Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28522/95

by Nazmi TOSUNOGLU

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 March 1995 by

Nazmi TOSUNOGLU against Greece and registered on 12 September 1995

under file No. 28522/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the information submitted by the respondent

Government on 24 December 1995 and 21 March 1996 and the comments by

the applicant in reply dated 22 March 1996 and 8 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national. He was born in 1956. He is

currently held in Trikala prison, in Greece.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

On 1 December 1988 the applicant was convicted by the three-

member Court of Appeal of Athens (trimeles efetio) to 13 years

imprisonment for robbery.

On 17 October 1989 the Disciplinary Board of Trikala prison

imposed on the applicant the disciplinary penalty of five days

detention in the segregation unit on the ground that he had engaged

himself in a fight with another prisoner for no apparent reason.

On 14 June 1991 a disciplinary penalty of ten days detention in

the segregation unit was imposed on the applicant for having tried to

escape from Trikala prison.

On 18 June 1991 the applicant was transferred to Larissa prison.

On the same day a disciplinary penalty of ten days detention in the

segregation unit was imposed on him for having attacked a prison

warden.

Between 5 September 1994 and 28 January 1995 the applicant

attended a computer training course.

On 2 March 1995 the applicant was transferred from Larissa prison

to a detention centre in Athens. The applicant claims that, when he

arrived there, at around 22h00, he reported to the policemen who had

escorted him that his suitcase was missing. The policemen reacted by

shouting at him, pushing him and beating him. The applicant threw

himself on the suitcases face downwards. The policemen forced him into

the detention centre by kicking him and pulling him by the hair.

On 3 March 1995 the applicant was transferred to Tripoli prison.

and on 7 March 1995 to the open prison of Tirintha. However, on

8 March 1995 the director of Tirintha prison requested that the

applicant be transferred to a higher security prison because there was

a high risk that he might attempt to escape.

On 16 March 1995 the Greek Ministry of Foreign Affairs was

notified by the Turkish Embassy that the applicant had complained that

he had been subjected to ill-treatment during his transfer from Larissa

to Tripoli prison. The Ministry of Foreign Affairs contacted the

Ministry of Justice which contacted the prison authorities of Larissa,

Tripoli and Tirintha. The latter replied that the applicant had never

complained of ill-treatment. The prison authorities of Tirintha

specified that the applicant had been examined on his arrival there by

a doctor who had not reported any evidence of ill-treatment. The

applicant's complaint was forwarded to the Ministry of Public Order.

On 5 April 1995, the applicant was transferred to Halkida prison.

On a date not specified, the applicant claims to have reported the

above ill-treatment incident to a public prosecutor who visited the

prison. The applicant claims that the public prosecutor refused to

entertain his complaint invoking lack of competence ratione loci.

On 16 June 1995 the Police Director of Athens ordered an

administrative inquiry into the applicant's allegations. On

18 July 1995, the applicant was visited by a policeman who asked him

to make a statement concerning the alleged ill-treatment incident.

On 1 September 1995 the administrative inquiry was concluded. In

his report, the police officer who conducted the inquiry noted that he

had examined a number of documents and heard the police officers

implicated in the incident. He also noted that the Ministry of Foreign

Affairs had failed to communicate to the Police the letter which the

applicant had addressed to the Turkish Embassy complaining of ill-

treatment.

The following facts had been established. The applicant arrived,

together with 21 other prisoners, in the detention centre in Athens on

2 March 1995. In order to eliminate the risk of escaping, the police

officers who had escorted the applicant formed with their bodies a

corridor leading from the door of to the boot of the bus where the

luggage of the prisoners could be found. The prisoners had to cross

that corridor in order to recover their luggage. The applicant,

pretending that he was tired from the long journey, tried to obstruct

the procedure, appeared to be restless and attempted to start a

conversation with one of the escorts. The experienced members of the

escort recognised a well-known method used by prisoners in their

attempts to escape. Two of them intervened and conducted the applicant

directly to the detention centre. His luggage was subsequently given

to him.

No officer pushed the applicant. The officers "realised the

applicant's intentions and acted in a preventive manner, unfortunately

for him." In any event, the police officer who conducted the inquiry

considered "it is not advisable in the circumstances to push a

prisoner, because he may take advantage of that fact and break the

human corridor and escape". His conclusion was that the applicant's

allegations were unfounded and that they must be attributed to the

applicant's frustration with his failure to escape. In the light of the

above, the officer who conducted the inquiry considered that no

disciplinary action should be taken against the officers implicated in

the incident.

On 14 September 1995 the Police Director of Athens agreed with

the recommendations of the officer who conducted the inquiry. On

2 October 1995 the General Director of the Police also approved.

On 19 October 1995, the applicant applied to the director of

Halkida Prison for a conditional release. On 20 October 1995 the

director of Halkida prison decided that 20 prisoners should be moved

away from Halkida prison to facilitate the undertaking of refurbishment

work. On 26 October 1995 the applicant, together with 19 other

prisoners, was transferred to Trikala prison.

On 14 December 1995 a special chamber of the first instance

criminal court (Simvulio Plimmeliodikon) of Trikala decided that the

applicant should not be conditionally released. The applicant appealed.

On 2 February 1996 a special chamber of the court of appeal

(Simvulio Efeton) of Trikala upheld the decision of the first instance

court on the ground that the applicant's behaviour in prison had not

been good. The court made reference to the disciplinary offences

committed by the applicant.

On a date which has not been specified the applicant was

transferred to Agia prison in Hania, Crete. He was then conditionally

released.

COMPLAINTS

1. The applicant complains that he was subjected to ill-treatment

on 2 March 1995. He invokes Article 3 of the Convention.

2. The applicant further complains that the refusal of the

authorities to grant him a conditional release constitutes a violation

of Article 7 of the Convention. It also amounts to a violation of

Article 25 of the Convention, in that it constitutes reprisals for the

application he has lodged with the Commission.

3. Finally, the applicant complains that he is being refused a fee

he is entitled to for having attended the computer training programme.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 March 1995 and registered on

12 September 1995.

On 14 December 1995 the Secretary of the Commission, acting on

the instructions of the Rapporteur, requested the Government of Greece

to inform him before 1 February 1996 whether the applicant had

complained about the alleged ill-treatment to the Greek authorities

and, if so, whether an investigation was under way.

The Government replied on 24 December 1995 and sent additional

information on 21 March 1996. The applicant submitted written comments

on 22 March 1996 and 8 June 1996.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention that he was subjected to ill-treatment on 2 March 1995.

The Commission notes that the applicant claims to have raised his

complaints orally with a public prosecutor, who allegedly refused to

entertain them invoking his lack of competence ratione loci. It also

notes that the applicant's allegations have been examined by the police

authorities in the context of an administrative inquiry which concluded

that no action need be taken. However, the Commission does not consider

it necessary to examine whether, in these circumstances, the applicant

can be exempted from the obligation to exhaust domestic remedies by

raising his complaints with the competent public prosecutor

(cf. No. 21300/93, Mehiar v. Greece, Dec. 10.4.96, unpublished and

No. 23916/94, Dec. 6.4.95, unpublished).

The Commission notes, in this connection, that the applicant has

failed to provide any elements of proof that his allegations of ill-

treatment correspond to reality (cf., a contrario, Tomasi v. France,

Comm. Report 11.12.90, paras. 99-100, Eur. Court H.R., Series A

no. 241, p. 52). It follows that no appearance of a violation of

Article 3 (Art. 3) of the Convention is disclosed and that this part

of the application must be rejected as manifestly ill-founded under

Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant complains under Article 7 (Art. 7) of the

Convention that the refusal of the authorities to grant him a

conditional release constitutes a violation of Article 7 (Art. 7) of

the Convention.

The Commission notes that the applicant has now been

conditionally released. As a result, he can no longer claim to be a

victim of a violation within the meaning of Article 25 (Art. 25) of the

Convention. Moreover, insofar as he complains about the initial

rejection on 2 February 1996 of his application for conditional

release, the Commission recalls that neither Article 7 (Art. 7) nor any

other provision of the Convention guarantees a right to be

conditionally released. It follows that this part of the application

must be rejected as incompatible with the provisions of the Convention

under Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains that he was refused a fee he is entitled

to for having attended a computer course.

The Commission notes that there is no indication that the

applicant has complained in this connection to the national

authorities. It follows that, even assuming that the applicant's claim

is capable of raising an issue under the Convention and/or its

Protocols, the applicant has failed to exhaust domestic remedies in

accordance to Article 26 (Art. 26) of the Convention. This part of the

application must be, therefore, dismissed in accordance with Article 27

para. 3 (Art. 27-3) of the Convention.

4. Finally, insofar as the applicant complains that the initial

refusal to grant him a conditional release constituted an interference

in the exercise of the right of individual petition under Article 25

(Art. 25) of the Convention, the Commission has taken note of the

reasons invoked by the national courts for refusing his conditional

release on 2 February 1996. It has also taken note of the fact that the

applicant has now been conditionally released. It, therefore, considers

that no further action need be taken in respect of this complaint.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE;

DECIDES THAT NO FURTHER ACTION NEED BE TAKEN IN CONNECTION WITH

THE ALLEGED INTERFERENCE IN THE EXERCISE OF THE APPLICANT'S RIGHT

OF INDIVIDUAL PETITION UNDER ARTICLE 25 OF THE CONVENTION.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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TOSUNOGLU v. GREECE

TOSUNOGLU v. GREECE

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