THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16622/02 
by Ali KANAT 
against Turkey

The European Court of Human Rights (Third Section), sitting on 8 November 2007 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr C. Bîrsan
 Mr R. Türmen
 Mrs E. Fura-Sandström
 Mrs A. Gyulumyan
 Mr E. Myjer, 
 Mrs I. Berro-Lefèvre, judges
and Mr S. Quesada, Section Registrar,

Having regard to the above application lodged on 12 March 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the partial decision of 28 April 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ali Kanat, is a Turkish national who was born in 1967 and lives in Istanbul. He was represented before the Court by Ms H. Çekiç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

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

On 11 May 1994 the applicant was arrested by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate.

On 18 May 1994 he was brought before the Istanbul State Security Court public prosecutor, where he denied the charges against him.

On the same day, the applicant was examined by a doctor at the Istanbul Forensic Medicine Institute. In his report, the doctor stated that the applicant suffered from inguinal hernia and that there were no signs of ill-treatment on his body.

On 19 May 1994 the applicant was brought before the investigating judge at the Istanbul State Security Court, where he repudiated the content of his police statement, alleging that it was taken under duress. On the same day, the judge ordered the applicant’s detention on remand. The applicant was sent to Bayrampaşa Prison.

On 1 June 1994 the public prosecutor of the Istanbul State Security Court filed an indictment against the applicant, accusing him of being a member of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party). He requested that the applicant be sentenced pursuant to Article 168 § 2 of the Criminal Code.

On 21 July 1994 the applicant was examined by a doctor at the Eyüp Froensic Institute. According to the report, the applicant described pain on the inguinal region, on his shoulders, and weakness in his arms. He further complained that he had pain in his anus. The report stated that in order to be able to deliver a final report, further examinations were required. Having received further medical reports, on 29 July 1994 the Eyüp Forensic Institute issued its final report and concluded that the applicant suffered from an inguinal direct hernia. It was stated that this hernia might have been the outcome of an infirmity of the abdominal region, or it could be the result of an external trauma. It was also noted that if the hernia had been caused by an external trauma then this finding would prevent the applicant from working for fifteen days. The report finally stated that the other complaints would prevent the applicant from work for five days.

On 1 December 1994, during its first hearing, the Istanbul State Security Court heard from the applicant. In his statement, the applicant denied the charges against him and gave the details about the ill-treatment he had been allegedly subjected to during his police custody. He stated that after he had been arrested by the police officers, he was put in a car; his head was covered with his coat, and he was beaten inside the car. After another two and a half hours’ drive, he was forced to lie on the ground face down. Someone stepped on his head and they shot two or three bullets near the left and right side of his head. He was then taken to the Istanbul Security Directorate building, where he was stripped naked and suspended from his arms. Electrics shocks were administered to his toes and genitals. He was also beaten on the soles of his feet. The applicant also submitted a copy of the medical report issued by the Eyüp Forensic Institute. At the end of the hearing, the court concluded that the applicant’s representative could file a complaint with the authorities about the applicant’s allegations of ill-treatment.

On 8 December 1995 the applicant was allegedly beaten by the soldiers during his transfer from the Bayrampaşa Prison to the Ümraniye Prison.

On 29 May 1997 the Istanbul State Security Court, which was composed of three judges including a military judge, found the applicant guilty as charged and sentenced him to twelve years and six months’ imprisonment.

On 14 December 1998 the Court of Cassation quashed the applicant’s conviction on the ground that the Istanbul State Security Court had delivered its judgment without taking the applicant’s final statement.

Between 14 December 1998 and 18 June 1999 the Istanbul State Security Court, to which the case file was remitted, held two hearings namely on 16 March 1999 and 27 May 1999, during which the judges dealt solely with procedural matters.

On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civilian judge.

In the meantime, in December 2000 a large number of prisoners started a hunger strike to protest against the F-Type prisons. On 19 December 2000 the security forces conducted an operation in several prisons to stop the protests. The applicant was allegedly beaten by the soldiers during this operation in the Ümraniye Prison.

On 17 April 2001, after hearing the applicant in person to take his final defence submissions, the Istanbul State Security Court, composed of three civilian judges, adhered to its first judgment. Basing itself on the leaflets and the receipt vouchers of the organisation captured from the applicant’s residence, the witnesses’ statements, the cartridge clips and guns seized during the investigation, the court once again sentenced the applicant to twelve years’ and six months’ imprisonment.

The applicant appealed against the judgment. In his petition, he maintained that the judgment of the first-instance court was based on his police statements which had been taken under duress.

On 8 October 2001 the Court of Cassation upheld the judgment of the State Security Court.

On 29 January 2004 the applicant’s lawyer provided the Registry with a medical report of 6 January 2004, which was drafted by a commission of medical experts of the Human Rights Foundation. The report noted that the applicant had applied to the Foundation on 7 November 2003 and complained about his continuing suffering as a result of ill-treatment on account of his previous detentions.

The report concluded that the finding of 3 cm damaged tissue to the applicant’s head was in line with the applicant’s testimony about the operation dated 19 December 2000 and that the diagnoses of a right inguinal hernia were compatible with the story of physical pressure put on the abdominal region. According to the report, the applicant suffered from physical and psychological problems.

COMPLAINTS

1. The applicant complained under Article 3 that he had been ill-treated during his police custody between 11 and 19 May 1994 and during his detention on remand.

2. The applicant maintained under Article 6 § 1 of the Convention that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried him.

3. The applicant further alleged under Article 6 § 3 (b) of the Convention that he did not have adequate time and facilities to prepare his defence as he was not present in many hearings.

THE LAW

1. The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his police custody and during his detention on remand.

1.  Concerning the applicant’s ill-treatment under police custody

The applicant alleged that he had been ill-treated during his police custody between 11 and 19 May 1994. In this respect, he maintained that he had been beaten, subjected to electric shocks and falaka, and suspended from his arms.

The Government argued that this complaint should be declared inadmissible on account of the applicant’s failure to comply with the admissibility conditions contained in Article 35 § 1 of the Convention.

In the first place, they stated that the applicant could not be considered to have exhausted the domestic remedies since he had never filed a formal complaint with the Public Prosecutor in respect of his ill-treatment allegations during police custody. They further maintained that, in the alternative, the applicant could have sought reparation for the harm he had allegedly suffered by instituting a civil action in the civil or administrative courts.

Secondly, the Government contended that the applicant failed to comply with the six months rule. They observed in this connection that at the hearing held on 1 December 1994 before the Istanbul State Security Court, the applicant complained about the ill-treatment he had been subjected to during his police custody. At the end of the hearing, the court ruled that the applicant’s lawyer could file a criminal complaint with the domestic authorities. However, the applicant and his representative waited for eight years before lodging the application with the Court. In the Government’s view, the fact that the authorities would take no action in respect of his ill-treatment allegation must have become gradually apparent to the applicant during this time.

(a)  Exhaustion of domestic remedies

As regards the first part of the Government’s objection, the Court notes that, contrary to the Government’s assertion, the applicant can be considered to have brought the substance of his complaint to the notice of the investigating judge at the Istanbul Sate Security Court on 19 May 1994 and subsequently to the Istanbul State Security Court on 1 December 1994. In the Court’s opinion these submissions should have been sufficient in themselves to alert the authorities to investigate the applicant’s complaint. Having regard to these circumstances, the Court considers that the applicant can be considered to have done all that could be expected of him to bring his complaint to the attention of the authorities with a view to the opening of an investigation into his allegation (see Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7 September 1999). Accordingly, this part of the Government’s objections should be dismissed.

As regards the Government’s objection concerning the administrative and civil law remedies, the Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004). It finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned application. Consequently, it also rejects this part of the Government’s preliminary objection.

(b)  Six months time-limit

As regards the Government’s objection concerning the applicant’s failure to comply with the six months rule, the Court reiterates that the purpose of the six months rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being in an uncertain situation for a prolonged period of time (see Kenar v. Turkey (dec.), no. 67215/01, 1 December 2005). The Court further recalls that under Article 35 § 1 of the Convention it may only deal with a matter within a period of six months from the date on which the final decision was taken in domestic law. However, special considerations could apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see Hazar and others v. Turkey, (dec.) no. 62566/00, 10 January 2002).

The Court observes that at the hearing held on 1 December 1994, the applicant submitted his allegations of ill-treatment to the Istanbul State Security Court. At the end of the hearing, the domestic court held that the applicant’s lawyer could lodge a complaint with the domestic authorities in respect of these complaints. Furthermore, in its decision dated 29 May 1997 the Istanbul State Security Court made no reference to the applicant’s ill-treatment allegations. It is also noted that in his appeal petition the applicant solely argued that his conviction was based on his police statements which was taken under duress and did not repeat his allegations of ill-treatment. In the particular circumstances of the present case, the Court considers that the failure of the judicial authorities to act must have become gradually apparent to the applicant up until 29 May 1997, i.e. the date on which the Istanbul State Security Court rendered its decision on the matter, and that therefore the applicant should have been aware of the ineffectiveness of remedies in domestic law by that date. Accordingly, the six months period provided for in Article 35 of the Convention should be considered to have started running not later than 29 May 1997 (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; Kenar, cited above). However, the application was introduced with the Court on 12 March 2002.

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

2.  Concerning the applicant’s ill-treatment during his detention on remand

The applicant alleged that he was beaten by the soldiers during his transfer from the Bayrampaşa Prison to the Ümraniye Prison on 8 December 1995 and during the incidents in the Ümraniye Prison on 19 December 2000.

The Government argued that the applicant had failed to exhaust the domestic remedies in respect of his complaints. They further stated that that the allegations were baseless, and that the applicant had no medical report or any other evidence to substantiate his claims.

The Court notes in the first place that the applicant failed to submit this part of his allegation, either in form or in substance, before the national authorities. Secondly, it recalls that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see, Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

In the instant case, the Court is provided with a copy of the medical report drafted by a commission of medical experts of the Human Rights Foundation. This report was however drafted on 6 January 2004, more than three years after the operation which took place in the Ümraniye Prison in December 2000. Therefore this report cannot be regarded as affording a strong support for the applicant’s allegations. The Court therefore considers that there is nothing in the case file to show that the applicant was ill-treated as alleged.

In view of the above, the Court concludes that the applicant has not laid the basis of an arguable claim and this part of the application should therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant maintained under Article 6 of the Convention that he was not tried by an independent and impartial court.

The Government referred to the constitutional amendment of 1999 whereby military judges could no longer sit on such courts.

The Court has consistently held that certain aspects of the status of military judges sitting as members of the State Security Courts rendered their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 68; Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 39). The Court also found in Öcalan v. Turkey (no. 46221/99, ECHR 2005-, §§ 114-115) that when a military judge participated in one or more interlocutory decisions that remained in effect during the criminal proceedings in question, the military judge’s replacement by a civilian judge in the course of those proceedings, before the verdict was delivered, failed to dissipate the applicant’s reasonably held concern about that trial court’s independence and impartiality, unless it was established that the procedure subsequently followed in the State Security Court sufficiently allayed that concern.

In the instant case, the Court notes that when the applicant’s trial commenced before the Istanbul State Security Court, its composition included a military judge. Subsequently, on 14 December 1998 the Court of Cassation quashed the judgment delivered by the State Security Court and the case was remitted to the first instance court for a retrial. While the proceedings were still pending before the Istanbul State Security Court, in June 1999, the Constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civil judge. The Court notes at this point that in this new set of proceedings, the military judge was present only at two hearings before his replacement in June 1999. It is clear from the documents in the file that during these hearings, which were held on 16 March 1999 and 27 May 1999 respectively, the Istanbul State Security Court took no interlocutory decisions of importance, in particular concerning the defence rights of the applicant. In this connection, the Court observes that, after the military judge was replaced by a civilian judge, the proceedings before the new court continued for approximately another two years, during which the court held several hearings on the merits and heard the applicant. Therefore, the Court finds that, in the particular circumstances of the case, the replacement of the military judge before the end of the proceedings disposed of the applicant’s reasonably held concern about the trial court’s independence and impartiality (see Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01, §§ 33-36, 19 September 2006; Osman v. Turkey, no. 4415/02, §§ 16-18, 19 December 2006).

In the light of the foregoing, the Court concludes that the applicant’s complaint concerning the independence and impartiality of the Istanbul State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Without substantiating his claim, the applicant argued under Article 6 § 3 (b) of the Convention that he had not been given adequate time and facilities to prepare his defence.

The Government stated that regard should be had to the entirety of the domestic proceedings.

The Court notes that the applicant had legal representation during the entire proceedings and had the opportunity to put forward his defence submissions. It is also clear from the documents in the file that the applicant was heard in person on 17 April 2001 and his final statement was taken by the Istanbul State Security Court. In these circumstances, the Court finds nothing whatsoever in the case file which might disclose any appearance of a violation of this provision.

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

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

Santiago Quesada Boštjan M. Zupančič 
 Registrar President

KANAT v. TURKEY DECISION


KANAT v. TURKEY DECISION