AS TO THE ADMISSIBILITY OF
by Özgür AĞDAŞ
The European Court of Human Rights (Second Section), sitting on 26 May 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 10 May 2006,
Having deliberated, decides as follows:
The applicant, Mr Özgür Ağdaş, is a Turkish national who was born in 1976 and lives in Istanbul. He is represented before the Court by Mrs G. Tuncer, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 December 1997 the applicant was arrested on suspicion of membership of TKP-ML/TIKKO, (Communist Party of Turkey/Marxist Leninist-Workers’ and Peasants’ Liberation Army of Turkey).
Between 18 and 24 December 1997 the applicant was detained at the anti-terrorist branch of the Istanbul police headquarters. He was allegedly interrogated under torture and denied access to legal assistance during this period.
On the same day the applicant made statements to the public prosecutor and subsequently to a single judge at the Istanbul State Security Court. On both occasions, he contended that he had been coerced by the police into signing the document allegedly containing his police statement. Before the judge, the applicant further alleged that he had been tortured while in police custody. On the same day the judge ordered the applicant’s pre-trial detention.
On 29 December 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant and six other persons under Article 168 (2) of the former Criminal Code with membership of TKP-ML/TIKKO. The applicant was also charged with throwing explosives under Article 264 of the same Code.
On the same day the applicant sent a petition to the State Security Court requesting his release pending trial. In his petition, the applicant noted that he had been subjected to violence while in police custody and that therefore his statements to the police should not be taken into consideration.
On 12 March 1998 the applicant once again sent a petition to the first instance court requesting his release. He stated that he had been subjected to torture and threatened with death in police custody. He further noted that he had not been examined by a doctor on 24 December 1997. He once again requested that his police statements should not be taken into consideration as evidence against him.
On the same day the Istanbul State Security Court held the first hearing on the merits of the case. It appears from the documents in the case file that the applicant was released pending trial on this date.
According to the information submitted by the applicant on 16 September 2008, the criminal proceedings against him are still pending before the 13th Chamber of the Istanbul Assize Court.
The applicant complained under Article 3 of the Convention that he had been subjected to torture while in police custody. He further alleged under Article 13 of the Convention that no steps had been taken by the national authorities to investigate his allegations of ill-treatment.
The applicant maintained under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time.
The applicant further contended under Article 6 § 1 of the Convention that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Court until June 1999. He complained under Article 6 §§ 2 and 3 of the Convention that the first-instance court had taken into consideration the submissions made by the public prosecutor and the police. The applicant finally alleged under Article 6 that he had been denied access to legal assistance during his detention in police custody and before the public prosecutor and the single judge on 24 December 1997.
The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention alone.
The Court notes at the outset that the applicant failed to submit to the Court any evidence in support of his allegations of torture. It observes that it would have been possible for the applicant, on his release from pre trial detention, to be examined by a doctor in order to obtain medical reports in support of his allegations that he had been subjected to torture.
The Court further observes that the applicant’s submission concerning his alleged torture, made to the single judge at the Istanbul State Security Court and subsequently the trial court, was aimed at challenging the reliability and admissibility in evidence of the statements taken from him in police custody. No details of the alleged torture were given by the applicant to the public prosecutor or the trial court, nor did he submit any evidence to that effect.
Nevertheless, the Court notes that a public prosecutor who was informed by whatever means of a situation giving rise to the suspicion that an offence had been committed was obliged, under Article 153 of the Code of Criminal Procedure then in force, to investigate the facts by conducting the necessary inquiries in order to identify the perpetrators. Thus, the Court is prepared to accept that the applicant did avail himself of a domestic remedy by submitting to the trial court his allegations of torture and that this interrupted the running of the six-month period. The Court notes in this connection that the applicant raised his allegations of ill treatment on three occasions prior to 12 March 1998. However, he did not pursue his allegations of ill-treatment in the course of the trial after the aforementioned date.
In the light of the above, the Court considers that the failure of the judicial authorities to act must have become gradually apparent to the applicant and the latter should have been aware of the ineffectiveness of remedies in domestic law long before 10 May 2006, the date on which he lodged his application with the Court (see, mutatis mutandis, Hazar and others v. Turkey (dec.) no. 62566/00, 10 January 2002, and Karabulut v. Turkey, no. 56015/00, § 31, 24 January 2008).
Accordingly, this part of the application has been lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
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 observes that these proceedings are still pending. The applicant’s complaints are therefore premature. Consequently, this part of the application must be rejected pursuant to 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 complaint concerning the length of the criminal proceedings brought against him;
Declares the remainder of the application inadmissible.
Françoise Elens-Passos Françoise
Deputy Section Registrar President