FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63181/00 by Baki KARAYIÄžIT against Turkey

The European Court of Human Rights (Fourth Section), sitting on 5 October 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr R. Türmen , Mrs V. Strážnická , Mr S. Pavlovschi , Mr L. Garlicki , Mrs E. Fura-Sandström , Mr D. Spielmann, judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 11 September 2000 ,

Having regard to the partial decision of 5 November 2002 ,

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 applic ant, Mr Baki Karayiğit, is a Turkish national who was born in 1979 and is currently held in prison in Istanbul . He is represented before the Court by Mrs M. Tepe and Mrs D. Bayır , lawyers practising in Istanbul .

A. The circumstances of the case

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

On 6 February 1999 the applicant was taken into police custody by the police officers of the Anti-Terror Branch of the Istanbul Security Directorate on suspicion of being a member of an illegal organisation. On the same day the public prosecutor ' s office of the Istanbul State Security Court granted the request of the Anti-Terror Branch by placing the applicant in police custody for four days at the Anti-Terror Branch of the Istanbul Security Directorate.

On 10 February 1999 the Istanbul State Security Court extended the custody period for a further two days.

The applicant submits that during his seven days of interrogation physical and mental violence were inflicted on him. After he was taken into custody, following death threats by the police officers, his interrogation was conducted in a room at the Istanbul Anti-Terror Interrogation Centre, while he was held blindfolded and stripped naked. After he denied the police officers ' accusations, he was suspended with his elbows behind his back and electric shocks were administered to his body.

On 10 February 1999 the applicant was taken to Haseki Hospital where a medical report was issued. In the report ' surface erythema and scrapes on the proximal part of both arms ' were noted.

On the same day the applicant was allegedly forced to sign a statement explaining the cause of the bruises on his arms as being caused by a dust allergy.

On 12 February 1999 a doctor at the Forensic Institute of the Istanbul State Security Court examined the applicant and reported bruises of 30 ‑ 40 x 7-8 cm on both upper arms and an ecchymose under his left arm joint, as well as a complaint of backache. In the report signs of physical violence sufficient to prevent the applicant from working for three days were noted.

On 13 August 1999 a dermatologist examined the applicant and found no indication of any allergy.

On 12 February 1999 the applicant was brought before the public prosecutor and then before a non-presiding judge at the Istanbul State Security Court, where he stated that he had been subjected to physical and emotional violence. The court ordered the applicant ' s detention on remand.

On 16 February 1999 the public prosecutor of the Istanbul State Security Court filed a bill of indictment, charging the applicant with the criminal offence of being a member of an illegal organisation described in Article 168 § 2 of the Criminal Code and section 5 of th e Prevention of Terrorism Act (L aw no. 3713).

On 29 April 1999 the Istanbul public prosecutor ' s office filed an indictment with the Istanbul Assize Court , charging the police officers whose signatures were on the applicant ' s statement made in custody with a criminal offence described in Article 243 of the Criminal Code.

On 3 May 1999 the Assize Court ordered that a letter be sent to the applicant inviting him to take part in the procee dings. On the hearings dated 23 June and 23 September 1999 the court issued bench warrants for the applicant in order to consider his testimony as a witness. In response to the warrants from the local authorities, it was discovered that the applicant was detained in Uskudar E Type Prison. Following the hearings dated 30 November and 14 December 1999 the court ordered that written notifications be sent to Uskudar Prison in order to secure the presence of the applicant before the court.

The prison administration informed the court that the applicant had refused to attend the hearings and provided letters attached to the minutes to this effect. The applicant contends that these documents do not include his signature.

On 30 December 1999 the Assize Court heard the defendant police officers. It took note of the documents sent by the prison administration and decided not to hear the applicant on the grounds that he had chosen not to attend the hearing, and that taking his testimony would not affect the result. The court took note of the applicant ' s previous statements. It further stated that the applicant had not brought a specific complaint regarding his allegations; the criminal proceedings were lodged by the public prosecutor on his own initiative based upon the information he had obtained from the State Security Court . The court then acquitted the police officers of the offence on account of lack of evidence.

On 8 May 2000 the applicant filed another complaint with the public prosecutor ' s office in the Fatih district of Istanbul against the same police officers.

On 9 May 2000 the public prosecutor ' s office issued a decision of non-prosecution, referring to the trial that had already been held before the Istanbul Assize Court .

B. Relevant domestic law

Constitutional provisions

Article 17 of the Constitution provides:

“... No one shall be subjected to torture or ill-treatment ; no one shall be subjected to any penalty or treatment incompatible with human dignity... ”

Article 125 of the Co nstitution provides as follows:

“All acts or decisions of the Administration are subject to judicial review... The Administration shall be liable for damage caused by its own acts and measures.”

Criminal law and procedure

The Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants).

In general, in respect of criminal offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the local public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision not to institute criminal proceedings.

Civil and administrative procedures

Under the Code of Obligations, anyone who suffers damage as a result of an illegal act or tort may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) an d non-pecuniary damage (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ' s guilt (Article 53). Furthermore, proceedings against the administration may be brought be fore the administrative courts, whose proceedings are in writing.

The Notification Act

Under Section 19 of the Notification Act, the written notifications should be provided to detained or convicted persons by the directors or the administrators of the establishments concerned.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment and torture in police custody.

The applicant further relies on Article 13 of the Convention, in conjunction with Article 3, arguing that he had no effective remedy under domestic law to hi s allegation of ill-treatment.

THE LAW

A. The Government ' s p reliminary o bjections

1. Exhaustion of domestic remedies

The Government contend that the applicant failed to exhaust the domestic remedies available to him unde r domestic law.

They maintain that the applicant initially did not lodge a complaint with the public prosecutor regarding the alleged ill-treatment he claims to have been subjected to. The public prosecutor filed an indictment charging the two policemen with ill-treatment under Article 243 of the Criminal Code, on the basis of the applicant ' s statements taken while he was being questioned at the public prosecutor ' s office in relation with his apprehension.

The Government further argue that, the applicant had the right to intervene, which would have enabled him to appeal against the first instance court ' s judgment. However, the applicant did not intervene, and also refused to appear before the first instance court in spite of the invitations sent to him by the court on numerous occasions. Following the court ' s decision to acquit the two policemen on 30 December 1999 , the applicant ' s representative filed a new complaint four months later, on 8 May 2000 , regarding the applicant ' s same ill-treatment allegations. Fatih Public Prosecutor Office gave a decision of non-prosecution due to the fact that an indictment relating to the same allegations had already been filed on 20 April 1999 .

The Government submit that the applicant had the right to object to the decision of non-prosecution of the public prosecutor with the Assize Court , within fifteen days after notification of the decision. Such an objection was not made by the applicant.

The Government further assert in the alternative that the applicant could have sought reparation for the harm he allegedly suffered by instituting a civil action in the civil or administrative courts.

The applicant states that he complained of ill-treatment to the public prosecutor and later to the investigating judge, and also during the hearing at the Istanbul State Security Court . He further maintains that during the criminal proceedings brought against the police officers he was in prison in Uskudar and that he was not informed about the criminal proceedings that had been conducted against the police officers and about the judgment to acquit them. In this connection, he refers to the written notification issued by the court to him and the reports issued by the prison administration in response to them, which stated that he did not want to attend the hearings of his own will. The applicant points out that there is no signature by him on these reports.

The applicant finally submits that he lodged a separate criminal complaint against the police officers which was dismissed by the public prosecutor on account of the previous acquittal of the officers. He further maintains that there was no practical and legal means to appeal against the decision of dismissal to the Assize Court . Such a remedy was clearly not effective or sufficient in view of the barrier of a previous acquitta l.

The Court reiterates that the rule of exhaustion of domestic remedies 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. However, Article 35 § 1 does not require 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, §§ 51 - 52).

The Court notes that Turkish law provides civil and administrative remedies against illegal acts attributable to the State or its agents. However, it considers that these remedies cannot be regarded as sufficient for a Contracting State ' s obligations under Article 3 of the Convention in cases like the present one in that they are aimed at awarding damages rather than identifying and punishing those responsible (see Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports 1998 ‑ VIII, p. 3286, § 85 ).

The Court observes that the applicant complained of the treatment he claimed to be subjected to before the public prosecutor and the domestic courts. Furthermore, he initially filed a criminal complaint with the public prosecutor , which was eventually dismissed on the grounds that the police officers had already been acquitted. The Court notes that the applicant cannot be considered to be obliged to appeal against this decision to the Assize Court since such an action was bound to be dismissed – and thus would be ineffective – on account of the prior acquittal.

The Court further notes that under domestic law it is not compulsory for the aggrieved party to intervene in criminal proceedings brought against the accused. The Court therefore considers that, contrary to the Government ' s assertion, the applicant can be regarded as having brought the substance of his complaint to the notice of the national authorities and to have sought redress through the national channels for his complaint. It concludes that the Government ' s preliminary objections in this respect cannot be upheld.

2. Six-months rule

The Government maintain that the application was not filed within the period of six months as required by Article 35 of the Convention.

They pointed out that the decision of the acquittal of the police officers was delivered on 30 December 1999 . The applicant did not have the right to appeal to the Court of Cassation since he did not attend the hearings and did not intervene in the case. Therefore, the six months time period should start running from 30 December 1999 . However, the application was introduced on 11 September 2000 that is more than six months after the final domestic decision.

The applicant submits that he only became aware of the Assize Court decision of 30 December 1999 after he had lodged a separate complaint of ill-treatment with the public prosecutor and after the public prosecutor had notified him on 23 May 2000 of the decision of non-prosecution concerning his complaint on account of the prior acquittal.

The Court notes that, although the decision of the Assize Court acquitting the police officers was delivered in open court on 30 December 1999 , the applicant was not present in the court and, since he had not intervened in the court proceedings, was not served with a copy of the decision. The applicant ' s assertion that he did not become aware of the decision until he was notified of the acquittal of the police officers by the prosecutor on 23 May 2000 has not been disputed by the Government.

In these circumstances the Court finds that the six-moth period for the purposes of Article 35 § 1 of the Convention should be considered as running from 23 May 2000, being the date when the applicant fist became aware of the decision of the Assize Court of 30 December 1999. The application, which was lodged on 11 September 2000 , was brought within six months of that date. Accordingly, the Court dismisses the Government ' s objection.

B. Merits

1. The applicant complains that the treatment to which he was subjected to during his detention in police custody amounted to torture in violation of Article 3 of the Convention.

The Government submit that during his interrogation on 10 February 1999 , the applicant complained of irritation and itching on his arms, requesting that a doctor should see him because of his dust allergy. He was taken to the hospital on the same day, where ' surface erythema and scrapes on the proximal part of both arms ' were reported. The Government contend that there is a clear disproportionality between the described torture alleged by the applicant and the findings of the two medical reports, which describe similar findings on the arms. They further maintain that this evidence does not show beyond reasonable doubt that the applicant was subjected to torture and ill treatment by the authorities.

The Government state that the applicant ' s complaints before the Court do not reflect the facts and are not supported by the applicant ' s testimonies or the medical reports. Furthermore, the findings of the medical reports cannot be regarded as demonstrating the level of severity requ ired for a violation of Article 3 of the Convention.

The applicant maintains his account of events.

T he Court considers that the complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant alleges that he did not have an effective remedy in respect of his complaints of torture and ill-treatment in breach of Article 13 of the Convention.

The Government refer to their above explanation under the title of exhaustion of domestic remedies arguing that there are many ways in which the applicant could have sought redress. They also emphasise that the applicant refused to participate in the hearings at the Assize Court , in spite of the invitation letters. Furthermore, he also did not request to intervene at the prosecution, which he could have done at any stage of the trial.

The applicant submits that during his trial before the State Security Court he had raised the issue of his being tortured while in police custody many times, that he is not allergic to dust as was alleged by the police officers and that he denied the signature under the protocol stating that he was allergic to dust. He also requests that the court order an examination of the signature. He states that his requests were dismissed by the court.

The applicant further maintains that the Assize Court which tried and acquitted the police officers did not examine the medical reports, did not take testimonies from the doctors who prepared these reports or seek an opinion from the Forensic Medicine Institute as to whether the findings on the reports supported the allegation of torture and ill-treatment.

T he Court considers that the complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 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.

Michael O ' Boyle Nicolas Bratza Registrar President