SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64741/01 by Mahmut BULDUÅž against Turkey

The European Court of Human Rights (Second Section), sitting on 1 June 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr K. Jungwiert , Mrs W. Thomassen , Mrs A. Mularoni, judges, and Mr T.L. E arly , Deputy Section Registrar ,

Having regard to the above application lodged on 11 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mahmut Bulduş, is a Turkish national, who was born in 1964 and lives in Midyat, Turkey. He is represented before the Court by Mesut and Meral Beştaş, lawyers practising in Diyarbakır.

On 21 March 2000 the applicant was arrested in Şırnak by members of the anti-terrorist branch of the Şırnak Security Directorate on suspicion of membership of the PKK (Kurdistan Workers' Party). On the same date, an arrest report was drawn up by police officers. The report stated that the applicant had been arrested because operations conducted by the Şırnak Security Directorate had revealed that he was involved in the activities of the PKK. The report indicated that the applicant had consented to its contents by signing it.

On 22 March 2000 the Head of the Security Directorate requested the public prosecutor to authorise an extension of the applicant's custody until 25 March 2000.

On 24 March 2000 the Şırnak Magistrates' Court ordered the applicant's custody to be prolonged for a further period of six days since the process of interrogation had not yet been completed.

Upon the request of the Şırnak Security Directorate, on 21, 24, 27, 29 and 31 March 2000 the applicant underwent medical examinations. The reports did not reveal any signs of ill-treatment.

On 31 March 2000 the applicant was brought before the public prosecutor. On the same day the Magistrates' Court ordered the applicant to be detained on remand.

On 20 April 2000 the Diyarbakır Public Prosecutor attached to the State Security Court filed a bill of indictment charging the applicant and 14 other defendants with membership of a terrorist organisation, the PKK, and with assisting and abetting the said organisation, contrary to Article 125 of the Turkish Criminal Code.

On 16 May 2000, without submitting any medical reports, the applicant filed a petition with the public prosecutor alleging that he had been tortured in police custody.

On 18 July 2000 the public prosecutor issued a decision of non- prosecution, referring in this connection to the medical reports which were issued while the applicant was in custody.

On 17 August 2000 the applicant objected to this decision, claiming that the public prosecutor had failed to carry out an effective investigation into his allegations. He further maintained that the medical reports drafted by the doctors who examined him were false.

On 1 September 2000 the Siirt Assize Court ruled that the decision on non-prosecution should be quashed. The court ruled that a new medical report should be prepared by forensic medicine experts and that it would base final decision on the findings in that report. It further ruled that criminal proceedings should be opened against the doctors and the police officers incriminated.

On 12 September 2002 the Şırnak Assize Court acquitted the doctors and the police officers on the ground that the medical reports dated 20 October 2000 and 19 November 2001 drafted by the forensic medicine experts did not disclose any signs of ill-treatment. On that account, the applicant had failed to substantiate his allegations.

On 14 October 2002 the applicant appealed against this decision. The applicant has not informed the Court of the outcome of his appeal.

The criminal proceedings against the applicant are currently pending on appeal.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to torture in police custody.

The applicant further complains under Article 5 § 1 (c) that his arrest was unlawful since there was no reasonable suspicion of his having committed an offence. He further complains under Article 5 § 2 that he was not informed “promptly” of the reasons for his arrest and of the charges against him. The applicant complains that the length of the period he spent in custody before being brought before a judge was in violation of the requirements of Article 5 § 3 of the Convention.

THE LAW

1. The applicant complains under Article 3 of the Convention that he was subjected to torture in police custody.

The Court notes that the criminal proceedings in respect of this complaint are apparently still pending. The complaint is therefore premature. It must therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complains under Article 5 § 1 (c) of the Convention that he was detained unlawfully since there existed no “reasonable suspicion” of his having committed an offence.

The Court recalls that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention laid down in Article 5 § 1 (c) of the Convention. This requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence, though what may be regarded as reasonable will depend on all the circumstances of the case (see Fox, Campbell and Hartley v. the United Kingdom , judgment of 30 August 1990, Series A no. 182, p. 16, § 32).

It further observes that the standard imposed by Article 5 § 1 (c) does not presuppose that the police have sufficient evidence to bring charges at the time of arrest. The object of questioning during detention under sub-paragraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus facts which raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge which comes at the next stage of the process of criminal investigation (see Brogan and Others v. the United Kingdom , judgment of 29 November 1988, Series A no. 145-B, p. 29, § 53, Murray v. the United Kingdom , judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55, and O'Hara v. the United Kingdom , no. 37555/97, §§ 34 and 36, ECHR 2001 ‑ X).

It notes in this context that the arrest report of 21 March 2000 stated that the applicant had been arrested following operations conducted by the Şırnak Security Directorate. The results of these operations established that the applicant was involved in the activities of the PKK. In the circumstances, the suspicion against the applicant may be considered to have reached the level required by Article 5 § 1 (c) as it was based on specific information that he was involved in PKK activities, and the purpose of the deprivation of liberty was to confirm or dispel that suspicion. The applicant can accordingly be said to have been arrested and detained on “reasonable suspicion” of a criminal offence, within the meaning of sub-paragraph (c) of Article 5 § 1.

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

3. Invoking Article 5 § 2 the applicant complains that he was not informed “promptly” of the reasons for his arrest and the charges against him.

The Court observes that the arrest report of 21 March 2000 clearly stated that the applicant had been arrested since it had been established that he was involved in the activities of the PKK. It further notes that the applicant signed the report immediately after his arrest. In these circumstances, it must be inferred that the applicant was aware of the reasons for his arrest.

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

4. Invoking Article 5 § 3 of the Convention, the applicant complains that he was not brought promptly before a judge following his arrest and detention.

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 the examination of the applicant's complaint concerning the length of his detention in police custody without being brought before a judge;

Declares the remainder of the application inadmissible.

T.L. E arly J.-P. Costa              Deputy Registrar President