AS TO THE ADMISSIBILITY OF
Application No. 30492/96
by Esma ERAT and Metin SAGLAM
against Turkey
The European Commission of Human Rights sitting in private on
1 December 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
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
B. MARXER
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 M. de SALVIA, 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 19 December 1995
by Esma Erat and Metin Saglam against Turkey and registered on 19 March
1996 under file No. 30492/96;
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 1965. They are
represented before the Commission by Naciye Kaplan, a lawyer practising
in istanbul.
The facts of the present case, as submitted by the applicants,
may be summarised as follows.
The applicants were taken into police custody in istanbul on
suspicion of being members of the PKK on 27 February 1995 in the case
of the first applicant and on 8 March 1995 in the case of the second
applicant.
On 6 March 1995 the first applicant, and on 16 March 1995 the
second applicant, signed statements before the police which referred
to their activities in the PKK and their connections with other PKK
members.
The applicants were questioned by the Public Prosecutor at the
istanbul State Security Court on 13 March 1995 in the case of the first
applicant and on 20 March 1995 in the case of the second applicant. In
the course of questioning they denied their statements made to the
police.
The applicants were brought before a judge of the State Security
Court on 13 March 1995 in the case of the first applicant and on 20
March 1995 in the case of the second applicant. Before the judge they
reiterated 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 24 April 1995, the Public Prosecutor at
the istanbul State Security Court charged the applicants with being
members of an armed organisation (PKK) and carrying out acts aimed at
the separation of a part of the territory of the State. The Public
Prosecutor gave a detailed account of the acts in which the accused
were allegedly involved. He 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 13 March 1995 the first applicant was examined by the Istanbul
Institute of Forensic Medicine. In a report to the Public Prosecutor
of istanbul, a doctor from the institute noted briefly that there were
some bruises and ecchymosis on different parts of her body,
particularly on the right arm. The report also mentioned that these
injuries could have occurred seven to ten days previously and were not
life threatening. On 14 March 1995 the first applicant was again, upon
her request, examined by the prison doctor, who, in his provisional
report, identified haematomas 2 cm in diameter on both legs, ecchymoses
2 cm in diameter on her breast and bruising to both armpits. The prison
doctor however concluded that the detailed medical report should be
given by the istanbul Forensic Medicine Institute.
On 20 March 1995, the second applicant was examined by the prison
doctor who, in his report, noted the presence of some bruises on the
left arm biceps and right leg, and pain in the penis. He also observed
that the applicant felt pain when breathing. The prison doctor,
however, concluded that the detailed medical report should be given by
the Istanbul Forensic Medicine Institute.
On 1 June 1995 the first applicant, and on 25 May 1995 the second
applicant, filed complaints 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
first applicant's allegations, pointing out that there was insufficient
evidence to bring any criminal proceedings against the istanbul
Security Directorate officers.
On 14 September 1995 the Public Prosecutor of Fatih dismissed the
second applicant's allegations, pointing out that there was
insufficient evidence to bring any criminal proceedings against the
istanbul Security Directorate 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.
The first applicant alleges that during her detention by the
police, she was stripped naked and sexually assaulted, that she was
subject to Palestinian hanging and given several electric shocks,
seriously beaten up and threatened with being shot dead, deprived of
adequate food and not allowed to use toilet facilities.
The second applicant alleges that during his detention by the
police, he was physically and mentally abused. He claims that he was
stripped naked and on many occasions high pressure water-hoses,
discharging cold water, were turned on him, particularly onto his
genitalia, that he was subject to Palestinian hanging and given several
electric shocks, that his genitalia were squeezed during
interrogations, that he was threatened with being shot dead and that
in the course of such treatment he was repeatedly forced to confess to
criminal conduct while he was kept blindfolded.
2. The applicants further complain under Article 5 para. 3 of the
Convention that they were kept in police custody between twelve and
fourteen days without being brought before a judge.
The applicants also complain of a violation of Article 14 in
conjunction with Article 5 of the Convention since they were unable to
use before the State Security Court the remedies available to detained
persons under the Code of Criminal Procedure.
3. The applicants lastly 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.
THE LAW
1. 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.
2. The applicants further complain under Article 5 para. 3
(Art. 5-3) of the Convention that they were not brought promptly before
a judge. They also complain of a violation of Article 14, in
conjunction with Article 5 (Art. 14+5) of the Convention.
The Commission recalls that according to Article 26 (Art. 26) of
the Convention, it may deal only with applications introduced within
a period of six months after the final domestic decision.
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. In this context the Commission refers to its established case-
law (No. 8007/77, Dec. 10.7.78, D.R. 13 p. 85, at p. 153).
In the present case the Commission observes that the applicants
were arrested pursuant to the Law on the Procedures of State Security
Courts and that no domestic remedy was available in order to challenge
the lawfulness and the length of their police custody (Sakik and others
v. Turkey, Comm. Report 23.5.1996, para. 73, p. 14, to be published in
Reports of Judgments and Decisions). The situation complained of ended
on 13 and 20 March 1995 respectively, whereas the application was
submitted to the Commission on 19 December 1995, that is more than six
months later.
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.
3. The applicants lastly complain under Article 6 paras. 1 and 3 (c)
(Art. 6-1, 6-3-c) of the Convention that they did not have a fair trial
and were deprived of their right to have contact with a lawyer during
their police custody and during their interrogation by the Public
Prosecutor.
The Commission notes, however, that the criminal proceedings
against the applicants are still pending.
The Commission recalls its constant case-law according to which
it is necessary to take into consideration the criminal proceedings in
their entirety in order to express an opinion as to whether or not they
comply with the requirements of Article 6 (Art. 6) of the Convention.
It further notes that, under Turkish law, the applicants can submit to
the first instance court and the Court of Cassation the complaints
which they now raise before the Commission.
The introduction of these complaints accordingly appears
premature, given the current stage of the proceedings before the
domestic courts. The applicants cannot therefore complain at this stage
of any violation of the Convention. 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 the alleged
violations. The application must therefore be rejected on this point
as manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2)
of the Convention (Nos. 23878/94, 23879/94, 23880/94, 23881/94,
23882/94, 23883/94, Dec. 25.5.95, D.R. 81-B p. 94).
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicants' complaints
related to alleged ill-treatment during their police custody,
by a majority,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy