FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applicati on no. 60161/00 by Fikret KARAOÄž LAN against Turkey

The European Court of Human Rights (Fourth Section), sitting on 10 May 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr R. Türmen , Mr M. Pellonpää , Mr R. Maruste , Mr J. Borrego Borrego , Mr J. Šikuta , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 23 December 1999 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Fikret KaraoÄŸlan , is a Turkish national of Kurdish origin , who was born in 1971 and lives in B elgium . He is rep resented before the Court by Ms Anke Julia Stock, of the Kurdish Human Rights Project in London .

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

The applicant was a student at the University of Ege . He also wo rked briefly as a journalist in a newspaper and a television station.

The applicant was searched by the police following instructions of the Izmir chief public prosecutor on account of his involvement in the throwing of a Molotov cocktail , at the branch of Halk Bank on Balcova Ata Street on 14 March 1995 , in the n ame of an illegal organisation.

According to the seizure protocol drafted on 20 March 1998 by the police and signed by the applicant, the latter was arrested by police officers at a check point on a main road during a regular identity control. He was then handed over to a police officer from the A nti-terror branch . He claims that during his arrest he had been dragged by force and subjected to beatings.

T he medical report of Dağkapı Health Center issued on 20 March 1998 stated that the applican t did not show any signs of ill- treatment and that he was in good health.

The applicant alleges that he was then taken to a place, the location which is unknown to him , where he was subjected to various forms of ill ‑ treatment. He claims that he was subjected to electric shocks and to “Palestinian hanging” , forced to drink urine, hosed with pressurised wa ter and burned with cigarettes.

On 22 March 1998 the applicant was brought before the public prosecutor at the Diyarbakır State Security Court where he denied the allegations made against him. He claimed that he did not know any of the six persons who had given his name and affirmed that he did not understand why they would have give n his name. As to the statement he made to the police on 21 March 1998 , the applicant said that he had signed the statement without reading it . He claimed that since his statement was not read to him, he was unaware of its contents.

On the same day he was brought before the Diyarbakır State Security Court . He to ld the court that his statement in police custody had been taken under dure ss. He reiterated his statement given before the public prosecutor. The court considered in light of the evidence submitted before it that the applicant should be released pending trial.

Following his release, the applicant alleges that he was treated at the Diyarbakır Hospital by Dr K. S . and a nurse Ms A. B. It is to be noted that the applicant has not submit ted any documents concerning his treatment at the Diyarbakır Hospital .

On 4 May 1998 the public prosecutor at the Izmir State Security Court filed a bill of indictment with that court accusing the applicant of membership of an illegal organisation, namely the PKK . The public prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and s ection 5 of Law no. 3713.

On an unspecified date the Izmir State Security Court joined the trial of the applicant to the ongoing trial of the four other co-accused . Throughout the trial the applic a nt was represented by a lawyer.

On an unspecified date his statement was taken by the Ergani Criminal Court of First Instance acting on a letter rogatory from the Izmir State Security Court .

On 7 November 1998 the applicant submitted a written defence statement to the Izmir State Security Court . In his defence, the applicant stated that throughout his life he had tried to stay away from political activity and that those who had given testimonies accusing him were lying and that the whole situation was a plot against him. He further denied his statement in police custody , claiming that he had been coerced to sign it.

On 15 December 1998 the Izmir State Security Court , relying on the statement of the applicant given before the police and the twenty five different witness testimonies of other suspects as well as other evidence , convicted the applicant as charged and sentenced him to twelve years and six months ' imprisonment. The court also took into account two medical reports (exhibit s 62 and 63) which stated that the applicant bore no signs of ill-treatment. It is to be noted that the applicant has not submit ted the medical reports mentioned in the court ' s decision.

On 30 December 1998 the applicant appealed against the judgment of the Izmir State Security Court . In his appeal petition, the applicant stated that he had been convicted solely on the basis of the false testimonies of the other co ‑ accused. He alleged that some of the co-accused w ere jealous of him because he was a successful student and that this was the reason why they had made up these accusations against him.

On 1 July 1999 the Court of Cassation upheld the judgment of the Izmir State Security Court .

Following the decision of the Court of Cassation the applicant fled to Belgium where he applied for asylum.

According to the medical reports prepared on 19 May 2000 by Dr Jean Paul Martens the applicant was suffering from post traumatic stress syndrome as well as the following somatic injuries and symptoms:

“a) cervical vertebral column, shoulder girdle and right arm: pain syndrome and functional problems which are consistent with elongation injuries of the plexus cervicalis and brachialis . Particulary cervical reaction. Compatible with the patient ' s story: suspension by the arms behind the back and the like. b) capsulitis glenohumeral at the right side with slight capsule retraction and arguments for chronical subacromial bursitis. c) tendonitis extensor carpi radialis at the right side, tenoperiostal . d) scar near the right scrotum, round, white. According to what I have been told there was a serious swelling after torture in the form of pinching. e) sharply limited, round, pale skin atrophy near right foot. As a consequence of having lost conscience the patient does not know the injury type. There was scab formation in the acute phase. Compatible with scar left by a burn, possible electrically caused. f) the patient also stated having been tortured with electricity near the penis. No detectable injuries. g) sporadically short macroscopic haematuria . Did not occur during examinations. The patient states having urinated blood in the course of 14 days after ill-treatment. Further med ical examination is required.”

He considered that the symptoms found were consistent with the applicant ' s story.

On 1 July 2004 the Registry requested the applicant to provide the Court with the medical reports mentioned in the judgment of the State Security Court as well as the medical reports pertaining to the treatment the applicant had received from Dr. K. S.

On 1 September 2004 the ap plicant informed the Court that, following its request , he had contacted Dr. K.S . and Ms A. B. but they had told him that they wo uld not be able to submit any statements since they might face persecution. Furthermore, th e applicant claimed that Dr. K. S . requested the applicant not to submit the medical report he had prepared in respect of the applicant. The applicant submitted an undated eye-witness testimony by Damiano Giovanni, a free-lance journalist , in support of hi s allegations of ill-treatment.

Mr Giovanni submitted that on 21 March 1998 he was in Diyarbakır together with other Italian and European delegation members in order to monitor the events on the day of Newroz . He stated that the police attacked the crowd and that h e saw the applicant be ing beaten, harassed and arrested. He further affirmed that he saw him again on the same day waiting t o be interrogated and later at the State Security Court . Mr Giovanni stated that he could see that the applicant had clearly been brutalised.

COMPLAINT S

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment during his arrest and while he was held in police custody.

The applicant co ntends under Article 5 § 1 (c) of th e Convention that his detention in police custody was not attributable to any of the exhaustive purposes listed in the Article and hence was unlawful. In this connection, the applicant contends that there was no reasonable suspicion that he had committed an offence. He further complains that he was arrested in a manner incompatible with the requirements of that Article since he had been ill-treated.

The applicant submits that he did not receive a fair trial by an independent and impartial tribunal. He asserts in this regard that one of the three members of the State Security Court was a military judge. He alleges that his statement taken under duress in police custody was admitted as evidence before the court and that the court relied heavily on the statements of the co-defendants without giving him an adequate opportunity to examine them. He finally complains that he was tried in absentia. He invokes Article 6 § § 1 and 3 (d) of the Convention.

The applicant alleges under Articles 10 and 11 of the Convent ion that he was convicted on account of hi s having tak en part i n certain activities such as demonstrations and the distribution of leaflets which fall within his freedom of expression an d freedom of peaceful assembly.

The applicant co mplains under Article 13 read in conjunction with Article 3 of the Convention of the lack of an independent authority before which his ill-treatment complaint could be brought with a ny prospect of success.

The applicant alleges under Article 14 of the Convention that he was discriminated against o n account of his ethnic origin.

Finally, he maintains under Article 18 of the Convention that the restrictions on the exercise of the aforementioned rights and freedoms were applied for purposes not permitted under the Convention.

THE LAW

1 . The applicant submits that he did not receive a fair trial by an independent and impartial tribunal. He asserts in this regard that one of the three members of the State Security Court was a military judge. He alleges that his statement taken under duress in police custody was admitted as evidence before the court and that the latter relied heavily on the statements of the co-defendants without giving him an adequate opportunity to examine them. He finally complains that he was tried in absentia. He invokes Article 6 §§ 1 and 3 (d) of the Convention in respect of the aforementioned complaints.

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

2 . The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment during his arrest and while he was held in police custody.

a) As to the applicant ' s allegations of having been subjected to ill ‑ treatment during his arrest, the Court observes that the applicant did not submit any medical evidence which could confirm his allegations and contradict the findings contained in the medical report drawn up following his examination on 20 March 1998 , the same day on which the applicant was arrested. It is to be further observed that the applicant did not question the accuracy of the aforementioned medical report in the course of the domestic proceedings.

Furthermore, at no stage of the proceedings did the applicant ever allude to the fact that he had been ill-treated during his arrest . Moreover, the Court cannot accept the statements of Mr Giovanni as credible eye-witness testimony in the circumstances of the present case , since the date on which Mr Giovanni claim s to have seen the applicant being beaten , as well as the circumstances of how it happened , do not correspond either to the applicant ' s submissions in the application form or to the official documents he has submitted to the Court.

In view of the above, the Court finds that the applicant ' s complaint relating to the alleged ill-treatment to which he was subjected during his arrest is unsubstantiated. It follows that this part of the application is inadmissible as being manifestly ill ‑ founded within the meaning of Article 35 § 3 and 4 of the Convention.

b) As regards the applicant ' s allegations of having been subjected to ill ‑ treatment while he was held in police custody, the Court observes that the medical report of 19 May 2000 contain certain physical and mental findings which could be the result of acts of ill ‑ treatment. However, the Court observes that the report was drawn up two years after the applicant was released from police custody. Consequently, the Court considers that the findings of the medical report , while relevant, cannot be regarded as affording strong support for the applicant ' s allegations.

The Court notes that during the applicant ' s trial no mention was made by the trial court of any allegations of ill-tr eatment . The case file reveals that the applicant only claimed to have given his statements under duress. The Court finds that a mere allegation of duress in itself, without any description as to what form that duress had taken, is not sufficient to be interpreted as an allegation of ill-treatment. In this connection, the Court points out that the Izmir State Security Court mentioned that none of the medical reports which were included in the case ‑ file contained any findings of ill-treatment. It is to be further observed that the applicant did not question the accuracy of these medical reports in the course of the domestic proceedings. Bearing in mind that the applicant was not detained throughout the criminal proceedings, it would have been possible for him to provide the domestic courts with medical evidence which would have contradicted the medica l reports contained in the case ‑ file. Therefore, the national authorities had no evidence to start an investigation into the applicant ' s allegations. Accordingly, the Court concludes that the applicant ha s not laid the basis of an arguable claim that he was ill-treated at the hands of the police.

For these reasons, the Court finds that his complaint under Article 3 of the Convention are inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

3 . The applicant contends under Article 5 § 1 of the Convention that his detention in police custody was not attributable to any of the exhaustive purposes listed in the Article and hence was unlawful. In this connection, the applicant contends that there was no reasonable suspicion that he had committed an offence. He further complains that he was arrested in a manner incompatible with the requirements of that Article since he was ill ‑ treated.

(a) As regards the unlawfulness of his detention in police custody, t he Court reiterates that according to the established case-law of the Convention organs, where no domestic remedy is available the six-month period runs from the date of the act alleged to constitute a violation of the Convention.

The Court notes that the applicant ' s was released from police custody on 22 March 1998 , whereas the application was introduced with the Court on 23 December 1999 , this is more than six months later.

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.

(b) As regards the applicant ' s complaint concerning the ma nner in which he was arrested, the Court has examined this part of the complaint under Article 3 of the Convention and found it unsubstantiated. It follows that this part of the application is inadmissible as being manifestly ill ‑ founded within the meaning of Article 35 § 3 and 4 of the Convention.

4 . The applicant alleges under Articles 10 and 11 of the Convention that he was convicted on account of hi s having taken part in certain activities such as demonstrations and the distribution of leaflets which fall within his freedom of expression an d freedom of peaceful assembly.

T he Court reiterates that under the terms of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised, at least in substance, dur ing the proceedings in question (see, among others, Çakar v. Turkey , no. 42741/98, § 30, 23 October 2003 ).

In the instant case, the Court observes that at no time did the applicant allege , rely on or raise any arg uments in respect of his right of freedom of expression or his right of peaceful assembly . The Court notes that throughout the criminal proceedings the applicant merely denied the allegations against him , claiming that he had never taken part in any of the activities which were the subject of the charges against him , and put forward arguments which were based solely on domestic law .

Even assuming that the national courts were able, or even obliged, to examine the case of their own motion under the Convention, this c ould not dispense the applicant from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem he intended to submit subsequently, if need be, before the Court (see Van Oosterwijck v. Belgium , judgment of 6 November 1980, Series A no. 40, p. 19 § 39, and Ahmet Sadık v. Greece , judgment of 15 November 1996, Reports of Judgments and Decisions 1996 -V, § 33) .

In view of the above considerations, the Court holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

5 . The applicant complains under Article 13 read in conjunction with Article 3 of the Convention of the lack of an independent authority before which his ill-treatment complaint could be brought with any prospect of success.

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 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.

6 . The applicant alleges under Article 14 of the Convention that he was discriminated against on account of his ethnic o rigin.

The Court notes that the applicant has failed to submit any evidence in support of his allegations. It follows that the applicant ' s allegation 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.

7 . T he applicant maintains under Article 18 of the Convention that the restrictions on the exercise of the aforementioned rights and freedoms were applied for purposes not permitted under the Convention.

The Court considers that an examination of this part of the application, does not disclose any appearance of a violation of this Article. It follows that this part of the application must be rejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaints concerning his right to a fair hearing by an independent and impartial tribunal ;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nic olas Bratza Registrar President