SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 54614/07
by Mehmet Mansur DEMİR
against Turkey
The European Court of Human Rights (Second Section), sitting on 2 march 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mehmet Mansur Demir, is a Turkish national who was born in 1975. He is currently serving a prison sentence in Diyarbakır.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 14 December 2000 the applicant was arrested on suspicion of membership of the Hizbullah, an illegal organisation. Without submitting any medical report or evidence, the applicant alleged that he had been ill-treated in police custody where he had received electric shocks for three days and was forced to make self-incriminating statements.
On 19 December 2000 the applicant was remanded in pre-trial detention.
On 31 March 2005 the Diyarbakır Assize Court convicted the applicant under Article 146 § 1 of the former Criminal Code for attempting to undermine the constitutional order.
On 1 June 2005 the New Criminal Code entered into force.
On 11 December 2006 the Court of Cassation set aside the judgment on the ground that the first-instance court should have re-assessed the judgment in accordance with the provisions of the new Criminal Code.
Following the remittal of the case to the first-instance court, it was reconsidered. Some of the allegations against the applicant were rejected due to the absence of factual evidence supporting his statements taken in police custody.
On 9 November 2007, having regard to the range of evidence, namely the autopsy, ballistic and other expert reports as well as the witnesses' testimonies and the statements of the accused, the first-instance court once more convicted the applicant under 146 § 1 of the former Criminal Code and sentenced him to life imprisonment, with the possibility of parole.
On 19 January 2009 the Court of Cassation upheld the judgment.
COMPLAINTS
The applicant complained under Article 3 of the Convention that he had been tortured while in police custody and forced to sign self-incriminating statements.
Without relying on any Article of the Convention, the applicant contended that his pre-trial detention had been excessively long and that there was no remedy in domestic law by which he could challenge the lawfulness of his incarceration.
The applicant alleged under Articles 6 § 1 and 13 of the Convention that the criminal proceedings against him had not been fair as the trial court had used his statement, taken under duress in police custody, as the only basis for his conviction.
Finally, the applicant argued that, as a result of his detention in a prison far away from his home town (100 kms), his family, particularly his ill wife, encountered substantial difficulties in visiting him.
THE LAW
1. Without relying on any Article of the Convention, the applicant complained that his detention pending trial, which lasted five years and two months in total, had exceeded a reasonable time and that he had not had a remedy at his disposal whereby he could challenge the lawfulness of his detention.
The Court considers that the applicant's complaints should be examined under Article 5 §§ 3 and 4 of the Convention. It further considers that it cannot, on the basis of the case file, determine their admissibility at the present stage 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. Relying on Article 3 of the Convention, the applicant alleged that he had been subjected to ill-treatment in police custody.
The Court observes that the applicant complained of his ill-treatment in police custody before the trial court and that in his defence submissions he refuted the veracity of his statement taken by the police. However, despite the Court's request, the applicant has failed to provide any medical report demonstrating that he had suffered bodily injury or mental distress as a result of such treatment. In these circumstances, even assuming that he has attempted to exhaust domestic remedies, having regard to the lack of evidence in support of his allegation, the Court finds that the applicant has not substantiated his complaint. It therefore rejects this part of the application under Article 35 §§ 3 and 4 of the Convention as being manifestly-ill founded.
3. The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing as the trial court had only relied on his statement to the police, allegedly taken by force, in convicting him.
The Court notes that this complaint of unfairness is closely linked to the allegation of ill-treatment, which the applicant has failed to substantiate with appropriate evidence. Nor did he argue that he was unable to obtain, or was prevented from obtaining, any such evidence, for example in the form of a medical report. Consequently, in the absence of any concrete proof, the Court finds that the applicant has failed to lay the basis of an arguable claim that his conviction had been based on evidence obtained through ill-treatment. It therefore considers that this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
4. Without relying on any Article of the Convention, the applicant complained that his family had been faced with considerable difficulties in visiting him in prison, far from his home town.
The Court considers that this complaint might have raised an issue under Article 8 of the Convention as it is related to the applicant's family life. However, the applicant did not provide any details as to the alleged difficulties experienced by his family, particularly regarding the state of health of his wife. Therefore, even assuming that the applicant has availed himself of pertinent domestic remedies, this complaint is also unsubstantiated as to the nature, extent and possible lack of justification for any interference with his rights under Article 8 of the Convention. 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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint concerning his right to be released pending trial;
Declares the remainder of the application inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy