SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40154/98 by Mehmet Emin YÃœKSEL against Turkey

The European Court of Human Rights (Second Section), sitting on 2 December 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr M. Ugrekhelidze, judges , Mr T. L. Early , Deputy Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 19 January 1998,

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

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, Mehmet Emin Yüksel, is a Turkish national, who was born in 1972 and lives in Diyarbakır. He is represented before the Court by Mr Sezgin Tanrıkulu, a lawyer practising in Diyarbakır.

A. The circumstances of the case

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

The applicant was a student at the Medical Faculty of the Diyarbakır Dicle University at the time of the events giving rise to the present application.

On 4 April 1997 the applicant was arrested on the university campus by police officers from the Diyarbak ı r Prevention of Terrorism Branch and taken into custody.

The police officers interrogated the applicant about his involvement in an illegal organisation, namely the YEKBUN (the United People’s Party of Kurdistan: “ Kürdistan Birleşik Halk Partisi” ). The police officers allegedly beat up the applicant during his detention, causing bruises to his nose and a broken tooth. According to the Government, the applicant’s injuries occurred when he inadvertently fell, due to lack of sleep, and hit his nose on a sink. The applicant’s statements, written while he was still in police custody, confirm the Government’s view of the incident.

On 7 April 1997 the applicant was brought before the Diyarbak ı r State Security Court, where he denied the allegation about his membership of YEKBUN. He alleged that he had been subjected to various forms of ill-treatment during his detention. He referred in this connection to the document prepared by the police officers. The court ordered the applicant’s release pending trial.

On 8 April 1997 the applicant filed a criminal complaint with the Chief Public Prosecutor ’s Office in Diyarbak ı r against the police officers who had allegedly ill-treated him. The public prosecutor ordered that the applicant be examined by a doctor at the Diyarbak ı r Forensic Medical Institute. On the same day, a doctor from that institute examined the applicant and drafted a medical report stating that the applicant had abrasions to his nose and a broken tooth. The doctor noted that there was no danger to the applicant’s life, but that his injuries rendered him unfit for work for two days.

On 15 April 1997 the Diyarbak ı r Public Prosecutor issued a decision of non-jurisdiction and referred the investigation file to the Diyarbak ı r District Administrative Council in accordance with the Law on the Prosecution of Civil Servants.

On 13 June 1997 the Diyarbakır State Security Court acquitted the applicant of the charges against him. The court took note in its judgment of the applicant’s statement that he had been interrogated by police officers under duress.

On 26 June 1997 the Diyarbakır Administrative Council ruled that the police officers who had allegedly ill-treated the applicant could not be committed for trial for lack of evidence.

On 6 August 1997 the applicant filed an objection with the Supreme Administrative Court against the decision of the Administrative Council. Furthermore, he filed a petition on the same day with the Diyarbak ı r Administrative Council, requesting a copy of the investigation file. He did not receive any reply to his request.

On 14 May 1999 the Supreme Administrative Court upheld the decision of non-prosecution. On 26 July 1999 this decision was served on the applicant.

B. Relevant domestic law

A description of the relevant domestic law can be found in the Court’s Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI, §§ 24-30.

COMPLAINTS

The applicant complains that he suffered a broken tooth and bruises to his nose because of ill-treatment inflicted on him by police officers during detention. He contends under Article 3 of the Convention that the suffering, taken as a whole, amounted to torture.

The applicant complains under Article 6 § 1 of the Convention that the Diyarbakır District Administrative Council which conducted the criminal investigation into his allegations of torture was not independent. He also complains that he was denied the right to intervene in the criminal proceedings conducted by the Administrative Council in breach of his right to an adversarial procedure, guaranteed by Article 6 § 1 of the Convention. He submits that he was not given a copy of the investigation file.

The applicant alleges under Article 13 of the Convention that he was denied an effective remedy in respect of his complaints of torture.

THE LAW

A. The Government’s preliminary objections

The Government contend that the applicant failed to exhaust the domestic remedies available to him under domestic law. They submit that the application was introduced with the Court on 19 January 1998, whereas the Supreme Administrative Court only gave its final decision on 14 May 1999.

The Government submit in the alternative that there were administrative, criminal and civil law remedies in Turkish law capable of redressing the applicant’s complaints and of leading to the grant of compensation. They contend that it would have been possible for the applicant to seek redress before the administrative courts under Article 125 of the Constitution. Under Turkish administrative law, the State’s liability to pay compensation can be engaged, firstly, where the agents of the State are at fault. The State can subsequently recover the compensation paid from those found responsible for harm caused. Secondly, the State cannot escape liability to pay compensation for damage which has been shown to have been caused by its agents or to have occurred in connection with the provision of security.

The Government maintain that, pursuant to Article 41 of the Civil Code, the applicant could also have lodged a civil action for damages for any harm sustained through illegal acts or patently unlawful conduct on the part of the State’s agents. Under Turkish law, a civil action does not depend on the outcome of criminal proceedings and the procedural requirements are less strict.

As regards the first limb of the Government’s objection, the Court notes that an applicant is required, in principle, to exhaust the different domestic remedies available to him before he applies to the Court. However, the last stage in the exhaustion of these remedies may be reached after the lodging of the application but before the Court is called upon to pronounce on the issue of admissibility (see, mutatis mutandis . Ringeisen v. Austria , judgment of 16 July 1991, Series A no. 13, p. 38, § 91).

The Court notes that the proceedings concerning the applicant’s allegations were concluded on 14 May 1999, which is before the Court has delivered its decision on admissibility. The Government’s first objection must therefore be rejected.

As regards their second objection, 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 [EY1] 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, ECHR 1998-VIII). It notes that the applicant filed a criminal complaint, which was eventually dismissed on the grounds that there was no evidence on which to prosecute the police officers. The applicant was not therefore obliged in the circumstances to embark on another attempt to obtain redress by bringing a civil or administrative law action.

In the light of the above, the Court therefore concludes that in the present case the requirement to exhaust domestic remedies has been satisfied. Accordingly, it rejects the Government’s preliminary objection.

B. Merits

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

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government contend that the applicant failed to provide a detailed description of the alleged ill-treatment. They maintain that the applicant did not give a credible explanation as to how the injuries, described in the medical report, had been caused by the police officers. They also point out that the medical report did not contain any indication as to when and how the injuries had occurred.

They rely on a statement drafted and signed by the applicant which states that the injuries on his face occurred as a result of his own conduct. According to this statement, the applicant fell on a sink due to lack of sleep.

The applicant contends that the Government’s allegations are far-fetched. He submits that the written statement relied on by the Government was made under duress and did not reflect the true facts of the incident. He further alleges that he had been forced to give that statement in order to protect the police officers from being exposed to a potential accusation of ill-treatment.

The Court considers, in the light of the parties’ submissions, that the complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. It concludes, therefore, that the complaint 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.

2. The applicant complains under Article 6 § 1 of the Convention that the Diyarbakır Administrative Council, which conducted the investigation into his allegations of torture, was not an independent tribunal within the meaning of that Article. He further complains under the same Article that he was denied the right to intervene in the criminal proceedings against the police officers. He argues that he was not given a copy of the investigation file. Article 6 § 1 of the Convention provides, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court observes that Article 6 does not give a right to secure the prosecution and conviction of third parties ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I).

Furthermore, the applicant in the instant case was not himself facing criminal charges, nor did he seek to intervene in the proceedings against the police officers as a civil party. He cannot therefore rely on Article 6. To that extent, the applicant’s complaints are therefore incompatible ratione materiae with the provisions of the Convention, and must be declared inadmissible pursuant to Article 35 §§ 3 and 4.

This being said, the Court considers that the applicant’s complaints are more appropriately addressed under Article 13 of the Convention and it will examine them in the context of that Article.

3. The applicant complains that he did not have an effective remedy in respect of his complaints of torture in breach of Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contend that, in addition to a criminal prosecution, the victim of alleged ill-treatment by police officers can request compensation for pecuniary and non-pecuniary damage from the civil or administrative courts. They maintain that, if persistent enough, a victim of ill-treatment or torture could seek a remedy in Turkish law.

The applicant argues that although the civil and administrative courts are not in theory bound by the decisions of the criminal courts, in practice the decision given by the criminal law judge is of great importance. He therefore submits that, as the Supreme Administrative Court dismissed his appeal against the decision of the Diyarbakır Administrative Council, he did not have any further remedy under domestic law to claim compensation for the harm suffered.

The 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. The Court concludes, therefore, that the complaint 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 admissible, without prejudging the merits, the applicant’s complaints concerning his ill-treatment in police custody and the lack of an effective remedy;

Declares the remainder of the application inadmissible.

T. L. E arly J.-P. Costa              Deputy Registrar President

[EY1] 1