SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28436/02
by Şener DÜNÜK
against Turkey
The European Court of Human Rights (Second Section), sitting on 26 June 2007 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrR. Türmen,
MrM. Ugrekhelidze,
MrV. Zagrebelsky,
MrsD. Jočienė,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 19 April 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Şener Dünük, is a Turkish national who was born in 1978 and was detained in Diyarbakır prison at the time of the application to the Court. He is represented before the Court by Mr F.H. Demir, a lawyer practising in Diyarbakır.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 October 2001 the applicant was taken into custody by police officers from the anti-terrorism branch of the Diyarbakır Security Directorate in the course of a police operation carried out against the Hizbullah. (It is to be noted that according to the arrest report, signed by six police officers and the applicant, the latter was taken into police custody on 9 October 2001.)
On 19 October 2001 at 8.30 p.m. the applicant was taken to the emergency service of the Diyarbakır State Hospital and examined by a doctor who found no pathological signs on the applicant’s body. The applicant was subsequently brought before a single judge at the Diyarbakır State Security Court, who ordered his detention on remand. The applicant was then transferred to the Diyarbakır prison.
On the same day, at the request of the Governor of the State of Emergency Region and the public prosecutor, pursuant to Article 3 (c) of Law-Decree no. 430, which allowed them to take further measures within the framework of the state of emergency, a single judge at the State Security Court authorised the applicant’s return from prison to the anti‑terrorism branch of the Diyarbakır Security Directorate for further interrogation for a duration of ten days.
On 25 October 2001 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and two other persons, charging them with attempting to undermine the constitutional order under Article 146 of the Criminal Code.
On 29 October 2001 the applicant was examined by a doctor at the Diyarbakır State Hospital who noted the following:
“No sign of recently occurred physical violence has been observed”.
On the same day, the single judge at the State Security Court authorised the applicant’s detention in the security directorate for a further ten days.
On 4 November 2001 the applicant was taken to a private hospital by police officers who registered him in the hospital records under another name, Ahmet Çevik. The applicant was treated and taken back to the security directorate on the same day. As his health deteriorated, on 5 November 2001 he was taken to the State Hospital. (It is to be noted that the applicant did not submit the documents concerning his treatment in the private hospital and the Diyarbakır State Hospital on 4 and 5 November 2001.)
On 6 November 2001 at 8.35 a.m. the applicant was again examined by a doctor at the Diyarbakır State Hospital who noted the following:
“...The patient complains of pain in the right shoulder. He has sensitivity upon palpation in the right shoulder. No pathological sign has been observed on the body...”
On 8 November 2001 at around 6 p.m. the applicant was examined by a doctor at the Diyarbakır State Hospital who noted that the applicant alleged to have pain in the right shoulder. He further observed that there was no pathological sign on the applicant’s body. The applicant was given an analgesic injection by the doctor. (The medical report submitted to the Court is partially illegible.)
Subsequently, the applicant was transferred to Diyarbakır prison.
On an unspecified date, the Diyarbakır State Security Court decided to hold the first hearing on the merits of the case on 25 December 2001.
On 12 November 2001 the applicant’s lawyer filed a petition with the State Security Court and requested the latter to order that the applicant be referred to a State Hospital since he had been subjected to ill-treatment while detained. In particular, he was subjected to Palestinian hanging and given electric shocks to his sexual organs. The lawyer also stated that the applicant’s arms were bandaged and that the prison doctor had prescribed medication for him.
On 14 November 2001 the applicant sent a petition to the Diyarbakır public prosecutor’s office. He contended in his petition, inter alia, that he had been subjected to various forms of ill-treatment while he was in police custody.
On 2 January 2002 the applicant filed a petition with the Diyarbakır State Security Court informing the latter that he had brought his allegations of ill-treatment to the attention of the public prosecutor’s office on 14 November 2001 and that he had only been taken to the hospital on 28 December 2001. He further maintained that the doctor who had examined him in the hospital was prevented from drafting a medical report about him by the prison staff.
On an unspecified date the Diyarbakır public prosecutor initiated an investigation into the applicant’s allegations. In that connection, on 7 January 2002 he requested the public prosecutor at the Diyarbakır State Security Court to submit the relevant medical reports to him. On 31 January 2002 the requested reports were submitted.
On 5 March 2002 the applicant’s lawyer filed a petition with the Diyarbakır State Security Court and requested the latter to refer the applicant for a medical examination at the Diyarbakır branch of the Forensic Medicine Institute. In his petition, the lawyer stated that the applicant had been subjected to Palestinian hanging as a result of which he had suffered a loss of strength and the movement of his arms.
On the same day the first-instance court took note of the applicant’s allegations of ill-treatment and decided that he was free to lodge a complaint with the public prosecutor’s office.
By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court.
According to the last information submitted by the applicant, the proceedings are still pending.
B. Relevant domestic law
A description of the relevant domestic law at the material time can be found in Karagöz v. Turkey (no. 78027/01, §§ 42-47, 8 November 2005).
COMPLAINTS
The applicant complained under Article 3 of the Convention that he was subjected to ill-treatment during his detention in police custody between 9 October and 8 November 2001 and that, despite his complaints before the Diyarbakır State Security Court, there was no effective investigation into his allegations.
The applicant complained under Article 5 of the Convention he was taken into police custody on 6 October 2001 whereas the date of his arrest was mentioned as 9 October 2001 in the arrest report.
The applicant maintained under Article 6 of the Convention that the length of his detention in police custody was excessive. He further complained under the same head that his detention in police custody between 19 October and 8 November 2001 was unlawful and that the State Security Court which authorised his detention could not be considered to have been independent and impartial.
By a letter dated 4 November 2002 the applicant complained, without invoking any Article of the Convention, that he had been denied access to his lawyer and his family members while in police custody.
THE LAW
1. The applicant complained under Article 3 of the Convention that he was subjected to ill-treatment while in police custody. In particular, he alleged that he was subjected to Palestinian hanging and electric shocks administered to his sexual organs.
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 complained under Article 5 of the Convention that according to the arrest report, he was taken into custody on 9 October 2001 whereas he was arrested on 6 October 2001.
The Court observes that the arrest report bears the signature of the applicant. Furthermore, the applicant failed to submit any other evidence or argument which would cast doubt on the veracity of the report in question and substantiate his allegation.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant complained under Article 6 of the Convention that his detention in police custody between 19 October and 8 November 2001 was unlawful and excessively long.
The Court considers that these complaints should be examined under Article 5 §§ 1 and 3 of the Convention. It further considers that it cannot, on the basis of the case file, determine their admissibility 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.
4. The applicant complained under Article 6 of the Convention that the Diyarbakır State Security Court was not independent and impartial. He further complained that he was denied legal assistance while in police custody.
The Court considers that the latter complaint concerning legal assistance should also examined under Article 6 of the Convention.
The Court observes that the proceedings brought against the applicant are apparently still pending before the Diyarbakır Assize Court. It is therefore not in a position to make an overall assessment of their fairness. The Court further considers that it cannot speculate on their ultimate outcome, including any appeals (see Dikme v. Turkey, no. 20869/92, § 111, ECHR 2000-VIII).
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. By a letter dated 4 November 2002 the applicant complained, without invoking any Article of the Convention, that he had been denied access to his family members while in police custody.
The Court reiterates that, where no domestic remedy is available, the six‑month period runs from the date of the act alleged to constitute a violation of the Convention.
The Court notes that the applicant’s detention in police custody ended on 8 November 2001, whereas this complaint was lodged with the Court on 4 November 2002, i.e. more than six months later.
It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning his alleged ill-treatment and the lawfulness and length of his detention in police custody;
Declares the remainder of the application inadmissible.
S. Dollé F. Tulkens
RegistrarPresident
Full & Egal Universal Law Academy