SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 874/04 by Hasan KAYA against Turkey

The European Court of Human Rights (Second Section), sitting on 18 September 2007 as a Chamber composed of:

Mrs F. Tulkens , President , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Mrs A. Mularoni , Mr D. Popović, judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 20 October 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hasan Kaya , is a Turkish national who was born in 1973 and lives in Istanbul . He was represented before the Court by Mr M. Ä°riz , Mr R. Dogan, Mr Y. Aydin and Ms S . Turan , lawyers practising in Istanbul .

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

On 10 February 2002, at around 6:00 to 6:30 p.m., the applicant was arrested by two plain-clothes policemen and one uniformed police officer on a street in the Karadeniz district of Gaziosmanpasa, Istanbul , on suspicion of having participated in an illegal demonstration. He was put in a commercial taxi and taken to the Karadeniz Police Station.

There, the applicant was allegedly punched, kicked and beaten with truncheons by officers, who allegedly broke his nose, which started bleeding. The officers took him to the Karadeniz Clinic. The doctors applied a bandage to his nose. He was then taken to the Emergency Clinic of the Haseki Hospital and had a nose x-ray. On the same day, at around midnight, he was handed over to police officers from the anti-terrorism branch of the Istanbul Security Directorate.

The applicant was allegedly subjected to subsequent beatings at the anti-terrorism branch and asked to become a police informer.

On 11 February 2002 the anti-terrorism police took a statement from the applicant.

On 12 February 2002 the applicant was taken to a branch of the Forensic Medicine Institute at the Istanbul State Security Court . He was then brought before the public prosecutor, when he denied the charges against him. He was released the same day.

On 15 February 2002 the applicant filed two separate complaints with the Gaziosmanpasa and Fatih Public Prosecutor ' s Offices against the police officers who had allegedly ill-treated him in custody at the Karadeniz Police Station and at the anti-terrorism branch, respectively.

On 27 February 2002 the applicant was referred for a medical examination by the Gaziosmanpasa public prosecutor. On 20 March 2002 the Forensic Medicine Institute issued a definitive report on his medical condition, which made reference to the findings of a report dated 15 February 2002 by the Haseki Hospital . In the latter, it was stated that the applicant had an ecchymosis of 1.5x1.5 cm under his left eye, estimated to be three or four days old, an ecchymosis of 1x1 cm under his right eye, an ecchymosis of 1x1 inside his lower lip as well as an oedema, estimated to be three or four days old, and pain in the nose. His injuries were not regarded as life threatening but were classified as sufficient to render him unfit for ten days.

1. The criminal proceedings against the police officers from the Karadeniz Police Station

On 9 May 2002 the Gaziosmanpasa public prosecutor filed an indictment with the Gaziosmanpasa Assize Court , accusing twelve police officers from the Karadeniz Police Station of ill-treatment under Article 245 of the former Criminal Code.

On 15 May 2002 the Assize Court commenced the trial and scheduled the first hearing for 11 July 2002.

During the hearing of 11 July 2002, the Assize Court heard statements from the accused police officers and the applicant as the complainant. All defendants denied the allegations. The applicant identified a police officer, A.G., as being one of the officers who had arrested him and beaten him at the Karadeniz Police Station. The same day, the public prosecutor submitted to the court that the offence in question fell within the scope of Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials). Accordingly, he requested that the case file be sent to the District Governor for leave to prosecute the police officers under that law. The court complied with this request, stopped the trial and sent the case file to the District Governor ' s Office.

On 10 September 2002 the District Governor decided not to permit the prosecution of the officers. This decision stated that the police officers, who had been patrolling after an illegal demonstration in the Karadeniz district, had seen some local people beating the applicant. The officers had put the applicant into a taxi and taken him to the police station, and later that night they had handed him over to the anti-terrorism branch. The Governor concluded that there was thus insufficient evidence to prosecute the accused apart from the applicant ' s allegations.

The applicant challenged this decision before the Istanbul District Administrative Court .

On 25 February 2003 the Administrative Court upheld the Governor ' s decision. It noted that the taxi driver that day had testified that the applicant ' s face had been covered in blood when the police officers had put him into his vehicle. Moreover, the applicant, in his statement to the anti-terrorism police, had admitted that he had been beaten by some locals who had caught him as he was running away.

2. The investigation concerning the police officers from the anti-terroris m branch

On 6 June 2002 the Fatih public prosecutor issued a decision of non-prosecution concerning the applicant ' s complaint against the police officers from the anti-terrorism branch. He noted that in his statement of 11 February 2002 to the anti-terrorism police, the applicant had maintained that he had been rescued by the officers from local people who had been beating him. On 12 February 2002 he had been examined by the Forensic Medicine Institute at the State Security Court . The applicant had written in the medical report of that day that the injuries on his body and the fracture to his nose had been inflicted by some local people, and had added his signature.

The applicant appealed against this decision before the BeyoÄŸlu Assize Court , which on 20 March 2003 upheld the decision.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that he had been ill-treated during his detention in police custody. In particular, he submitted that he had been beaten with truncheons, punched on the nose, threatened with electric shocks and death, and that the officers had spat in his mouth.

2. He alleged under Article 5 §§ 1 (c), 2, and 4 of the Convention that there had been no reasonable suspicion for his arrest, nor had he been informed of the reasons for it. Moreover, there was no remedy in domestic law to challenge the lawfulness of his detention.

3. The applicant further contended under Article 6 § 3 (a) and (c) of the Convention that he had not been informed of the accusations against him for two days, and that he had been denied legal assistance during police custody.

4. Under Article 13 of the Convention, he maintained that the ineffective criminal proceedings against the police officers had also prevented him from taking further action for compensation.

5. Finally, he submitted under Article 14 of the Convention that he had been subjected to this treatment because of his Kurdish origin.

THE LAW

1. The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated in police custody and that he had not had an effective remedy for his complaint of ill-treatment, which had also prevented him from claiming compensation under the domestic law.

T he Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further alleged under Articles 5 §§ 1 (c), 2 and 4 of the Convention that he had been unlawfully arrested, had not been informed of the charges against him or of the reasons for his arrest, and that the domestic law had not provided him with an effective remedy whereby he could have challenged the unlawfulness of his detention.

The Court observes that the applicant was released from police custody on 12 February 2002. However, he lodged this complaint with the Court on 20 October 2003, more than six months after the end of his detention. It follows that these complaints have been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

3. The applicant maintained under Article 6 § 3 (a) and (c) of the Convention that he had not been informed of the accusations against him and had been unable to consult a lawyer during his detention in police custody. Finally, he alleged under Article 14 of the Convention that the treatment he had suffered had been motivated by his ethnic origin.

The Court observes that there were no criminal proceedings brought against the applicant in the present case. Furthermore, in the light of the evidence submitted to it, the Court finds no appearance of a violation of Article 14. Accordingly, it rejects this part of the application as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these re asons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaints concerning ill-treatment in police custody and his right to an effective remedy ;

Declares the remainder of the application inadmissible.

F. Elens-Passos F. Tulkens Deputy Registrar President