SECOND SECTION

DECISION

Application no . 696/10 Emre EKÄ°CÄ° against Turkey

The European Court of Human Rights ( Second Section ), sitting on 15 October 2013 as a Committee composed of:

Dragoljub Popović, President, Paulo Pinto de Albuquerque, Helen Keller, judges, and Seçkin Erel , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 29 December 2009 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Emre Ekici , is a Turkish national, who was born in 1986 and lives in Istanbul .

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

1. Disciplinary sanctions against the applicant

3 . During his military service at the EÄŸirdir Commando Headquarters, the applicant was sanctioned to room confinement twice for disorderly behaviour.

4 . The first of the two confinements lasted for a period of seven days, between 29 January and 5 February 2007, and the second for five days between 7 and 12 June 2007.

2. Criminal proceedings against the applicant

5 . On 26 February 2007, during his military service, the applicant underwent a bilateral conchoplasty (a surgical procedure performed in order to reduce the mass under the nasal conchae) at the Ankara Military Hospital.

6 . On 1 March 2007 he was discharged from the hospital with a medical report indicating that he should rest for a period of twenty days.

7 . The applicant did not return to the Mountain Command on the indicated date but on 16 April 2007.

8 . Following a second leave he took in May 2007, on an unspecified date in June he was arrested and brought before the military public prosecutor on suspicion of absconding from military service.

9 . On 29 June 2007 the applicant was questioned by the investigating judge at the Isparta Military Court of Commando Headquarters, who held that he should be placed in detention on remand. The applicant submitted before the court that on the day of his discharge from the hospital, he took his doctor ’ s stamp without his knowledge and drafted a report indicating a longer leave period, which he later submitted to the Commando Headquarters. After coming back to the Headquarters on the day he had determined, he drew up another false report. He added that he had a psychiatric condition.

10 . On an unspecified date the military public prosecutor issued an indictment against the applicant, accusing him of absconding from military service and theft conducted against military personnel, pursuant to Articles 81 and 132 of the Military Penal Code.

11 . On 15 April 2008 the Military Court of Commando Headquarters found the applicant guilty as charged and sentenced him to ten months ’ imprisonment and a fine of 3,000 Turkish liras (TRY) [1] . The court relied on the applicant ’ s statements admitting to having committed the offence as well as the false reports drawn up by him, the hospital records, the records indicating his entry and exit dates to the Commando Headquarters and witness statements.

12 . The applicant appealed against the judgment. Despite repeated requests of the Registry, he failed to provide the Court with the final decision concerning his sentence. Nevertheless, it appears that the judgment was upheld by the higher court as on 7 October 2009 the applicant was informed that he needed to pay the TRY 3,000 fine.

13 . On an unspecified date the applicant was discharged from the army.

14 . On 20 April 2010 the Isparta Military Court of Commando Headquarters issued a supervision order in respect of the applicant, deferring the execution of his prison sentence and holding that he was to work in public service for a period of two months and fifteen days.

3. Criminal proceedings against K.I.

15 . On 1 August 2007, while the applicant was serving his prison sentence at the Isparta Military Prison, one of his inmates, K.I., slapped him during a quarrel.

16 . Following his complaints about the pain in his ear, on 7 August 2007 the applicant underwent a medical examination at the Isparta Military Hospital, as a result of which it was established that his eardrum had been punctured.

17 . Subsequently, on 22 August 2007 the military public prosecutor at the Isparta Military Court of Commando Headquarters filed an indictment with that court, accusing K.I. of assaulting a soldier of higher rank.

18 . During the course of the proceedings, the case was transferred to the Isparta Criminal Court of General Jurisdiction.

19 . On 11 November 2010 the Criminal Court of General Jurisdiction requested the applicant to inform it whether his damage had been compensated and whether he wished to join the proceedings as a civil party. The court also instructed the authorities, where the applicant resided, that the applicant must be invited to attend the proceedings as a witness and must be brought before the court by force should he refuse to do so.

20 . The applicant did not join the criminal proceedings against K.I.

21 . He informed the Court that in the end of the criminal proceedings, K.I. was sentenced to four months ’ imprisonment, which he had been notified of by a letter from the Criminal Court of General Jurisdiction.

COMPLAINTS

22 . The applicant complained under Article 3 of the Convention that although he had been assaulted and injured by a third person during his military service, the domestic authorities failed to take any measures against that person.

23 . He further argued under Article 3 of the Convention that he had been stripped naked and beaten by prison guards during his time at the Isparta Military Prison and that the doctor who had examined him failed to indicate the injuries on his body.

24 . Relying upon Articles 5 § 1 and 6 of the Convention, the applicant maintained that he had been unlawfully deprived of his liberty during his military service as he had been sanctioned to room confinement without any judicial decision.

25 . The applicant complained under Articles 6, 9 and 14 of the Convention about the outcome of the criminal proceedings against him and argued that he should have benefited from the provisions governing the suspension of the pronouncement of the judgment pursuant to Article 231 of the recent Code on Criminal Procedure (Law no. 5271) .

26 . Invoking Article 4 of Protocol No. 7 to the Convention, the applicant alleged that he had been punished twice for the same offence.

THE LAW

A. Complaint under Article 3 of the Convention concerning the alleged ill-treatment of the applicant at the Isparta Military Prison

27 . The applicant alleged under Article 3 of the Convention that he had been subjected to ill-treatment by prison guards during his time at the Isparta Military Prison and that the medical report drawn up following that incident contained no mention of signs of ill-treatment on his body.

28 . The Court notes that following the request of the Registry, the applicant informed the Court that he could not submit the impugned medical report allegedly issued following his ill-treatment by prison guards. He noted moreover that he had not complained against the prison guards as he had been frightened of its consequences at the Military Prison.

29 . The Court notes that the applicant did not submit any reasons for failing to comply with the requirement to exhaust domestic reme dies by raising and pursuing his complaints first before domestic authorities. Nor is there anything in the case file to suggest that the applicant was prevented from doing so by intimidation or otherwise, considering especially that he did not bring his complaint before the domestic authorities after he was released from the Isparta Military Prison and discharged from the army.

30 . It follows that the applicant has failed to exhaust domestic remedies and that this part of the complaint under Article 3 of the Convention must be rejected as being inadmissible under Article 35 §§ 1 and 4 of the Convention (see Aslan v. Turkey (dec.), no. 38940/02, 1 June 2006; Tilki v. Turkey (de c.), no. 39420/08, 6 July 2010; and Armağancı v. Turkey , no. 30637/06 (dec.), 13 September 2011) .

B. Complaint under Article 3 of the Convention concerning the effectiveness of the investigation conducted against K.I .

31 . The applicant further complained under Article 3 of the Convention about the investigation conducted against K.I., who had caused injuries to him.

32 . The Court observes that criminal proceedings were brought against the said person in a timely manner, namely on 22 August 2007, two weeks following the applicant ’ s medical examination establishing the puncture in his eardrum. The proceedings lasted for a period of more than three years, as on 11 November 2010 the Criminal Court of General Jurisdiction invited the applicant to attend as a witness and requested information from him about whether he wanted to join them as a civil party or not .

33 . However, despite several requests from the Registry, the applicant failed to provide the documents concerning the outcome of the case and merely informed the Court that K.I. had been sentenced to three or four months ’ imprisonment in the end of the proceedings. He also noted that he had not joined the proceedings.

34 . The Court concludes that it cannot assess the applicant ’ s complaint on the basis of the documents in the case file and that it remains unsubstantiated . It must therefore be rejected for being manifestly ill ‑ founded pursuant to Article 35 §§ 3 and 4 of the Convention (see Aslan , cited above) .

C. Complaint under Article 5 § 1 of the Convention

35 . Relying upon Articles 5 § 1 and 6 of the Convention, the applicant complained about the unlawfulness of his room confinement. The Court considers that the complaint should be examined from the standpoint of Article 5 § 1 alone.

36 . The Court observes that the applicant was subjected to the said sanction twice during his military service and that his confinements ended on 5 February 2007 and 12 June 2007, respectively.

37 . It notes that pursuant to Article 21 of the Law on Supreme Military Administrative Court, there is no domestic remedy to challenge such disciplinary measures and the six-month time-limit starts running from the date on which the applicant ’ s deprivation of liberty ended. Accordingly, this part of the application has been lodged out of time and must be rejected within the meaning of Article 35 §§ 1 and 4 of the Convention (see Kirkit v. Turkey (dec.), no. 32297/07, 5 April 2011, and Pulatlı v. Turkey , no. 38665/07 , § 26 , 26 April 2011 ).

D. Complaint under Article 6 § 1 of the Convention

38 . As for the complaint under Articles 6, 9 and 14 of the Convention, the Court notes that the applicant did not make any submissions with regard to Articles 9 and 14 and merely complained about the application of domestic law and the outcome of the criminal proceedings against him. It considers that the complaint should be examined from the standpoint of Article 6 § 1 of the Convention alone .

39 . The Court observes that in sentencing the applicant to ten months ’ imprisonment and a fine, the Isparta Military Court of Commando Headquarters relied on various evidence, including the applicant ’ s statements admitting to having committed the offence, the false reports drawn up by him, the hospital records, the records indicating his entry and exit dates to the Mountain Command and witness statements .

40 . It reiterates that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance , for the decisions of domestic courts. According to the case-law, the latter are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, among many others, Vidal v. Belgium , 22 April 1992, § 32, Series A no. 235-B, and Edwards v. the United Kingdom , 16 December 1992, § 34, Series A no. 247-B). In the instant case, the Court notes that there is nothing in the case file which might lead to the conclusion that the domestic court acted in an arbitrary or unreasonable manner in assessing the evidence, establishing the facts or interpreting the domestic law.

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

E. Complaint under Article 4 of Protocol No. 7 to the Convention

42 . Finally, the applicant argued under Article 4 of Protocol No. 7 to the Convention that he had been punished twice for the same offence .

43 . The Court concludes that, as Turkey has not ratified Protocol 7, the complaint is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

Seçkin Erel Dragoljub Popović Acting Deputy Registrar President

[1] . Approximately 1,500 euros at the time.