SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29906/03
by Remzi NİĞİT
against Turkey
The European Court of Human Rights (Second Section), sitting on 12 June 2006 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrV. Zagrebelsky,
MrsD. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 27 August 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Remzi Niğit, is a Turkish national who was born in 1961 and lives in Izmir. He was represented before the Court by Mr M. Rollas, a lawyer practising in İzmir.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 May 2001 the applicant was arrested in İzmir by gendarmerie officers on suspicion of having committed the offence of “putting fake foreign money in circulation” (piyasaya sahte yabanci para sürmek). The same day he was examined by a doctor at Izmir Ataturk Training Hospital. The subsequent medical report noted no signs of ill-treatment on his body.
Later that day, he was brought to Bodrum by gendarmerie officers and was taken to the Bodrum State Hospital for a further medical examination. Again, no signs of ill-treatment were noted. The applicant was then taken into custody in the Muğla General Gendarmerie Command (Muğla Jandarma Genel Komutanlığı), where he was allegedly subjected to ill-treatment for three days. In particular, he was blindfolded, subjected to Palestinian hanging, punched, beaten and left without food or water. Electric cables were attached to his back and between his legs and electric shocks were administered to him. The same day, the Bodrum public prosecutor extended the applicant’s custody period for two more days.
On 9 May 2001 the applicant was examined by doctors at the Bodrum State Hospital, who noted a number of hyperaemic areas the size of a pea on his back.
On the same day, the applicant made a statement to the officers from the Bodrum Central Gendarmerie Station (Bodrum Merkez Jandarma Karakolu), in which he admitted to the charges brought against him.
On 10 May 2001, at the end of his detention in custody, the applicant was taken to the Bodrum Clinic. The medical report prepared on that occasion revealed no marks on his body. On the same day, the applicant was brought before the Bodrum public prosecutor before whom he maintained that he had been interrogated under duress and ill-treated by the gendarmerie officers on duty during his period in custody. However, he also added that he had not wished to complain about the officer allegedly responsible for his ill-treatment. Nevertheless, the public prosecutor took this to be notification of an offence and initiated, ex officio, a preliminary investigation into the applicant’s allegation. He also ordered a further medical examination of the applicant. Later that day, an investigating judge remanded the applicant in custody.
On 11 May 2001 the applicant was examined by a doctor who noted the following marks on the applicant’s body: 14 or 15 burn marks, 1x2 mm in size, on the applicant’s back which possibly had occurred due to the contact of the skin with an inflammable object. The doctor further opined that it would take seven days for the lesions to disappear, but that they did not pose any danger to his life.
On 29 May 2001 the applicant testified before the Bodrum public prosecutor that an officer had touched his back with an item which made a cracking sound while questioning him about the fake money. He further stated that the other officers in the room called this officer “Hakan”. Another person called “Volkan” had also been present. He added that he could identify these officers if confronted.
On 30 May 2001 the applicant was shown the photographs of the officers on duty during his custody period. He identified the deputy station commander, Hakan K. (hereinafter H.K.), as the person who had ill-treated him. Accordingly, an identification report was drawn up. The same day, the public prosecutor also heard a statement from the commander H.A. who had maintained that neither he nor anybody from his unit had ill-treated the applicant. The applicant’s statement had been taken in H.K’s room by officers from the Central Command Office while H.K. was also present.
On 3 July 2001 H.K. made a statement before the Bodrum public prosecutor in which he denied the charges against him.
On 13 July 2001 the Bodrum public prosecutor filed a recommendation report (fezleke) with the Muğla public prosecutor’s office, in which he had recommended that H.K. be prosecuted for ill-treating the applicant pursuant to Article 243 of the Criminal Code.
On 6 September 2001 the Muğla public prosecutor filed an indictment with the Muğla Assize Court, charging H.K. under Article 243 for interrogating the applicant under duress and inflicting inhuman and cruel treatment on him. The Muğla Assize Court sent a rogatory letter to the Bodrum Criminal Court asking the latter to take a statement from the accused H. K. and send it to them.
On 17 September 2001 the applicant was released from prison.
On 16 October 2001 the Bodrum Criminal Court took a statement from H. K., who denied the the allegations against him. H. K. stated that he had not interrogated the applicant, neither had he taken a statement from him. He claimed that the civil intelligent service of the Provincial Gendarmerie Command had intervened in the case and had questioned the applicant, assisted by two non-commissioned officers from the Bodrum Gendarmerie Station. He added that the applicant’s statement had been typed on the computer in his room where the applicant had probably seen his name on the desk and had later denounced him. H.K. also requested a confrontation with the applicant. This statement was sent to the Muğla Assize Court.
On 12 December 2001, H.A. testified before the Muğla Assize Court as a witness. He repeated the statement he had previously made to the public prosecutor on 20 May 2001. The same day, the Assize Court noted that the Izmir Criminal Court could not hear evidence from the applicant as he could not be found at his address known to that court. The applicant’s addresses were noted differently in his statements to the police, public prosecutor and investigating judge’s, respectively, as places in Izmir and Adana. Accordingly, the Assize Court forewent the obtaining of a statement from the applicant.
On the same day, the Muğla Assize Court acquitted H.K. for lack of sufficient evidence. The court acknowledged that it was evident from the medical report that the applicant had sustained bodily harm. However, the applicant’s identification of the alleged perpetrator lacked credibility as he had been blindfolded throughout the interrogation. This decision became final on 20 December 2001, in the absence of any appeal against it.
On 16 January 2002 the applicant applied to the Muğla Governor’s Office about his complaint of ill-treatment. On an unspecified date the latter informed the applicant that the ensuing criminal proceedings against H.K. had resulted in his acquittal.
On 20 December 2002 the applicant petitioned the Muğla Assize Court for a copy of the documents in the case file. The applicant allegedly found out about the Assize Court’s judgment on 25 December 2002. He appealed against it on 2 January 2003.
On 27 January 2003 the Muğla Assize Court dismissed the applicant’s appeal, holding that he had no right to appeal since he had not intervened in the criminal proceedings. The applicant was notified of this decision on 3 March 2003.
B. Relevant domestic law
1. Criminal Code (at the relevant time)
Article 243 § 1
“1. Whoever, being a president or member of a court or council or a public officer, tortures an accused person in order to obtain a confession, shall be punished by a prison sentence of up to five years and shall be disqualified from holding public office, temporarily or for life. The offender shall be punished even if he had acted under an order or encouragement from his superior.”
2. Code on Criminal Procedure (at the relevant time)
Article 365
“Any person who is injured as a result of a criminal act may, at any phase of the investigation, intervene in the public prosecution.
Those so intervening may also submit their personal claims for adjudication.”
The intervening party is entitled to request compensation for the prejudice arising from the offence. However, the exercise of this right is subject to procedural rules: the person who is injured as a result of a criminal act must intervene in the public prosecution and request explicitly the right to ask for compensation. The compensation request is not therefore automatic. It also has to be justified and an assessment of the amount must accompany the request.
Article 366 provides that intervention should be made by means of the submission of a petition to the relevant authority or by a declaration made to the clerk of the court. Thereupon, the intervening party enjoys the same rights as a prosecutor of personal claims (Article 367). Decisions rendered before the intervention remain valid and, if the public prosecutor does not appeal against the final decision within the requisite time-limit, the intervening party loses the right to appeal (Article 369).
Furthermore, according to Article 370, if the intervening party or his/her representative does not attend the trial, the judgment is served on him/her. Article 371 empowers the intervening party to file a separate appeal against a judgment regardless of whether the public prosecutor chooses to appeal. If the intervening party succeeds in his/her appeal, the public prosecutor is required to institute criminal proceedings once again.
COMPLAINT
The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment in custody at the gendarme station and that the criminal investigation into his allegation of ill-treatment had not been adequate and effective.
THE LAW
The applicant complained that he had been subjected to ill-treatment during his detention in gendarmerie custody and that he had not had an effective remedy in domestic law in relation to his complaint. He relied on Articles 3 of the Convention.
1. The parties’ submissions
The Government argued that the applicant had failed to exhaust the domestic remedies available to him, within the meaning of Article 35 § 1 of the Convention. In this connection, they maintained that he did not join the criminal proceedings as an intervening party. Consequently, his lawyer’s request for appeal was dismissed by the trial court on 27 January 2003 on the ground that the judgment had already become final. They added that the right to intervene and the right to appeal were two of the fundamental and indispensable rights under domestic law. However, the applicant had failed to make remedy of these rights as a result of his own mistake and negligence. They also claimed that there were various kinds of civil and administrative remedies that the applicant could have sought reparation for the harm he had allegedly suffered.
The Government further maintained that the application must be rejected for non-compliance of the six-month’s rule pursuant to Article 35 § 1 of the Convention. They pointed out that the officer had been acquitted on 12 December 2001. This judgment became final on 30 December 2001, as no one appealed successfully against it. Therefore, the six-month time-limit should start running not later than from 30 December 2001. However, the application was lodged with the Court on 27 August 2003 that is more than six months after the final domestic decision.
The applicant contended that the reason why he had not participated in the criminal proceedings had been that the Muğla Assize Court had failed to summon him from his correct address. He claimed that his address had been missing or wrongly written in the documents in the case file and that the Assize Court had not searched for him at the other addresses known to it. He found out about the court’s decision of 12 December 2001 on 25 December 2002. His lawyer appealed against the judgment on 2 January 2003, which was dismissed by a decision of 27 January 2003 by that court.
2. The Court’s assessment
The Court considers that it is not required to decide whether the applicant can be considered to have exhausted domestic remedies or whether there existed special circumstances in the present case which would dispense the applicant from the obligation to pursue further remedies in domestic law. Even if he is correct in his assertions, this does not relieve him of the obligation to comply with the six-month rule.
The Court reiterates that pursuant to Article 35 § 1 of the Convention, it may only deal with the matter within a period of six months from the date on which the final decision was taken. The purpose of the six-month’s rule laid down in that article is to promote security of the law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under uncertainty for a prolonged period of time (see, among many other authorities, P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). It considers that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1547, § 33). Where the domestic law has not provided for such service, the Court considers that the running of the six-month’s time-limit should start from the date on which the applicant or his lawyer was informed of the final decision.
The Court notes that the Assize Court acquitted the military officer on 12 December 2001. This judgment became final on 20 December 2001 as no one appealed against it. In this connection, it observes that, under Turkish law, a court decision is served only on the parties to a case. Nevertheless, the decision can also be served on a third party, such as a complainant, should he become an intervening party to the proceedings pursuant to Article 365 of the Code of Criminal Procedure. Therefore, in the present case, the Muğla Assize Court was not required to serve the judgment on the applicant since he had not intervened in the criminal proceedings.
The Court further notes that the applicant was released from prison on 17 September 2001. The first time he enquired into the outcome of the proceedings was on 16 January 2002, when he applied to the Muğla Governor’s Office. On an unspecified date, the Governor’s Office informed the applicant that the criminal proceedings against the gendarmerie officer had been resulted in the acquittal of the latter. On 20 December 2002, almost a year after his enquiry, the applicant applied to the Muğla Assize Court asking for a copy of the documents in the case file. He allegedly obtained a copy of the judgment on 25 December 2002.
The Court observes that it cannot ascertain from the case file the exact date on which the Governor’s Office responded to the applicant’s enquiry of 16 January 2002, but it must certainly have been well before 20 December 2002. In any case, the applicant should have applied to the Court within six months after 25 December 2002, the date on which he had allegedly learned about the judgment of the Assize Court. The applicant had a lawyer, who must have been aware of the fact that an appeal against the judgment would be to no avail at that stage, considering that the applicant had not intervened in the case as a third party.
The Court also notes that the Assize Court failed to take a statement from the applicant as his whereabouts could not be determined after his release from prison. It observes that, the applicant intentionally or unintentionally provided different addresses to the authorities during the preliminary investigation. Therefore, his failure to attend the criminal proceedings before the Muğla Assize Court can partly be attributed to his own conduct.
In these circumstances and in the absence of any sufficient reason to the contrary, the Court notes that, in the present case, the date of the running of the six-month time-limit should not be taken later than 25 December 2002. However, the application was lodged with the Court on 27 August 2003 that is more than six months after that date.
It follows that the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
S. DolléF. Tulkens
RegistrarPresident
Full & Egal Universal Law Academy