SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38419/02 
by Sacettin YILDIZ 
against Turkey

The European Court of Human Rights (Second Section), sitting on 9 May 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 3 October 2002,

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 Sacettin Yıldız, is a Turkish national who was born in 1970 and lives in Istanbul. He is represented before the Court by Mr M.N. Ayhan, a lawyer practising in Istanbul.

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

On 18 August 2001 the applicant was taken into custody by police officers from the Peace and Order Department of the Istanbul Security Directorate, on suspicion of being involved in the murder of two sisters.

During his questioning by the police, despite his request, he was not provided with the assistance of a lawyer. He was allegedly given electric shocks and beaten on the soles of his feet by the police officers.

In his statements dated 19 August 2001, drafted by the police officers, the applicant confessed to his involvement in the murder and gave a detailed explanation as to the facts of the incident.

On 22 August 2001 the judge at the Kadıköy Magistrates’ Court authorised the extension of the applicant’s detention in police custody for three more days.

On 24 August 2001, upon the public prosecutor’s request, the applicant was examined by a doctor from the Forensic Medicine Department. According to the medical report, the applicant had a purple and pink lesion of 15x13 cm under his right foot and two lesions of 3x5 cm and 8x10cm under his left foot. The report concluded that it would be appropriate for the applicant to rest for ten days.

Later on the same day, the applicant was taken to the office of the Kadıköy public prosecutor, where he reiterated his earlier confessions and assured him that he had not been ill-treated by the police officers. When he was asked to comment on the medical report dated 24 August 2001, the applicant contended that his feet were in that condition due to the fact that he had been wearing his shoes for too long.

The applicant reiterated these statements before the judge at the Kadıköy Magistrates’ Court, who ordered his detention on remand.

According to a forensic report dated August 2001, the applicant’s fingerprints did not match those found at the crime scene.

Criminal proceedings against the applicant

On 18 September 2001 the Kadıköy public prosecutor filed an indictment against the applicant and joined him as the seventh accused to the murder case that was already pending before the Kadıköy Assize Court.

On 10 October 2001 the Istanbul Bar Association appointed a lawyer to represent the applicant.

On 25 October 2001 the applicant appeared before the Kadıköy Criminal Court for the first time. He denied all allegations against him. He contended that during his detention in police custody he had confessed to the crime under coercion. Moreover, he maintained that the police had threatened him with taking him back to the police station, if he did not also confess before the public prosecutor and the judge at the Magistrates’ Court.

At almost every hearing held before the Kadıköy Assize Court, the applicant denied his alleged involvement in the murder and requested to be released pending trial. The court ordered his continued detention on remand, relying on the nature of the offence and the content of the case file.

At the hearing on 8 August 2002, the intervening parties, who were the parents of the victims, maintained that they believed that the applicant was innocent.

On 4 December 2003 the Assize Court convicted the applicant and another accused and sentenced them to life imprisonment; it acquitted the other accused.

On 6 May 2005 the Court of Cassation upheld the decision of the Assize Court.

Criminal proceedings concerning the applicant’s allegations of torture

On 7 January 2002 the applicant filed a complaint with the Kadıköy public prosecutor, complaining about the torture to which he had allegedly been subjected during his detention in police custody. He also submitted the medical report dated 24 August 2001.

On 5 April 2002 the Istanbul public prosecutor issued a decision of non-prosecution of the police officers. He held that the applicant, in his statements given at the Kadıköy public prosecutor’s office, had confessed to having committed the murders and had maintained that he had not been subjected to any form of ill-treatment.

On 3 May 2002 the applicant objected to the decision of non-prosecution, before the Eyüp Criminal Court.

On 25 July 2002 the Criminal Court dismissed his objection.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was tortured during his detention in police custody and that there was no effective investigation in respect of his allegation.

He complains under Article 5 § 3 of the Convention that he was held in police custody for an excessive period of time.

He maintains under Article 5 § 4 of the Convention that Turkish law does not afford any effective remedy by which the lawfulness of his pre-trial detention could be decided.

Additionally, he invokes Article 5 § 2 of the Convention.

The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial.

He alleges under Article 6 § 2 of the Convention that he was not presumed innocent by the judicial authorities.

Moreover, invoking Article 6 § 3 (a), (b), (c) and (d) of the Convention, the applicant contends that he was deprived of his right of defence as he was not allowed to consult a lawyer during the preliminary investigation.

THE LAW

1.  The applicant complains under Article 3 of the Convention that he was subjected to torture while he was held in police custody and that, despite him raising this complaint before the Assize Court and filing a petition with the public prosecutor, the authorities did not carry out an investigation into his allegations.

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 this part of the application to the respondent Government.

2.  Invoking Article 5 §§ 2, 3 and 4 of the Convention, the applicant contends that his detention in police custody was too long and that he did not have an effective remedy in domestic law to complain about the lawfulness of his detention.

The Court observes that the applicant was taken into police custody on 18 August 2001 and placed in detention on remand on 24 August 2001.

However, the applicant lodged his application with the Court on 3 October 2002, i.e. more than six months later.

It follows that these complaints have been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

3.  The applicant complains that he was not allowed to consult a lawyer during his questioning by the police, the public prosecutor and by the judge at the Kadıköy Magistrates’ Court during the initial stage of the proceedings. He invokes Article 6 § 3 (a), (b), (c) and (d) of the Convention.

The Court considers that it is more appropriate to examine this complaint under Article 6 §§ 1 and 3 (c) of the Convention. However, it cannot, on the basis of the case file, determine the admissibility of this complaint and 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.

4.  The applicant further invokes Article 6 § 2 of the Convention.

The Court notes that the applicant failed to substantiate his allegations. Consequently, it considers that this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

For these reasons, the Court unanimously

Adjourns the examination of the applicant’s complaints concerning his alleged ill-treatment in police custody, the lack of an effective investigation into his allegations of torture, and the fairness of his trial on account of his lack of legal representation during the preliminary investigation;

Declares the remainder of the application inadmissible.

S. Dollé  J.-P. Costa 
 Registrar President

YILDIZ v. TURKEY DECISION


YILDIZ v. TURKEY DECISION