AS TO THE ADMISSIBILITY OF
Application No. 24560/94
by ilhan DiKEN
against Turkey
The European Commission of Human Rights sitting in private on
20 January 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
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
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
Mr. R. NICOLINI
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 application introduced on 17 May 1994 by
Ilhan Diken against Turkey and registered on 7 July 1994 under file
No. 24560/94;
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 and a doctor, was born in 1960
and lives in Diyarbakir. He is represented before the Commission by
Senal Sarihan, a lawyer practising in Ankara.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 10 September 1992 a person N.Ü., who introduced himself as a
friend of the applicant's brother, visited the applicant in his
surgery. He asked the applicant to come with him to his home to examine
a patient. The applicant told him to come back later.
Later that day N.Ü. went back to the applicant's surgery. The
applicant went out with him. Then a taxi stopped beside them. N.Ü. told
the applicant that the taxi driver knew where the patient was. He asked
the applicant to get in the taxi and left. The applicant was then
driven to a house where he met a person with an injured wrist (N.Ö.).
The applicant examined the patient and told him that he should have his
wrist X-rayed. The taxi driver (Y.A.) gave the applicant his telephone
number and asked him to call him if it would be possible to X-ray
N.Ö.'s wrist.
The next day the applicant called Y.A. and asked him to bring
N.Ö. to the Diyarbakir Paediatric Hospital where he was working as a
medical practitioner. At about 8.00 p.m. on the same day the applicant
X-rayed N.Ö.'s wrist. After examining the X-ray he recommended the
necessary treatment.
On 7 October 1992 the applicant was taken into police custody.
On the same day his house was searched by the police and certain PKK
publications were seized.
In his statement to the police, it was recorded that the
applicant accepted that he was a supporter of the PKK and that he also
admitted having known that N.Ö. was a PKK member when he examined him.
On 20 October 1992 the applicant was questioned by the Public
Prosecutor at the Diyarbakir State Security Court. In his questioning
he denied the statement he had made to the police. He stated that he
had signed the statement under duress. He asserted that the
publications found in his home did not belong to him. He also asserted
that he had never met N.Ö. before, nor had he known that he was a PKK
member.
After being questioned by the Public Prosecutor, the applicant
was brought before a judge at the Diyarbakir State Security Court. He
reiterated the statement he had made to the Public Prosecutor. The
judge, having regard to the evidence already available, placed the
applicant in detention on remand.
The applicant was charged with assisting an armed organisation,
the PKK, with the aim of committing an offence. The charge was based
on Article 169 of the Turkish Criminal Code which stipulates that
whoever knowingly gives shelter, assistance, provisions, arms or
ammunition to an armed organisation or band or facilitates its actions
shall be punished by heavy imprisonment for three to five years. N.Ö.,
Y.A. and four other persons were indicted along with the applicant for
various offences.
At his trial before the Diyarbakir State Security Court, the
applicant denied the charges. He reiterated, inter alia, the statement
he had made to the Public Prosecutor and the judge. He asserted that
it was his obligation as a doctor to treat any patient. He argued that
at the time of the incident, he did not know that N.Ö. was a PKK
member. Even assuming that he had known, he was under an obligation,
as a doctor, not to denounce him to the security forces, because he was
a patient who needed treatment.
In a final opinion to the court, the Public Prosecutor requested
that the applicant be acquitted.
In a decision dated 21 June 1993, the court found the applicant
guilty of the offence with which he was charged. The applicant was
convicted and sentenced to three years and nine months' imprisonment.
The court referred to the police statement made by the applicant and
his co-accused. The court noted, however, that the applicant, although
he was not on duty on the date of the incident, had X-rayed N.Ö.'s
wrist and entered a false name in the hospital records. Having regard
also to the accused's evasive replies during the trial and the
particular circumstances of the incident, the court held that the
applicant's attitude could not be regarded as an ordinary doctor-
patient relationship.
The applicant and the Public Prosecutor appealed.
On 2 February 1994 the Court of Cassation dismissed the appeal.
It upheld the cogency of the State Security Court's reasoning and its
assessment of the evidence.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that
during his police custody he was held incommunicado, and that he was
sworn at and insulted.
2. The applicant also complains that he was held in police custody
for 13 days without being brought before a judge, contrary to the
requirements of Article 5 para. 3 of the Convention.
3. The applicant complains lastly under Article 7 para. 1 of the
Convention that he was convicted and sentenced for performing his
obligations as a doctor, i.e., treating a patient, and therefore that
he was held guilty of an act which did not constitute a criminal
offence under national or international law.
captain
THE LAW
1. The applicant complains that he was held in police custody for
13 days without being brought before a judge, contrary to the
requirements of Article 5 para. 3 (Art. 5-3) of the Convention. The
Article reads as follows:
"Everyone arrested or detained in accordance with the provisions
of paragraph 1 (c) of this Article shall be brought promptly
before a judge or other officer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable
time or to release pending trial. Release may be conditioned by
guarantees to appear for trial."
The applicant also complains that during his police custody he
was held incommunicado. In this context he invokes Article 3 (Art. 3)
of the Convention which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
However, concerning the above complaints, 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 against this
procedure.
The Commission notes that the situation complained of ended on
20 October 1992 whereas the application was submitted to the Commission
on 17 May 1994, 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 further complains under Article 3 (Art. 3) of the
Convention that during his police custody he was sworn at and insulted.
The Commission may leave open the question whether the applicant
has exhausted the domestic remedies in this respect as his complaint
must in any event be rejected for the following reasons.
The Commission recalls that ill-treatment must attain a minumum
level of severity to fall within the scope of Article 3 (Art. 3). The
assessment of this minumum level is, in the nature of things, relative;
it depends on all the circumstances of the case and, in particular, on
the nature and context of the treatment, the duration, physical or
mental effects thereof (Eur. Court H.R., Ireland v. United Kingdom
judgment of 18 January 1978, Series A no. 25, p. 65, para. 162; Tyrer
judgment of 25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30).
The Commission also recalls that under certain circumstances it
can be difficult to prove ill-treatment during imprisonment, but that
the applicant must at least submit a beginning of a sufficient proof
concerning the alleged treatment (No. 17126/90, Öner v Turkey, Dec.
30.8.1994, unpublished).
In the present case the Commission observes that the applicant
did not specify in what kind of language and in which circumstances he
had been sworn at and insulted during his police custody. His
allegation is of a general nature and it does not appear that he
specified the acts complained of before the domestic authorities.
Consequently, in the present case the Commission has not been
presented with any materials which substantiate the applicant's
allegations of ill-treatment or with any details which would allow it
to assess the character and gravity of the alleged abusive language
used against him.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains that he was convicted and sentenced
for performing his obligations as a doctor, treating a patient, and
therefore that he was found guilty of an act which did not constitute
a criminal offence under national or international law. He invokes
Article 7 para. 1 (Art. 7-1) of the Convention which provides as
follows:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the criminal
offence was committed."
However, the Commission observes that the applicant has been
convicted for assisting a PKK member in an illegal manner. It notes
that the domestic court held in its reasoning that there was sufficient
evidence to indicate that the applicant's attitude could not be
regarded as normal for a doctor. The court especially noted that
although the applicant had not been on duty on the date of the
incident, he had taken the patient to hospital and had entered a false
name in the hospital records.
The Commission also observes that the applicant did not deny the
events which constituted the basis of the domestic court's statement
of facts. The Commission finds no element which would allow it to
conclude that the court interpreted the law or established the facts
in an arbitrary or unreasonable manner. Therefore, there is no
appearance that the applicant's conviction was not in conformity with
Article 7 (Art. 7) of the Convention.
It follows that this part of the application is manifestly ill-
founded and must be rejected under Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy