CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 septembre 2002

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Palm ,   Mr   R. Türmen ,   Mr   M. Fischbach ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 13 October 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having deliberated, decides as follows: THE FACTS The applicant, Hallo Çatıkkaş, is a Turkish national, who was born in 1929 and lives in Adana. He is represented before the Court by Mr   Mesut   Beştaş, Ms Meral Beştaş and Mr Şerif Yılmaz, lawyers 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 18 May 1995 the applicant was taken into police custody on account of an unnamed intelligence report according to which he was accused of aiding and abetting the PKK. On 19 May 1995 the Şırnak Police Headquarters requested from the local health clinic in İdil that the applicant be examined by a doctor. On an unspecified date the applicant was seen by a doctor in İdil who noted in his medical report that there existed no bruises on the applicant’s body resulting from the use of force. It is further noted in the medical report that the applicant complained of health problems that were only indicated with the initials “HT” and “PIS”. On 25 May 1995 the applicant was interrogated by police officers. During the interrogation he was forced to sign a statement without knowing the contents of it. In the meantime, on 26 May 1995 O.Ö., a former PKK activist, was interrogated by police officers. He alleged that the applicant had aided and abetted the members of the PKK between 1990 and 1992 and that he had been together with the applicant’s son E. in the “mountain team” of the PKK. O.Ö. added that the applicant’s son had fled to Germany using the PKK’s money. He concluded that the applicant’s other son F. had died during an armed clash between the PKK and the security forces in 1988 or in 1989. On 26 May 1995 the applicant was brought before the public prosecutor. He gave a statement with the help of a translator, as he was unable to speak Turkish. The applicant rejected the allegations against him and stated that he had sent his son E. to Germany when he had become aware of his son’s involvement in the PKK. He further stated that his son F. had died while he was working in Istanbul but not during an armed clash. On the same day the applicant was brought before the İdil Magistrate’s Court. He gave a statement with the help of a translator. He reiterated that he had no involvement in the activities of the PKK. The judge ordered his detention on remand. At a hearing held before the Diyarbakır State Security Court on 31   August 1995 the applicant denied the allegations against him. The court rejected the applicant’s request of release pending trial because of the serious nature of the alleged offences and the state of the evidence. In a letter addressed to the Diyarbakır State Security Court and dated 20   November 1995 O.Ö. stated that he had erroneously accused the applicant and that he regretted having done so. On 21 November 1995 the Diyarbakır State Security Court convicted the applicant of aiding and abetting members of the PKK. The court further sentenced him to three years and nine months’ imprisonment under Article   169 of the Turkish Criminal Court and Article 5 of the Prevention of Terrorism Act. On 9 July 1996 the Court of Cassation quashed the decision of the Diyarbakır State Security Court on the grounds that the latter had not established whether or not the applicant’s son F. had died in an armed clash and the applicant’s other son E. had still been in Germany. Furthermore, the Diyarbakır State Security Court should have clarified whether or not the person accused of aiding and abetting the PKK in O.Ö.’s statement of 26   May 1995 had been the applicant. At a hearing held on 17 September 1996 the Diyarbakır State Security Court decided to release the applicant pending trial. On 2 June 1998 the Diyarbakır State Security Court acquitted the applicant. The court found that there existed no evidence to convict the applicant. This decision became final on 6 July 1998 because the parties did not lodge an appeal with the Court of Cassation. COMPLAINTS The applicant complains under Article 3 of the Convention that he was ill-treated while in police custody. He submits that, as an elderly man, he had suffered from physiological problems during the time he was held in police custody. The applicant complains under Article 5 § 1 (c) of the Convention that there was no reasonable suspicion of his having committed an offence. The applicant complains under Article 5 § 2 of the Convention that he was not informed in a language, which he understood, of the reasons of his arrest. He submits that he was not provided with a translator during the interrogation. The applicant complains under Article 5 § 3 of the Convention that he was held in police custody for an excessive period of time. The applicant complains under Article 5 § 3 of the Convention that he was detained on remand for an excessive period of time. The applicant complains under Article 5 § 5 of the Convention that the amounts of compensation awarded by national courts using the procedure laid down in Law no. 466 were too low because of the inflation rate in Turkey. The applicant complains under Article 6 § 1 of the Convention that he was not tried by an independent and impartial court. The applicant complains under Article 6 § 2 of the Convention that his right to be presumed innocent was violated because he was detained on remand for an excessive period of time. The applicant complains under Article 6 § 3 (a) of the Convention that he was not informed in a language, which he understood, of the nature and cause of the accusations against him. The applicant complains under Article 6 § 3 (b) of the Convention that he was deprived of his right to have adequate facilities for the preparation of his defence because O.Ö. was not summoned by the Diyarbakır State Security Court. The applicant complains under Article 6 § 3 (d) of the Convention that he was deprived of his right to obtain the assistance of O.Ö. who was a key witness on his behalf. The applicant complains under Article 7 of the Convention that he was accused of crimes in which his sons had allegedly been involved. The applicant complains under Article 8 of the Convention that his right to respect for his private and family life was violated because he was detained on remand for an excessive period of time. The applicant complains under Article 13 of the Convention that there existed no effective domestic remedies in Turkish law by which he could challenge the lawfulness of his detention. The applicant complains under Article 14 of the Convention he was subjected to discrimination on account of his ethnic origin. THE LAW 1.     The applicant complains under Article 3 of the Convention that he was ill-treated while in police custody. He submits that, as an elderly man, he suffered from physiological problems during the time he was held in police custody. The Court observes in the first place that the applicant has failed to produce any concrete evidence in support of his allegation of ill-treatment. While the Court recognises the difficulty for detained people to obtain evidence of ill-treatment during police custody, in the instant case, the applicant failed to submit to the Court a detailed explanation of the ill-treatment he had suffered while in custody. The Court further observes that in the medical examination conducted by a doctor in İdil it was observed that there existed no bruises on the applicant’s body resulting from the use of force other than his complaints of a general nature about his health. The Court also notes that the applicant did not produce any medical evidence to contradict the results of the medical examination in question. Even assuming that the applicant’s circumstances could have caused him to feel vulnerable, powerless and apprehensive of the representatives of the State during his custody (see (see Labita v. Italy [GC], no. 26772/95, § 125 and Ilhan v. Turkey [GC], no. 22227/93, § 63), the Court can see no reason why the applicant or his lawyer made no reference to the complaints of ill-treatment during the procedures before the national authorities. It follows that the applicant has not laid the basis of an arguable claim that he was ill-treated at the hands of the police. Furthermore, the authorities had no evidence whatsoever on which to start an investigation about the applicant’s allegations. In the particular circumstances of the case, the Court considers that the procedural obligation of the authorities of the respondent State cannot be said to have been breached (see the above-cited Kaplan v. Turkey decision and Ş. T. v. Turkey (dec), No. 28310/95, 9.11.1999, unpublished). For these reasons the Court finds that the applicant’s complaint that he was ill-treated in police custody is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. 2.     The applicant complains that there was no reasonable suspicion of his having committed an offence. He further alleges that he was not informed in a language, which he understood, of the reasons of his arrest. He submits that he was not provided with a translator during the interrogation. The applicant also complains that he was held in police custody and was detained on remand for an excessive period of time. Lastly, the applicant complains that the amounts of compensation awarded by national court using the procedure laid down in Law no. 466 were too low because of the inflation rate in Turkey. The applicant relies on Article 5 §§     1 (c), 2, 3 and 5 of the Convention. The Court notes that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5 §§ 1 (c), 2, 3 and 5 of the Convention, as Article 35 § 1 of the Convention provides that the Court “may only deal with the matter ... within period of six months from the date on which the final decision was taken”. In the instant case the Court observes that the applicant was 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 or the length of his police custody (see, mutatis mutandis , the Sakık and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, § 53). The Court recalls that, according to its established case-law, where an act of an authority is not open to any effective remedy, the six-month period runs from the date on which the act complained of took place (see, among other authorities, application no. 10389/83, Commission decision of 17 July 1986, DR 47, p. 72). The Court notes that the applicant’s detention in police custody ended on 26 May 1995, whereas the application was hat is more than six months after the detention of which complaint is made. As to the applicant’s complaint that he was detained on remand for an excessive period of time, the Court notes that the applicant’s detention on remand ended on 17 September 1996 when the Diyarbakır State Security Court decided to release him pending trial. It, therefore, concludes that this part of the application was also introduced out of time. It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention. 3. The applicant complains that he was not tried by an independent and impartial court. He further complains that his right to be presumed innocent was violated because he was detained on remand for an excessive period of time. The applicant also complains that he was not informed in a language, which he understood, of the nature and cause of the accusations against him and that he was deprived of his right to have adequate facilities for the preparation of his defence because O.Ö. was not summoned by the Diyarbakır State Security Court. Furthermore, the applicant complains that he was deprived of his right to obtain the assistance of O.Ö. who was a key witness on his behalf. Lastly, the applicant alleges that he was accused of crimes in which his sons had allegedly been involved. He relies on Articles 6 §§ 1, 2, 3 (a), (b) and (d) and 7 of the Convention. The Court observes that the applicant was acquitted on 2 June 1998 by a decision of the Diyarbakır State Security Court. It concludes, therefore, that the applicant, at the time of lodging his application, could no longer claim to be a victim in respect of his complaints under this head. It follows of that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. 4. The applicant complains that his right to respect for his private and family life was violated because he was detained on remand for an excessive period of time. He relies on Article 8 of the Convention. The Court is of the opinion that the essence of the applicant’s complaint under this head is closely linked to the applicant’s argument that he was detained on remand for an excessive period of time. In the light of the conclusion it reached concerning the applicant’s complaint under Article 5 § 3 of the Convention, the Court does not propose to give separate examination to this complaint. 5. The applicant complains that there existed no effective domestic remedies in Turkish law by which he could challenge the lawfulness of his detention. The applicant also complains that he was subjected to discrimination on account of his ethnic origin. In the absence of an arguable claim whereby the applicant can claim to be the victim of a violation of his Convention rights the Court finds that the applicant’s complaints under this head do not disclose a violation of the Convention. It follows that this part of the application must also be rejected as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously Declares the application inadmissible.     Michael O’Boyle   Nicolas Bratza   Registrar   President