FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39706/98 by Tahsin Ä°PEK against Turkey

The European Court of Human Rights ( First Section ), sitting on 14 March 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 31 December 1997 and registered on 5 February 1998,

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 is a Turkish national, born in 1943 and living in Vakfikebir , Turkey. He is represented before the Court by Mr Hasip Kaplan, a lawyer practising in Istanbul.

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

A. Particular circumstances of the case

The applicant claims that he was called to the Kürtün gendarme station on 24 October 1991 on suspicion of killing Hasan Bal on 18 July 1991 in a fight. He contends that he was immediately detained and during the first twenty-four hours he was not given anything to eat. He states that he was blindfolded.

The period of his detention was extended by the Torul public prosecutor for fifteen days at the request of Halil Uluyurt , the captain of the Kürtün gendarme regiment. The applicant claims that he was beaten and tortured during his detention.

On 1 November 1991 the Torul Peace Court ordered the applicant’s formal arrest. The applicant’s wife, Halime Ipek , applied to the Torul Public Prosecutor’s Office on 12 November 1991 claiming that her husband had been tortured by gendarmes while in custody. The public prosecutor conducted a preliminary investigation. On 31 December 1992 he issued a decision of non-prosecution. The applicant’s wife challenged the decision before the Bayburt Assize Court.

On 12 February 1993 the Bayburt Assize Court accepted her submissions and annulled the non-prosecution decision. On 31 March 1993 the Torul public prosecutor instituted criminal proceedings before the Torul Criminal Court of First Instance charging a number of gendarmes including Captain Halil Uluyurt of offences under Article 245 of the Turkish Penal Code. On 13 May 1993 the Torul Criminal Court of First Instance issued a non-jurisdiction decision and separated the proceedings against Captain Halil Uluyurt from those brought against the other co-accused on the ground inter alia that the charges were more appropriately dealt with under Article 243 of the Penal Code.

The Torul Criminal Court of First Instance sent the file to the Gümüşhane Assize Court. However Captain Halil Uluyurt’s file was sent to the Gümüşhane Public Prosecutor’s Office to obtain the necessary authorisation to prosecute him. Authorisation was given by the General Directorate of Criminal Affairs of the Ministry of Justice and the Gümüşhane public prosecutor subsequently instituted criminal proceedings against Captain Halil Uluyurt before Gümüşhane Assize Court on 30 December 1993.

On 10 February 1994 the court joined the cases of Captain Halil Uluyurt and the other three accused. The applicant joined the case as an intervening third party.

The court had before it two medical reports. According to the first report dated 25 October 1991 no marks of violence had been found on the applicant’s person. However, the second medical report dated 1 November 1991 stated that the following marks were found on his body: an oedema about 4-5 cm in diameter on his right hand, a graze on his left leg of about 1 by 1 cm and a discolouring under his right eye. The medical reports were sent for examination to the Forensic Medicine Institute which concluded that the applicant’s health was not at risk. The applicant was given three days’ sick leave from work. The report of the Forensic Medicine Institute also mentioned that the applicant’s injuries could have been caused by blows.

Although the witnesses called on behalf of the applicant stated before the court that they did not see him being beaten, they affirmed that they observed that he had some violet-coloured bruises on his face and body when he was brought before the substitute judge. The witnesses further maintained that the applicant told them that the commander of the gendarme station had tortured him during interrogation.

In a judgment dated 2 May 1996, the Gümüşhane Assize Court found Captain Halil Uluyurt guilty of an offence under Article 243 of Criminal Code since he had tried to extract incriminating statements from the applicant. The court accepted that the applicant was subjected to ill treatment and to inhuman and degrading treatment in custody. The court relied on the statements of the witnesses, medical reports and the interrogation record signed by Captain Halil Uluyurt which indicated that he had questioned the applicant. The court sentenced Captain Halil Uluyurt to ten-months’ imprisonment and debarred him from duty for a period of two months and fifteen days. The court suspended the prison sentence since it considered that the accused would not commit any similar offences in the future. The court acquitted the other three accused on account of lack of evidence.

Captain Halil Uluyurt appealed against conviction. On 7 May 1997 the Court of Cassation dismissed his appeal. The applicant maintains that he was notified of this decision on 26 December 1997 when he went to the court to obtain a copy.

B. Relevant domestic law

Criminal-law provisions against torture

The Turkish Penal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).

Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285).

Administrative law remedies

Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures.”

By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property.

Civil proceedings

Pursuant to Article 41 of the Turkish Civil Code, an injured person may file a complaint for compensation against an alleged perpetrator who has caused him or her damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code and non-pecuniary or moral damages may be awarded under Article 47.

The Penal Code also makes provision to allow a person to constitute himself or herself a civil party in respect of pecuniary loss resulting from the commission of an offence. According to Article 365 of the Code of Criminal Procedure, any person injured by a crime may, at any time during an investigation, by means of a complaint declare himself or herself a civil party and request compensation for damage which is the direct result of the accused’s criminal act. This remedy is only available to direct victims and cannot be exercised on behalf of a deceased victim. The remedy is not applicable if the accused is acquitted of the offence. The acquisition of civil party status is dependent on the fact that that party has not sought compensation from the civil courts in respect of the damage resulting from the offence.

The law governing detention

Article 19 of the Constitution provides:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:

…

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days… These time-limits may be extended during a state of emergency…

…

A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”

The relevant provisions of the Criminal Code read as follows:

Article 168

“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

Article 169

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment…”

Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”

Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half.

Under section 9 (a) of Law no. 2845 on procedure in the National Security Courts, only these courts can try cases involving the offences defined in Articles 168 and 169 of the Criminal Code.

At the material time, section 30 of Law no. 3842 of 18 November 1992 provided that, with regard to offences within the jurisdiction of the National Security Courts - including those mentioned in paragraph 20 above - any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively.

Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:

“Compensation shall be paid by the State in respect of all damage sustained by persons

(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;

(2) who have not been immediately informed of the reasons for their arrest or detention;

(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;

(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;

(5) whose close family have not been immediately informed of their arrest or detention;

(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial …, or are acquitted or discharged after standing trial; or

(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only…”

COMPLAINTS

The applicant complains that Captain Halil Uluyurt only received a suspended sentence although the domestic court found him guilty of, inter alia , ill-treatment. The applicant invokes Article 3 of the Convention.

The applicant maintains that he was charged with homicide. He states that this is a common law offence under the Turkish Penal Code. On that account his detention should not have been authorised for a period of fifteen days. In any event the period is excessive. He invokes Article 5 § 3 of the Convention.

The applicant further alleges that the length of the proceedings against Captain Halil Uluyurt was excessive and in breach of the reasonable-time requirement laid down in Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains that Captain Halil Uluyurt only received a suspended sentence although he was found guilty of subjecting him to ill-treatment and inhuman and degrading treatment. The applicant invokes Article 3 of the Convention, which states:

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

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 § 3 (b) [Note1] of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant complains that he was kept in custody for a period of fifteen days before being brought before a judicial authority. He states that this was in breach of the promptness requirement of Article 5 § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The applicant furthers states that he was charged with homicide, a common law offence under the Turkish Penal Code. For that reason his detention should not have been authorised for a period of fifteen days.

The Court notes that the applicant claims that he was detained on 24 October 1991 and that authorisation was given to extend his detention for a period of fifteen days. It also appears from the facts submitted by the applicant that his formal arrest was ordered on 1 November 1991. It is not clear whether he appeared before the court on this occasion. In any event, the act complained of must be considered time-barred in application of the six-months’ rule contained in Article 35 § 1 of the Convention and thus inadmissible under Article 35 § 4 thereof.

3. The applicant alleges that the criminal proceedings against the gendarme officer were not determined within a reasonable time, in breach of Article 6 § 1 of the Convention which provides to the extent relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time (...)”

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 § 3 (b) [Note2] of the Rules of Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court, by a majority,

DECIDES TO ADJOURN the examination of the applicant’s complaints concerning the sentence received by the gendarme officer and the length of the criminal proceedings taken against him;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President

[Note1] Change as necessary.

[Note2] Change as necessary.