SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52392/99 by Seydo UÇAR against Turkey

The European Court of Human Rights ( Second Section), sitting on 4 January 2005 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr R. Türmen , Mr K. Jungwiert , Mr M. Ugrekhelidze , Mrs A. Mularoni , Mrs E. Fura-Sandström , judges ,

and Mr s S . Dollé , Section Registrar ,

Having regard to the above application lodged on 4 November 1999 ,

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 Seydo Uçar, is a Turkish national who lives in Mardin . He was represented before the Court by Mr P. Leach, Mr İ. Sağlam and Mr Ş. Ülek , lawyers practising in London , Diyarbakır and Şanlıurfa respectively.

A. The circumstances of the case

The application concerns the alleged abduction and ill-treatment of Cemal Uçar, the applicant ' s son, by unknown persons and his death in Diyarbakır E-type prison. At the time of the events giving rise to the application, Cemal Uçar was 26 years old. As the facts surrounding the detention and death of the applicant ' s son are disputed between the parties, the facts submitted have been set out separately.

1. The a lleged abduction of Cemal Uçar

(a) The facts submitted by the applicant

On 5 October 1999 at around 11 a.m. Cemal Uçar, the applicant ' s son, left his house to buy water. Four plain-clothed persons carrying weapons and radios attempted to abduct him. Cemal Uçar tried to run away. However, he was caught behind his house. These persons told him that they were policemen. He was then blindfolded and put in a vehicle. The applicant claims that a neighbour witnessed the abduction. According to this witness Cemal Uçar resisted arrest but was dragged into a dark red car. After being driven around for some time Cemal Uçar was taken to an unknown location.

On 11 October 1999 the applicant filed a petition with the public prosecutor ' s office at the Diyarbakır State Security Court requesting the authorities to inform him whether his son had been taken into police custody. In his petition, the applicant stated that his son had been arrested by persons who introduced themselves as police officers .

On the same day, after having been notified that Cemal Uçar had not been in police custody, the applicant lodged a further petition with the public prosecutor ' s office in Diyarbakır requesting the authorities to find out the whereabouts of his son.

On 26 October 1999 the applicant again applied to the Diyarbakır public prosecutor. In his petition he repeated his allegation about his son ' s abduction. He further stated that two plain-clothed police officers had gone to his son ' s house two days after the abduction and that on the same day a plain-clothed police officer had gone to his house and looked for his son. The applicant contended that he had been unable to obtain information about his son from the Diyarbakır Security Directorate. He requested the public prosecutor ' s office to find out his son ' s whereabouts.

Between 5 October and 2 November 1999 Cemal Uçar was detained by the kidnappers. He was kept blindfolded, deprived of food and was subjected to electric shocks.

On 2 November 1999 the kidnappers took Cemal Uçar to the city stadium in Diyarbakır and left him outside. A balaclava was put over his head and he was made to lie on the ground. The kidnappers told him that they would send the police shortly.

(b) The facts submitted by the Government

On 11 October 1999 , after having received the applicant ' s petition, the Diyarbakır public prosecutor requested the security directorate to examine the allegations. He took statements from the applicant concerning the alleged abduction of Cemal Uçar.

On 22 November 1999 the Diyarbakır public prosecutor sent letters to the public prosecutor ' s office in Nusaybin , the Security Directorate, the Gend arme Command and the Population Office in Diyarbakır requesting these offices to conduct an investigation .

On 26 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that Cemal Uçar had been taken into police custody on 2 November 1999 by police officers from the Diyarbakır Anti ‑ Terror Branch and that on 10 November 1999 his detention on remand had been ordered after he had been brought before the public prosecutor at the Diyarbakır State Security Court.

On 29 November 1999 the deputy chief of police in Diyarbakır notified the Diyarbakır public prosecutor that on 24 November 1999 Cemal Uçar had committed suicide in the Diyarbakır E-type prison.

On 10 December 1999 the Diyarbakır public prosecutor issued a decision of non-prosecution in respect of the applicant ' s allegations , finding that Cemal Uçar had been taken into police custody and , consequently , no offence had been committed or offender sought.

On 23 December 1999 the decision of non-prosecution was served on the applicant.

2. The detention of Cemal Uçar in police custody

(a) The facts submitted by the applicant

On 2 November 1999 , at 3.30 a.m. , within 3 to 5 minutes after the kidnappers had left, police arrived at the stadium and arrested Cemal Uçar. The police officers found a forged identi ty card in Cemal Uçar ' s pocket. It had been placed there b y his kidnappers. He was then taken to the Diyarbakır State Hospital and examined by a doctor who noted the following:

“An abrasion on the nose, scars on the right wrist, right hand and left foot, an oedema on the right foot and injuries to the various parts of the body have been identified ... ”

On 10 November 1999 Cemal Uçar was forced by the police to sign a statement, according to which he had been responsible for the organisation of Hizbullah activities in Diyarbakır .

On 11 November 1999 Cemal Uçar, along with nine other persons, was taken to a medical expert who noted that none of the ten persons had sustained any injuries.

On the same day, Cemal Uçar was brought before the public prosecutor at the Diyarbakır State Security Court . In his statements to the public prosecutor, Cemal Uçar claimed that he had been kidnapped and taken somewhere close to the Diyarbakır prison where he had been tortured by the kidnappers who had described themselves as working for Mahmut Yıldırım , an individual also known as “ Yeşil ”, who carried out unlawful acts in the south-east in the 1990 s and whose activities were allegedly known to the police and the Turkish intelligence service . He denied the truth of the statements taken from him on 10 November 1999 . He maintained that he had been forced to sign them.

On the same day, he was taken to the Diyarbakır State Security Court before which he repeated the statements that he had made to the public prosecutor. The court ordered his detention on remand.

(b) The facts submitted by the Government

On 2 November 1999 , at around 3.15 a.m. , in the course of a routine police check , Cemal Uçar was seen sitting in front of the city stadium. As he appeared suspicious, the police officers asked him t o show them his identity card. A forged identi ty card was seized and Cemal Uçar was taken into custody.

On 4 November 1999 the public prosecutor at the Diyarbakır State Security Court extended Cemal Uçar ' s custody period for two days. On 6 November 1999 the period was extended for a further six days by the Diyarbakır State Security Court .

In his statement to the police dated 10 November 1999 , Cemal Uçar acknowledged his involvement in Hizbullah activities in Diyarbakır .

On 11 November 1999 the Diyarbakır State Security Court ordered his detention on remand . Cemal Uçar was then transferred to the Diyarbakır E ‑ type prison.

3. The alleged solitary confinement and suicide of Cemal Uçar in prison

(a) The facts submitted by the applicant

After being transferred to the Diyarbakır E-type prison the applicant was placed in a cell where he remained for eleven days.

On 24 November 1999 Cemal Uçar died in the Diyarbakır E-type prison. In a letter dated 27 September 2000 the applicant ' s representative informed the Court that the applicant believed that police officers had killed his son.

(b) The facts submitted by the Government

On 24 November 1999 during the regular morning inspection , at around 8.15 a.m. , Cemal Uçar was discovered by prison officers hanging from a bunk bed by a belt. The prison officers called the prison doctor who established that Cemal Uçar was dead . The y drafted a report immediately after the incident which stated that Cemal Uçar had been hung by a belt made of fabric. They then informed the prison director and his deputy.

On the same day, at 9.30 a.m. , the public prosecutor, the prison director, his deputy and one prison officer prepared a further report describing the ward in which the applicant ' s son died. According to this second report, there were six bunk beds in the 36 square metres ward where Cemal Uçar was kept . One of these six beds was turned upright so that it could be used as a wardrobe. The deceased was hanging from the upright bunk bed by a blue belt. There were two pillows, a bottle of water and two glasses placed under his feet. There was no sign of a struggle in the ward, such as broken objects or traces of blood.

At 11.30 a.m. a further report was drafted by technical police officers from the Diyarbakır Security Directorate. They established that Cemal Uçar had committed suicide by hanging himself from a bunk bed, positioned vertically, by means of a black trouser s belt. They took photographs of the scene of incident , drew a plan and filmed the ward with a video camera.

An autopsy was carried out on the deceased. According to the autopsy report, no indication of ill-treatment, such as scars or bruises, was identified on the corpse. The report revealed that the cause of death was mechanical asphyxia result ing from suspension.

On the same day, statements were taken from the three prison officers who had found the body of Cemal Uçar and from the two other inmates of the ward , which was the “observation ward” ( müşahade koğuşu ) of the prison . The prison officers testified that Cemal Uçar had taken breakfast at around 6.45 a.m. and that at around 8.15 a.m. they found him dead during the inspection of the ward. One of the officers stated that the other inmates were asleep when they arrived at the scene of incident. The officers stated that they then informed the prison authorities. The two inmates stated that they had been awakened at around 8 a.m. by a noise in the ward and then saw that Cemal Uçar had hung himself. They both testified that Cemal Uçar had been depressed and had talked about killing himself prior to his death. They deposed that Cemal Uçar had talked about his previous suicide attempts during his detention in police custody.

On 2 December 1999 the Diyarbakır public prosecutor issue d a decision of non-prosecution, finding that Cemal Uçar had committed suicide and that there was no offence to prosecute.

On the same day , the public prosecutor at the Diyarbakır State Security Court issued an additional non-prosecution decision in respect of the charges against Cemal Uçar , given that the latter was dead.

B. Rele vant domestic law and practice

A description of the relevant domestic law at the material time can be found in Tekdağ v. Turkey , no. 27699/ 95 , § 40-51, 15 May 2004 .

COMPLAINTS

The applicant complains that the circumstances surrounding his son ' s abduction, disappearance and death in custody give rise to a violation of Articles 2 and 3 of the Convention.

The applicant alleges under Article 5 § 1 of the Convention that his son was arbitrarily deprived of his liberty b etween 5 October and 2 November 1999 since his detention was not recorded and that there was no prompt or effective investigation of his allegations. He further complains under Article 5 § 3 of the Convention that his son was kept in police custody for nine days without being brought before a judge or other officer authorised by law to exercise judicial power. He finally complains under Article 5 § 5 of the Convention that there was no available re me dy in do me stic law for the violation of Article 5 § 3.

The applicant complains under Article 6 of the Convention that his son was denied access to a lawyer in police custody.

He contends that the denial of the right of access of Cemal Uçar to members of his family in police custody violated his right to respect for family life under Article 8 of the Convention .

The applicant alleges that he was denied an effective domestic remedy in respect of his complaints under Articles 2 and 3, in violation of Article 13 of the Convention .

The applicant finally complains under Article 14 of the Convention , in conjunction with the abov e- me ntioned Articles, that his son was discriminated against on account of his race and religion.

THE LAW

The Government argue that the applicant has failed to exhaust the domestic remedies available to him within the meaning of Article 35 § 1 of the Convention.

As regards the applicant ' s complaints concerning the alleged abduction and disappearance of his son, the Government maintain that the applicant could have lodged an application with the Ministry of Justice against the non-prosecution decisions of the Diyarbakır public prosecutor dated 2 December 1999 and 10 December 1999 . He could have requested the Ministry to instruct the public prosecutor to initiate an investigation or criminal proceedings . The y further contend that the non-prosecution decisions could have been withdrawn by the public prosecutor upon the applicant ' s request since these decisions do not constitute final decisions under domestic law.

The applicant contends in reply that he filed numerous petitions with the authorities and requested that the circumstances surrounding the abduction of his son be investigated. He further maintains that although his son complained about his abduction and torture to the State Security Court , no investigation was initiated. He avers that , in view of the authorities ' inactivity in respect of his allegations, an attempt to challenge the non-prosecution decisions would have been doomed to failure. The applicant contends that, in any event, he was under no obligation to exhaust domestic remedies since, in the circumstances of th e case , any such remedies were illusory, ineffective and inadequate.

As regards the applicant ' s complaint concerning Cemal Uçar ' s custody, the Govern me nt submit that the applicant could have filed an application with the do me stic courts requesting the release of Cemal Uçar in accordance with A rticle 128 of the Code on Criminal Procedure.

The applicant states in reply that the remedy under Article 128 of the Code on Criminal Procedure would have been ineffective in view of the fact that the authorities have denied responsibility for the abduction of his son and that they failed to conduct an adequate investigation into his allegations.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use 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 also requires that the complaints intended to be made subsequently at Strasbourg 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 the Yasa v. Turkey , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, p. 2431, § 71).

In so far as the Government argue that the applicant could have requested the Ministry to instruct the public prosecutor to initiate an investigation or criminal proceedings, the Court observes that this remedy is not directly accessible to individuals. It therefore considers that it is not necessary for this remedy to have been used to satisfy the requirements of Article 35 of the Convention.

In so far as the Government argue that the applicant could have filed an application with the do me stic courts requesting the release of Cemal Uçar in accordance with Article 128 of the Code on Criminal Procedure, the Court observes that this remedy cannot be considered as effective for the purpose of Article 35 of the Convention in the present case since the Cemal Uçar ' s detention period appears to have been in conformity with the provisions of domestic law.

In the light of the foregoing, the Court dismisses the Government ' s preliminary objections.

B. Merits

1. Article 2 of the Convention

As regards the alleged abduction of the applicant ' s son, the Government contend that Cemal Uçar was not in police custody between 5 October and 2 November 1999 and that his kidnappers were not State agents. They maintain that the abduction of the applicant ' s son was a part of Hizbullah ' s strategy . Regarding the alleged suicide of Cemal Uçar, the Government submit that the investigation carried out by the security directorate and the public prosecutor ' s office in Diyarbakır revealed that the applicant ' s son had committed suicide.

The applicant contends that his son was abducted by State agents or with the support, knowledge or acquiescence of the authorities and that the authorities failed to carry out an effective and adequate investigation into the abduction of Cemal Uçar. He further maintains that the State was responsible for Cemal Uçar ' s death in prison since they could not provide a plausible explanation for his death. He submits that if his son had indeed committed suicide , then the authorities should be considered liable for his death since they had failed to safeguard his son ' s right to life. The applicant finally avers that the authorities failed to disclose key evidence surrounding his son ' s death.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Article 3 of the Convention

The Government maintain that Cemal Uçar was tortured by members of Hizbullah between 5 October and 2 November 1999 . They submit that the medical reports reveal that the applicant ' s son was not ill ‑ treated in police custody and, consequently, the authorities were not responsible for the ill-treatment that he suffered.

The applicant contends that his son was abducted and tortured by kidnappers who were either S tate agents or person acting with the support, knowledge or acquiescence of the authorities. He further maintains that the authorities failed to carry out an adequate and effective investigation into the abduction and torture of his son. The applicant finally contends that he suffered anguish and distress on account of the disappearance of his son and the failure of the authorities to investigate the disappearance .

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. Article 5 of the Convention

The Government contend that the arrest of Cemal Uçar was not arbitrary. They maintain that on 2 November 1999 at 3.15 a.m. Cemal Uçar was seen in front of the city stadium . Given the suspicious circumstances, he was asked to reveal his identity and a forged identity card was taken from him . They further submit that the arrest of the applicant ' s son was lawfully carried out by the s ecurity forces in the performance of their anti-terrorist duties. The Government aver that the taking of Cemal Uçar into custody was essential in order to clarify his allegations about his abduction and that it was in conformity with domestic law .

The applicant submits in reply that his son was taken into police custody . No record was kept of the detention and that there was no adequate investigation of his allegations. He further contends that the official custody period of his son lasted nine days before he was brought before a judge . The applicant finally avers that he had no domestic remedy with which to challenge the length of the custody period.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. Articles 6 and 8 of the Convention

The Government maintain that Cemal Uçar neither made a request for a lawyer nor attempted to see his family. They submit that detainees in police custody have the opportunity to see their lawyers on request . The Government conclude that the applicant ' s complaints under Articles 6 and 8 are unsubstantiated.

The applicant contends that his son was denied the right to see a lawyer and the right to respect for his family life during his time in police custody.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. Article 13 of the Convention

The Government contend that the domestic authorities conducted effective investigations into both the abduction and death of the applicant ' s son.

The applicant maintains that neither of the investigations was sufficient to me et the require me nts of Article 13 of the Convention. They contend, in particular, that the disappearance and ill-treat me nt of Cemal Uçar between 5 October and 2 November 1999 were never investigated.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

6. Article 14 of the Convention

The Government submit that neither the applicant nor his son was subjected to discrimination.

The applicant maintains that the treatment which his son suffered at the hands of the authorities was motivated by his race and his religion.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

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

S. Dollé J.-P. C osta Registrar President