THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21085/02 
by Abdulkadir TURGAY 
against Turkey

The European Court of Human Rights (Third Section), sitting on 22 June 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mr R. Türmen
 Mr C. Bîrsan
 Mrs A. Gyulumyan, 
 Mr E. Myjer, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 19 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Abdulkadir Turgay, is a Turkish national who was born in 1959 and lives in Adana.

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

1.  The criminal proceedings against the applicant

On 22 January 2000 the applicant was arrested and taken into custody by police officers from the anti-terrorism branch of the Osmaniye Security Directorate in the course of an operation against the members of the Hezbollah. He was medically examined and no signs of ill-treatment were recorded.

On 26 January 2000 the police took a statement from the applicant, in which he accepted the charges against him.

On 28 January 2000 the applicant was given a medical examination. The medical report drafted on that occasion recorded no signs of physical ill-treatment on the applicant’s body.

On the same day, he was brought before the public prosecutor and then the single judge at the Osmaniye Magistrate’s Court. Before both the public prosecutor and the investigating judge, the applicant denied his connection with the Hezbollah. He maintained that he had not given his police statement under duress; however he had signed it without reading it through. Subsequently, the investigating judge ordered the applicant’s detention on remand.

On 8 March 2000, the public prosecutor at the Adana State Security Court filed a bill of indictment with the same court, accusing the applicant of membership of the Hezbollah, whose object was to undermine the constitutional order of the State and replace it with a sharia regime.

On 20 March 2001 the Adana State Security Court convicted the applicant of the offence and sentenced him to twelve years and six months’ imprisonment pursuant to Article 168 § 2 of the Criminal code. The applicant appealed.

On 28 August 2001, the Principal Public Prosecutor to the Court of Cassation submitted his written opinion to the 9th Division of the Court of Cassation, in which he argued that the Court of Cassation should uphold the judgment of the Adana State Security Court.

On 20 November 2001 the 9th Division of the Court of Cassation confirmed this judgment.

2.  The criminal proceedings concerning the applicant’s allegation of ill-treatment

On 22 May 2000 the applicant filed a complaint with the public prosecutor against the police officers from the anti-terrorism branch and the doctor who examined him after the end of his police custody. In his petition, the applicant alleged that he had been ill-treated by the police officers and that the medical report drafted on that occasion was falsified.

Following a preliminary investigation, on 2 May 2001 the public prosecutor filed a bill of indictment with the Osmaniye Assize Court against the police officers who were on duty during the applicant’s police custody and against the doctor who had drafted the medical report of 28 January 2000. The public prosecutor charged them with the offences of ill-treatment and dereliction of duty.

In the course of the criminal proceedings, the Osmaniye Assize Court took statements from the applicant, the police officers and the doctor, as well as hearing the prison doctor as the witness and taking note of the medical reports that had been issued in respect of the applicant on various dates.

The court noted that the medical report prepared on 22 January 2000, when the applicant was taken into police custody, and the second medical report dated 23 January 2000 during his police custody recorded no signs of ill-treatment on the applicant’s body. The applicant was examined by the defendant doctor on 28 January 2000, after the end of the police custody, who noted no signs of physical violence on the applicant’s body. The applicant was then placed in prison. On 16 February 2000 and 26 May 2000 the applicant was again examined by the prison doctor who diagnosed him with kidney stones, backache and a urinary infection, but recorded no signs of ill-treatment as was alleged by the applicant.

On 22 November 2005 the Osmaniye Assize Court decided that the applicant’s allegation of ill-treatment was not supported by the medical reports and the statement of the witness. Accordingly, it acquitted the police officers and the doctor of the offences on account of lack of evidence.

COMPLAINTS

The applicant complains under Articles 3 and 13 of the Convention that he was ill-treated whilst in police custody and that he did not have an effective remedy for his complaint of ill-treatment.

Invoking Article 5 §§ 2, 3 and 4 of the Convention, the applicant alleges that he was not informed of the reasons for his arrest and the charges against him, that he was kept in detention on remand for seven days, and that he did not have an effective remedy whereby he could challenge the lawfulness of his detention.

He complains under Article 6 §§ 1 and 3 of the Convention that the written submissions of the Principal Public Prosecutor to the Court of Cassation were not communicated to him.

THE LAW

1.  The applicant complains under Article 6 §§ 1 and 3 of the Convention that the written opinion of the Principal Public Prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments.

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 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicant alleges under Articles 3 and 13 of the Convention that he was subjected to ill-treatment in police custody and that the authorities had not conducted an effective investigation into his allegation of ill-treatment.

The Court first notes that the applicant could not provide any proof, such as medical reports, to support his allegations of ill-treatment. It further notes that the public prosecutor conducted an investigation into the applicant’s complaint of ill-treatment and instituted criminal proceedings against the police officers and the doctor before the Osmaniye Assize Court. The court took note of the several medical reports drafted on different occasions which consistently recorded no signs of physical violence on the applicant’s body. The court also heard statement from the witness. The court then concluded that the applicant’s allegations of ill-treatment were not supported by the medical reports and witness’ statement and that there was no sufficient evidence to convict the defendants of the offences.

Under these circumstances, the Court finds no evidence before it to suggest that the applicant had been ill-treated contrary to Article 3 of the Convention.

The Court further notes that Article 13 of the Convention applies only where an individual has an “arguable claim” to be the victim of a violation of a right under the Convention (see, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). Having regard to the considerations under Article 3, the Court considers that the applicant did not make out an “arguable claim” for that grievance which would have required a remedy under Article 13.

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

3.  The applicant finally complains under Article 5 §§ 2, 3 and 4 of the Convention that he was not informed about the reasons for his arrest, that he was not brought promptly before a judge or other officer authorised by law to exercise judicial power, and that he did not have a remedy in domestic law whereby he could have challenged the legality of his detention.

The Court notes that the applicant was arrested on 22 January 2000 and he was remanded in custody on 28 January 2000. However, the application was lodged with the Court on 19 May 2002, which is more than six months after the end of his police custody.

Accordingly, this part of the application must be rejected for non-compliance with the six-month time-limit, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the non-communication to the applicant of the submissions of the Principal Public Prosecutor to the Court of Cassation;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

TURGAY v. TURKEY DECISION


TURGAY v. TURKEY DECISION