FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74507/01 by Mahmut ASLAN against Turkey

The European Court of Human Rights (Fourth Section), sitting on 4 October 2005 as a Chamber composed of:

Mr J. Casadevall , President , Mr R. Türmen , Mr M. Pellonpää , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr J. Šikuta, judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 2 November 2000 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mahmut Aslan, is a Turkish national of Kurdish origin who was born in 1959 and lives in İstanbul . He is represented before the Court by Mr C. Erbaş, Mr E. Yıldız and Mr N. Binbay, lawyer s practising in İ stanbul.

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

On 17 May 1982 the applicant was arrested and taken into custody. He was interrogated on 31 May and 28 June 1982 . He was remanded in custody on 8 July 1982 .

The applicant claims to have been subjected to systematic torture while he was held in custody and during his remand in custody. In respect of the treatment he was subjected to while he was held in custody, the applicant submitted that he had been beaten, hung, forced to swallow phlegm and left outside in the cold while he was wet. He further submits that he was subjected to falaka [1] . He did not give any specific details as to the treatment he had been subjected to while he was remanded in custody.

On 6 December 1982 the public prosecutor at the Diyarbakır Martial Law Court filed a bill of indictment with the latter, accusing the applicant of membership of an illegal organisation, namely the PKK. He requested that the applicant be convicted and sentenced under Article 168 § 1 of the Criminal Code.

During the proceedings the applicant denied the charges against him. In his final defence submissions, the applicant claimed, inter alia , that he was subjected to torture and that as a result he signed some papers (page 1606 of the reasoned judgment of the Martial Law Court ).

On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant of membership of an illegal organisation and sentenced him to twenty-four years ’ imprisonment pursuant to Article 168 §1 of the Criminal Code.

On 10 April 1990 the Military Court of Cassation quashed the judgment of the Diyarbakır Martial Law Court on the ground that the latter had misinterpreted the domestic law in respect of the offence in question.

On 27 November 1990 the applicant was released from detention.

Subsequent to promulgation of Law no. 3953 on 27 December 1993 , which abolished the jurisdiction of the Martial Courts, the Diyarbakır Assize Court acquired jurisdiction over the applicant ’ s case.

During the proceedings before the Diyarbakır Assize Court the applicant was not represented by a lawyer.

On 13 July 1998 the Diyarbakır Assize Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under Articles 102 and 104 of the Criminal Code had expired.

It appears from the documents submitted by the applicant that the judgment of the first-instance court was erroneously notified to Mr S.D. and became final on 12 March 1999 .

The applicant ’ s representatives before the Court informed that Mr S.D. was the legal representative of another co-accused, who bore the same name and surname as the applicant, during the proceedings before the Diyarbakır Martial Law Court.

The applicant claims to have learned of the judgment of the Assize Court on 16 May 2000 .

By letters dated 18 January and 9 July 2001 the Registry requested the applicant to provide the Court with medical reports, petitions submitted to the public prosecutor and/or minutes of the hearings before the domestic courts with a view to supporting his allegations of ill-treatment.

By a letter dated 18 April 2001 the applicant ’ s representative informed the Court that as the applicant was never brought before a doctor he was unable to provide the Court with medical reports. However, he submitted names of nine detainees who had witnessed the events.

By a letter dated 2 August 2001 the applicant ’ s representative informed the Court that the submissions of the applicant, concerning the alleged ill ‑ treatment he had been subjected to, were not recorded in the minutes of the hearings, that his complaint petitions were never processed, that he was never brought before a doctor and that even if was brought before a doctor, no report was drafted. He submitted that the events took place when Turkey was governed under the State of Emergency .

By a letter dated 25 May 2004 the applicant ’ s representative reiterated his previous submissions pertaining to his allegations of ill-treatment. He further referred to the reasoned judgment of the Martial Law Court and claimed that despite the applicant ’ s complaint before that court, no criminal investigation had been opened and that, therefore, the procedural obligations under Article 3 of the Convention were breached.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he had been subjected to systematic torture and inhuman treatment while he was held in police custody and remanded in custody.

The applicant submits under Article 6 of the Convention that his right to a fair hearing within a reasonable time by an independent and impartial tribunal was breached. In this regard, he asserts that the military was present in all stages of the criminal proceedings from the gathering of evidence to his trial before the Martial Law Court . He further complains that the length of the criminal proceedings and his detention was excessive. Finally, he claims that his right to be presumed innocent was breached as the criminal proceedings had been conducted as if he had been guilty and that he had been detained for an excessive period of time.

The applicant avers under Article 7 of the Convention that he had been detained on remand longer than the amount of time he would have served pursuant to the domestic law applicable at the time of the commission of the offence.

The applicant complains under Article 13 of the Convention on account of lack of an effective domestic remedy in respect of his complaints.

The applicant alleged under Article 14 of the Convention that he had been discriminated against on account of his ethnic origin and political opinions.

THE LAW

1. The applicant complains under Article 3 of the Convention that he had been subjected to systematic torture and inhuman treatment while he was held in custody and remanded in custody.

The Court observes, at the outset, that the applicant alleges that he was systematically tortured between 17 May 1982 and 27 November 1990 , i.e. for eight years and six months.

The Court reiterates that according to the Turkish Government ’ s declaration, made on 28 January 1987 , pursuant to former Article 25 of the Convention, the Court ’ s competence to examine individual petitions extended only to facts and judgments based on events occurring after that date. Consequently, the applicant ’ s complaint of ill-treatment, in so far as it concerns the events prior to this date, is outside the Court ’ s competence ratione temporis and must accordingly be rejected as being incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention (see, among many others, Gümüşten v. Turkey (dec.), no. 47116/99, 3 July 2003).

In respect of the alleged ill-treatment which arose or were of continuous effect after the aforementioned date, the Court observes that the applicant failed to give any details of the alleged torture he had been subjected to while he was remanded in custody and did not submit any medical reports in this respect. Even assuming that the applicant was deprived of any medical care while he was held in detention, the Court considers that any systematic torture lasting for approximately eight years would have had some lasting effects, physically and/or mentally, which could have been observed by a doctor following his release on 27 November 1990 .

Moreover, the Court observes that during the applicant ’ s trial no mention was made by the domestic courts of the allegation of the systematic torture the applicant was subjected to while he was remanded in custody brought to its attention. Accordingly, the Court concludes that the applicant ’ s has not laid the basis of an arguable claim that he had been the subject of ill ‑ treatment while he was remanded in custody. Consequently, the Court finds that the applicant ’ s complaint under this head is inadmissible as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Articles 6 and 7 of the Convention on account of the excessive length of his detention. He further complains under Article 13 of the Convention on account of lack of an effective domestic remedy.

The Court considers that the complaints under this head should be examined under Article 5 §§ 3 and 4 of the Convention.

The Court notes that the applicant was released from remand in custody on 27 November 1990 , whereas the application was introduced with the Court on 2 November 2000 , i.e. more than six months after the detention complained of. It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant submits under Article 6 of the Convention that his right to a fair hearing by an independent and impartial tribunal was breached. He also complains that his right to be presumed innocent was breached.

The Court notes that the criminal proceedings against the applicant were terminated on the ground that the statutory time-limit had expired. Accordingly, the applicant could no longer claim to be a victim in respect of his complaints under this head as the withdrawal of criminal proceedings instituted against him constitutes redress of the violations, which would have infringed his rights under the Convention (see, among others, Değirmenci and 38 others v. Turkey (dec.), no. 31879/96, 16 November 1999). It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicant complains that the criminal proceedings brought against him were not concluded within a reasonable t ime as required by Article 6 of the Convention.

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.

5. The applicant complains under Article 13 of the Convention on account of lack of an effective domestic remedy in respect of his complaints.

The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

In view of its conclusions above, the Court considers that the applicant has no arguable claim of a violation of his rights under Article 6 in so far as it concerns the fairness of the proceedings and Article 3, which would have required a remedy within the meaning of Article 13. Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

As to the lack of an effective remedy whereby the applicant could raise the issue of the excessive length of the proceedings in his case before a national authority, 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.

6. The applicant alleged under Article 14 of the Convention that he had been discriminated against on account of his ethnic origin and political opinions.

The Court notes that the applicant has failed to submit any evidence in support of his allegations. It follows that the applicant ’ s allegation under this head is unsubstantiated. Consequently, the Court considers that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the length of the criminal proceedings brought against him and the lack of an effective domestic remedy in respect of his aforementioned complaint;

Declares the remainder of the application inadmissible.

Michael O ’ Boyle Josep Casadevall Registrar President

[1] 1. Beating of the soles of the feet.