AS TO THE ADMISSIBILITY OF
by Fatih Gökhan ARSLAN and Others
The European Court of Human Rights (Second Section), sitting on 29 September 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Kristina Pardalos, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 18 November 2005,
Having deliberated, decides as follows:
The applicants, Mr Fatih Gökhan Arslan, Mr Barış Aras and Mr Cihan Aras, are Turkish nationals who were born in 1981, 1975 and 1980 respectively. The first applicant lives in İzmir and the second and third applicants live in Aydın. They are represented before the Court by Mr F. Türkeş, Mrs M. Tarhan and Mr C. Karataş, lawyers practising in Aydın.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 15 July 2004 twenty officers from the Aydın police headquarters stopped the applicants and their friends on a flyover and attempted to arrest the first applicant. They stated that there had been a detention order issued against him. The first applicant asked the officers to show him a copy of the detention order. They failed to do so. A police superintendent then ordered the first applicant’s arrest. As the police officers used force against the first applicant, the second and third applicants tried to stop them. Subsequently, the police attempted to arrest all the applicants and their friends by force. The applicants were punched, kicked and dragged to the police vehicles where they were beaten again. One of the applicants’ friends sustained a blow to his head as a result of which he was hospitalised. According to the arrest report, which was drawn up and signed by eight police officers, the applicants and their friends had physically resisted arrest. In particular, they attempted to prevent the officers from effecting the first applicant’s arrest and the police were therefore obliged to use force against them. The applicants and two other arrestees refused to sign the arrest report.
At 4.20 p.m. and 4.30 p.m. on the same day the second and third applicants were subjected to medical examinations. The doctor who examined the second applicant observed no sign of physical injury on his person. According to the report issued in respect of the third applicant, he sustained an abrasion to his right wrist and an erythematic lesion on his right arm. It is to be noted that the medical report drawn up in respect of the first applicant was not submitted to the Court. The applicant’s representatives noted in this connection that they had not been given a copy of this report by the public prosecutor, despite their requests.
On the same day, while in police custody, the applicants met their representatives, who drew up a document according to which all the applicants had sustained injuries to various parts of their bodies. The report was signed by all the arrestees as well as their representatives.
On 16 July 2004 the second and third applicants were once again examined by a doctor. The report drawn up at 11.20 a.m. in respect of the second applicant indicates that he sustained erythematic lesions and grazes on his face and both arms. The doctor who examined the third applicant, at 11.30 a.m., noted that there were erythematic lesions and grazes on the applicant’s face and both arms.
On the same day the applicants made statements before the Aydın Magistrates’ Court denying the allegation that they had resisted arrest or attempted to hit the police officers. On the contrary, they had been subjected to ill-treatment. At the end of the questioning, the judge ordered the applicants’ pre-trial detention. According to the detention order, the applicants were charged with resisting arrest by police officers on duty.
The applicants objected to the detention order. On 19 July 2004 Aydın Assize Court dismissed their objections.
On 22 July 2004 the Aydın public prosecutor filed a bill of indictment with the Aydın Criminal Court charging the applicants under Article 258 of the former Criminal Code with resisting arrest by police officers on duty.
On 5 August 2004 the second and third applicants were released pending the criminal proceedings brought against them. On 1 September 2004 the first applicant was also released.
On 9 August 2004 the second and third applicants were examined by a doctor at the Izmir branch of the Human Rights Foundation of Turkey. The doctor noted scars on the second applicant’s right leg and left wrist and concluded that he had suffered soft-tissue trauma. As regards the third applicant, the doctor did not observe any physical scar on his body.
On 26 August and 9 September 2004 the second applicant also underwent a psychiatric examination at the Human Rights Foundation. The doctor found that he suffered from depression and adaptation disorder. Regarding the third applicant, the doctor noted the possibility of post-traumatic stress disorder. However, as this applicant was not in Izmir no psychiatric examination could be carried out. It is to be noted that regarding the first applicant no medical report issued by the Human Rights Foundation was submitted to the Court.
On 27 March 2006 the Aydın Criminal Court convicted the applicants as charged and sentenced them to one year’s imprisonment. On 9 March 2009 the Court of Cassation quashed the judgment of the first-instance court on appeal by the applicants. The criminal proceedings against the applicants are currently pending before the Aydın Criminal Court.
In the meantime, on 14 December 2004 the applicants filed a petition with the Aydın public prosecutor’s office requesting that the police officers who had effected their arrest be punished for ill-treating them.
On 2 March 2005 the Aydın public prosecutor issued a decision not to bring criminal proceedings against the arresting police officers as he found it established that the applicants had resisted arrest by the police officers and that the injuries on their bodies had occurred during that struggle. The public prosecutor took into consideration, inter alia, the medical reports filed at his office by the accused that had been drawn up in respect of the police officers who had been on duty at the time of the events.
An objection lodged by the applicants against the decision of 2 March 2005 was dismissed by the Nazilli Assize Court on 10 May 2005.
The final decision was served on the applicants’ representatives on 7 and 8 June 2005.
The applicants complained under Article 3 of the Convention that the force used during their arrest had been excessive and disproportionate and had therefore constituted ill-treatment. They also complained under the same provision that they had been beaten while being taken to the court building on 16 July 2004.
The applicants further maintained, under Article 5 of the Convention, that the police officers had failed to inform Fatih Gökhan Arslan of the reasons for his arrest when they had attempted to take him into custody.
Relying on Article 6 of the Convention, the applicants alleged that the principle of equality of arms had been breached in the case brought against them and that they had not been informed of the accusations against them. They also contended, under the same provision, that the judge who had ordered their pre-trial detention had become the judge of the Aydın Criminal Court, which had tried and convicted them.
The applicants maintained under Article 13 of the Convention that the investigation conducted by the Aydın public prosecutor had been inadequate as the latter had failed to take into consideration certain evidence vital for the case.
The first applicant further complained, under Article 14 of the Convention, that on 5 August 2004 the Aydın Criminal Court had ordered the other two applicants’ release pending trial whereas he had continued to be kept in detention.
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 these proceedings are currently pending before the Aydın Criminal Court. The applicants’ complaints under this provision are therefore premature. It follows that they must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Aydın v. Turkey (dec.), no. 34170/07, 16 June 2009).
In so far as the matters complained of are within its competence the Court finds, in the light of all the material in its possession, that 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 these complaints should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints concerning their alleged ill-treatment and the alleged inadequacy of the investigation into their allegations of ill-treatment;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise