SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29315/02 by Fehime ETE and Åžehadet ETE against Turkey

The European Court of Human Rights (Second Section), sitting on 13 June 2006 as a Chamber composed of:

Mr J.-P. Costa , President, Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mrs A. Mularoni , Ms D. Jočienė , judges, and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 21 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Fehime Ete and Ms Şehadet Ete , are Turkish nationals who were born in 1960 and 1996 respectively and live in Siirt . The second applicant is the daughter of the first applicant and t hey are represented before the Court by Mrs R. Yalç ı ndağ , Mr O. Baydemir , Mr C. Aydın and Mr B. Kaya , lawyer s practising in Diyarbak ı r .

A. The circumstances of the case

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

On 21 October 2001 the first applicant, Fehime Ete , was taken into custody by gendarmerie officers on suspicion of aiding members of the PKK [1] . The officers who arrested the applicant had to use force during the arrest as a group of people had attacked the gendarmerie officers with stones.

After her arrest, Fehime Ete was taken to the Siirt State Hospital and examined by a doctor who noted that there were marks on her elbow. The applicant was then taken to the Siirt gendarmerie command. During her custody there, the applicant was blindfolded, threatened with rape and beaten.

Fehime Ete was subsequently transferred to the Van gendarmerie command where she was held in custody until 25 October 2001 . During her custody in the Van gendarmerie command, she was blindfolded, immersed in cold water, hung by her arms and severely beaten.

On 25 October 2001 Fehime Ete was brought before a single judge at the Van State Security Court who ordered her detention on remand. Fehime Ete was then placed in Bitlis prison. The second applicant, Åžehadet Ete , was sent to Bitlis prison by her relatives as she was five years old at the time of the events.

On 25 November 2001, at the request of the Governor of the State of Emergency Region and the public prosecutor, pursuant to Article 3 (c) of Law-Decree no. 430, which allowed them to take further measures within the framework of the state of emergency, a single judge at the Van State Security Court authorised Fehime Ete ’ s transfer from prison to the Diyarbakır gendarmerie command for further interrogation for a period of ten days.

On 5 December 2001 , at the request of the governor and the public prosecutor, the single judge at the Van State Security Court extended the custody period by ten days, under the terms of Article 3 (c) of Law ‑ Decree no. 430.

On the same day, the applicant ’ s representative filed an objection with the Van State Security Court challenging the lawfulness of the judge ’ s decision. He claimed, in his petition, that the prison in which the applicant was detained was not in the State of Emergency Region and that, therefore, Law ‑ Decree no. 430 should not have been applied.

On 7 December 2001 the Van State Security Court dismissed the objection, holding that Law ‑ Decree no. 430 applied to the investigation of offences that had warranted decreeing the state of emergency, and that the offence allegedly committed by Fehime Ete was such an offence.

Fehime Ete was held in the Diyarbakır and Siirt gendarmerie command between 25 November and 12 December 2001 . Her daughter, Şehadet Ete , was also kept in the same buildings for six days. During her detention, Fehime Ete was deprived of food, severely beaten, immersed in cold water, threatened with rape in front of her daughter, forced to stand upright for three days and coerced to sign statements.

On an unspecified date, the public prosecutor at the Van State Security Court filed a bill of indictment, charging Fehime Ete with aiding and abetting members of the PKK under Article 169 of the Criminal Code and Article 5 of Law no. 3713.

On 27 March 2002 Fehime Ete made statements before the Van State Security Court . On the same day, the court ordered her release pending trial.

On 14 April 2003 the State Security Court acquitted Fehime Ete of the charges against her, holding that there was insufficient evidence to convict her.

On 11 November 2003 the Court of Cassation upheld the judgment of the first-instance court.

Meanwhile, on 2 April 2002 and 10 March 2003 , Fehime and Şehadet Ete were examined by doctors from the Diyarbakır branch of the Human Rights Foundation of Turkey. Both applicants were found to be suffering from post-traumatic stress disorders. Fehim Ete was also diagnosed with serious depression.

On an unspecified date, Fehime Ete lodged a complaint with the Bitlis public prosecutor, alleging that she had been subjected to ill-treatment at the hands of gendarmerie officers between 25 November and 12 December 2001 . Following the decision of non-jurisdiction given by the Bitlis public prosecutor, the investigation file was sent to the Diyarbakır public prosecutor ’ s office.

On 10 April 2002 the Diyarbakır public prosecutor issued a decision not to prosecute in respect of the applicant ’ s allegations of ill-treatment. He found that there was insufficient evidence to initiate criminal proceedings against the gendarmerie officers. He noted in particular that there were two medical reports which were drawn up when Fehime Ete was taken to the gendarmerie command and when she returned to the prison, according to which there was no sign of ill ‑ treatment on her body. He further noted that the applicant had refused to eat while in custody as she had been fasting, but she had been given food in the mornings and evenings.

The applicant did not object to this decision.

On 28 May 2003 the public prosecutor issued a second decision. Holding that there had already been an investigation into Fehime Ete ’ s allegations which had ended with the decision of 10 April 2002 , the public prosecutor decided not to bring criminal proceedings against the gendarmerie officers.

On 9 July 2003 Fehime Ete ’ s representative filed an objection with the assize court against the decision of 28 May 2003 . It is to be noted that the document submitted to the Court does not bear any sign or stamp proving that it was filed with and received by an official authority. Fehime Ete did not submit any decision of the assize court on the matter.

B. Relevant domestic law and pr actice

A description of the relevant domestic law at the material time can be found in Karagöz v. Turkey ( no. 78027/01, §§ 42-47 , ECHR, 8 November 2005 ) .

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment at the hands of gendarmerie officers between 21 and 25 October 2001 and between 25 November and 12 December 2001 .

The first applicant, Fehime Ete , further complains under Article 13 of the Convention that that there was no effective investigation in respect of her allegation of ill-treatment.

Fehime Ete maintains under Article 5 of the Convention that, following her detention on remand, she was transferred to the gendarmerie command for interrogation pursuant to Law-Decree no. 430, where she was held for seventeen days without judicial control and that she did not have an effective remedy to challenge the lawfulness of her detention there.

Fehime Ete contends under Article 6 of the Convention that she was not allowed to consult a lawyer and that she was deprived of all legal guarantees when she was held at the gendarmerie commands.

Fehime Ete submits under Article 14 of the Convention that she was discriminated against on account of her ethnic origin.

Fehime Ete finally submits that the treatment she suffered constituted a violation of Article 18 of the Convention.

THE LAW

1 . The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment at the hands of gendarmerie officers between 21 and 25 October 2001 and between 25 November and 12 December 2001 . Fehime Ete further complained, under Article 13 of the Convention, of the lack of an effective remedy in respect of her allegations of ill-treatment.

a) As to the applicants ’ allegation of having been subjected to ill ‑ treatment in the custody of the gendarmerie between 21 and 25 October 2001 , the Court notes th at the applicants failed to submit any document to the Court attesting that they had raised this allegation, either in form or substance , before the national authorities. According to the Diyarbakır public prosecutor ’ s non-prosecution decisions, Fehime Ete complained solely of the alleged ill ‑ treatment that they had suffered between 25 November and 12 December 2001 . In the absence of any prima facie proof, the Court concludes that the applicants have failed to exhaust domestic remedies with respect to their allegation of having been subjected to ill ‑ treatment between 21 and 25 October 2001 .

It follows that the applicant s have failed to exhaust domestic remedies and that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

b) As regards the applicants ’ allegation of having been subjected to ill ‑ treatment while in the custody of the gendarmerie between 25 November and 12 December 2001, t he Court reiterates at the outset that the rule of exhaustion of domestic rem edies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p p. 2275-76, §§ 51-52, and Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports , 1996 ‑ IV, p. 1210, §§ 65-67). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent court (see Whiteside v. the United Kingdom , no. 20357/92, Commission decision of 7 March 1994, Decisions and Reports (DR) 76, p. 80).

In the present case, the Court observes that the Diyarbakır public prosecutor issued a decision not to prosecute on 10 April 2002 . He noted in particular that the medical reports drawn up when Fehime Ete was taken to the gendarmerie command and when she returned to the prison did not refer to any sign of ill ‑ treatment on her body. The public prosecutor further noted that Fehime Ete had not made any statement when she had been questioned in the Diyarbakır and Siirt gendarmerie commands. The Court further observes that there is no element in the case file demonstrating that the medical report s drawn up by the Human Rights Foundation w ere conveyed to the public prosecutor. Accordingly, the public prosecutor delivered a decision of non-prosecution on account of insufficient evidence to initiate any proceedings. The applicant failed to appeal against this decision.

The Court does not find it established that such an appeal would have been devoid of any chance of success. It notes in this context that there are precedents indicating that appeals against decisions of public prosecutors not to prosecute have been successful and subsequently prosecutions were brought (see Saraç v. Turkey ( dec .), no. 35841/97, 2 September 2004 ; Epözdemir v. Turkey ( dec .), no. 57039/00, 31 January 2002; Keçeci v. Turkey (friendly settlement), no. 38588/97, § 19, 26 November 2002 ; Fidan v. Turkey ( dec ), no. 24209/94, 29 February 2000 ).

In this connection, the Court finds that the objection allegedly lodged by the applicants ’ representative against the decision of 28 May 2003 cannot be considered as fulfilling the requirement to exhaust domestic remedies when account is taken of the fact that the public prosecutor based the second decision of non ‑ prosecution on the fact that there had already been an investigation into the matter. The Court considers therefore that the decision of 10 April 2002 should be regarded as the decision on the merits against which the applicants should have filed an objection. Besides, the applicants failed to demonstrate that they had actually lodged a petition challenging the decision of 28 May 2003 .

Con sequently, the Court finds that, in the circumstances of this case, the applicant s cannot be considered as having exhauste d domestic remedies in respect of their allegation of ill-treatment in gendarmerie custody between 25 November and 12 December 2001 .

It follows that this part of the application must also be rejected pursuant to Article 3 5 §§ 1 and 4 of the Convention.

2. The first applicant maintains that, contrary to Article 5 of the Convention, following her detention on remand, she was returned to the gendarmerie command for interrogation pursuant to Law-Decree no. 430, where she was held for seventeen days, between 25 November and 12 December 2001, without judicial control and that she did not have an effective remedy to challenge the lawfulness of her detention there.

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.

3 . The first applicant next contends under Article 6 of the Convention that she was not allowed to consult a lawyer and that she was deprived of all legal guarantees when she was held at the Siirt and Diyarbakır Gendarmerie commands .

The Co urt observes that the applicant was acquitted at the end of the criminal proceedings brought against her . Any alleged unfairness in her trial before the domestic courts must therefore be considered to have been rectified by the acquitt al judgment . Thus, she c an no longer claim to be a victim of the alleged violation (see Sadak and Others v. Turkey ( dec .), no. 74318/01, 3 November 2005, and Ahmet Yavuz and Others v. Turkey ( dec .), no. 38827/02, 4 January 2005 ).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The first applicant finally alleges a violation of Articles 14 and 18 of the Convention.

The Co urt observes that the applicant did not submit any evidence in support of this allegation. The Court is of the opinion that the applicant ha s therefore failed to substantiate her complaint, which must also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn t he examination of Fehime Ete ’ s complaints concerning the lawfulness and length of her detention in the custody of the gendarmerie between 25 November and 12 December 2001 and the absence of an effective remedy whereby she could have challenged that detention ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[1] The Kurdistan Workers ’ Party