European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2008/139.html
Cite as: [2008] ECHR 139

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SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33104/04
by Mustafa TOSUN
against Turkey

The European Court of Human Rights (Second Section), sitting on 15 January 2008 as a Chamber composed of:

Françoise Tulkens, President,
András Baka,
Ireneu Cabral Barreto,
Rıza Türmen,
Mindia Ugrekhelidze,
Antonella Mularoni,
Danutė Jočienė, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 22 July 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mustafa Tosun, is a Turkish national who was born in 1974 and lives in Istanbul. He is represented before the Court by Mr Sabri Kuşkonmaz, a lawyer practising in Istanbul.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 10 November 1995 the applicant was arrested on suspicion of attempting to undermine the constitutional order, an offence under Article 146 of the Criminal Code then in force. He was subsequently placed in custody at the anti-terrorist branch of the Istanbul Police Headquarters, where he was subjected to ill-treatment.

On 20 November 1995 the applicant was examined by a doctor at the Forensic Medicine Institute, who observed a number of injuries on the applicant’s body and recorded them in a report.

At the end of his police custody on 21 November 1995 he was brought before the prosecutor and subsequently before the duty judge at the Istanbul State Security Court, who remanded him in custody pending the introduction of criminal proceedings against him.

On 4 December 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant and a number of other persons with the above-mentioned offence.

On 6 December 2000 eight police officers were convicted by the Istanbul Court of Assize and sentenced to various terms of imprisonment for having ill-treated the applicant and a number of other detainees in police custody. Their prison sentences were suspended.

On 24 December 2002 the Istanbul State Security Court (hereafter “the trial court”) found the applicant guilty as charged and sentenced him to life imprisonment. In convicting the applicant the trial court took into account the statement taken from the applicant in police custody where he was ill treated. The applicant appealed.

On 8 December 2003 the Court of Cassation quashed the judgment.

Criminal proceedings against the applicant recommenced before the trial court. During a hearing held on 13 May 2004 the trial court refused the applicant’s request for release. An objection lodged by the applicant to the decision to refuse his request for release was rejected on 28 May 2004.

Following the abolition of the State Security Courts, the Istanbul Court of Assize took over the case. On 18 May 2006 the applicant was released on bail from prison where he had been detained since 21 November 1995. The retrial is still pending before the Istanbul Court of Assize.

COMPLAINTS

The applicant complained under Article 1 of the Convention that the respondent State had infringed his rights under the Convention.

Under Article 3 of the Convention he complained that he had been subjected to ill-treatment in police custody.

The applicant alleged that he had been detained for an excessive period and that he had not been released pending trial, contrary to Articles 5 and 6 of the Convention.

Under Article 6 of the Convention the applicant also complained that the reliance of the State Security Court on evidence obtained under torture had interfered with his right to a fair hearing.

Finally, the applicant complained that his above-mentioned Convention rights had been infringed on account of his Kurdish origin, Alevi beliefs and political opinions.

THE LAW

The applicant complained that the respondent State had failed to guarantee his rights under the Convention.

The Court reiterates that Article 1 contains an entirely general obligation and that it should not be seen as a provision which can be the subject of a separate violation, even if invoked at the same time and in conjunction with other Articles (see Doğan and Others v. Turkey, nos. 8803-8811/02, 8813/02 and 8815-8819/02, § 120, 29 June 2004 and the case cited therein). Thus, the Court does not consider it necessary to examine this complaint separately.

The applicant complained that he had been ill-treated in police custody, in violation of Article 3 of the Convention. In support of his submissions he referred to the judgment adopted by the Istanbul Court of Assize on 6 December 2000, convicting the police officers responsible for the ill-treatment.

The Court observes that the applicant was indeed ill-treated in police custody and that a number of police officers responsible for the ill-treatment were found guilty of having subjected him to ill-treatment. In so far as the applicant’s complaint under Article 3 of the Convention is to be understood to mean that the sentences imposed on the police officers, which were subsequently suspended, had not remedied his victim status, the Court notes that the judgment convicting the police officers became final in 2000, whereas the present application was lodged on 22 July 2004, more than six months later. He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

The applicant complained that the length of his pre-trial detention had been in violation of Articles 5 and 6 of the Convention.

The Court deems it appropriate to examine these complaints from the standpoint of the applicant’s right to release pending trial and his right to a fair hearing within a reasonable time, within the meaning of Articles 5 § 3 and 6 § 1 of the Convention respectively, and considers that it cannot, on the basis of the case file, determine their admissibility at this stage. Accordingly, it is necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of them to the respondent Government.

The applicant argued that the trial court’s reliance on the evidence obtained from him under ill-treatment infringed his right to a fair trial, contrary to Article 6 of the Convention.

The Court observes that the criminal proceedings against the applicant are still pending. This complaint is therefore premature. Consequently, this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

As to the applicant’s remaining complaints, the Court finds that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application should 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 right to release pending trial and his right to a fair hearing within a reasonable time;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President