FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36672/97 by Mehmet KURNAZ and Others against Turkey

The European Court of Human Rights (Fourth Section), sitting on 7 December 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Türmen , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 10 May 1997 ,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applicatio n was transferred to the Court,

Having regard to the Court ' s partial decision of 6 November 2001 ,

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

Having deliberated, decides as follows:

THE FACTS

The application was originally introduced by Mehmet Kurnaz , a Turkish national who was born in 1956 and was living in Antalya . Following his death on 22 December 1997 , his parents, brothers and sister on 30 June 1998 expressed their intention to pursue the application. They are represented before the Court by Mr Çe tin Manav , Mr Sadi Özden and Mr Yalçın Erbay , lawyers practising in Antalya and Mrs Şennur Akkaya and Mr Tuncer Akkaya , lawyers practising in Izmir .

The facts of the case, as submitted by the partie s, may be summarised as follows;

Mehmet Kurnaz was a board member of the United Socialist Party ( BirleÅŸik Sosyalist Partisi ) in Antalya at the time of the events.

According to the medical report drafted on 21 August 1995 by the doctors at the Izmir branch of the Turkish Human Rights Association, Mehmet Kurnaz was suffering from high blood pressure, palpitations, numbness, weakness and pain in his eyes. The report concluded that he had kidney and heart related problems and that he should seek urgent medical treatment . The report also mentioned that Mehmet Kurnaz had undergone a cardiac valve surgery in 1985.

On 30 August 1995 Mehmet Kurnaz was arrested and taken into police custody by the police officers of the Antalya Security Directorate, on suspicion of membership of an ill egal organisation, namely, the T HKP/C.

According to the medical report prepared by the Antalya Forensic Institution on 1 September 1995 , Mehmet Kurnaz did not bear any signs of ill-treatment. On the same day, he was placed in detention on remand and transferred to Buca p rison in Izmir .

On 21 September 1995 Mehmet Kurnaz was wounded with a blow to his head during a prison riot and was immediate ly hospitalised for treatment. The applicants alleged that he was deliberately attacked by the prison wardens and the gendarmes. They claim that when he was taken to the hospital for treatment he was kept tied to his bed and as a result he sustained i njuries to his legs.

According to the medical report issued by doctors at the Izmir Atatürk State Hospital where Mehmet Kurnaz received medical treatment, he had sustained head injuries, facial trauma, cuts and bruises on his back and abdomen. The report also mentioned that he had bruises on his legs.

On an unspecified date, the public prosecutor at the Izmir State Security Court filed a bill of indictment with the latter , against Mehmet Kurnaz accusing him of membership of an illegal organisation. He requested he be convicted and sentenced under Article 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act.

On an unspecified date, certain prisoners, including Mehmet Kurnaz , filed a complaint with the public prosecutor ' s office in Izmir against the prison wardens and the gendarmes concerning the incident at the prison on 21 September 1995 .

On 12 October 1995 the public prosecutor decided no t to prosecute the prison warden s due to lack of evidence. He transferred the investigation file concerning the gendarmes to the Izmir Governor ' s office. On the same day, the public prosecutor at the Izmir Criminal Court of First Instance filed a bill of indictment against Mehmet Kurnaz and thirty-nine other prisoners accusing them of taking part in the riot in Buca prison. He requested that they be convicted and sentenced under Article 304 of the Criminal Code.

On 25 October 1995 Mehmet Kurnaz was brought before the Izmir State Security Court with the help of the gendarmes as he was unable to stand or to walk. The court ordered his release pending trial.

Upon his release, Mehmet Kurnaz was examined by a doctor whose medical report indicated that he had coloured lesions of various shapes and seizes and bruises on his body. The report also mentioned that he was unable to respond to the questions asked to him and that his face was swollen.

On 10 November 1995 Mehmet Kurnaz filed a petition with the Izmir State Security Court complaining of the ill-treatment he had been subjected to at Buca prison.

According to the medical report drafted by the doctors at the Akdeniz State Hospital on 22 January 1996 , Mehmet Kurnaz had problems in concentrating and was suffering from partial memory loss.

On 24 January 1996 the Antalya Assize Court requested the Forensic Medical Institute in Antalya to examine Mehmet Kurnaz in order to assess whether the latter could give a statement before the court. The Forensic Medical Institute submitted that until the completion of his medical treatment his state of health would no t allow him to give a statement.

According to the medical report drafted by the doctors at the Akdeniz State Hospital on 21 March 1996 , Mehmet Kurnaz was suffering from chronic renal insufficiency and hypertension. The report also indicated that he would have to start haemodialysis treatment and that t his treatment would continue for life. On 2 May 1996 Mehmet Kurnaz commenced haemodialysis treatment.

On 2 August 1996 the public prosecutor at the Izmir public prosecutor ' s office dismissed Mehmet Kurnaz ' s complaint. In his d ecision, the public prosecutor referred to the findings in his previous decision of 12 October 1995 . Mehmet Kurnaz objected to the aforementioned decision.

On 31 October 1996 the Izmir Assize Court rejected the objection s raised by Mehmet Kurnaz . He was notified of the judgment of the Izmir Assize Court on 14 November 1996 .

According to the medical report drafted by the doctors at the Akdeniz State Hospital on 4 February 1997 , Mehmet Kurnaz was not a possible candidate for renal transplantation.

On 22 December 1997 Mehmet Kurnaz died from renal insufficiency.

On 25 December 2000 the Izmir Crim inal Court referring to Law No. 4616 concerning conditional amnesty decided to suspend the proceedings against the applicant and the other prisoners.

COMPLAINTS

1. In the initial application submitted by Mehmet Kurnaz on 10 May 1997 , he had complained under Articles 2, 3 and 13 of the Convention that he had been ill-treated while he was held in Buca prison and that he had no effective domestic remedies enabling him to bring his complaints to the attention of the national authorities. He further claimed that the ill-treatment he was subjected to in Buca prison as well as those occurred during the previous periods when he was held in police , amounted to a violation of Article 2 of the Convention , since he was now obliged to continue his life dependent on haemodialysis treatment.

2. On 24 June 1998 a revised application was submitted in the name of both Mehmet Kurnaz and the applicants in which, in addition to the above complaints, it was argued that Mehmet Kurnaz died as a result of the ill ‑ treatment he had been subjected to while he was in prison. In this connection, the applicants stated that his health deteriorated significantly after he was released pending trial due to the ill-treatment that had been inflicted on him in Buca prison.

THE LAW

The applicants complain under Articles 2, 3 and 13 of the Convention that Mehmet Kurnaz died as a result of the ill-treatment he had been subjected to while he was in prison and that he had no effective domestic remedies enab ling him to bring his complaint of ill-treatment to the attenti on of the national authorities.

The Government argue that the application should be declared inadmissible as the applicants failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. Their objec tion in this regard is two-fold .

T he Government contend that Mehmet Kurnaz did not introduce his application within the period of six months after the Izmir Assize Court ' s decision of 31 October 1996 .

The Government further argue that the applicants raised new issues under Article 2 of the Convention and that, therefore , their submissions should be considered as a new application. In this connection, t hey maintain that the applicants failed to comply with the six-month rule laid down in Article 35 § 1 of the Conven tion since they did not inform the Court of their intention to pursue the case within six months after the death of Mehmet Kurnaz .

As regards the first objection raised by the Government, the Court reiterates that the six-month period under Article 35 § 1 begins to run on the day after the date on which the final domestic decision was pronounced or communicated to the applicant or his lawyer or, where pursuant to domestic law and practice, the applicant is entitled to be served ex officio with a written copy of the judgment, from the date of the receipt (see the Worm v. Austria judgment of 29 August 1997 , Reports of Decisions and Judgments , 1997-V, p. 1547, § 33). T he Court observes that in the present case Mehmet Kurnaz was notified of the judgment of the Izmir Assize Court on 14 November 1996 and lodged an application with the Court on 10 May 1997 . Consequently, the application was introduced within the six months ' in accordance with Article 35 § 1 of the Convention.

As to the Government ' s second objection, the Court reiterates that the issue whether allegations submitted after the introduction of an application comply with the six months rule depends upon whether those allegations should be regarded as legal submissions in support of the original complaints or as fresh complaints (see, Van der Tas v. The Netherlands , no. 31469/96, Commission decision of 22 October 1997 , and Bengtsson v. Sweden , no. 18660/91, Commission decision of 7 December 1994 , Decisions and Reports 79, p. 11).

In this connection, the Court would point out that Mehmet Kurnaz had initially complained under Article 2 of the Convention in that the ill ‑ treatment which had been inflicted upon him led to a deterioration in his health in such a way as to amount to a breach of Article 2 of the Convention. Following h is death, the applicants contend ed that Mehmet Kurnaz died as a result of the ill ‑ treatment he had been subjected to while he was in prison since his health had deteriorated aft er the incident in Buca prison. In these circumstances, it cannot be held that the applicants raised newly specified complaints by relying on facts and circumstances not raised when the application was initially lodged . Consequently, the Court considers that the applicants ' submissions cannot be deemed to constitute a separate application since the facts of the case as well as the complaint remain substantially unchanged. Furthermore, the Court observes that the applicants informed the Court of their wish to pursue the case six months and two days following the death of Mehmet Kurnaz . In the circumstances of the present case, the Court considers that the appl icants have informed the Court within a reasonable time of their wish to pursue the case .

Having regard to the above considerations, the Court dismisses the Government ' s preliminary objections in respect of the six-month rule.

1. Alleged violation of Article 2 of the Convention

The applicants allege that Mehmet Kurnaz ' s health problems were the result of the ill-treatment inflicted on him during the previous periods when he was held in police custody . They further alleged that on 21 September 1995 he was deliberately attacked by the prison wardens and the gendarmes. They claim that when he was taken to the hospital for treatment he was kept tied to his bed and as a result he sustained injuries to his legs.

The applicants maintain that prior to the incident in Buca prison, Mehmet Kurnaz had started medical treatment and that his health condition was stabilising , whereas after his release he had to be treated with haemodialysis three times a week. They a rgue that the medical reports on Mehmet Kurnaz are sufficient in themselves to show that his health deteriorated after his release and that his treatment in custody had eventually led to his death.

The Government contest the applicants ' arguments. They indicate that Mehmet Kurnaz had previously been taken into custody three times between 1977 and 1980 and that there was no evidence such as medical reports supporting the applicants ' allegations of ill-treatment. In this connection, the Government point out that Mehmet Kurnaz did not claim before the domestic authorities that he had been subjected to ill-treatment during these periods of police custody.

The Government accept that Mehmet Kurnaz suffered a serious head injury. However, they point out that he received emergency medical treatment after the incident in Buca prison. In this respect , they submit that Mehmet Kurnaz died two years after he was released pending trial and that the cause of death was renal insufficiency. The Government therefore contend that there is no causal link between the death of Mehmet Kurnaz and the injury he sustained during the incident in Buca prison.

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

2. Alleged violation of Article 3 of the Convention

The applicants contend that Mehmet Kurnaz was subjected to ill ‑ treatment while he was held in Buca prison. In this connection, they submit that Mehmet Kurnaz had recently arrived in Buca prison when the incident occurred and that his poor health would have prevented him from participating in such a riot. They further claim that there was no riot in Buca prison and that Mehmet Kurnaz was deliberately attacked by the pr ison warders and the gendarmes.

The Government acknowledge that Mehmet Kurnaz was injured during the incident in Buca prison. However, they maintain that it was the result of his own behaviour as he had participated in a prison riot which became violent when the prisoners attacked the gendarmes. In this connection, the Goverment submit that Mehmet Kurnaz together with some other prisoners resisted the prison authorities by organising a demonstration which continued despite the warnings of the prison authorities. As a result the prison administration had to enlist the help of the gendarmes. The Government argue that upon the intervention of the gendarmes, a riot broke out during which the prisoners piled up steel wardrob es behind dormitory door, burnt beds, broke windows and attack ed the gendarmes with the doors of steel wardrobes. The Government affirm that the gendarmes threw fog bombs and hosed pressurised water against the prisoners and eventually had to use force to settle the conflict, as a result of which several prisoner and gendarmes, including Mehmet Kurnaz , were injured. The Government point out that Mehmet Kurnaz was immediately taken to a hospital for treatment.

The Court considers, in light of the parties ' submissions that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the 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.

3. Alleg ed violation of Article 13 of the Convention

The applicants claim that Mehmet Kurnaz had no effective domestic remedy enabling him to bring his complaints to the attenti on of the national authorities.

The Government maintain that two preliminary investigations were conducted in relation to the incident in Buca prison and that the facts were not deemed sufficient to lead to a public case against the state agents.

The Court considers, in light of the parties ' submissions that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the 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 by a majority

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

Michael O ' Boyle Nicolas Bratza Registrar President