THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51480/99 by Erikan BULUT against Turkey

The European Court of Human Rights (Third Section), sitting on 12 February 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič , Mrs M. Tsatsa-Nikolovska , judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 6 August 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Erikan Bulut, is a Turkish national, who was born in 1961 and lives in Istanbul. He is represented before the Court by Mr Kenan Aşık and Mrs Arzu Durmuş, lawyers practising in Istanbul (Turkey).

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

On 26 August 1998 at about 6 p.m. the applicant was arrested in Istanbul by policemen from the Anti-Terrorism Branch of Pendik Security Directorate. Subsequently, the police officers carried out a search of the applicant’s office and his flat with his permission. The incident reports dated 26 August 1998 were signed by the applicant and his wife. The reports indicate that the police officers had conducted the searches with their consent. The applicant was then taken to the Pendik Security Headquarters on suspicion of aiding and abetting the PKK.

The same day the applicant was examined by a doctor, who reported that there were no signs of injury on his body. Subsequently, the applicant was taken to the Pendik Police Station to be interrogated.

On 27 August 1998 the applicant was once again examined by a doctor, who stated that there were no signs of ill-treatment on his body.

The applicant was then taken to the Pendik Security Directorate building to be released. While he was waiting in an office, the police officers made him drink medicated tea and he lost consciousness. When the applicant regained his consciousness, he was in a hospital. He had fallen from the window of the office which was on the fifth floor of the Security Directorate Building. According to the medical report, prepared by the doctor, the applicant had several fractures. He had to stay in the hospital for three months before he recovered from his injuries.

The applicant filed a criminal complaint with the Pendik public prosecutor against the police officers that had allegedly thrown him out of the window. In his petition, the applicant maintained that while he was waiting to be released, he had lost consciousness. He further stated that he had no reason to jump out of the window.

On 23 October 1998 the Pendik public prosecutor decided that no prosecution should be brought against the accused police officers on the ground that there was no sufficient evidence in support of the allegations.

On 24 February 1999 the applicant challenged this decision before the Kadıköy Assize Court. On 24 May 1999 the Kadıköy Assize Court, upholding the reasoning of the public prosecutor, dismissed the case.

COMPLAINTS

1. Referring to the assault which resulted in his being thrown over from the fifth floor of the Security Directorate Building, the applicant complains of a violation of his right to life under Article 2 of the Convention.

The applicant further complains under Article 3 of the Convention that the treatment he had been subjected to amounts to ill-treatment within the meaning of the Convention. He further submits that he had been subjected to psychological pressure and ill-treatment whilst he was held in custody.

2. The applicant alleges under Article 5 of the Convention that his liberty and security of person were denied arbitrarily and maintains that his detention by the police was unlawful. In this respect, he states that there had been no suspicion for his arrest and that he was not informed of the reasons of his arrest or of any charges against him. The applicant also submits that he was not provided with legal assistance during his police custody.

3. The applicant maintains under Articles 6 and 13 of the Convention that he was denied access to a court for his complaints and contends that there was no effective investigation about the treatment he was subjected to while he was under custody.

4. The applicant complains under Article 8 of the Convention that the search conducted on his flat and office amounted to a breach of his right respect for private and family life.

THE LAW

1. The applicant refers to the life-threatening attack to which he was subjected to while he was in custody and alleges that the authorities had acted in breach of their obligation to protect his right to life.

The applicant further complains of ill-treatment under police custody. In this respect, he submits that the police officers had made him drank medicated tea, as a result of which he had lost consciousness. He further maintains that as he was under custody at the time of the incident, the police officers were responsible for his falling off the fifth floor of the Security Directorate Building. Accordingly, he invokes Article 3 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54§ 3(b) of the Rules of Procedure to give notice of them to the respondent Government.

2. The applicant further complains under Article 5 of the Convention that he was unlawfully deprived of his liberty in that there was no reasonable suspicion for his arrest. The applicant further maintains that he was not brought promptly before a judge.

The Court reiterates that pursuant to Article 35 § 1 of the Convention, the Court 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 26 August 1998 and he was released on 27 August 1998. The applicant, however, introduced his application with the Court on 6 August 1999, 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 maintains under Articles 6 and 13 of the Convention that his right of access to a court was breached. In this respect, he alleges that he was not allowed to initiate criminal proceedings against those responsible for his wounding and had no effective remedy on account of his complaints.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54§ 3(b) of the Rules of Procedure to give notice of them to the respondent Government.

4. The applicant maintains under Article 8 of the Convention that the search of his office and flat was unlawful.

The Court does not consider it necessary to decide whether or not the applicant has complied with the requirements of Article 35 § 1 of the Convention, since this complaint should in any case be declared inadmissible for being manifestly ill-founded.

The Court recalls that the expression in accordance with law within the meaning of Article 8 § 2 requires firstly that the impugned measure should have a legal basis in the domestic law. It also refers to the quality of the law in question, requiring it should be accessible to the person concerned who must be able to foresee its consequences, and compatible with the rule of law ( Kruslin v. France , judgment of 24 April 1990, Series A no. 176-A, p. 20, § 27; Hacı Oğuz and Baki Oğuz ( dec .), no. 26145/95, dated 5 December 2000).

In the present case, pursuant to Article 94 of the Code of Criminal Procedure the applicant’s flat and office were searched by policemen in order to find evidence about the allegations that the applicant had been aiding and abetting the PKK. It is also clear from the incident report, which was drafted in accordance with Article 100 of the Code of Criminal Procedure, that the applicant had given authorisation for the searches in dispute. The incident reports are signed by the applicant and his wife. Accordingly, it is observed that the interference served a legitimate aim and was carried out in accordance with the domestic legislation.

It follows that there is no appearance of a violation of the applicant’s rights to respect for his home and therefore this part of the application should be rejected for being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning [Note1] Articles 2, 3, 6 and 13;

Declares the remainder of the application inadmissible.

Mark Villger Georg Ress              Deputy Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.