THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42942/02 by Ali and AyÅŸe DURAN against Turkey

The European Court of Human Rights (Third Section), sitting on 25 January 2007 as a Chamber composed of:

Mr B.M. Zupančič , President, Mr R. Türmen , Mr C. Bîrsan , Mrs E. Fura-Sandström , Mr E. Myjer , Mr David Thór Björgvinsson , Mrs I. Ziemele , judges, and Mr S. Quesada , Section Reg i strar ,

Having regard to the above application lodged on 6 September 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Ali Duran and Mrs AyÅŸe Duran , are Turkish nationals who were born in 1933 and 1945 respectively and live in Istanbul . They are the parents of Bayram Duran, who died on 16 October 1994 while in custody at the Gazi police station, in Istanbul . The applicants are repr esented before the Court by Mr Åž . Turgut, a lawyer practising in Istanbul .

A. The circumstances of the case

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

On 15 October 1994 at around 11 a.m. Bayram Duran was arrested on suspicion of having committed aggravated theft ( gasp ).

On 16 October 1994 at around 5 a.m. Bayram Duran was found dead at the Gazi police station.

On the same day, at 12.35 p.m. a “scene of incident and examination of the corpse” report was drafted and signed by the Gaziosmanpaşa public prosecutor, a medical expert, the director of the Gaziosmanpaşa security director and four other persons. According to the report, there was no sign of ill-treatment or bullet wound on Bayram Duran ’ s body. The medical expert concluded that an autopsy was necessary to discover the cause of death. The report further contained details concerning the detention conditions, according to which the cell where Bayram Duran had been found dead had not been cleaned for around one week. There were several cigarette butts on the ground and spider webs on the walls. Furthermore a sketch plan of the cell where Bayram Duran was found dead was drawn.

On 17 October 1994 an autopsy was carried out on Bayram Duran ’ s body. In the autopsy report drafted on 14 December 1994 and signed by four forensic medicine experts, the cause of death was identified as cardiac failure. The forensic experts found a haemorrhage of 3 x 8 cm in the left scapular region. They however considered that the haemorrhage was not decisive in Bayram Duran ’ s death.

On 29 December 1994 the Gaziosmanpaşa public prosecutor issued a decision of non-prosecution in respect of Bayram Duran ’ s death. Basing its decision on the autopsy report of 14 December 1994, the public prosecutor noted that the cause of death was not the haemorrhage.

On 21 February 1995 the first applicant, Ali Duran, filed an objection with the Beyoğlu Assize Court against the decision of 29 December 1994. In his petition he maintained that the content of the autopsy report was inadequate as, inter alia , it did not specify how the haemorrhage in Bayram Duran ’ s body could have occurred. He further contended that the public prosecutor had heard only the police officers before having rendered his decision.

On 30 May 1995 the Beyoğlu Assize Court requested the Gaziosmanpaşa Magistrates ’ Court to hear the first applicant and a witness and to conduct an examination of the case.

On 15 September 1995 the GaziosmanpaÅŸa Magistrates ’ Court heard the first applicant and two witnesses, H.K. and Ãœ.Y. The court then ordered the Forensic Medicine Institute to draft a report in order to determine whether the haemorrhage in Bayram Duran ’ s body could have been caused by ill ‑ treatment and whether there was a link between the haemorrhage and Bayram Duran ’ s death.

On 13 March 1996 a report was drafted and signed by six forensic medicine experts, including the director of the Forensic Medicine Institute. Having examined the autopsy report, the experts noted that Bayram Duran had suffered from a heart disease. They further considered that the haemorrhage had been caused by a direct trauma. The experts concluded that the stress caused by the trauma had aggravated Bayram Duran ’ s heart disease and had given rise to a cardiac failure.

On 9 April 1996 the Beyoğlu Assize Court annulled the non-prosecution decision and decided to initiate criminal proceedings against seven police officers who had signed the documents concerning Bayram Duran on 15 October 1994 . In its decision, the court noted that Bayram Duran ’ s death might have been incurred as a result of torture inflicted on him and therefore considered that criminal proceedings should be initiated.

On 6 June 1996 the Eyüp public prosecutor filed a bill of indictment with the Eyup Assize Court charging seven police officers with causing death unintentionally under Article 452 § 2 of the Criminal Code.

On 28 August 1996 the Eyüp Assize Court decided to transfer the case to the Denizli Assize Court on the ground of public security.

On 18 November 1996 , upon the request of the Denizli Assize Court , the Silopi Assize Court heard one of the accused police officers, A.K., who reiterated his previous statements before the public prosecutor and denied the allegations against him.

On 26 November 1996, at the request of the Denizli Assize Court , the Istanbul Assize Court heard the persons who had alleged that Bayram Duran had committed aggravated theft.

On 11 December 1996 the Istanbul Assize Court heard two of the accused police officers, H.A. and M.S., who denied the allegations against them and contended that Bayram Duran had died as a result of a heart attack.

On 20 December 1996 the Istanbul Assize Court heard the first applicant H.K. and Ü.Y. The court postponed the hearing as a third witness was not present.

On 24 January 1997 the Istanbul Assize Court heard the third witness.

On 26 February 1997, at the second hearing before the Denizli Assize Court , the first applicant joined the proceedings as a civil party seeking redress for his pecuniary and non-pecuniary loss ( müdahil ).

On 26 March 1997 the Istanbul Assize Court heard one of the accused officers, A.Ç., who contended that he had not inflicted ill-treatment upon Bayram Duran.

On the same day, at the request of the Denizli Assize Court , the Edirne Assize Court heard a doctor who had worked in a medical centre close to the Gazi police station at the time of the incident. The doctor maintained that he had been called to the police station by police officers in order to examine Bayram Duran, but upon his arrival there, Bayram Duran had already died.

Between 7 July 1997 and 10 May 1999 the Denizli Assize Court postponed the hearings due to absence of one the accused, a police chief A.Åž., whose statements had to be taken.

On 10 May 1999 the first-instance court ordered A.Ş. ’ s detention in his absence.

On 22 June 1999 the second applicant filed a petition with the Denizli Assize Court , and requested to join the proceedings as a civil party seeking redress for her pecuniary and non-pecuniary loss. The first-instance court did not take a decision regarding the applicant ’ s request.

On 3 December 1999 A.Åž. made statements before the Denizli Assize Court and denied the allegation that Bayram Duran had died as a result of the ill-treatment inflicted on him. A.Åž. maintained that Bayram Duran had been in custody on account of a simple accusation and that there had been no reason for inflicting ill-treatment on him. On the same day, the first-instance court reversed its order to detain A.Åž.

On 31 January and 6 April 2000 , upon the request of the Denizli Assize Court , the Istanbul Assize Court and the Bakırköy Assize Court once again heard A.Ç., H.A and M.S., who reiterated their previous statements.

On 6 September 2000 the Denizli Assize Court rendered its judgment. The first-instance court acquitted A.Ş., A.Ç. and H.A. of the charges against them holding that there was insufficient evidence to convict them. The court convicted M.S., A.A., A.K. and İ.U. as charged and sentenced each of them to two years, nine months and ten days ’ imprisonment. In its judgment, the court noted that Bayram Duran had been beaten by the convicted police officers and that he had died as a result of the stress caused by this trauma. The first-instance court further held that the applicants ’ right to redress for the pecuniary and non-pecuniary damage that they had suffered be reserved.

The first applicant, through his lawyer who had represented him during the proceedings before the assize court, and the convicted police officers appealed.

On 1 October 2001 the Court of Cassation quashed the judgment of 6 September 2000 on procedural grounds. The court held that the Denizli Assize Court had failed to take a decision in respect of the second applicant ’ s request to join the proceedings. The case-file was then remitted to the Denizli Assize Court .

On 10 December 2001 the first-instance court decided to admit the second applicant ’ s request to join the proceedings as a civil party.

On 25 March 2002 the Denizli Assize Court heard the accused police officers.

On the same day, the first instance court once again convicted M.S., A.A., A.K. and İ.U. as charged and sentenced each of them to two years, nine months and ten days ’ imprisonment and reserved the applicants ’ right to redress for the pecuniary and non-pecuniary damage that they had suffered.

The applicants, through their lawyer, appealed. In their petition, they alleged that their son had been killed as a result of the torture inflicted on him and that the first-instance court had failed to interpret the facts of the case correctly. They contended that the police officers should have been convicted of homicide as a result of torture under Articles 243 and 450 § 3 of the Criminal Code and debarred from employment in public service.

On 10 June 2003 the Court of Cassation dismissed the applicants ’ appeal and upheld the judgment of 25 March 2002 .

On 1 June 2005 the new Criminal Code (Law no. 5237) entered into force.

On 24 November 2005 the Denizli Assize Court reviewed the sentences of A.A., A.K. and Ä°.U. in the light of the provisions of the new Criminal Code and decided not to reverse its judgment of 25 March 2002. In its judgment, the court noted that A.A., A.K. and Ä°.U. had served their prison sentences.

A.A., A.K. and Ä°.U. appealed against the judgment of 24 November 2005 .

The proceedings are still pending before the Court of Cassation.

B. Relevant domestic law

The description of the relevant domestic law at the material time can found in the Aytekin v. Turkey , judgment of 23 September 1998 ( Reports of Judgments and Decisions 1998 ‑ VII, §§ 46-59).

COMPLAINTS

The applicants complain under Article s 2 and 3 of the Convention that their son died as a result of the ill-treatment inflicted on him and that the authorities failed to carry out an adequate and effective investigation into their son ’ s death. In this connection, they maintain that the police officers should have been convicted of the more serious offence of homicide as a result of torture as defined under Articles 243 and 450 § 3 of the Criminal Code and debarred from employment in public service. They further complain under Article 2 of the Convention about Bayram Duran ’ s detention conditions.

The applicants complain under Article 13 of the Convention that they did not have an effective domestic remedy in respect of their complaints under Articles 2 and 3 of the Convention.

The applicants contend under Article 6 § 1 of the Convention that the proceedings brought against the police officers were not concluded within a reasonable time. They further maintain under the same head that the case was transferred to the Denizli Assize Court , thus making it difficult for them to pursue the case. They finally allege that they did not have a fair trial since the judges sitting on the bench of the Denizli Assize Court were attached to the Supreme Council of Judges and Public Prosecutors.

THE LAW

1. The applicants complain under Articles 2, 3 and 13 of the Convention that their son, Bayram Duran died as a result of the torture inflicted on him in police custody and there was no adequate and effective investigation into their son ’ s death. They further allege that the respondent State failed to fulfil its positive obligation under Article 2 as Bayram Duran was kept in poor detention conditions at the Gazi police station.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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 applicants maintain, under Article 6 § 1 of the Convention, that the case brought against the seven police officers was transferred to the Denizli Assize Court, thus making it difficult for them to pursue the case. The applicants further complain under the same head that they did not have a fair trial since the judges sitting on the bench of the Denizli Assize Court were attached to the Supreme Council of Judges and Public Prosecutors. They finally contend, under Article 6 § 1 of the Convention, that the proceedings brought against the police officers were not concluded within a reasonable time.

The Court reiterates that since the applicants joined to the criminal proceedings brought against the police officers as a civil party, they are able to claim about the length of the criminal proceedings as the proceedings had a bearing on the determination of their civil rights (see Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000). The Court therefore considers that Article 6 is applicable to the proceedings in question.

a) As to the complaint concerning the transfer of the case to the Denizli Assize Court, t he Court observes that the applicants did not specifically set out in their application form to the Court the details of the alleged violation, i.e. in what way they had difficulty to follow the case brought against the police officers due to the transfer of the case to the Denizli Assize Court . Furthermore, the applicants were represented by a lawyer who had access to the documents concerning the criminal proceedings and who could have followed the case on their behalf . The Court therefore considers that the applicants have failed to substantiate their allegation and to provide an arguable claim allowing an examination of their complaint.

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

b) As to the allegation that the applicants did not have a fair trial due to the attachment of the judges sitting on the bench of the Denizli Assize Court to the Supreme Council of Judges and Public Prosecutors, the Court notes that it has previously rejected grievances of this kind (see, among many others, Imrek v. Turkey (dec.), no. 57175 / 00 , 28 January 2003 ). The Court finds no particular circumstances in the instant case which would require departure from its earlier findings.

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

c) As regards the complaint concerning the length of the criminal proceedings brought against the police officers, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

For these reasons, the Court unanimously

Decides to adjourn examination of the applicants ’ complaints concerning the alleged violations of Articles 2, 3 and 13 and the length of the proceedings brought against the police officers ;

Declares the remainder of the application inadmissible.

Santiago Quesada Boštjan M. Zupančič Registrar President