THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8062/04 by Sinan EREN against Turkey

The European Court of Human Rights (Third Section), sitting on 29 April 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mr K. Traja , Mrs A. Gyulumyan, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 28 February 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Sinan Eren, is a Turkish national, who was born in 1972. He is represented before the Court by Ms Şenal Sarıhan, a lawyer practising in Ankara.

A. The circumstances of the case

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

The applicant, who was convicted by a State Security Court for membership of an illegal organisation, was serving his prison sentence in an F-Type prison in Ankara.

He was on hunger strike for on several occasions between September 1995 and July 1996. As from 21 October 2000 until his transfer to an F-type prison in Ankara, the applicant was on hunger strike for an indeterminate period of time. In the aforementioned F-type prison the applicant continued the hunger strike for 132 days between 31 October 2000 and 12 March 2001.

On 9 October 2002 the applicant was examined by six specialist doctors, composed of three forensic medical doctors, one orthopaedist, one traumatology specialist and one neurology specialist, at the Forensic Medical Institute who diagnosed that the applicant was suffering from Wernicke-Korsakov syndrome.  The board of doctors recommended that the applicant should be released for treatment.

Following the medical report of the Forensic Medical Institute, the Kırşehir principal public prosecutor ordered the release of the applicant from prison and suspended the execution of the applicant's sentence for six months in accordance with Article 399 § 1 of the Code of Criminal Procedure.

On 30 April 2003 the applicant underwent another examination by doctors from the Forensic Medical Institute. Three specialist doctors noted in their report that Korsakov syndrome was an organic mental disease and that; therefore, it would be appropriate to suspend the execution of the applicant's prison sentence. They further noted that it was impossible to indicate for how long the execution should be suspended since the applicant's disease was of chronic nature.

On 12 August 2003 the applicant underwent a medical examination by three doctors at the Istanbul University Hospital Neurology Department. The doctors concluded in their report that the applicant was suffering from an advanced memory deficit.

Following the medical report of the Istanbul University Hospital Neurology Department, the applicant applied to the President of the Republic requesting the suspension of his prison sentence for chronic illness.

On 21 January 2004 the applicant was re-examined by the same six specialist doctors from the Forensic Medical Institute. In their report dated 28 January 2004 the board of doctors concluded that the applicant was fit to serve his prison sentence and that he was no longer in the situation of those suffering from illness, disability or old age, as described under Article 399 of the Criminal Code and Article 104 § b of the Constitution.

On 28 February 2004 the applicant requested from the Istanbul Chamber of Doctors for an examination of his condition and an inquiry into the reliability of the medical report issued by the Forensic Medical Institute.

The Istanbul Chamber of Doctors after examining the previous medical reports submitted by the applicant concluded that the medical report of 28 January 2004 of the Forensic Medical Institute was in contradiction with the previous medical reports given in respect of the applicant and the findings of the scientific research conducted in this area. The Istanbul Chamber of Doctors concluded that the impugned medical report could not be considered as a valid scientific report.

On an unspecified date, the applicant's representative requested from the Kırşehir principal public prosecutor not to issue an order of arrest against the applicant. At the moment, the Kırşehir principal public prosecutor has not yet ordered the execution of the applicant's prison sentence.

The applicant's representative claims that it is impossible for the applicant to continue his life in prison by himself as he needs constant care. She further claims that even if he was incarcerated with other inmates he would need their help while eating and dressing up which would be a very degrading and humiliating situation for him. The applicant still has to serve 23 months' imprisonment.

B. Relevant domestic law and practice

Article 399 of the Code of Criminal Procedure states that the execution of punishments restricting the liberty of those who are suffering from mental disease shall be postponed until the patient has recovered.

Under Article 104 § b of the Constitution the President of the Republic has a power to remit all or part of the sentences imposed on certain individuals on grounds of chronic illness, disability or old age.

COMPLAINTS

The applicant contends that his possible re-imprisonment would give rise to a violation of Articles 3, 5 and 6 of the Convention. In this connection, the applicant submits that due to his illness he needs special treatment which cannot be provided in prison conditions.

THE LAW

1. The applicant contends that his possible re-imprisonment would breach Articles 3 and 5 of the Convention.

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

2. The applicant invokes that his possible re-imprisonment would breach Article 6 of the Convention.

The Court notes that the possible re-imprisonment of the applicant does not concern, neither the applicant's civil rights nor obligations, nor the determination of any criminal charge against him. In these circumstances, Article 6 of the Convention does not apply to the present case.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning Articles 3 and 5 of the Convention;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President