CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 mai 2007

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Tulkens, President,   Mr   I. Cabral Barreto,   Mr   R. Türmen,   Mr   M. Ugrekhelidze,   Mrs   A. Mularoni,   Ms   D. Jočienė,   Mr   D. Popović, judges, and Mrs F. Elens-Passos, Deputy Section Registrar , Having regard to the above application lodged on 17 July 2003, Having deliberated, decides as follows: THE FACTS The applicant, Mr Osman Karademir, is a Turkish national who was born in 1961 and lives in Istanbul. He is represented before the Court by Mr Y. Can, a lawyer practising in Istanbul. The facts of the case, as submitted by the applicant, may be summarised as follows. On 25 May 2002 the applicant was taken into custody by police officers from the Çinili Police Station, on suspicion of theft. Following a quarrel between the chief police officer and the applicant at the Çinili Police Station, the chief officer ordered his transfer to the Üsküdar Law and Order Department. Before going there, the applicant was taken to the Haydarpaşa Numune Hospital for an examination. According to the medical report dated 25 May 2002, there were no signs of ill-treatment on his body. At the Üsküdar Law and Order Department, the applicant was insulted and threatened by the chief police officer, R.A, who later ordered other officers to torture him. The applicant was kept in a cell until the evening. After several hours, he was handcuffed, blindfolded and taken to a cellar, where he was stripped naked and given electric shocks. Due to the pain caused by the shocks, the applicant hit his head on the floor and fainted. On 26 May 2002 the applicant was taken back to the Çinili Police Station. On 27 May 2002 the police officers brought the applicant to the Hayparpaşa Numune Hospital for a medical examination. First, the police officers went into the doctor’s room, then the applicant was called in. Although the applicant described the torture to which he had been subjected in police custody, the doctor did not note any of his complaints and concluded in his report that there were no signs of ill-treatment on his body. Later, the applicant was brought before an investigating judge who ordered his release. On the same day, the applicant lodged a complaint with the District Governor of Üsküdar against five police officers who have allegedly ill-treated him. He has also filed petitions with the Üsküdar District Governor, the Istanbul Governor and the Minister of Internal Affairs, describing in detail the treatment to which he had been subjected in custody. Upon the request of the District Governor, on 29 May 2002 the applicant was first examined by a doctor at the Üsküdar Clinic and then he was taken to the Haydarpaşa Numune Hospital for a second examination. Both medical reports noted that there was pain and sensitivity in the inguinal area, urinary problems and hyperaemia on the penis. In light of these medical findings, a doctor at the Üsküdar Branch of Forensic Medicine Institute drafted a third report, concluding that the applicant was unfit to work for three days. On 4 June 2002 the applicant filed a complaint with the Üsküdar Chief Public Prosecutor’s Office against the police officers at the Üsküdar Law and Order Department who had tortured him. On 5 June 2002 the applicant was interrogated by the Disciplinary Bureau of the Üsküdar Security Directorate pursuant to his complaint filed with the Üsküdar District Governor. On 19 June 2002 the Üsküdar District Governor decided that charges should not be brought against the police officers. The decision noted that the police officers, who were accused by the applicant, were not present in the police station on the day of the alleged incident. The applicant applied to the Istanbul District Administrative Court for the annulment of the District Governor’s decision. His request was dismissed. On 31 October 2003 the Üsküdar Criminal Court acquitted the applicant of the charges of theft, holding that the applicant’s guilt had not been proven beyond doubt. On 14 November 2003 the Üsküdar Chief Public Prosecutor held that the decision of the Üsküdar District Governor of 19 June 2002 had to be disregarded, since the alleged ill-treatment had taken place during the police officers’ exercise of their judicial functions. He therefore filed an indictment with the Üsküdar Assize Court charging four police officers of the Üsküdar Law and Order Department, including R.A., under Article 243 § 1 of the Turkish Criminal Code, with inflicting ill-treatment on the applicant. He also decided that, due to a lack of evidence, no prosecution should be brought against two other police officers or against R.A in respect of the allegation of threatening to kill the applicant. The applicant objected to the decision of non-prosecution. On 19   February 2004 the Kadıköy Assize Court upheld the decision of the Public Prosecutor and rejected the applicant’s objection. On 13 April 2005 the Üsküdar Assize Court acquitted the accused police officers on the basis of the principle of in dubio pro reo . On 16 May 2005 the applicant appealed against the decision of the Üsküdar Assize Court. On an unknown date the Court of Cassation upheld the decision of the first instance court. COMPLAINTS Relying on Article 3 of the Convention, the applicant complained that he had been tortured by police officers in custody. Moreover, the applicant complained under Article 13 of the Convention, in conjunction with Article 3, about the unsatisfactory response of the authorities to his allegations. In this connection, he alleged that the preliminary investigations and ensuing criminal proceedings were not sufficiently thorough, effective and timely. The applicant also alleged under Article 6 § 1 of the Convention that he was not given a fair hearing by an independent and impartial tribunal, as in Turkey judges are appointed by the Supreme Council of Judges and Prosecutors. Furthermore he complained under the same Article that the proceedings brought against the police officers were not concluded within a reasonable time since the judges were not independent and impartial. Lastly, the applicant complained under Article 6 § 2 of the Convention that, although he was the victim, both the administrative and judicial authorities considered him guilty and tried to protect the accused police officers. THE LAW 1.     The applicant complained that he was subjected to ill-treatment during his detention in police custody, which amounted to inhuman treatment and torture, contrary to Article 3 of the Convention. The applicant further complained that he had no effective remedy within the meaning of Article   13 of the Convention in respect of this complaint of ill-treatment. 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 them to the respondent Government. 2.     The applicant submitted under Article 6 § 1 of the Convention that he did not receive a fair trial by an independent and impartial tribunal as the judges sitting on the bench of the Üsküdar Criminal Court which tried him were attached to the Supreme Council of Judges and Prosecutors. The applicant also alleged under Article 6 § 1 of the Convention that, since the judges were not independent and impartial, they deliberately prolonged the length of the proceedings initiated against the police officers. He further complained under Article 6 § 2 of the Convention that the authorities protected the accused police officers, while they considered him guilty of accusing innocent people. As regards the applicant’s complaint concerning the independence and impartiality of the Üsküdar Criminal Court, the Court notes that on   31   October 2003 the applicant was acquitted of the charges brought against him. He cannot therefore be considered as a victim of the alleged violation, within the meaning of Article 34 of the Convention. As regards the applicant’s other allegations, the Court recalls that the criminal proceedings initiated against the police officers did not concern the determination of the applicant’s civil rights or obligations, as the applicant had not become a civil party to the procedure. Nor did the proceedings determine a criminal charge against him, within the meaning of Article 6 § 1 of the Convention. It follows that these parts of the application are manifestly ill-founded, overall, 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 complaints concerning his alleged ill-treatment in police custody and a lack of effective remedies in this respect; Declares the remainder of the application inadmissible.       F. Elens-Passos   F. Tulkens Deputy Registrar   President