AS TO THE ADMISSIBILITY OF
by Mustafa TAŞTAN
The European Court of Human Rights (Second Section), sitting on 6 October 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 23 November 2005,
Having deliberated, decides as follows:
The applicant, Mr Mustafa Taştan, is a Turkish national who was born in 1966 and was detained in Kırşehir Prison at the time of the application to the Court. He is represented before the Court by Mr M. Hisar and Mr B. Aydın, lawyers practising in Ankara.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The alleged ill-treatment of the applicant and the subsequent proceedings
On 29 August 1999 at around 3.30 p.m. the applicant was arrested by police officers and taken to the Ankara police headquarters as, according to the police records, an arrest warrant had been issued against him with a view to taking him to court to give statements in criminal proceedings brought against him. The applicant had already given the statements, however, and submitted a document showing that he had gone to the public prosecutor’s office to testify. He was nevertheless kept in the police headquarters.
On 30 August 1999 at 1.30 p.m. the applicant was brought before the public prosecutor. After he had made statements, the public prosecutor ordered his release. However, the police did not release the applicant until 12 noon the next day. The police officers coerced him into denouncing a certain person. He was beaten during the interrogation and denied the possibility of meeting his lawyer. According to the official documents, the applicant was released from the police headquarters at 1.30 p.m.
Following his release, the applicant went to a private clinic where he was examined by a doctor who noted oedemas and ecchymoses on his face, left shoulder, left arm and left leg.
On an unspecified date the applicant filed a complaint against two police officers alleging that they had inflicted ill-treatment upon him.
On 25 February 2000 the applicant reiterated his allegations of ill-treatment before the Ankara public prosecutor and stated that he had obtained a medical report following his release.
On an unspecified date the applicant submitted the medical report to the public prosecutor’s office.
On 20 March 2000 the Ankara public prosecutor requested the police to provide information regarding the date of issue of the medical report in question as well as a copy of all documents relating to the medical report in question.
On 11 April 2000 the police informed the public prosecutor that the owner of the private clinic, who was also a medical doctor, had stated that the report in question had not been issued in his clinic and that his name had been fraudulently used on the medical report in question.
Subsequently, on 15 May 2000, criminal proceedings were brought against the applicant in the 11th Chamber of the Ankara Criminal Court (case no. 2000/560) on the charge of forging an official document.
Before the court, the owner of the clinic stated that he had examined the applicant and drafted the medical report in question. Having regard to these statements, on 19 February 2002 the 11th Chamber of the Ankara Criminal Court acquitted the applicant of the charge against him (judgment no. 2002/103).
Subsequently, by a bill of indictment of 30 December 2003 of the Ankara public prosecutor (case no. 2004/31), criminal proceedings were brought against two police officers before the 9th Chamber of the Ankara Criminal Court on a charge of ill-treatment and illegal deprivation of liberty.
The applicant joined the criminal proceedings against the officers as a civil party (müdahil).
During the proceedings against the police officers, the 9th Chamber of the Ankara Criminal Court heard the applicant, the accused officers, the applicant’s representative at the time, the owner of the clinic and another doctor, K.İ.Z. The owner of the clinic stated that he had not examined the applicant and that it was not he who had drawn up the medical report in question. K.İ.Z. maintained before the court that he had drawn up the report. The applicant’s lawyer stated that the applicant had not asked to see her when he had been in police custody and that he had told her, after his release, that he had been ill-treated. The lawyer estimated that the applicant had been kept in the police headquarters for one hour after having been brought before the public prosecutor on 30 August 1999.
On 6 March 2006 the first-instance court acquitted the police officers of the charge of ill-treatment and convicted them of illegal deprivation of liberty. In its judgment (no. 2006/182), the court noted that the owner of the clinic denied that he had issued the medical report and that K.İ.Z., who had admitted to having examined the applicant in the clinic, had not had the legal authorisation to draw up a medical report. The court also took into consideration the statement of the applicant’s former representative according to which the applicant had been kept in custody for approximately one hour without a valid detention order. The first-instance court concluded that there was insufficient evidence to convict the accused police officers of inflicting ill-treatment on the applicant.
According to the information in the case file, the proceedings are pending before the Court of Cassation.
B. Criminal proceedings against the applicant
Meanwhile, the applicant was detained pending criminal proceedings brought against him.
On 7 February 2000 a certain A.A. was killed.
On 14 February 2000 the applicant’s pre-trial detention was ordered in relation to the murder of A.A. as he was suspected of involvement in the murder and of forming a criminal profit-making organisation.
On 17 February 2000 the applicant was brought before a court, which announced the detention order to him.
On various dates ten other persons were also arrested and detained on suspicion of involvement in the same criminal armed organisation as the applicant. These persons were medically examined at the beginning and end of their detention in police custody. The doctors found no sign of physical injury on their persons, except for a certain M.K. who had sustained a bruise on his face before his detention.
On 6 April 2000 the public prosecutor at the Ankara State Security Court filed a bill of indictment against the applicant and ten other persons accusing them of forming a criminal profit-making organisation and of the murder of A.A. The applicant was further charged with leading the criminal organisation in question.
On 21 September 2001 the first-instance court convicted the applicant as charged (case no. 2000/58 – judgment no. 2001/142).
On 24 June 2002 the Court of Cassation quashed the judgment of the first-instance court (decision no. 2002/2676).
On 17 October 2002 the State Security Court again convicted the applicant and other accused as charged (case no. 2002/110 – judgment no. 2002/169).
On 30 April 2003 the Court of Cassation quashed the judgment of 17 October 2002 (decision no. 2003/792). The case was subsequently remitted to the Ankara State Security Court.
Pursuant to Law no. 5190 of 16 June 2004 abolishing State Security Courts, published in the Official Gazette on 30 June 2004, the case against the applicant was transferred to the Ankara Assize Court.
On 26 October 2004 the Ankara Assize Court again convicted the applicant as charged and sentenced him to life imprisonment (case no. 2004/78 - judgment no. 2004/105). In convicting the applicant, the first instance court took into consideration, among other evidence, the statements of the other accused taken by the police and the public prosecutor.
The applicant’s representatives appealed against the first-instance court’s judgment. In their grounds of appeal, they noted that the statements of some of the other accused had been taken under duress. In support of their claim, the lawyers noted that some of the accused had maintained before the first-instance court that they had been coerced by police officers into giving the applicant’s name as the inciter of the murder of A.A.
On 31 May 2005 the Court of Cassation upheld the judgment of the Ankara Assize Court.
The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment by the police on 30 August 1999.
The applicant further complained, without relying on any Article of the Convention, that the length of his pre-trial detention pending the criminal proceedings brought against him under the bill of indictment of 6 April 2000 had been excessive.
The applicant contended under Article 6 of the Convention that his conviction had been based on the statements of other accused taken by the police under duress. He further maintained that his conviction was unsafe as the first-instance court had failed to assess the evidence correctly.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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 considers that this complaint should be examined under Article 5 § 3 of the Convention. It further notes that the applicant’s pre-trial detention ended on 26 October 2004, when he was convicted for the second time by the first-instance court. From that date until the date of introduction of the application, he was detained under Article 5 § 1 (a) of the Convention, whereas the application was introduced with the Court on 23 November 2005, that is, more than six months later (see, among other authorities, Ege v. Turkey (dec.), no. 47117/99, 10 February 2004). It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As regards the first limb of the applicant’s complaints under Article 6, the Court reiterates that the use of evidence obtained through ill-treatment in criminal proceedings infringes the fairness of such proceedings even if the admission of such evidence has not been decisive in securing the conviction (see Hacı Özen v. Turkey, no. 46286/99, § 101, 12 April 2007). In the present case, the Court observes that the applicant has failed to submit to the Court any conclusive evidence demonstrating that his co-accused had been subjected to ill-treatment while in police custody. While it is true that some of his co-accused maintained before the trial court that they had been subjected to ill-treatment, they were unable to support their allegations by appropriate evidence. The only medical report submitted to the Court which demonstrated that one of the applicant’s co-accused had sustained injuries was the report issued in respect of M.K. That report was drawn up prior to this person’s detention in police custody, however. Consequently, in the absence of any concrete proof the Court finds that the applicant has failed to lay the basis of an arguable claim that his conviction had been based on evidence obtained through ill-treatment. It therefore considers that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
As to the second limb of the applicant’s submissions under Article 6, the Court reiterates that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to assess the relevance of evidence to the issues in the case and to interpret and apply the rules of substantive and procedural law (see, among other authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no. 235-B, and Sarak v. Turkey (dec.), no. 21568/05, 31 March 2009). In the instant case the Court observes that during the proceedings the applicant was represented by lawyers and was able to state his case and challenge the evidence which he considered false. There is no indication in the case file that the decision of the trial court failed to respect the applicant’s procedural rights. Moreover, there are no elements which could lead to the conclusion that the domestic court acted in an arbitrary or unreasonable manner. The Court therefore finds that this part of the application is also manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning his alleged ill-treatment by the police on 30 August 1999;
Declares the remainder of the application inadmissible.
Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President