SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18376/09
by Deniz KESİK
against Turkey
The European Court of Human Rights (Second Section), sitting on 24 August 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 14 March 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Deniz Kesik, is a Turkish national who was born in 1977 and lives in Istanbul. He is represented before the Court by Mrs G. Altay and Mr Hakan Karakuş, lawyers practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 December 1997 the applicant was arrested on suspicion of involvement in the activities of TKP/ML-TIKKO (Communist Party of Turkey/Marxist‑Leninist/-Turkish Workers and Peasants' Liberation Army), an illegal organisation.
On 24 December 1997 the applicant was taken before the public prosecutor and the investigating judge, where he denied the veracity of his statements to the police and alleged that they were obtained through coercion. No medical report was submitted by him in that respect.
On the same day, the applicant was placed in pre-trial detention by the investigating judge.
On 29 December 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant with membership of an illegal organisation and throwing explosives.
In his defence submissions to the trial court on 12 March 1998, the applicant alleged that he was forced to sign self-incriminating statements while in police custody.
Following the abolition of State Security Courts by Law no. 5190, the criminal proceedings against the applicant were resumed by the 13th Division of the Istanbul Assize Court.
On 24 February 2009 the Istanbul Assize Court terminated the proceedings against the applicant on the grounds that they had become time-barred.
According to the information in the case file, the proceedings are currently pending before the Court of Cassation.
COMPLAINTS
The applicant alleged under Articles 3 and 13 of the Convention that he had been ill-treated while in police custody and, that despite his complaints to the authorities, no investigation had been initiated into his allegation of torture.
Relying on Article 6 § 1 of the Convention, the applicant complained that he had not been tried by an impartial court on account of the State Security Courts' special jurisdiction in certain types of offences. Under the same provision of the Convention, the applicant further complained about the length of the criminal proceedings against him.
Relying on Article 6 § 2 of the Convention, the applicant next argued that in the criminal investigation, the prosecuting authorities had only collected the evidence against him, in breach of his right to be presumed innocent.
The applicant submitted under Article 6 § 3 (a), (b), (c), (d) of the Convention that he had been denied legal assistance during his detention in police custody and before the public prosecutor, and that his procedural guarantees had not been respected in the course of the criminal proceedings.
Finally, the applicant argued under Article 13 of the Convention that there was no effective remedy provided in the domestic system with regard to his complaints under Article 6 of the Convention.
THE LAW
1. Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained about the length of the criminal proceedings against him and the alleged lack of a domestic remedy in that respect.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.
2. The applicant complained under Articles 3 and 13 of the Convention that he had been tortured while in police custody and that the domestic authorities had not conducted an adequate investigation into his allegation of ill-treatment.
The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention alone.
The Court notes in the first place that the applicant alleged before the public prosecutor and the investigating judge that his statements to the police had been taken under duress, without providing any details of the alleged acts. In his defence submissions to the first‑instance court on 12 March 1998, he denied the veracity of his police statements. Nevertheless, on the basis of the submissions in the case file, the Court observes that the applicant did not pursue his allegation of ill‑treatment in the entire course of the proceedings after the aforementioned date.
Even assuming that the applicant attempted to exhaust domestic remedies, the Court next observes that he did not provide any concrete evidence in support of his allegations of ill-treatment. In particular, the applicant did not submit evidence, in the form of a medical report, demonstrating that he had been subjected to any physical or psychological pressure during his detention in police custody. Nor did he argue that he had been unable to obtain or had been prevented from obtaining any such evidence. The Court therefore considers that in any case the applicant has failed to substantiate his complaint with appropriate evidence and to lay the basis of an arguable claim that he was ill-treated in police custody (see Yıldırım v. Turkey (dec.) no.33396/02, 30 August 2007, and Tanrıkolu and Others v. Turkey, no. 45907/99, 20 October 2005).
It follows that this part of application must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention for being manifestly ill-founded.
3. The applicant complained under the various provisions of Article 6 of the Convention that he had been denied a fair hearing as the judicial authorities had not respected his procedural rights in the criminal proceedings.
The Court notes that the criminal proceedings against the applicant are currently pending before the domestic courts. These other complaints under Article 6 are, therefore, premature. Consequently, this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the length of the criminal proceedings against the applicant and the alleged lack of an effective domestic remedy in that respect;
Declares the remainder of the application inadmissible.
Stanley NaismithFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy