AS TO THE ADMISSIBILITY OF
by Hamit ÇELİK
The European Court of Human Rights (Second Section), sitting on 9 June 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 12 December 2005,
Having deliberated, decides as follows:
The applicant, Mr Hamit Çelik, is a Turkish national who was born in 1979 and lives in Mardin. He is represented before the Court by Mr E. Kuzu and Mr H. Cangir, lawyers practising in Mardin.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 March 2004 the applicant was taken into police custody by officers from the Anti-Terrorist branch of the Mardin police headquarters on suspicion of aiding and abetting the PKK (the Kurdistan Workers’ Party), an illegal organisation. According to the official documents concerning the arrest, the applicant was arrested on 3 March 2004.
On 3 March 2004 at 4.30 a.m. the applicant was examined by a doctor who observed a hyperaemia on the applicant’s right scapula, a wound of 3x2 cm on the outside of his right arm and another hyperaemia of 5x1 cm on the outside of his left hand.
On 4 March 2004 the applicant was examined again by a forensic doctor who noted that there was no injuries on the applicant’s person other than those observed in the medical report of 3 March 2004.
On the same day the applicant was brought before the Kızıltepe Magistrates’ Court. The applicant submitted that he had been arrested on 2 March 2004 but the documents concerning his arrest had been drafted on 3 March 2004. The applicant further stated that he had been subjected to ill treatment while in police custody. The applicant showed his back and his arms to the judge who noted, in the record of the hearing, that there were bruises on the applicant’s biceps and on the back of his right shoulder. Upon the request of the applicant’s lawyer, the judge ordered the applicant’s medical examination in a health establishment chosen by the public prosecutor with a view to determining whether the applicant had been subjected to ill treatment.
Subsequently, the Kızıltepe public prosecutor initiated an investigation into the applicant’s allegations. Within the context of this investigation, on 31 March 2004 the applicant was examined by a doctor at the Diyarbakır branch of the Forensic Medicine Institute. The doctor did not observe any sign of ill-treatment on the applicant’s person. In order to submit an opinion concerning the applicant’s allegations of ill-treatment, he asked whether the report of 3 March 2004 had been drafted before the applicant’s detention in police custody.
On 7 May 2004 the applicant made a statement to the police. He maintained that he had been beaten with a truncheon on his back and chest and on the soles of his feet. He further stated that he had been punched, kicked and given electric shocks.
On the same day the public prosecutor obtained statements from two other persons who had been arrested and put on trial with the applicant. One of these witnesses, M.A., stated that he had not seen or heard that the applicant had been ill-treated. He also stated that he had seen the applicant’s arms and back when he and his co-defendants had been brought before the Kızıltepe Magistrates’ Court. The other witness, A.F., said that he had seen three bruises on the applicant’s shoulders when they had been brought before the magistrates’ court. He further stated that they had been detained in the police headquarters for one night and two days and that he had observed that the applicant had had difficulty walking.
On 18 May 2005 the Kızıltepe public prosecutor issued a decision not to prosecute anyone in relation to the applicants’’ allegations, holding that there was insufficient evidence to bring criminal proceedings. The public prosecutor noted that the applicant had been arrested on 3 March 2004, as noted in the police headquarters’ register, and that the witnesses had not heard or seen anything. He opined that the injuries noted in the medical report of 3 March 2004 could have occurred prior to the applicant’s detention in police custody.
On 27 June 2005 the applicant filed an objection against the decision of the Kızıltepe public prosecutor. On 6 July 2005 the Midyat Assize Court dismissed his objection.
In the meantime, on 22 March 2004 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicant with membership of the PKK and with keeping explosives in his house.
Pursuant to Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolishing State Security Courts, the case against the applicant was transferred to the Diyarbakır Assize Court.
On 24 April 2007 the Assize Court convicted the applicant as charged and sentenced him to eleven years and six months’ imprisonment.
The applicant appealed.
According to the information submitted to the Court by the applicant on 25 February 2009, the case is currently pending before the Court of Cassation.
The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment while in police custody.
The applicant further alleged under Article 13 of the Convention that the authorities had failed to conduct an effective investigation into his allegations of ill-treatment.
The applicant finally contended under Article 6 § 3 (c) of the Convention that he had not had access to legal assistance while in police custody.
The Court considers that these complaints should be examined from the standpoint of Article 3 alone. It further 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 this part of the application to the respondent Government.
The Court observes that the criminal proceedings against the applicant are still pending before the Court of Cassation. The applicant’s complaint under this provision is therefore premature. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning his alleged ill-treatment while in police custody and the alleged ineffectiveness of the investigation into this matter;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise