CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 novembre 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 introduced on 11 September 2000, Having deliberated, decides as follows: THE FACTS The applicant, Mr Baki Karayiğit, is a Turkish national, who was born in 1979 and is currently held in prison in Istanbul. He is represented before the Court by Mrs Tepe and Mrs Bayır, lawyers practising in Istanbul. The facts of the case, as submitted by the applicant, may be summarised as follows. On 6 February 1999 the applicant was taken into police custody by the officers of the Anti-Terror Branch of the Istanbul Security Directorate on suspicion of being a member of an illegal organisation. On the same day the public prosecutor’s office of the Istanbul National Security Court granted the request of the Anti-Terror Branch by placing the applicant in police custody for four days at the Anti-Terror Branch of the Istanbul Security Directorate. On 10 February 1999 the Istanbul National Security Court extended the custody period for a further two days. During his seven days of interrogation physical and mental violence were inflicted on the applicant. After he was taken into custody, following death threats by the police officers, the applicant’s interrogation was conducted in a room at the Istanbul Anti-Terror Interrogation Centre while he was held blindfolded and stripped naked. After he denied the police officers’ accusations, he was suspended with his elbows behind his back, and his genitals were squeezed until he fainted. Then he was hosed by pressurised water, and forced to run down a long corridor. After he had been given a body massage in order to prevent him passing out, he was again suspended by the arms and electric shocks were administered to his genitals, nipples and gums. While he was suspended by the arms, he was also sexually abused. He was repeatedly exposed to extremely hot and cold water. During the last two days of his interrogation, the police officer stopped the physical violence and threatened to rape the applicant’s sister and kill his family. He was also denied food and liquid, prevented from sleeping and going to the toilet, forced to listen to the cries of other detainees, and insulted. On 10 February 1999 the applicant was taken to Haseki Hospital where a medical report was issued, observing bruises on both arms. On the same day the applicant was forced to sign a statement explaining the cause of the bruises as his suffering from a dust allergy. On 12 February 1999 a doctor at the Forensic Institute of the Istanbul National Security Court examined the applicant and reported bruises on both upper arms and under his left arm joint, as well as complaints of backache. In the report signs of physical violence sufficient to prevent the applicant from working for three days were noted. On 13 August 1999 a dermatologist examined the applicant and found no indication of any allergy. On 12 February 1999 the applicant was brought before the public prosecutor and then a non-presiding judge at the Istanbul National Security Court, where he stated that he had been subjected to physical and emotional violence. The court ordered the applicant’s detention on remand. On 16 February 1999 the public prosecutor of the Istanbul National Security Court filed a bill of indictment, charging the applicant with the criminal offence of being a member of an illegal organisation described in Article 168 § 2 of the Turkish Criminal Code and section 5 of the Prevention of Terrorism Act (law no. 3713). On 29 April 1999 the Istanbul public prosecutor’s office filed an indictment with the Istanbul Assize Court, charging the police officers whose signatures were on the applicant’s statement given in custody with a criminal offence described in Article 243 of the Turkish Criminal Code. The applicant was not heard before the court. The court took note of the applicant’s previous statements. On 30 December 1999 the police officers were acquitted at the trial on account of lack of evidence. The applicant filed another complaint with the public prosecutor’s office in the Fatih district of Istanbul against the same police officers. On 9 May 2000 the public prosecutor’s office issued a decision not to prosecute, referring to the trial that had already been held before the Istanbul Assize Court. B.     Relevant domestic law Article 243 of the Turkish Criminal Code makes it an offence for a government employee to subject a person to torture. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. COMPLAINTS The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment and torture while being held in custody by the police officers of the Istanbul Anti-Terror Branch for seven days. The applicant also alleges under Article 5 § 3 that during his seven days of interrogation and detention he was not brought in person before a judge or other public authority empowered by law. He claims that all the decisions were taken in his absence and a paper until 12   February 1999. The applicant further relies on Article 13, in conjunction with both Article 3 and Article 5 § 3. He complains that there is no effective remedy under domestic law to review the lawfulness of his detention and his allegations of torture. THE LAW 1.     The applicant complains under Article 3 of the Convention of the physical violence inflicted on him and the psychological ill-treatment he experienced while in custody. He alleges that during his interrogations he was suspended by his arms and electric shocks were administered to sensitive parts of his body. The applicant submits that in the light of the Court’s established case-law, his suffering amounted to torture. The applicant also relies on Article 13 of the Convention on account of the lack of an effective remedy in domestic law which could be pursued with any prospect of success. 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 § 3(b) of the Rules of Court, to give notice of this part of the application to the respondent Government.   2.     The applicant further complains under Article 5 § 3 of the Convention that he was kept in detention for seven days without being brought before the public prosecutor or the judge who successively ordered the extension of his detention. The applicant submits under Article 13 of the Convention, in conjunction with Article 5 § 3, that no effective remedy was available to him to challenge the lawfulness of his detention. The Court observes that the applicant was arrested pursuant to section 16 § 2 of the Law on the Procedures of National Security Courts (no. 4229) as amended by law no. 2845. The Court notes that, according to its case-law, no domestic remedy was available at the time of his detention to challenge the lawfulness and the length of his time in police custody (see, mutatis mutandis , Sakik and Others v. Turkey , judgment of 26 November 1997, Reports of judgements and Decisions, 1997-VII, § 53). The Court also reiterates that according to its established case-law, when an act of an authority is not open to any effective remedy, the six-month period runs from the date on which the act took place (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-). In the instant case the applicant’s custody ended on 12 February 1999, whereas the application was brought on 11 September 2000, that is more than six months after the detention complained of. It follows that this part of the application has been lodged out of time and must be rejected under Article 35 § 1 and 4 of the Convention. For these reasons, the Court, unanimously, Decides to adjourn the examination of the applicant’s complaints concerning Articles 3 and 13 of the Convention; Declares the remainder of the application inadmissible.     Michael O’Boyle   Nicolas Bratza   Registrar   President