TANRIKULU and OTHERS proti Turecku

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45907/99
by Tamer TANRIKULU and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 22 October 2002 as a Chamber composed of

Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr Gaukur Jörundsson,
Mr L. Loucaides,
Mr R. Türmen,

Mr C. Bîrsan,
Mr M. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 4 October 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 applicants, Tamer Tanrıkulu, İbrahim Bağdu, M. Emin Tanrıkulu, Mehmet Tayşun, A. Menaf Akyol, M. Emin Tayşun, Lokman Akyol, Hamo Tayşun, Ramazan Atak, Hıdır Şengil, Methi Tayşun, Abdurrahman Mungan, M. Sait Çek, Faruk Dilek, Ramazan Tanrıkulu, Hasan Arsu and Abdulaziz Arsu are Turkish nationals, who were born in 1977, 1948, 1960, 1956, 1950, 1953, 1971, 1950, 1960, 1977, 1973, 1975, 1964, 1974, 1975, 1949 and 1973 respectively. The applicants all live in the town of Silopi in south-east Turkey. They are represented before the Court by Mr Tahir Elçi, a lawyer practising in Diyarbakır.

A. The circumstances of the case

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

Between November 1992 and February 1993 the applicants were arrested in the town of Silopi by policemen on suspicion of aiding and abetting an illegal organisation, the PKK. They were placed in custody in police stations in Silopi and Şırnak.

The applicants submit that in the course of their police custody they were subjected to various types of torture. In particular, their clothes were removed and they were hung from their arms, given electric shocks to various parts of their bodies, beaten up, hosed with cold water, insulted, prevented from sleeping and forced to sign confessions.

The practice at the material time was to bring detainees before a forensic doctor at the end of the period of police custody, which, in this case, would have been some 30 days after their initial detention. Such a doctor should have noted any marks of blows or other violence inflicted on the applicants.

At the end of their police custody the applicants were brought before the Şırnak Criminal Court of Peace (Şırnak Sulh Ceza Mahkemesi), which ordered the applicants’ detention on remand.

The dates of arrest, detention and release of the applicants are as follows:

On an unspecified date in 1993 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the same court, setting out the charges against 42 suspects, including the applicants. He accused the applicants of aiding and abetting an illegal organisation, the PKK, contrary to Article 169 of the Turkish Criminal Code.

On different dates the applicants were all released pending the outcome of the criminal proceedings (see table above).

Two separate criminal proceedings, which were pending against two of the applicants, Abdulaziz Arsu and Hasan Arsu, before the Silopi Criminal Court of First Instance and before the Şırnak Assize Court were also joined to the new proceedings before the 2nd Chamber of the Diyarbakır State Security Court.

On 6 February 1996 the 2nd Chamber of the Diyarbakır State Security Court found the applicants guilty as charged and sentenced them to different terms of imprisonment, ranging between two years and six months and three years and nine months.

On 9 June 1997 the 9th Criminal Chamber of the Court of Cassation rejected the applicants’ appeal against the judgment.

The judgment became final on 18 June 1997.

B. Relevant domestic law and practice

Article 17 of the Turkish Constitution provides:

“...

No one shall be subjected to torture or ill-treatment; no one shall be subjected to penalty or treatment incompatible with human dignity.

...”

Article 243 of the Criminal Code provides:

“A President or member of a court or official body or any other public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, or engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life.”

Article 245 of the Criminal Code provides:

“Civil servants charged with the forcible execution of an order and police officers and any other officials charged with enforcement who, either of their own accord or on the orders of their superiors, enforce the order concerned in an unlawful manner or who, in doing so, ill-treat, strike or cause bodily harm to another, shall be punished by sentences of between one and three years’ imprisonment and temporarily disqualified from holding public office.”

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure (the CCP) with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed, is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators.

A public prosecutor institutes criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). Only if it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, may the public prosecutor close the investigation (Article 164 CCP).

With regard to offences falling within the jurisdiction of the National Security Courts, 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, pursuant to Article 30 of Law No. 3842 in force at the time the applicants’ detention period was extended by the prosecutor.

Article 30 of Law No. 3842 has been amended by Law No. 4229 of 6 March 1997. According to Law No. 4229, persons arrested for collective offences must be brought before a judge within 48 hours. This period can be prolonged to a maximum of four days by a written order of the public prosecutor owing to difficulties in the finding of evidence or to the number of perpetrators, or for similar causes. If the investigation is not concluded within this period, it can be prolonged up to a maximum of seven days upon the request of the public prosecutor and the decision of the judge (However, on 2 June 2002 the Turkish Parliament enacted the Law No. 4744. Article 5 of this new Act abolished the last sentence of the previous Act. Custody periods can now only be prolonged up to a maximum of four days.).

Pursuant to Article 9 (a) of Law No. 2845 on the Procedure before the State Security Courts, public prosecutors are deprived of jurisdiction in cases of alleged terrorist offences in favour of a separate system of State Security prosecutors and courts established throughout Turkey. Only these courts are competent to try cases involving the offences defined in Article 169 of the Criminal Code.

Article 169 of the Turkish Criminal Code provides:

“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...”

COMPLAINTS

The applicants allege that the treatment to which they were subjected while in police custody amounted to torture in violation of Article 3 of the Convention.

They also complain under Article 5 § 3 of the Convention that they were detained in police custody for long periods and that they were not brought promptly before a judge or other officer authorised by law to exercise judicial power. They further submit that they were not released from prison within a reasonable time pending trial.

Invoking Article 6 § 1 of the Convention, the applicants complain that their right to a fair hearing was breached because they were tried and convicted by the Diyarbakır State Security Court which lacked independence and impartiality and that the criminal proceedings against them were not completed within a reasonable time.

The applicants further complain under Article 6 § 3 of the Convention that they were not given sufficient time to prepare their defence and that they were not allowed to consult their lawyers during police custody.

The applicants finally submit that, contrary to domestic law, their houses were searched in their absence and in the absence of an independent person, giving rise to a violation of their right to respect for their private and family life and their home within the meaning of Article 8 of the Convention.

THE LAW

1. The applicants allege that the treatment to which they were subjected during their detention amounted to torture within the meaning of Article 3 of the Convention which provides:

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

The Court, while noting that the applicants have not brought their allegations of ill-treatment to the attention of the national authorities, considers that it is not necessary to determine whether the applicants have exhausted domestic remedies as required by Article 35 § 1 of the Convention since this complaint is in any event inadmissible for the following reason.

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, § 30). The Court observes in the first place that the applicants have not produced any concrete evidence in support of their allegations. In particular, the applicants failed to submit to the Court, despite the Court’s requests to do so, any medical reports in support of their very serious allegations of ill-treatment. The only evidence which the applicants submitted to the Court is a letter written by one of the applicants, describing the ill-treatment they had allegedly suffered in custody.

While the Court recognises the difficulty for detained people to obtain evidence of ill-treatment during police custody, it notes that the applicants have not suggested that they had ever been refused permission to see a doctor at the end of their custody period. In the light of the seriousness of their allegations, in particular being subjected to pressure hosing, hung from their arms, given electric shocks to various parts of their bodies and beaten up, the Court considers that this treatment would have left marks on the applicants’ bodies which would have been observed by a doctor who should have examined them at the end of their detention in police custody, some 30 days later, before they were formally remanded in custody.

Even assuming that the applicants’ circumstances could have made them feel vulnerable, powerless and apprehensive of the representatives of the State during their custody (See Ilhan v. Turkey [GC], no. 22227/93, § 61), the Court considers it significant that the applicants or their lawyers never referred to their very serious complaints of ill-treatment in the proceedings before the Diyarbakır State Security Court. The Court further notes in this context that the applicants did not argue that they were prevented from doing so as a result of intimidation or other forms of pressure.

In the Court’s opinion, the applicants have not laid the basis of an arguable claim that they were tortured in custody as alleged. It follows that the complaint under Article 3 of the Convention should be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

2. The applicants complain that their detention in police custody and also their subsequent detention on remand were in breach of their rights under Article 5 of the Convention, the relevant parts of which provide as follows:

“1. 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 a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3. 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 Court recalls 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 runs from the date of the act complained of (see Hazar and others v. Turkey, (dec.) no. 62566/00, ECHR 2002-...).

The Court observes that the applicants’ detention in police custody ended on different dates, the most recent being 5 March 1993. The Court also notes that the applicants were released from prison on different dates, the most recent being 6 December 1994, while their trial is still pending. The applicants introduced their applications on 4 October 1997, i.e. more than six months later.

It follows that these complaints have 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 § 1 of the Convention that their right to a fair hearing was breached because they were tried and convicted by the Diyarbakır State Security Court which lacked independence and impartiality. They also complain under the same Article that the criminal proceedings brought against them were not concluded within a reasonable time as required by Article 6 § 1 of the Convention. The relevant parts of Article 6 § 1 of the Convention provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

a) As to the applicants’ complaint that the length of the criminal proceedings exceeded the reasonable time requirement under Article 6 of the Convention, the Court notes that the period to be taken into consideration began in November 1992 for 15 of the applicants when they were arrested and taken into custody. The remaining two applicants were arrested and taken into custody in February 1993. The criminal proceedings in question ended on 18 June 1997 when the Court of Cassation rejected the applicants’ appeal. The proceedings therefore lasted approximately four years and seven months for 15 of the applicants and four years and four months for the remaining two applicants.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in its established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319, p. 20, § 59. Furthermore, the Court also considers it appropriate to make an overall assessment of the length of proceedings in some cases (see e.g. Cifola v. Italy, judgment of 27 February 1992, Series A no. 231, p. 9, § 14). The Court notes that, in the present case, the applicants’ case was dealt with by two levels of jurisdiction in approximately four and a half years. Moreover, the applicants have not shown any substantial periods of inactivity attributable to the judicial authorities. The Court therefore considers that the total period at issue does not appear unreasonably long. It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

b) Concerning the applicants’ complaint regarding the independence and impartiality of the Diyarbakır State Security Court, 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 of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicants complain that they were not given sufficient time to prepare their defence and that they were not allowed to consult their lawyers during police custody. They invoke Article 6 § 3 (b) and (c) of the Convention which provides as follows:

“3.Everyone charged with a criminal offence has the following minimum rights:

...

b. to have adequate time and facilities for the preparation of his defence;

c. to defend himself in person or through legal assistance of his own choosing...”

a) As to the applicants’ allegation that they did not have adequate time to prepare their defence, the Court notes that the applicants have not submitted to the Court any documents indicating that this complaint was raised by their lawyers during the proceedings before the Diyarbakır State Security Court. The Court further notes that this issue was not invoked in the grounds for appeal advanced by the applicants’ lawyer in the petition submitted to the Court of Cassation on 4 June 1997 (see Yıldırım v. Turkey (dec.), no. 40518/98, 22.11.2001, unreported) .

It follows that domestic remedies have not been exhausted in relation to this complaint and it must therefore be rejected under Article 35 § 4 of the Convention.

b) As to the applicants’ complaint that they were not permitted the assistance of a lawyer during questioning by the police, 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 of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicants finally submit that the manner in which their houses were searched by the police violated their right to respect for their private and family life and their home within the meaning of Article 8 of the Convention which provides as relevant:

“1. Everyone has the right to respect for his private and family life, his home...”

The Court notes that at no stage did the applicants complain to the authorities that their houses had been unlawfully searched.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning their right to a fair hearing by an independent and impartial tribunal and also their right to legal assistance during pre-trial detention.

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa
Registrar President