SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30263/02 
by Ahmet DURMAZ and Davut ŞAHİN 
against Turkey

The European Court of Human Rights (Second Section), sitting on 21 March 2006 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr R. Türmen
 Mr V. Butkevych
 Ms D. Jočienė, 
 Mr D. Popović, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 6 June 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, MM. Davut Şahin and Ahmet Durmaz, are Turkish nationals who were born in 1966 and 1970 respectively. The applicants are currently in prison. They are represented before the Court by Mr M. Özbekli, 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:

On 3 December 2001 the applicants were arrested by police officers from the anti-terrorism branch of the Diyarbakır Security Directorate and were taken into custody on suspicion of membership of the Hezbollah.

On 7 December 2001 they were brought before a single judge of the State Security Court, who ordered the applicants’ detention on remand. The applicants were placed in Diyarbakır Prison.

On 8 December 2001, at the request of the Governor of the State of Emergency Region and the public prosecutor, pursuant to Article 3 (c) of the Law-Decree no. 430, which allowed them to take further measures within the framework of the state of emergency, a single judge at the State Security Court authorised the applicants’ return from prison to the anti-terrorism branch of the Diyarbakır Security Directorate for further interrogation for a duration not exceeding ten days.

On an unspecified date the public prosecutor filed a bill of indictment against the applicants with the Diyarbakır State Security Court. The prosecutor sought the death penalty against one of them, pursuant to Article 146 of the Criminal Code, and punishment of the other for membership of an illegal organisation, pursuant to Article 168 of the Criminal Code.

The applicants denied their connection with the Hezbollah at the hearings before the Diyarbakır State Security Court, alleging that they had been ill-treated in police custody and that their statements had been made under duress.

B.  Relevant domestic law and practice

At the material time, two main decrees concerning the area of South-East Turkey were adopted pursuant to the Law on the State of Emergency (Law no. 2935 of 25 October 1983). Law-Decree no. 285 (10 July 1987) instituted a governorship for the state of emergency in certain areas of the South-East. Under the provisions of Article 4 (b) and (d) of this Decree, the entire police force and gendarmerie were at the disposal of the governor of the area.

Law-Decree no. 430 (16 December 1990) reinforced the powers of the governor. It provided in Article 3 (c) that, following a proposal from the governor or a request from the public prosecutor, and by the decision of a judge, persons remanded in custody could be removed from prison for interrogation for a duration not exceeding ten days. The persons concerned could request a medical examination when leaving the prison and, again, on their return.

Article 8 of Law-Decree no. 430 of 16 December 1990 provides as follows:

“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim an indemnity from the State for damage suffered by them without justification.”

Since 30 November 2002 the state of emergency which was in force in the last two provinces in South-East of Turkey (Diyarbakır and Şırnak) was lifted permanently. Consequently, Law-Decree no. 430 ceased to apply as of that date.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment in police custody.

Invoking Article 5 §§ 3, 4 and 5 of the Convention, they allege that, following their detention on remand, they were returned to the security directorate for interrogation pursuant to the Law-Decree no. 430, that they did not have an effective remedy to challenge the lawfulness and length of their detention as it was bound to be dismissed pursuant to the same Decree, and that they did not have a right to compensation for a breach of this Article.

THE LAW

1.  The applicants complain under Article 5 §§ 3, 4, and 5 of the Convention of the lawfulness and length of their detention at the security directorate, the absence of an effective remedy whereby they could have challenged their detention, and the lack of a right to compensation in that respect.

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 § 2 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

2.  The applicants allege under Article 3 of the Convention that they were subjected to ill-treatment in police custody.

The Court observes that these allegations are stated in a very general manner. It notes that the applicants did not describe the conditions in which they were allegedly ill-treated or provide any proof, such as medical reports, to this effect.

The Court finds, therefore, that there is no evidence before it to suggest that the applicants were subjected to ill-treatment contrary to Article 3 of the Convention.

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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the lawfulness and length of their detention in police custody, the absence of an effective remedy whereby they could have challenged that detention, and their inability to obtain compensation;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

DURMAZ AND SAHIN v. TURKEY DECISION


DURMAZ AND SAHIN v. TURKEY DECISION