FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36672/97 by Mehmet KURNAZ against Turkey

The European Court of Human Rights (Fourth Section), sitting on 6 November 2001 as a Chamber composed of

Sir Nicolas Bratza , President , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mr R. Türmen , Mrs V. Strážnická , Mr M. Pellonpää , Mr R. Maruste , judges , and, Mr M. O’Boyle , Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 May 1997 and registered on 23 June 1997,

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

Having deliberated, decides as follows:

THE FACTS

The applicant was a Turkish national, born in 1956 and was living in Antalya at the time of the events in question.

On 22 December 1997 the applicant died as a result of kidney problems.

On 30 June 1998 the applicant’s representatives informed the Court that the applicant’s parents, Ö mer and Ayşe Kurnaz, his brothers, Mustafa and Osman Kurnaz , and his sister, Kamile Savlı Kurnaz , wished to take part in the proceedings and to continue the application on his and their own behalf.

They are represented before the Court by Mr Ç etin Manav , Mr Sadi Ö zden , Mr Yalçın Erbay , lawyers practising in Antalya and Ms Sennur Akkaya and Mr Tuncer Akkaya , lawyers practising in İ zmir .

A. The circumstances of the case

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

At the time of the events in question the applicant was a member of the Executive Board of the United Socialist Party ( BirleÅŸik Sosyalist Parti ) in Antalya .

Between 1973 and 1982 the applicant was taken into police custody and was several times subjected to ill-treatment. As a result of the ill-treatment, he suffered from kidney complications and high blood pressure.

In a medical report dated 21 August 1995 and drafted by the doctors at the İ zmir Branch of the Human Rights Association it was noted that the applicant had his cardiac valves operated on in 1985. It was also noted that the applicant had been suffering from high blood pressure, palpitations, numbness, weakness and pain in his eyes at the time of the examination carried out by the doctors of the Human Rights Association. It was concluded that the applicant’s suffering was related to kidney complications and heart problems. It was recommended that he urgently be given medical care at a university hospital and should continue his treatment in a peaceful environment.

On 30 August 1995 the applicant was taken into police custody while he was on his way to a hospital in Antalya . He was accused of being a member of a terrorist organisation, namely the DHKP/C.

On 1 September 1995 the applicant was placed in detention on remand. He was subsequently transferred to Buca Prison in Ä° zmir .

In Buca Prison the applicant was attacked by the gendarmes and prison warders. He was taken to a hospital where he was tied by his legs to a bed. As a result, he sustained several injuries to his legs, his veins becoming clogged, blood gathered in his brain, his cardiac valves were damaged and his kidneys failed.

On 25 October 1995 the applicant was brought before the Ä° zmir State Security Court with the help of the gendarmes as he could not stand or walk. When he was asked his name, he could hardly reply because he was virtually unconscious.

On the same day the Ä° zmir State Security Court decided to release the applicant on parole.

At 4.30 p.m., after his release, the applicant was taken to the nearest doctor, Dr Zeki Gül, who noted in his report different shaped and coloured lesions and bruises on his body.

On 24 January 1996 the Antalya Assize Court requested the Forensic Medicine Institute in Antalya to inform it whether or not the applicant’s state of health would allow him to give a statement.

On an unspecified date the Forensic Medicine Institute informed the Antalya Assize Court that the applicant’s state of health would not allow him to give a statement because he was suffering from memory loss.

On an unspecified date the applicant filed a complaint with the office of the Ä° zmir Public Prosecutor against the prison warders and the prison administration in Buca Prison.

On 2 August 1996 Mr Okay Güngör , the İ zmir public prosecutor, rejected the applicant’s complaint. The public prosecutor stated in his decision that his office instituted criminal proceedings against the gendarmes and the prison authorities in relation to the incident in Buca Prison and two investigation files, file nos. 1995/39472 and 1995/42446, were duly opened. The prosecutor later decided that he lacked jurisdiction ratione materiae ( görevsizlik kararı ) to prosecute the gendarmes and transferred the investigation file no. 1995/42446 to the İ zmir Governor’s Office in order to obtain authorisation to prosecute the gendarmes. Furthermore, concerning the investigation file no. 1995/39472, he filed a bill of indictment with the İ zmir Criminal Court of First Instance in which he accused the prison authorities of ill treating the prisoners during the performance of their duties ( görev sırasında efrada sui muamele ). The İ zmir Criminal Court of First Instance decided not to commit the prison authorities for trial ( takipsizlik kararı ) and therefore no criminal proceedings could be re-instituted ( takibata mahal olmadığına ).

On an unspecified date the applicant lodged an objection with the İ zmir Karşıyaka Assize Court against the public prosecutor’s decision.

On 22 October 1996 the Ä° zmir State Security Court acquitted the applicant on the ground that there was insufficient evidence to convict him. The court held that the applicant was accused of being a member of a terrorist organisation on account of the statements he gave while in police custody. The court found this evidence implausible in the light of the medical reports submitted to it.

On 31 October 1996 the İ zmir Karşıyaka Assize Court rejected the applicant’s objection which he had lodged against the public prosecutor’s decision of 2 August 1996. The applicant was notified of the İ zmir Karşıyaka Assize Court’s decision on 14 November 1996.

On 22 December 1997 the applicant died as a result of kidney problems.

COMPLAINTS

The applicants complain under Article 2 of the Convention that Mehmet Kurnaz was deprived of his right to life as a result of the ill-treatment to which he had been subjected while in prison.

The applicants complain that Mehmet Kurnaz had been subjected to treatment contrary to Article 3 of the Convention while in prison.

The applicants complain under Article 5 § 1 (a) of the Convention that Mehmet Kurnaz was not detained by a competent court.

The applicants complain under Article 5 § 2 of the Convention that Mehmet Kurnaz had been unable to understand the reasons for his arrest since he was virtually unconscious at the time of his arrest.

The applicants complain under Article 5 § 3 of the Convention that Mehmet Kurnaz was not brought promptly before a judge.

The applicants complain under Article 5 § 4 of the Convention that Mehmet Kurnaz was deprived of his right to take proceedings in order to challenge the lawfulness of his detention since his case was immediately sent to the İ zmir State Security Court.

The applicants complain under Article 6 § 2 of the Convention that the national authorities declared Mehmet Kurnaz guilty by subjecting him to ill-treatment before the courts acquitted him.

The applicants complain under Article 8 of the Convention that Mehmet Kurnaz was deprived of his right to respect for his private and family life because he was ill-treated.

The applicants complain under Article 9 of the Convention that Mehmet Kurnaz was detained and ill-treated because of his membership of the United Socialist Party.

The applicants finally complain under Article 13 of the Convention that they had no effective domestic remedies enabling them to bring their complaints to the attention of the national authorities.

THE LAW

1. The applicants complain that Mehmet Kurnaz died because he was ill-treated while in prison. They submit that Mehmet Kurnaz was already suffering from poor health before he was taken into police custody. Following the attacks on him in prison, his health deteriorated and he died two years later. They rely on Articles 2, 3 and 13 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 § 3 (b) of its Rules of Procedure, to give notice of them to the respondent Government.

2. The applicants complain under Article 5 § 1 (a) of the Convention that Mehmet Kurnaz was not detained by a competent court. Referring to Article 5 § 2 of the Convention, the applicants claim that Mehmet Kurnaz had been unable to understand the reasons for his arrest since he was virtually unconscious when he was arrested. The applicants also complain under Article 5 § 3 of the Convention that Mehmet Kurnaz was not brought promptly before a judge. Lastly, they claim under Article 5 § 4 of the Convention that Mehmet Kurnaz was deprived of his right to take proceedings in order to challenge the lawfulness of his detention since his case was immediately sent to the İ zmir State Security Court.

The Court notes that it is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of Article 5 §§ 1 (a), 2, 3 and 4 of the Convention, as Article 35 § 1 of the Convention provides that 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 instant case the Court observes that Mehmet Kurnaz was arrested pursuant to the Law on the Procedures of State Security Courts and that no domestic remedy was available in order to challenge the lawfulness and the length of his police custody (see, mutatis mutandis , the Sakık and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, § 53). The Court recalls that, according to its established case-law, where an act of an authority is not open to any effective remedy, the six-month period runs from the date on which the act took place (see, among other authorities, Application no. 10389/83, decisions of 17 July 1986, DR 47, p. 72).

The Court notes that the Mehmet Kurnaz’s detention in police custody ended on 25 October 1995, whereas the application was introduced on 10 May 1997, that is more than six months after the detention of which complaint is made.

It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

3. The applicants complain under Article 6 § 2 of the Convention that the authorities declared Mehmet Kurnaz guilty by subjecting him to ill-treatment before the courts acquitted him.

The Court observes that Mehmet Kurnaz was acquitted on 22 October 1996 by the İ zmir State Security Court. It concludes, therefore, that Mehmet Kurnaz , at the time of lodging his application, could no longer claim to be a victim in respect of his complaint under Article 6 § 2 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicants complain under Article 8 of the Convention that Mehmet Kurnaz was deprived of his right to respect for his private and family life because he was ill-treated. The applicants also complain that Mehmet Kurnaz was detained and ill-treated because of his membership of the United Socialist Party. They rely on Article 9 of the Convention in this respect.

The Court observes that the applicants’ complaints under these heads are closely linked to the applicants’ argument that the respondent State failed in its obligations under Article 3 of the Convention. The Court therefore does not propose to give separate examination to these complaints.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints under Articles 2, 3 and 13 of the Convention;

Declares inadmissible the remainder of the application.

             Michael O’BOYLE Nicolas BRATZA Registrar President