendarme station.

The Court observes that the applicant failed to bring his allegations of ill-treatment to the attention of the national authorities. He did not inform the prosecutor about his allegations following his release from the custody of the gendarmerie. Similarly, he did not inform the trial court in the course of the criminal proceedings against him. In this connection the Court observes that the applicant did not argue that he had been prevented from making any complaints at the national level.

Consequently, the Court finds that the applicant cannot be considered as having complied with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention. This complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. Under Article 5 of the Convention, the applicant complained that he had been detained at the gendarme station for a period of twelve days and that he had not, therefore, been brought promptly before a judge.

The Court observes that the applicant was released from the gendarme station on 6 or 8 May 1998 but he did not lodge his application with the Court until 29 December 2003. He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

3. The applicant next complained that he had been convicted on the basis of the statements taken from him in the absence of a lawyer. Furthermore, he had not had the opportunity to read what was written in the statement because he was illiterate. In relation to this complaint the applicant relied on Article 7 of the Convention.

The Court deems it appropriate to examine this complaint from the standpoint of Article 6 §§ 1 and 3 (c) of the Convention, and considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessar y, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

4. Under Article 18 of the Convention the applicant complained that his trial had continued for a period in excess of five years and that his rights had not been protected during that time.

The Court consider s that the complaint s raised by the applicant under Article 18 of the Convention are wholly unsubstantiated and do not disclose any appearance of a violation of this provision . It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 § § 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Decides to adjourn the examination of the applicant ' s complaint concerning his right to defend himself through legal assistance ;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens Registrar President

[1] The Kurdistan Workers’ Party, an illegal organisation.