THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35841/97 by Selal SARAÇ against Turkey

The European Court of Human Rights (Third Section), sitting on 2 September 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja, judges , and Mr M . Villi ger , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 16 September 1996 ,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applicatio n was transferred to the Court,

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, Ms Selal Saraç, is a Turkish national who was born in 1970 and lives in Germany . She is represented before the Court by Mr M . Demir, a lawyer practising in Germany .

A. The circumstances of the case

The facts of the case , as submitted b y the parties, are as follows.

1. Facts as presented by the applicant

O n 18 September 1995 at about 2 a.m. the applicant ’ s house in Nusaybin was raided by police officers from the Nusaybin police headquarters in order to arrest the applicant on suspicion of PKK membership and harbouring PKK members . The applicant had been taken into custody several times in the past, namely in the autumn of 1991, on 21 March 1993 and on 15 August 1994 . During the arrest she was subjected to a body search in the presence of her children, husband and other family members. The applicant, her husband and three of her relatives were put in a police vehicle and taken to a doctor for a medical examination. The doctor stated that they were in good health and they were subsequently taken to the police headquarters in Nusaybin.

At 3 p.m. the same day the applicant was taken to her house by police officers in order to conduct a search. She took the police officers to the cellar of the house and showed them a bomb which had been given to her by a member of the PKK. The bomb was subsequently destroyed by bomb disposal teams. She was then taken back to the Nusaybin police headquarters.

During her period of detention at Nusaybin police headquarters , the applicant was stripped naked and blindfolded. She was hosed down with cold water , h ung from her arms , beaten with a police truncheon and e lectric shocks were administrated to her sexual organs .

Two days after her arrest , the applicant was t ransferred to Mardin police headquarters. During her detention at Mardin police headquarters , the applicant was allegedly blindfolded , stripped naked, held under cold water , given electric shocks , beaten , and raped by a village guard and a police commissioner. She was also forced to walk in a room filled with ice.

While in Mardin , the applicant was taken to a doctor at the Mardin State Hospital who did not medically examine her but gave her painkillers to relieve her pain. She was then brought back to the Nusaybin police headquarters where she was detained for eleven days during which time she was stripped naked and was interrogated every night at 1 a.m.

On 6 October 1995 a statement was taken from the applicant by police officers while she was still in custody. In her statement, the applicant admitted that she had let the PKK members use her cellar a s a shelter, and maintained that the bomb which was found there had been put there by another woman.

On 12 October 1995 the applicant was brought before the public prosecutor. In her statement, she denied her police statement alleging that it had been taken under duress. She maintained t hat PKK terrorists had never stayed in her cellar and that the cellar had been designed as a shelter during the Gulf War to protect her family from any possible chemical attack by Iraq . As to the bomb found in the cellar, the applicant stated that it had been given to her by a woman whom she did not know and that she had not been aware that it was a bomb. The same day, t he applicant was placed in detention on remand.

On 26 October 1995 the prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant together with twelve other accused pe rsons . She was accused of aiding and abetting members of an illegal organisation, an offence defined in Article 169 of the Criminal Code. On 3 April 1996 she was released pending trial .

On 6 April 1996 , some three days after her release, the applicant ’ s house was raided by police officers from the Nusaybin police headquarters and t he applicant was taken into custody . She was h ung from her arms and hit repeatedly on the head with truncheons as a result of which she lost consciousness . While she was unconscious, her feet were burnt by cigarettes . Following this, she was raped with a truncheon on two occasions. S he was threatened by the police officers that if she refused to work as an informer for the police , she would be killed. The applicant refused to work as an informer. She was then taken by car to an isolated place and abandoned .

On 19 April 1996 the applicant went to the Human Rights Foundation where she was medically examined. Following medical examinations carried out between 22 and 24 June 1996 in two different hospitals and a Nuclear Medical Centre in Istanbul , and gynaecological and neurological tests, x-rays, thorax graphics, scintigraphic imaging and examinations by an ear, nose and throat consultant as well as a psychiatrist, the doctors drafted a report dated 15 August 1996 . I t was concluded that the applicant ’ s allegations of ill-treatment , such as post-traumatic stress, depression, marks on her feet caused by cigarette burns a nd a pelvic complaint , were compatible with the medical findings.

On 5 September 1996 the applicant ’ s two legal representatives filed a complaint with the Istanbul p ublic prosecutor. In their petition they submitted the applicant ’ s allegations of ill-treatment. They als o gave the names of the village guard who had alleged ly raped her during her police custody.

On 11 December 1996 the Diyarbakır State Security Court found the applicant guilty of aiding and abetting members of an illegal organisation and sentenced her to three years and nine months ’ imprisonment. The applicant ’ s appeal against the judgment was rejected by the Court of Cassation on 17 November 1997 .

2. Facts as presented by the Government

The Government submitted that the applicant was taken into custody on two occasions from 23 September to 18 October 1994 and from 18 September to 12 October 1995 respectively, on suspicion that she was aiding and abetting members of the PKK. However the Government denied that the applicant had been arrested on 6 December 1996 . In this respect they submitted that the custody records did not mention her name.

Concerning the applicant ’ s police custody from 18 September until 12 October 1995 , the Government maintained that she was held in Nusaybin Police Headquarters from 18 September to 19 September and then she was transferred to Mardin Police Headquart ers, where she was held until 1 October 1995 . She was subsequently transferred back to Nusaybin Headquarters, where she was held until 12 October 1995 . The Government further contended that the applicant was taken for a medical examination on 18 September 1995 and , according to the medical report, there was no sign of injury on her body. It was noted that she had a heart condition. Another medical report was issued on 12 October 1995 by the Nusaybin Health Clinic , which concluded that the applicant had not suffered physical abuse .

The Government further maintained that the applicant had lodged a criminal complaint with the Istanbul p ublic p rosecutor on 23 August 1996 . On 23 September 1996 the public prosecutor requested that the Nusaybin Police Headquarters submit information about the applicant ’ s alleged police custody, and that all relevant doctor reports and official documents be conveyed to the public prosecutor ’ s office. Furthermore, on 10 October 1996 the public prosecutor took a statement from F.A., a village guard, who was accused by the applicant of having raped her. F.A. denied the charges against him. On 17 December 1996 , the applicant ’ s lawyer gave a statement to the public prosecutor, and asserted that she would convey the relevant medical reports and other evidence in the shortest possible time. Despite being notified , the applicant refused to come to the public prosecutor ’ s office to give a statement. Moreover, the documents promised by the applicant ’ s representative were never conveyed to the public prosecutor. Accordingly, on 3 March 1997 the public prosecutor delivered a decision of non-jurisdiction on account of insufficient evidence. The applicant did not appeal against this decision.

The Government further submitted that on 18 September 1995 a search was conducted in the applicant ’ s house, as a result of which a shelter and a bomb were found. On 6 October 1995 the applicant gave a statement to the police, and described in detail her involvement with the PKK. On 12 October 1995 the applicant was taken before the public prosecutor, and subsequently before the Nusaybin Magistrate ’ s Court in Criminal Matters. She was remanded in custody. With an indictment dated 27 October 1995 the Diyarbakır public prosecutor instigated criminal proceedings against the applicant and accused her of aiding and abetting an illegal organisation under Article 169 of the Criminal Code. On 3 April 1996 the applicant was released pending trial. On 11 December 1996 the first instance- court found the applicant guilty as charged and sentenced her to three years ’ and nine months ’ imprisonment. On 17 November 1997 , the Court of Cassation rejected the applicant ’ s request for appeal, finding the first-instance court ’ s establishment of the facts and evaluation of evidence in line with domestic law and general principles of law.

B. Relevant domestic law

A description of the domestic law may be found in the Nuray Åžen v. Turkey decision ( no. 41478/98, 30 April 2002 ).

COMPLAINTS

1. The applicant complain ed under Article 3 of the Convention that between 1991 and 1996 she had been systematically detained in police custody and subjected to ill-treatment i n violation of Article 3 of the Convention.

2. T he applicant complain ed under Article 5 of the Convention that she had been systematically detained in police custody without any lawful purpose. She further submit ted under Article 5 § 2 of the Convention that she was not informed of the reasons for her arrest. Under Article 5 § 3 of the Convention , she claim ed that the custody period of twenty-four days between 18 September and 12 October 1995 before she was brought before the prosecutor was unreasonably long. Finally , under Article 5 § 4 of the Convention the applicant allege d that she did not have a remedy at her disposal to challenge the lawfulness of her detention.

3. The applicant further maintain ed under Article 5 of the Convention that her unacknowledged detention on 6 April 1996 constituted a breach of her right to liberty and security.

4. The applicant complain ed under Article 6 § 3 (c) of the Convention that she was not allowed to consult her lawyer during the police custody.

5. T he applicant also maintain ed under Article 8 of the Convention that her repeated det entions and ill-treatment had resulted in a breach of her family life as she had been forced to flee the region where she used to live.

6. T he applicant further complain ed of an unjustified difference in treatment , in breach of Article 14 of the Convention , in that she was deprived of the protection provided by the Convention because of the legislation in force i n the region where she was living at the time of her arrest and detention.

THE LAW

1. The applicant complain ed of her treatment in police custody. She invoke d Article 3 of the Convention, which reads as follows.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submit ted that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. In this respect, they point ed to the applicant ’ s failure to lodge an appeal against the public prosecutor ’ s decision of non-prosecution, pursuant to Article 165 of the Criminal Procedure Code.

The Court notes i n the first place that the acts of which the applicant complains, namely the alleged ill-treatment she was subjected to in the course of her detention , are prohibited by the Criminal Code. It has not been disputed in the instant case that , if such acts did take place as alleged, they would constitute a breach of criminal law, to which the police are subject. In such instances, t he Turkish legal system provides for an investigation to be carried out by the public prosecutor, who on the basis of evidence decides whether or not to initiate a prosecution against the alleged perpetrators. In the event of a decision not to prosecute, the complainant has the right under Article 165 of the Code of Criminal Procedure to appeal the decision to the president of the nearest assize court.

The Court observes from the case file before it that t he applicant had instructed two lawyers to file a criminal complaint with the Istanbul public prosecutor concerning her allegations of ill-treatment . Accordingly, o n 5 September 1996 , a criminal complaint was filed by the applicant ’ s representative and on 17 December 1996 her legal representative gave a statement before the public prosecutor and maintained that the applicant had been subjected to ill-treatment while she was held under police custody. The lawyer further stated that she would submit the relevant medical reports as soon as possible. The applicant ’ s lawyer further transmit ted the public prosecutor t he applicant ’ s address to ensure that they summon her t o take her statement. The Court notes however that although t he applicant was summoned to the public prosecutor ’ s office , she never went to give statement. I t is also clear from the case file that the applicant obtained a medical report from the Human Rights Foundation on 15 August 1996 , however neither this report n or any relevant evidence in support of the allegations was ever conveyed to the public prosecutor. The public prosecutor conducted an investigation into the allegations and on 10 October 1996 took a statement from the accused village guard who denied the allegations against him. Accordingly, on 3 March 1997 , the p ublic prosecutor delivered a decision of non-prosecution on account of insufficient evidence to initiate any proceedings. The applicant failed t o appeal against this decision .

The Court does not find it established that such an appeal would have been devoid of any chance of success. It notes in this context that there are precedents indicating that appeals against decisions of public prosecutors not to prosecute have been successful and subsequently prosecutions were brought (see , mutatis mutandis , Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002 , Keçeci v. Turkey (friendly settlement), no. 38588/97, § 19, 26 November 2002 , and Fidan v. Turkey (dec), no. 24209/94, 29 February 2000) .

In view of the fact that the applicant was not detained and had moved to an other city and subsequently fled to Germany, the Court notes t hat she has not provided any elements which would substantiate that she would have been subjected to intimidation if she had appealed against the decision of the public prosecutor.

Con sequently, the Court finds that, in the circumstances of this case, the applicant cannot be considered as having complied with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention. The applicant ’ s complaint under Article 3 of the Convention must therefore be rejected.

2. The applicant further complain ed about the un lawfulness of her police custody and maintain ed that she had not been informed of the reasons of her arrest. She further allege d that her police custody between 1 8 September and 12 October 1995 had constituted a breach of the reasonable - time requirement, as foreseen under Article 5 § 3 of the Convention. Finally, she allege d a breach of Article 5 § 4 of the Convention as she had not been entitled to initiate proceedings to challenge the lawfulness of her custody.

The Government maintain ed that the applicant ’ s complaints under Article 5 of the Convention were lodged out of time. They stat ed that as the applicant ’ s custody ended on 12 October 1995, and as the a pplication was lodged with the C ourt on 24 February 1997, the applicant has failed to comply with the six-month time - limit as foreseen under Article 35 § 1 of the Convention.

The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with the matter within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period starts to run from the date of the act complained of.

The Court observes that the applicant was taken into police custody on 18 September 1995 and placed in detention on remand on 12 October 1995 . The applicant, however, introduced h er a pplication with the Court on 16 September 1996 , i.e. more than six months later.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention .

3. The applicant further submit ted under Article 5 of the Convention that her unacknowledged, illegal detention on 6 April 1996 constituted a breach of Article 5 of the Convention.

The Government den ied the applicant ’ s allegation and state d that she had not been taken into custody on 6 April 1996 . In this respect, they submit ted the custody records, which do not contain the name of the applicant.

T he Court notes that the applicant could not substantiate her complaints. This part of the application should therefore be declared inadmissible for being manifestly ill-founded within the meaning of Article 35 of the Convention.

4. The applicant complain ed under Article 6 o f the Convention that she was not allowed to consult her lawyer during the police custody.

The Government maintained that the fairness of the proceedings should be assessed as a whole. In this respect, they submitted that if the proceedings were looked at their entirety, it would be concluded that the applicant had received a fair trial. Accordingly, they maintained that this part of the application should be declared manifestly ill-founded.

The Court recalls that Article 6 applies even at the stage of preliminary investigation into an offence by the police. Thus Art icle 6, especially paragraph 3, may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with the provisions (see , in this respect, Imbrioscia v. Switzerland , judgment of 24 November 1993, Series A no. 275, § 36) .

The manner in which Article 6 § 3 is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case.

Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the trial stages of the police investigation. However, this right, which is not explicitly set out in the Convention may be subject to restriction for a good cause. The question in each case is whether the restriction in the light of the entirety of the proceedings has deprived the accused of a fair hearing ( John Murray v. the United Kingdom , judgment of 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I, § 63).

In the instant case, the applicant ’ s right of access to a lawyer during her police custody was restricted pursuant to the domestic legislation which was in force at the time.

The applicant was however represented by a lawyer during the trial and had the opportunity of challenging the allegations of the prosecution. The Court notes that there is no element to suggest that the fairness of the applicant ’ s trial was prejudiced on account of the fact that she was denied access to a lawyer during her custody period. The court ’ s decision was not solely based on the applicant ’ s police statements but on the circumstantial factors surrounding her arrest . The Court recalls in this context that the police had found a shelter and a bomb in the applicant ’ s house.

It is clear from the case file that b oth the first - instance court and the Court of Cassation examined the case thoroughly before delivering their decisions on the basis of domestic law and the partic ular circumstances of the case.

In the light of the foregoing, the Court finds no element which would allow it to conclude that the national courts had acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic law.

The Court therefore concludes that this part of the applicant ’ s complaint be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

5. Under Article 8 of the Convention , the applicant argue d that she was repeatedly detained and tortured as a result of which she was forced to flee the region where she used to live. This resulted in a disruption of her family life.

The Government maintained that the applicant ’ s allegations were baseless and should be rejected.

I n the light of the evidence before i t , the Court considers that the circumstances of the present case do not disclose an interference with the applicant ’ s right to respect for family life .

It therefore concludes that this part of the applicant ’ s complaint be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention

6 . The applicant complained of an unjustified difference in treatment in breach of Article 14 of the Convention in that she had been deprived of the protection provided by the Convention because of the legislation in force at the time of her arrest and detention.

The Government did not address this issue.

The Court notes that the distinctions alleged by the applicant are not distinctions which are made between different groups of people but between different types of offences, according to the legislature ’ s view of gravity. The Court has previously held that such distincti ons are not contrary to Article 14 of the Convention (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999 , and Z.E. and Others v. Turkey (dec.), no. 35980/97, 14 December 2000 ).

It therefore concludes that this part of the applicant ’ s complaint be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these re asons, the Court unanimously

Declares the [Note1] application inadmissible.

Mark Villiger Georg Ress Deputy Registrar President

[Note1] If there was a partial decision where part of the complaints were already declared inadmissible.