THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 895/02 
by Aynur SİZ 
against Turkey

The European Court of Human Rights (Third Section), sitting on 26 May 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr R. Türmen
 Mr C. Bîrsan
 Ms R. Jaeger
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 25 October 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Aynur Siz, is a Turkish national who was born in 1980 and is currently detained in Ankara Prison. She is represented before the Court by Ms E. Olkun, a lawyer practising in Ankara.

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

On 24 May 1999 the applicant, who was working for a newspaper called Kurtuluş, was taken into police custody by police officers from the Tokat Security Directorate on suspicion of membership of an illegal organisation, namely the DHKP/C (Revolutionary People's Liberation Party-Front).

On the same day the applicant was taken to three different hospitals to undergo a gynaecological examination in order to establish her virginity status. On 30 May 1999, on the last day of her custody, she was further taken to the hospital for another gynaecological examination. As she did not give her consent, the doctors did not perform a gynaecological examination during these occasions.

On 30 May 1999 the applicant was brought before the Tokat public prosecutor. The applicant accepted the content of her police statement with merely amendments before the public prosecutor. The same day she was further brought before the investigating judge at the Tokat Magistrate's Court, where she denied the accuracy of both, her police statement and the statement she made to the public prosecutor. The investigating judge decided to place her in detention on remand on account of the evidence in the file and the nature of the offences against her.

On 31 May 1999 the Tokat public prosecutor declined jurisdiction and transferred the case to the public prosecutor of the Ankara State Security Court.

In an indictment dated 15 June 1999, the Ankara State Security Court Public Prosecutor initiated criminal proceedings against the applicant and accused her of being a member of an illegal organisation.

At the hearing of 12 August 1999 the applicant submitted a letter to the court and renounced her police statement, alleging that it was taken under duress. She further explained that she was under the influence of coercion and threat from police when she was brought before the public prosecutor and the investigating judge after custody. She repeated that she was exposed to various form of ill-treatment whilst in custody.

On 11 July 2000 the Ankara State Security Court found that the applicant had been continuously engaged in the activities of the said illegal organisation. It therefore found the applicant guilty as charged under Article 168 of the Criminal Code and sentenced her to twelve years' six months' imprisonment.

On 4 April 2001 the applicant submitted her appeal petition to the Court of Cassation. While challenging the decision of the first-instance court, she referred to her ill-treatment in custody. She also stated she had been taken to the hospital on three occasions during her police custody to undergo a gynaecological examination. She alleged that this treatment constituted degrading treatment.

On 25 April 2001 the Court of Cassation, upholding the Ankara State Security Court's reasoning and assessment of evidence, rejected the applicant's appeal.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that she was subjected to ill-treatment. She further submits that during her custody, she was taken to the hospital four times for a gynaecological examination which constituted degrading treatment.

2. The applicant alleges under Article 5 of the Convention that she was not informed of the reason for her arrest, and that the length of her police custody exceeded the reasonable time requirement.

3. The applicant maintains that she was kept in detention on remand for one year and eleven months, which constituted a further breach of Article 5 § 3 of the Convention.

4.  The applicant submits that her right to be presumed innocent until proven guilty was infringed throughout the investigation and the trial. In this respect, she invokes Articles 6 § 2 and 7 of the Convention.

5.  The applicant alleges under Articles 9 and 10 of the Convention that she was punished as she was working for the Kurtuluş newspaper and submits that her conviction constituted a breach of her freedom of expression.

6.  The applicant alleges under Article 14 of the Convention that she was subjected to discrimination on account of her political beliefs.

THE LAW

1.  The applicant maintains under Article 3 of the Convention that she was subjected to various forms of ill-treatment during her police custody. She also alleges that by being taken to the hospital on four occasions for gynaecological examinations during her police custody, she was subjected to treatment contrary to Article 3 of the Convention.

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 complains of the length of her police custody which lasted for seven days. She also maintains that she was not informed of the reasons for her arrest. In this respect, she invokes Article 5 of the Convention.

The Court observes that the applicant was arrested on 24 May 1999 and she was remanded in custody on 30 May 1999. However, her application was lodged with the Court on 25 October 2001, more than six months after the end of her police custody.

Accordingly, this part of the applicant's complaint should be rejected for non-compliance with the six-month time limit pursuant to Article 35 §§ 1 and 4 of the Convention.

3.  The applicant further complains under Article 5 § 3 of the Convention about the length of her detention on remand.

In the present case the applicant was detained on remand on 30 May 1999 and was convicted by the judgment of the Ankara State Security Court of 11 July 2000. On 25 April 2001 the Court of Cassation upheld the judgment of the Ankara State Security Court. Following that date, the applicant was detained “after conviction by a competent court” and no longer “for the purpose of bringing her before the competent legal authority”. Accordingly, the period to be considered under Article 5 § 3 of the Convention started on 30 May 1999 and ended on 11 July 2000. As the applicant lodged her application with the Court on 25 October 2001, this complaint has been introduced out of time.

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

4.  Invoking Articles 6 § 2 and 7 of the Convention, the applicant alleges that her right to be presumed innocent until proven guilty was infringed.

The Court observes that the applicant has not specifically set out the details of the alleged breaches of Articles 6 § 2 and 7 in her application form. It further finds no evidence in the case-file to support the applicant's allegations in this respect. It is therefore concluded that the applicant has failed to substantiate her allegations and to provide grounds that support an examination of this complaint.

In the light of the foregoing, 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.

5.  The applicant further alleges under Articles 9 and 10 of the Convention that her conviction resulted in a violation of her rights to freedom of thought and expression.

The Court observes that the applicant was not convicted for having expressed her opinions or for having worked for a newspaper, but for membership of an illegal organisation, pursuant to Article 168 of the Criminal Code. In the light of the evidence before it, the domestic court found it established that the applicant had been continuously engaged in the illegal activities of the DHKP/C. It accordingly concluded that she was a member of that organisation. There is therefore nothing in the case file that could support the applicant's claims under Articles 9 and 10 (see in this respect Murat Kılıç v. Turkey, no. 40498/98, 8 July 2003 and Şirin v. Turkey (dec.), no. 47328/99, 27 April 2004).

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

6.  The applicant submits under Article 14 of the Convention that she was discriminated against on account of her political opinions.

The Court observes that the applicant was tried and convicted on account of her membership to an illegal organisation and not because of her political views.

Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning Article 3 of the Convention;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

SIZ v. TURKEY DECISION


SIZ v. TURKEY DECISION