KUNKUL v. TURKEY
Inadmissible
David Thór Björgvinsson
The applicant, Nezir Künkül, is a Turkish national who was born in 1949 and lives in Batman. He was represented before the Court by Mr M. Beştaş and Mrs M. Bektaş, lawyers practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a driver working for the Turkish telecom at the time of the events. On 4 June 1998 the applicant was arrested by gendarmes at the Suçeken Gendarmes Station. The applicant claims that he had been beaten during his interrogation at the Suçeken Gendarmes Station. According to the medical report drafted and issued by a doctor at the Batman State Hospital on 5 June 1998, the applicant did not bear any physical signs of ill-treatment. On 5 June 1998 the applicant was transferred over to the Batman Gendarmes Station where he was held for three days. He alleges that during this time he was subjected to torture, insults and death threats. On 8 June 1998 the applicant was taken before a doctor at the Batman State Hospital for a medical examination. According to the medical report he did not bear any physical signs of ill-treatment. On the same day, the applicant was brought before the Batman public prosecutor where he denied the statements he had given to the gendarmes. He claimed that he had been forced to carry supplies to the PKK because Mr N.K. had threatened his life and that of his children. On the same day, the applicant appeared before the Batman Magistrates’ Court where he denied the statements he had given to the gendarmes and claimed to have signed his deposition under duress. The court ordered his release. The public prosecutor objected to this decision. The applicant claimed that despite the court’s order for release, he had been taken back to the Batman Gendarmes Station and was subjected to constant beatings. On 9 June 1998 the Batman Criminal Court of First Instance ordered the applicant’s remand in custody. According to the medical report of 9 June 1998 the applicant did not bear any physical signs of ill-treatment. On 26 June 1998 the public prosecutors’ office at the Diyarbakır State Security Court filed a bill of indictment with the latter, accusing the applicant of aiding and abetting an illegal organisation. The public prosecutors’ office requested that the applicant be convicted and sentenced under Article 169 of the Criminal Code. On 2 September 1998 the Diyarbakır State Security Court, following the erratic behaviour of the applicant during questioning, ordered the transfer of the applicant to the Elazığ Mental Hospital in order to establish whether he was mentally fit. The applicant’s representative claimed that the applicant’s state of mental health had suffered as a result of the treatment he had received in custody. On 27 October 1998 the applicant was committed to the Elazığ Mental Hospital for treatment. According to the medical report drafted by the doctors at the Elazığ Mental Hospital, the applicant was diagnosed as suffering from an anxiety reaction. On 26 November 1998 the Elazığ Mental Hospital Health Commission issued a report stating that the applicant was suffering from an anxiety reaction. He was released from the hospital the same day. On 4 January 1999 the applicant filed a petition with the Batman public prosecutors’ office requesting that the gendarmes at the Batman Gendarmerie Commandership be prosecuted for ill-treatment. On 7 June 1999 the public prosecutors’ office, after having heard a neurology expert, issued a decision of nonprosecution on account of lack of evidence. According to the doctor’s testimony, it was impossible to determine at what date the applicant’s disturbance commenced and that it was possible to have this kind of disturbance in healthy persons. Moreover the doctor concluded that similar symptoms could also be found in a football fan whose team had lost a match. The applicant filed an objection with the Midyat Assize Court against the decision of the public prosecutor. He stated that he had lost his mental health as a result of the ill-treatment he had been subjected to during his interrogation. He submitted that the decision of non-prosecution was given without an adequate investigation since the public prosecutor had not heard to some of the witnesses. On 23 July 1999 the Midyat Assize Court, referring to the time elapsed between the dates of the alleged offence and that of the complaint, the medical report of 8 June 1998 and testimonies of witnesses and that of the expert, dismissed the applicant’s objection. This judgment was served on the applicant on 7 September 1999. The criminal proceedings against the applicant were pending at the time of the application. No further information or documents were submitted in respect of these proceedings. A description of the relevant domestic law at the material time can be found in Batı and others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, ECHR 2004IV (extracts)).