THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51480/99 by Erikan BULUT against Turkey

The European Court of Human Rights (Third Section), sitting on 23 June 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr L. Caflisch , Mr R. Türmen , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mrs A. Gyulumyan , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 6 August 1999 ,

Having regard to the partial decision of 12 February 2004 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Erikan Bulut , is a Turkish national , who was born in 1961 and lives in Istanbul . He was represented before the Court by Mr Kenan Aşık and Mrs Arzu Durmuş , lawyer s practising in Istanbul ( Turkey ) .

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 August 1998 at about 6 p.m. the applicant was arrested in Istanbul by policemen from the Anti-Terrorism Branch of the Pendik Security Directorate on suspicion of aiding and abetting the PKK. Subsequently, the police officers carried out a search of the applicant ' s office and his flat with his permission. The same day at about 10 p.m. the applicant was examined by a doctor, who reported that there were no signs of injury on his body. Subsequently, the applicant was then taken to the Pendik Police Station to be interrogated.

On 27 August 1998 the public prosecutor verbally ordered the applicant ' s release as there was no evidence against him. Consequently, at about 10.30 a.m. the applicant was handed over to the police officers from the Anti-Terrorism Branch of the Pendik Security Directorate to be released. He was initially taken to the Pendik Hospital where he was examined by a doctor, who stated that there were no signs of ill-treatment on his body. The applicant was then taken to the Pendik Security Directorate building . Whi l e he was waiting in a room with window guards, the police officers started preparing the report for his release. The applicant alleges that w hile he was waiting, the police officers made him drink medicated tea and he lost consciousness. According to the applicant, w hen he regained his consciousness, he was in the hospital. He had fallen from the window of the office which was on the fifth floor of the Security Directorate Building . The Government maintain that when the applicant was taken to another room to sign the release report , he had r u n and jumped out from the window. According to the Government, this office , which was solely used by police officers, had no window guards. After the incident, the applicant was immediately taken to the hospital. T he medical report of 28 August 1998 indicates that t he applicant had several fractures. He had to stay in the hospital for three months before he recovered from his injuries.

The same day, the police officers prepared an incident report, drew a sketch map and took statements from eye-witnesses to the event. Police officers Mustafa Sezer , Burhanettin Tekler , Mustafa Yüksel , and İ smail Kaya Horta confirmed that the applicant had jumped from the window of the office which was on the fifth floor of the Security Directorate building. The police further took statements from Mr Ibrahim Nih a nd Mr Ali Aydın , two civilians, who happened to be in the same office at the time of the incident. They stated that as soon as the applicant entered the office , he ran towards the window and jumped out.

The applicant ' s statement was taken on the same day at about 5 p.m. He confessed that he had r u n and jumped out of the window at his own will . He stated that he had no complaints against anyone.

On 4 September 1998 t he applicant filed a criminal complaint with the Pendik public prosecutor against the police officers that had allegedly thrown him out of the window. In his petition, the applicant maintained that while he was waiting to be released, he had lost consciousness. He further stated that he had no reason to jump out of the window. He requested the public prosecutor to investigate the incident. The applicant further stated that he had been ill-treated during his police custody.

On 9 September 1998 the prosecutor took statements from Sezai Çetin and Ramazan Hokvan , the police officers who had arrested the applicant on 26 August 1998 . They denied the ill-treatment allegations.

On 23 September 1998 the public prosecutor further took statements from police officers, Mustafa Yüksel , Burhanettin Tekler and Mustafa Sezer . They stated that as soon as the applicant was taken to the office on the fifth floor to sign his release report, he had run towards the window and jumped out. They maintained that the applicant was very nervous and sweating.

On 28 September 1998 the public prosecutor took statements from the applicant and his wife. The applicant stated that he had been insulted and threatened while he was in custody at the police station. However he indicated that he had not been subjected to any physical ill-treatment. He explained that after drinking a cup of tea, he had lost his consciousness and had subsequently woke n up in the hospital. He stated that he did not remember whether he had jumped or had been thrown from the window.

In her statement, the applicant ' s wife explained that on 27 August 1998 at about 11 a.m. she had gone to the Pendik Police Station to visit the applicant. At first , the police officers refused to show the applicant to her. S he heard a police officer say to his superior that a liquid had been given to the applicant. Sh e insisted and the officers allowed her to see the applicant . According to the applicant ' s wife, the applicant was lying on the floor, unconscious.

On 23 October 1998 the Pendik public prosecutor decided that no prosecution should be brought against the accused police officers on the ground that there was no sufficient evidence in support of the allegations. The public prosecutor concluded that the applicant had tried to commit suicide.

On 24 February 1999 the applicant challenged this decision before the Kadıköy Assize Court . In his petition, he repeated his ill-treatment allegations. He stated that he was insulted and threatened during his custody. He further alleged that he had been hosed with water, hung from his arms and subjected to electric shocks. The applicant finally complained that he was thrown out of the window as the police officers tried to prevent him from filing a complaint against the police officers.

On 24 May 1999 the Kadıköy Assize Court , upholding the reasoning of the public prosecutor, dismissed the case.

On 12 July 2001 a forensic doctor attached to the Human R ights Foundation delivered a report about the applicant. Referring to the absence of a psychiatric report and a toxic examination, he concluded that the applicant had not been thoroughly examined at the hospital after his fall. He indicated that the applicant had been inscribed in a special recovery programme by the Istanbul Branch of the Foundation.

COMPLAINTS

Referring to the assault which resulted in his being thrown over from the fifth floor of the Security Directorate Building , the applicant complains of a violation of his right to life under Article 2 of the Convention.

The applicant further complains under Article 3 of the Convention that the treatment he had been subjected to amounts to ill-treatment within the meaning of the Convention. He further submits that he had been subjected to psychological pressure and ill-treatment whilst he was held in custody.

The applicant maintains under Articles 6 and 13 of the Convention that he was denied access to a court for his complaints and contends that there was no effective investigation about the treatment he was subjected to while he was under custody.

THE LAW

The applicant complain ed of violations of Article 2 (right to life), Article 3 (prohibition of torture), Article 6 (right to a fair trial) and Article 13 (right to an effective remedy ) of the Convention .

A. The Government ' s objection

The Government argued under Article 35 of the Convention that the applicat ion must be rejected for non-exhaustion of domestic remedies. They maintained that the applicant had not invoked this complaint before the domestic courts.

The Court recalls in the first place that no criminal proceedings were brought against the applicant. It further observes that the applicant filed a criminal complaint with the Pendik public prosecutor against the police officers that had allegedly thrown him out of the window and further alleged that he had been ill-treated under custody . O n 23 October 1998 the Pendik public prosecutor decided that no prosecution should be brought against the accused police officers on the ground that there was no sufficient evidence in support of the allegations. The applicant challenged this decision and on 24 May 1999 the Kadıköy Assize Court , upholding the reasoning of the public prosecutor, dismissed the case.

In the light of the foregoing, the Court considers that the applicant did everything that could be expected of him to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

Accordingly, the Court rejects the Government ' s objection.

The Government denied the allegations. They maintained that the applicant ' s allegations were investigated thoroughly by the domestic authorities. They contended that the application was an abuse of the right of petition and stated that the applicant ' s allegations were unsubstantiated.

The applicant maintained that his account of the events was accurate .

The Court considers in the light of the parties ' submissions that th e application raise s complex issues of law and fact under the Convention, the determination of which should depend on an examination of their merits. It concludes, therefore, that th e application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

V incent Berger Boštjan M. Zupančič Registrar President