European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/715.html
Cite as: [2011] ECHR 715
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SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
42403/09
by Kasım AZARKAN
against
Turkey
The European Court of Human Rights (Second Section), sitting on 29 March 2011 as a Chamber composed of:
Françoise
Tulkens, President,
Danutė
Jočienė,
Ireneu
Cabral Barreto,
David
Thór Björgvinsson,
Giorgio
Malinverni,
András
Sajó,
Işıl
Karakaş, judges,
and
Françoise Elens-Passos, Deputy
Section Registrar,
Having regard to the above application lodged on 28 July 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Kasım Azarkan, a Turkish national who was born in 1968, is currently serving a sentence in Diyarbakır prison.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The criminal proceedings brought against the applicant
On 29 August 2001 the applicant was arrested and taken into police custody on suspicion of membership of Hizbullah, an illegal organisation.
The applicant complained that he had been ill-treated in police custody. Two medical reports were drawn up at the beginning and the end of the applicant’s detention in police custody, according to which he had sustained no injuries. Those medical reports have not been submitted to the Court.
On 5 September 2001 the applicant was taken to the scene of a crime by the police. The applicant alleges that during the crime scene investigation, he was forced to make further self-incriminating statements under duress.
On 7 September 2001 the applicant was brought before the public prosecutor and the investigating judge. He submitted that he had made statements under coercion while in police custody and during the crime scene investigation. On the same day, he was placed in pre trial detention.
On 19 September 2001 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment accusing the applicant and two other persons of membership of an illegal organisation and carrying out armed activities on its behalf.
On 29 January 2002 the first-instance court decided to join the criminal proceedings against the applicant with another case before the same court (2001/279 E.).
In his defence submissions made on 31 January 2002, the applicant denied the veracity of his statements to the police and alleged that they had been extracted from him by coercion.
On 25 December 2003 the Diyarbakır State Security Court joined the proceedings to another case before the same court (2000/115 E.).
On 17 May 2004 the public prosecutor at the Diyarbakır State Security Court filed a second bill of indictment charging the applicant with involvement in the murder of two people on behalf of Hizbullah.
In his defence submissions made on 15 December 2004, the applicant once more complained that he had been forced to make self-incriminating statements in police custody.
Following the abrogation of the State Security Courts by Law no. 5190 of 16 June 2004, the Diyarbakır Assize Court resumed the proceedings.
On 20 June 2008 the applicant requested that two witnesses be heard by the court. In this connection, he claimed that he had been at the houses of those persons when the murders in which he was accused of being involved took place.
On 3 July 2008, the court held the last hearing, at which it rejected the applicant’s request to have the witnesses summoned. Considering that the case had been pending for years and that the proceedings were about to come to an end, the first-instance court held that the statements of the witnesses in question would not shed further light on the establishment of the facts. Having regard to the range of evidence, namely, documents containing information on the activities and action plans of Hizbullah, the applicant’s statements at the investigation stage of the proceedings and the statements of a number of co-accused and witnesses, the Diyarbakır Assize Court convicted the applicant under Article 146 § 1 of the former Criminal Code of being a member of an illegal organisation and attempting to undermine the constitutional order by force. The applicant was sentenced to life imprisonment. In its judgment, the first instance court rejected the applicant’s allegation of ill treatment in police custody, referring to the findings of the medical reports issued at the beginning and the end of his detention in police custody.
On 12 October 2009 the Court of Cassation upheld the applicant’s conviction by a final decision.
2. The civil proceedings brought against the applicant
On 27 June 2006 the Court held in the case of Cennet Ayhan and Mehmet Salih Ayhan v. Turkey (no. 41964/98) that there had been a violation of Article 2 on account of the authorities’ failure to conduct an effective investigation into M.E.A.’s killing. Consequently, it ordered the respondent Government to pay compensation to the victim’s family.
On 6 December 2007 the Ministry of Foreign Affairs lodged a case against the applicant and four other persons as the convicts of the murder of M.E.A., requesting the reimbursement of the compensation paid by the State.
On 29 December 2009 the Diyarbakır Civil Court rejected the case, finding that the national authorities had been ordered to pay the compensation because of their failure to carry out an adequate and effective investigation into M.E.A.’s death, and that therefore the claim for compensation could not be transferred to the defendant parties.
On 2 April 2010 the Ministry of Foreign Affairs appealed against the judgment.
According to the submissions in the case file, the proceedings are still pending before the Court of Cassation.
COMPLAINTS
The applicant complained under Article 3 of the Convention that he had been ill-treated while in police custody.
He complained under Article 5 § 1 of the Convention that he had been unlawfully taken into police custody and that he had been detained there for an excessive period of time.
The applicant argued under Article 5 § 3 of the Convention that his pre-trial detention had been unreasonably lengthy. Under the same provision, he further complained about the length of the criminal proceedings against him.
The applicant submitted under Article 6 § 1 of the Convention that he had not had a fair trial, as the first-instance court had based his conviction on self-incriminating statements allegedly extracted from him under duress while in police custody. The applicant further maintained that the trial court had unfairly refused to admit evidence in his favour and to summon witnesses for his defence.
The applicant complained, without relying on any Article of the Convention, that he had not been assisted by legal counsel during his detention in police custody.
Finally, in submissions to the Court dated 18 November 2009, the applicant complained about the civil proceedings lodged against him by the State, which sought to transfer an order to pay compensation onto him.
THE LAW
The Court considers that this complaint must be examined from the standpoint of Article 6 § 1 of the Convention. It further 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 it to the respondent Government.
The Court considers that it is appropriate to examine these complaints from the standpoint of Article 6 §§ 1 and 3 (c) and (d) of the Convention. It further considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
The Court notes, at the outset, that the applicant did not provide any medical report in support of his allegations of ill-treatment. However, a number of other documents in the case file disclose that he was examined by a doctor, who did not observe any injuries on his person after his release from police custody. Alleging that his medical examinations had been conducted in the presence of three police officers, the applicant challenged their veracity, without submitting the relevant medical reports for inclusion in the case file. Moreover, the applicant did not submit any evidence demonstrating that he had attempted to request another medical examination from the authorities, or that such a request had been rejected and as a result he had been prevented from obtaining an alternative medical report.
In the light of the foregoing, the Court considers that the applicant has failed to substantiate his complaint with any appropriate evidence and has not made out a prima facie claim that he was subjected to treatment contrary to Article 3 in police custody. It must therefore declare this complaint inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention (see Yıldırım v. Turkey (dec.) no.33396/02, 30 August 2007, and Tanrıkolu and Others v. Turkey, no. 45907/99, 20 October 2005).
The Court observes that the applicant’s detention in police custody and his detention on remand ended on 7 September 2001 and 3 July 2008 respectively, whereas he lodged his application with the Court on 28 July 2009. It follows that these complaints are inadmissible for non-compliance with the six-month rule and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.
The Court reiterates that the use of evidence obtained through ill treatment in criminal proceedings infringes the right to a fair trial 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 he was subjected to ill-treatment while in police custody. Nor has he argued that he was unable to obtain, or was prevented from obtaining such evidence. 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 was 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.
The Court observes that the proceedings are still pending before the Court of Cassation. The applicant’s complaint is, therefore, premature. For this reason, the Court rejects the complaint for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention (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 the length of the criminal proceedings against him, the alleged lack of legal assistance in police custody and his inability to obtain the examination of witnesses at the trial;
Declares the remainder of the application inadmissible.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President