AS TO THE ADMISSIBILITY OF
Application No. 32983/96
by Özgür ÇAVUSOGLU
against Turkey
The European Commission of Human Rights sitting in private on
8 September 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 August 1996 by
Özgür Çavusoglu against Turkey and registered on 17 September 1996
under file No. 32983/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen, was born in 1975 and lives in
Izmir. He is represented before the Commission by ilhan Gül Kireçkaya,
a lawyer practising in izmir.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 16 November 1995 the applicant was taken into police custody
in izmir on suspicion of being a member of a leftist terrorist
organisation.
On 27 November 1995 he was questioned by the Public Prosecutor
attached to the izmir State Security Court. He was also brought before
the judge of the izmir State Security Court. The judge having regard
to the nature of the offence, placed the applicant in detention on
remand. On the same day he was examined by a doctor from the izmir
Forensic Medicine Institute who noted in his report that there had been
no signs of beating, force or violence.
On 28 November 1995 the applicant requested a medical examination
concerning his allegations of ill-treatment and underwent a medical
examination in the above mentioned institution. In his report, the
doctor noted the presence of some bruises on the nose, lips and on the
left foot caused by a blunt instrument and concluded that these
findings did not constitute a danger to life but would prevent the
applicant from working for 2 days.
In an indictment dated 18 December 1995 the Public Prosecutor at
the izmir State Security Court charged the applicant together with
16 accused with being members of an illegal organisation whose aim was
to undermine the Turkish Constitution and replace it with a Marxist-
Leninist regime.
On 31 January 1996 the applicant lodged a complaint with the
Public Prosecutor of izmir and alleged that he had been ill-treated
while in police-custody.
On 18 February 1996 the Public Prosecutor of izmir dismissed the
complaint, pointing out that according to the medical report of
27 November 1995 there was no sign of beating, force or violence. The
Public Prosecutor also pointed out that the second report had been
obtained after the first one and there was no evidence substantiating
that the findings in the latter were due to ill-treatment by the
police.
On 26 February 1996 the applicant applied to the Assize Court of
Karsiyaka to set aside the order dismissing his complaint.
On 4 March 1996 the Assize Court of Karsiyaka rejected the
application. It held that in the absence of sufficient evidence against
the accused the decision taken by the Public Prosecutor was in line
with the law and procedure.
The criminal proceedings instituted against the applicant are
still pending and he is still in detention.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that
during his police custody he was hung by his arms. In this context he
explains that he suffers from pain in the heart as well as in the
muscles of the shoulder and breast area. He also complains that he
suffers from incontinence as a result of torture by forced entry of a
truncheon into the anus.
2. The applicant further complains that he was held in police
custody for 11 days without being brought before a judge, contrary to
the requirements of Article 5 para. 3 of the Convention.
THE LAW
1. The applicant complains that he was held in police custody for
11 days without being brought before a judge, contrary to the
requirements of Article 5 para. 3 (Art. 5-3) of the Convention.
However, concerning the above complaint, the Commission is not
required to decide whether or not the facts alleged by the applicant
disclose any appearance of a violation of these provisions, as
Article 26 (Art. 26) of the Convention provides that the Commission may
only deal with the matter within a period of six months from the date
on which the final decision was taken.
The Commission refers to its case-law according to which when an
act of a public authority is not open to any effective remedy, the six-
month period runs from the date on which the act took place
(No. 8007/77, Dec. 10.7.78, D.R. 13 p. 85, at p. 153).
The Commission observes that in the present case the applicant's
police custody was effected pursuant to the Law on the Procedures of
State Security Courts and that he had no domestic remedy in respect of
his detention in custody.
The Commission notes that the situation complained of ended on
27 November 1995 whereas the application was submitted to the
Commission on 26 August 1996, that is more than six months after that
date.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicant also complains under Article 3 (Art. 3) of the
Convention that during his police custody he was hung by his arms. In
this context he explains that he suffers from pain in the heart as well
as in the muscles of the shoulder and breast area. He also complains
that he suffers from incontinence as a result of torture by forced
entry of a truncheon into the anus.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of this complaint to the respondent
Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicant's complaint
that during his police custody he was subjected to torture;
unanimously,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Deputy Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy