FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61933/00 by Kenan KAHRAMANOÄžLU against Turkey

The European Court of Human Rights (Fourth Section), sitting on 10 October 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr R. Türmen , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 28 August 2000 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

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, Kenan Kahramano ğ lu, is a Turkish national, who was born in 1972 and lives in Istanbul . He is represented before the Court by Mr Ö. Kılıç, a lawyer practising in Istanbul . The Turkish Government (“the Government”) did not designate an A gent for the purposes of the proceedings before the Court .

A. The circumstances of the case

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

On 27 August 1996 police officers from the Beyoğlu Police Department in Istanbul arrested the applicant and transferred him to the Anti-Terrorism branch of the Istanbul Security Directorate. He was accused of membership of an illegal organisation called the Revolutionary Left ( THKP-C Devrimci Sol ). It was alleged that he had been involved in armed attacks organised by the said organisation in 1992. In particular, the applicant, whose code name was ‘ Yusuf ’ within the organisation, allegedly took part in the killing of a police superintendent.

On 28 August 1996 the applicant was questioned by two police officers from the Anti-Terrorism branch in relation to his involvement in the organisation. He confessed to being a member of the THKP-C and to having taken part in the killing of the police superintendent. He claimed, however, that he had not been involved in the organisation since 1994.

On 2 September 1996 the applicant was examined by a doctor from the Istanbul State Security Court Forensic Medicine Institute. The doctor, MD Cahit Alkış, reported that the applicant had described to him a sensation of pain in his right shoulder and testicles as well as numbness in his right arm. It was also noted in the report that the applicant had complained of pain when urinating. The doctor concluded that the applicant should be transferred to a State hospital for a further neurological and urological examination.

Following his examination in the State Hospital , the applicant was again examined on 3 September 1996 by Dr Alkış from the Forensic Medicine Institute. Referring to the applicant ’ s examination by the urology department of the State hospital, Dr Alkış noted in his report that there was no pathological finding. However, the neurological examination had indicated that the applicant had felt weakness in the region of his shoulder and shoulder blade and in particular when squeezing his right hand. The applicant had also complained of pain in his right elbow and right shoulder when extending his arm. Dr Alkış thus requested the applicant to undergo an EMG ( electromyogram ) examination the next day.

On 3 September 1996 the applicant was brought before the public prosecutor attached to the Istanbul State Security Court , where he denied the charges. He submitted that the incriminating police statements had been taken under torture and that he had not been able to read the statements before signing them. He further stated that he did not have any connections with the said organisation and that he had not been in Istanbul in 1992.

On the same day, the applicant was taken before the Istanbul State Security Court . He denied the content of the police statements and maintained that he had been subjected to ill-treatment during his detention in police custody and had been forced to confess to crimes which he had not committed. The court ordered the applicant ’ s detention on remand.

In an indictment dated 25 September 1996 the public prosecutor attached to the Istanbul State Security Court initiated criminal proceedings against the applicant, charging him with membership of a terrorist organisation and recommending the imposition of the death penalty under Article 146 § 1 of the Criminal Code (attempt to undermine the constitutional order).

On 25 November 1996 the public prosecutor at the Istanbul State Security Court issued a decision of non-jurisdiction ratione materiae in relation to the alleged torture of the applicant during his detention in police custody between 27 August and 3 September 1996. Having completed his preliminary investigation, the Public Prosecutor transferred the investigation file containing medical reports and the applicant ’ s statements to the Chief Public Prosecutor ’ s office in Fatih district.

In a letter of 4 December 1996 the Fatih public prosecutor requested the Sakarya Chief Public Prosecutor to instruct the authorities of the Sakarya Prison to take the applicant to a hospital and to have him undergo an EMG examination. On the same day, the public prosecutor wrote a letter to the Anti-Terrorism branch of the Istanbul Security Directorate in which he requested that the names of the police officers who had questioned and taken statements from the applicant be reported to him. He further asked for a copy of the last page of the statements taken from the applicant, the arrest protocols as well as all relevant reports. On 20 December 1996 the Sakarya Prison Administration transferred the applicant to the Sakarya State Hospital for an EMG examination. However, given that this hospital lacked EMG facilities, the Prison Administration decided to transfer the applicant to the HaydarpaÅŸa Numune Hospital in Istanbul .

In a letter of 8 January 1997 the Director of Prisons and Incarceration Facilities requested the Sakarya Chief Public Prosecutor to order the transfer of the applicant to a special prison in Istanbul with a view to his examination and treatment at the HaydarpaÅŸa Numune Hospital .

On 3 February 1997 the applicant submitted before the Istanbul State Security Court that he had been subjected to ill-treatment while in police custody.

On 20 March 1997 the applicant underwent a urine analysis at the HaydarpaÅŸa Numune Hospital . The laboratory doctor prescribed anti ‑ inflammatory medicine and antibiotics for the applicant. He was then examined by a doctor at the neurology department of the same hospital. The neurologist noted in his report that the applicant felt weakness in his right arm and thus advised an EMG examination.

In a letter dated 2 September 1997 the Fatih Public Prosecutor repeated his earlier request to the Sakarya Chief Public Prosecutor that the applicant be taken to a hospital for an EMG examination.

By a letter of 2 September 1997, the Fatih Public Prosecutor requested the authorities of the Anti-Terrorist Branch at the Istanbul Security Directorate to provide him with a copy of the last page of the applicant ’ s statements which were taken during his detention in police custody, the arrest protocols and reports as well as documents pertaining to the permission to hold him in custody. The public prosecutor also asked for the names of the police officers who had taken statements from the applicant or participated in his interrogation. He instructed that those police officers appear before the Fatih Chief Public Prosecutor ’ s office. On 12 September 1997 this letter was received by the police officers concerned, namely F.V., E.K., R.İ. and M.T.

On 22 September and 1 October 1997 the Fatih Public Prosecutor took statements from E.K., R.Ä°. and M.T., who had all been involved in the interrogation of the applicant. Referring to the medical report dated 3 September 1996, which stated that there was no pathological finding on the applicant ’ s body, the police officers all denied that they had ill ‑ treated the applicant. They claimed that such allegations were a routine practice used by members of illegal organisations to deny the crimes which they had committed.

According to a report dated 12 November 1997, which was drafted by the Sakarya Prison Director and signed by two prison officers, the applicant refused to leave his cell and to be brought to the Haydarpaşa Numune Hospital for an EMG examination. This report was sent to the Sakarya Chief Public Prosecutor ’ s office for information.

On 5 March 1998 and 17 April 1998 the applicant, at the request of the Istanbul Assize Court , was summoned to give evidence before the Sakarya Assize Court in relation to his allegations of ill ‑ treatment. The applicant refused to appear before the court for health reasons.

On 1 May 1998 the applicant gave evidence before the Sakarya Assize Court . He alleged that he had been subjected to Palestinian hanging following his arrest. He had seen through his b lindfold the police officers who had hit him. He had also seen the same officers when they had removed his blindfold in order to confront him with H.K. The applicant had filed a complaint through his lawyer about these police officers. He reiterated his request for the prosecution of the police officers who had tortured him.

On 28 January 1998 the Fatih Public Prosecutor initiated criminal proceedings before the Istanbul Assize Court against two police officers, F.V. and R.İ., charging them with ill-treatment of the applicant in violation of Article 243 § 1 of the Turkish Criminal Code.

On 2 April 1998 the Istanbul Assize Court heard evidence from F.V. and R.Ä°. They both denied the charges and claimed that they had not been involved in the interrogation of the applicant. F.V. stated that he had only taken statements from the applicant in the course of his transfer to the State Security Court . R.Ä°. claimed that he had only acted as a clerk when taking statements from the applicant.

In a petition dated 16 July 1998 , filed with the Istanbul Assize Court , the applicant requested information on the state of the proceedings concerning the prosecution of the impugned police officers.

In a letter dated 17 August 1998 , which was served on the applicant on 7 September 1998 in the Sakarya E-type prison, the president of the Istanbul Assize Court informed him that the criminal proceedings were still pending and that a final hearing was scheduled for 23 September 1998 .

On 23 September 1998 the Istanbul Assize Court delivered its judgment. Referring to the applicant ’ s testimony dated 1 May 1998 before the Sakarya Assize Court in which he had claimed that he had been ill-treated before his statements had been taken, and in view of the police officers ’ defence submissions, the court found that the two accused police officers had merely taken statements from the applicant. However, it was undisputed that the alleged ill-treatment inflicted on the applicant occurred prior to that stage - either during his arrest or at the time of his interrogation. The court further took into consideration the medical report dated 2 September 1996 which did not indicate any signs of bodily injury . Accordingly, the court concluded that there existed no evidence to substantiate that the applicant had been ill-treated by the accused police officers and therefore acquitted them of the charges. The court ’ s decision was not served on the applicant since he had not intervened in the criminal proceedings against the accused police officers. As there was no appeal, the decision became final on 21 November 1998 .

On 8 May 2000 the Istanbul State Security Court ordered the applicant ’ s release pending trial.

On 23 June 2000 the applicant obtained a copy of the Istanbul Assize Court ’ s decision concerning the acquittal of the police officers.

The lawyer representing the applicant in the Convention proceedings also represented him in the proceedings before the State Security Court .

In the meantime, the applicant provided the Court with a copy of a document which indicated that R.Ä°, one of the accused police officers who had allegedly inflicted ill-treatment on the applicant, had been convicted of inflicting ill-treatment in the past.

On 27 October 2004 the Istanbul Assize Court convicted the applicant of attempting to undermine the constitutional order of the State and sentenced him to life imprisonment.

On 24 May 2005 the Deputy to the Istanbul Chief Public Prosecutor appealed to the Court of Cassation and requested that the conviction be quashed on the grounds that there was insufficient evidence against the applicant and that the judgment was contradictory. The public prosecutor noted that the only evidence available was the applicant ’ s statements to the police officers.

On 18 July 2005 the Court of Cassation quashed the judgment of 27 October 2004. It reasoned that the Istanbul Assize Court had failed to carry out a sufficient examination of the case in that it had not inquired into the outcome of the criminal proceedings concerning the alleged ill-treatment of the applicant by the security forces and the medical report to that effect.

B. Rele vant domestic law

1. Criminal Code then in force

Article 243 § 1

“1. Whoever, being a president or member of a court or council or a public officer, tortures an accused person in order to obtain a confession, shall be punished by a prison sentence of up to five years and shall be disqualified from holding public office, temporarily or for life. The offender shall be punished even if he had acted under an order or encouragement from his superior.”

2. Code on Criminal Procedure at the relevant time

Section 365

“Any person who is injured as a result of a criminal act may, at any phase of the investigation, intervene in the public prosecution.

Those so intervening may also submit their personal claims for adjudication.”

The intervening party is entitled to request compensation for the prejudice arising from the offence. However, the exercise of this right is subject to procedural rules: the person who is injured as a result of a criminal act must intervene in the public prosecution and request explicitly the right to ask for compensation. The compensation request is not therefore automatic. It also has to be justified and an assessment of the amount must accompany the request.

Section 366 provides that intervention should be made by means of the submission of a petition to the relevant authority or by a declaration made to the clerk of the court. Thereupon, the intervening party enjoys the same rights as a prosecutor of personal claims (section 367). Decisions rendered before the intervention remain valid and, if the public prosecutor does not appeal against the final decision within the requisite time-limit, the intervener loses the right to appeal (section 369).

Furthermore, according to section 370, if the intervener or his/her representative does not attend the trial, the judgment is served on him/her. Section 371 empowers the intervening party to file a separate appeal against a judgment regardless of whether the public prosecutor chooses to appeal. If the intervening party succeeds in his/her appeal, the public prosecutor is required to institute criminal proceedings afresh.

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment in police custody. He submitted, in particular, that he had been subjected to verbal insults directed against his personal integrity and his family, hosed with pressurised water, strung up by his arms (Palestinian hanging), severely beaten, given electric shocks, denied food and water, and had his testicles squeezed.

The applicant also asserted under Articles 6 and 13 of the Convention that there existed no effective domestic remedies in respect of his allegations about ill-treatment since the authorities had failed to carry out an effective investigation into his complaints. He further submitted that the Assize Court , which tried the police officers, had failed to evaluate the evidence properly and misinterpreted the law. Furthermore, the Assize Court ’ s judgment acquitting the police officers had not been served on him.

THE LAW

The applicant complained that he had been subjected to ill-treatment during his detention in police custody. He maintained that he had had no effective remedy in domestic law which could lead to the conviction of the accused police officers. He invoked Articles 3, 6 and 13 of the Convention.

1. The parties ’ submissions

(a) The Government

The Government submitted that the applicant had not exhausted domestic remedies and, alternatively, had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention.

The Government asserted that the applicant should have exhausted domestic legal remedies governing claims for compensation. They contended that the applicant could have lodged a claim for compensation with an ordinary civil court on the basis of the Code of Obligations. Furthermore, the applicant had not co-operated with the judicial authorities since he had refused to appear before the Assize Court to give evidence on two occasions during the criminal proceedings against the accused police officers. He had also failed to intervene in the said criminal proceedings. Had he done so, this would have enabled him to appeal against the Assize Court ’ s judgment. Given that he had been represented by a lawyer throughout the criminal proceedings against him, the applicant could have instructed his lawyer to follow up the proceedings concerning his complaints of ill ‑ treatment and, subsequently, to lodge an appeal against the acquittal of the police officers.

The Government alternatively asserted that the application was time ‑ barred given that the final domestic decision had been given on 28 September 1998 and that the application had been submitted to the Court on 28 August 2000 , i.e. more than six months after the delivery of the final domestic decision.

As regards the merits, the Government contended that the authorities had conducted an effective investigation and that the applicant ’ s allegations had proved to be unsubstantiated. In this connection, they pointed to the medical reports which had not indicated any trace of ill-treatment but merely contained the applicant ’ s complaints of pain on various parts of his body. The Government further stressed that the most important evidence, which could have determined the presence of signs of ill-treatment, would have been provided by an EMG examination. However, any such evidence could not be obtained on account of the applicant ’ s refusal to go to a hospital on 14 April 1997 and 12 November 1998. In sum, the Government concluded that the applicant ’ s allegations were manifestly ill-founded.

(b) The applicant

The applicant disputed the Government ’ s submissions and contended that he had complied with the requirements of Article 35 § 1 of the Convention.

The applicant claimed in the first place that he had exhausted all available remedies in domestic law. As regards the Government ’ s assertion that he had failed to intervene in the criminal proceedings against the police officers, the applicant maintained that his requests to give evidence before the Istanbul Assize Court had been disregarded. In this context, the applicant ’ s representative submitted that, in the absence of any instruction from the applicant, he was not empowered to take steps to intervene in the criminal proceedings against the police officers.

Concerning his alleged failure to observe the six-month rule, the applicant noted that the decision of acquittal had not been served on him. He had only learned about the outcome of the proceedings following his release from prison. Thus, the six-mo n th period for the purposes of Article 35 § 1 of the Convention should be considered as running from 23 June 2000, being the date on which the applicant had become aware of the Assize Court ’ s judgment dated 23 September 1998. Since the application had been submitted to the Court on 28 August 2000, it should be considered to have been lodged within the six-month period.

As to the merits, the applicant alleged that he had been subjected to systematic torture during his detention in police custody. The medical reports dated 2 and 3 September 1996 had clearly indicated that he had been tortured. He should have been taken to hospital for an EMG examination on 4 September 1996, as prescribed by Dr Alkış. Rather, the authorities preferred to allow a substantial period of time to elapse before taking him to hospital. The Court of Cassation ’ s decision of 18 July 2005 had given support to his allegations that he had been tortured and that the authorities had failed to conduct an adequate investigation. In the absence of any effective investigation capable of providing him redress, he had not been required to pursue any further remedies in domestic law.

2. The Court ’ s assessment

The Court considers that it is not re quired to decide whether the applicant can be considered to have exhausted domestic remedies or whether there existed such special circumstances in the present case which would dispense the applicant from the obligation to pursue further remedies in domestic law. Even if he is correct in his assertions, this does not re lieve him of the obligation to comply with the six-month rule.

The Court recalls that under Article 35 § 1 of the Convention it may only deal with an application within a period of six months from the date on which the final decision was taken. The six-month period under Article 35 § 1 begins to run on the day after the date on which the final domestic decision was pronounced or was communicated to the applicant or his lawyer (see K.C.M. v. the Netherlands (dec.), no. 21304/92, 9 January 1995, DR 80, p. 87) or, where pursuant to domestic law and practice, the applicant is entitled to be served ex officio with a written copy of the judgment, from the date of the receipt ( Worm v. Austria , no. 2714/93, 29 August 1997 , §§ 32-33).

The Court notes that the accused police officers were acquitted of the charges of ill-treating the applicant as a result of the Assize Court ’ s judgment of 28 September 1998. This judgment became final on 21 November 1998 as no appeal was lodged against it.

The Court observes that under Turkish law a court decision is served only on the parties to a case. However, the decision can also be served on a third party, such as a complainant, should he become an intervening party to the proceedings pursuant to section 365 of the Code on Criminal Procedure. The Court considers in this connection that the Assize Court was required to serve the judgment only on the parties to the case but not on the applicant since he failed to intervene in the criminal proceedings against the police officers.

The Court further notes that the applicant ’ s representative in the instant case had also represented him throughout the criminal proceedings before the Istanbul State Security Court . It has not been suggested by the applicant that he had been hindered in instructing his lawyer to follow up the proceedings against the police officers when he was in detention on remand. Alternatively, he could have inquired into the outcome of those proceedings before his release from the prison, as he had earlier done by his petition dated 16 July 1998 . In response to that petition, the judicial authorities informed him that a final hearing had been scheduled for 23 September 1998 . It is striking that the applicant and his representative remained passive in respect of the proceedings against the accused police officers despite the fact that those proceedings would have had an impact on the criminal proceedings pending against the applicant, as demonstrated by the Court of Cassation ’ s decision of 18 July 2005.

Consistent with the above principles and in the absence of any sufficient reason to the contrary, the Court considers that the date of the final decision in respect of the applicant ’ s grievances should be taken to be, at the latest, the date on which the judgment acquitting the police o fficers became final, namely 21 November 1998.

In the light of the above considerations, the Court considers that following his criminal complaint the applicant failed to display due diligence in following-up the criminal proceedings brought against the police officers which resulted in their acquittal and that his representative introduced the application on 28 August 2000, more than twenty-one months after the judgment had become final.

It follows that the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court by a majority

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the a pplica tion inadmissible.

T.L. Early Nicolas Bratza Registrar President