AS TO THE ADMISSIBILITY OF
Application No.32578/96 Application No. 32579/96
by Abdullah ÇOLAK by Ömer FiLiZER
against Turkey against Turkey
The European Commission of Human Rights sitting in private on 30
June 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
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
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, 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 applications introduced on 28 December 1995
by Abdullah Çolak and Ömer Filizer against Turkey and registered on
8 August 1996 under file Nos. 32578/96 and 32579/96;
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 applicants are Turkish citizens, born in 1969 and 1964
respectively, who reside in Istanbul. They are represented before the
Commission by Bedia Buran, Naciye Kaplan and Filiz Kostak, lawyers
practising in Istanbul.
The facts of the present case, as submitted by the applicants,
may be summarised as follows.
On 28 April 1995 the first applicant and on 29 April 1995 the
second applicant were taken into police custody in Istanbul on
suspicion of being members of the PKK.
On 29 April 1995 the Public Prosecutor at the Istanbul State
Security Court ordered the applicants' detention in custody until 9 May
1995.
On 2 May 1995 the applicants signed statements which referred to
their activities in the PKK and their connections with other PKK
members.
On 5 May 1995 they were questioned by the Public Prosecutor at
the Istanbul State Security Court. In their questioning they denied
their statements made to the police.
On 6 May 1995 they were brought before a judge of the State
Security Court. They reiterated before the judge their statements to
the Public Prosecutor. The judge, having regard to the nature of the
accusations and the evidence already available, placed them in
detention on remand.
In an indictment dated 22 June 1995, the Public Prosecutor at the
Istanbul State Security Court charged the applicants with carrying out
acts aimed at the separation of a part of the State territories. Twelve
other persons, who had all been taken into police custody during the
operations carried out by the Istanbul police against the PKK in April
1995, were charged along with the applicants. The Public Prosecutor
gave a detailed account of the acts in which the accused were
allegedly involved. The Public Prosecutor requested that the applicants
be convicted and sentenced under Article 168 of the Turkish Criminal
Code and Article 5 of the Anti-Terror Law.
On 5 May 1995 the first applicant was examined by the Istanbul
Forensic Medicine Institute. In a report to the Public Prosecutor of
Istanbul, the institute's doctor noted that there was no sign of
beating, force or violence.
The first applicant later underwent a medical examination in the
prison. On 22 May 1995 the prison doctor, in his report, noted the
presence of fading bruises and ecchymosis on the left foot.
In the meantime, on 18 May 1995, the second applicant was
examined by the prison doctor who, in his report, noted the presence
of abrasions on the penis, pain in the chest and ecchymosis under the
left eye. He also observed that the applicant felt pain while chewing
and pain in both his shoulders.
On 1 June 1995 the applicants filed a complaint with the Public
Prosecutor of Fatih alleging that they had been ill-treated while in
police custody.
On 21 September 1995 the Public Prosecutor of Fatih dismissed the
allegations, pointing out that there was insufficient evidence in order
to bring any criminal proceedings against the Istanbul Security
Directorate Security officers.
On 13 October 1995 the applicants applied to the Assize Court of
Beyoglu to have the dismissal order by the Public Prosecutor of Fatih
set aside.
On 14 December 1995 the Assize Court of Beyoglu, ruling on the
evidence submitted to the court, rejected the applications.
The criminal proceedings against the applicants before the State
Security Court are still pending and they are still in detention.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention that
they were ill-treated in police custody.
They allege that during their detention by the police, they were
physically abused.
The applicant Abdullah Çolak claims that he was kept blindfolded,
seriously beaten up and that in the course of such treatment he was
repeatedly forced to confess to criminal conduct.
The applicant Ömer Filizer also claims that he was kept
blindfolded, seriously beaten up and that in the course of such
treatment he was repeatedly forced to confess to criminal conduct. He
further alleges that he was subjected to various forms of ill-treatment
such as electric shocks and hanging by the arms.
2. The applicants further complain under Article 5 para. 3 of the
Convention that they were kept in police custody for seven days without
being brought before a judge.
3. They also complain under Article 5 para. 4 of the Convention that
Turkish law does not afford any effective remedy by which the
lawfulness of their police custody could be decided speedily by a
court.
The applicants allege under the same paragraph that they were not
kept in police custody in order to be brought before the judicial
authorities or because there were reasonable suspicions against them,
but for the purpose of extracting information and confessions from them
by force.
4. The applicants also complain under Article 6 paras. 1 and 3 (c)
of the Convention that they were not permitted the assistance of a
lawyer during their questioning by the police and later by the public
prosecutor.
5. The applicants lastly allege discrimination under Article 14 in
conjunction with Article 6 paras 1 and 3 (c) of the Convention in that,
according to the Code of Criminal Procedure, individuals have the right
to the assistance of a lawyer during questioning by the police and the
public prosecutor, whereas those suspected of offences which fall
within the jurisdiction of the State Security Courts are prevented from
enjoying this right.
THE LAW
1. The applicants complain under Article 5 para. 3 (Art. 5-3) of the
Convention that they were kept in police custody for seven days without
being brought before a judge.
They also complain under Article 5 para. 4 (Art. 5-4) of the
Convention that Turkish law does not afford any effective remedy by
which the lawfulness of their police custody could be decided speedily
by a court. They further allege that they were not kept in police
custody in order to be brought before the judicial authorities or
because there were reasonable suspicions against them, but for the
purpose of extracting information and confessions from them by force.
However, concerning the above complaints, the Commission is not
required to decide whether or not the facts alleged by the applicants
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 notes that the situation complained of occurred
on 28 and 29 April 1995 whereas the applications were submitted to the
Commission on 28 December 1995, 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 applicants further complain under Article 6 paras. 1 and 3
(c) (Art. 6-1, 6-3-c) of the Convention that they were not permitted
the assistance of a lawyer during their questioning by the police and
later by the public prosecutor.
They also allege discrimination under Article 14 in conjunction
with Article 6 paras 1 and 3 (c) (Art. 14+6-1+6-3-c) of the Convention
in that, according to the Code of Criminal Procedure, individuals have
the right to the assistance of a lawyer during questioning by the
police and the public prosecutor, whereas those suspected of offences
which fall within the jurisdiction of the State Security Courts are
prevented from enjoying this right.
However the Commission notes that the criminal proceedings
against the applicants are still pending before the State Security
Court.
According to its case-law, the Commission must take into
consideration the entire criminal proceedings brought against the
applicants in order to express an opinion as to whether they comply
with the requirements of Article 6 (Art. 6) of the Convention (cf. e.g.
Nos. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec.
25.5.95, D.R. 81-B p. 94).
The introduction of the above complaints therefore appears
premature given the current stage of the proceedings before the first
instance courts. The applicants cannot complain at this stage of any
violation of the Convention during the early phase of the proceedings
concerned. They may re-submit the case to the Commission if, following
the outcome of the criminal proceedings against them, they still
consider themselves victims of violations of the Convention in the
above respects. The present complaints on this point must therefore be
rejected as manifestly ill-founded pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicants complain under Article 3 (Art. 3) of the
Convention that they were ill-treated in police custody. They allege
that during their detention by the police they were physically abused.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of these complaints to the
respondent Government.
For these reasons, the Commission, unanimously,
1. DECIDES TO JOIN THE APPLICATIONS,
2. DECIDES TO ADJOURN the examination of the applicants'
complaints related to the alleged ill-treatment during
their police custody,
3. DECLARES THE REMAINDER OF THE APPLICATIONS INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy