SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41478/98 by Nuray ÅžEN against Turkey

The European Court of Human Rights, sitting on 30 April 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , judges , Mr F. Gölcüklü , ad hoc judge ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 25 April 1996 and registered on 4 June 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, Nuray Åžen, is a Turkish national, who was born in 1951 and lives in Paris, France. She is represented by Mr Tony Fisher, a solicitor practising in Colchester, United Kingdom, and Mr Philip Leach, Legal Director of the Kurdish Human Rights Centre, a non-governmental organisation based in London.

The present complaints were submitted on 25 April 1996, initially as a supplementary petition to a case previously introduced by the applicant and at present pending before the Court (application 25354/94). In that application it is alleged that the applicant’s husband Mehmet Şen was killed in circumstances engaging the responsibility of the State. The application was declared admissible on 5 March 1996 and evidence was heard by Delegates appointed by the former Commission from 15 to 19 June 1998 in Ankara. The taking of evidence was limited to the issues which had been declared admissible and, for that reason, it was decided that the present complaints should be registered as a separate application.

A. The circumstances of the case

The facts of the case are in dispute between the parties and have therefore been set out separately.

The applicant

The applicant was the director of the Mesopotamia Cultural Centre ( Mezopotamya Kültür Merkezi - hereinafter referred to as “MKM”) which is based in Istanbul and which researches, examines, collates and  exhibits, with a view to their preservation, the culture and art of the peoples who have lived and are living in Mesopotamia,  mainly Kurds.

In early November 1995 the applicant travelled to Diyarbakır in order to assist in the appointment of a new director to the Diyarbakır branch of the MKM. On 10 November 1995 the applicant, together with nine of her colleagues working for the MKM, were arrested and brought to the Gendarme Intelligence and anti-Terrorism Headquarters in Diyarbakır . On the way to the Headquarters the applicant was subjected to foul language and her head was pushed under the seat of the vehicle in which she was travelling.

The applicant was held in custody for a period of eleven days. Although she and her nine colleagues were taken for a medical examination at the Diyarbakır Forensic Medicine Institute at the beginning of this period, no examination took place. The medical report of 10 November 1995, drawn up in relation to the ten detainees, stated that there were razor blade injuries on the bodies of two of the applicant’s co-detainees.

During the period of detention the applicant was subjected to the following:

- she was blindfolded continually;

- she was constantly and violently beaten and kicked;

- she was sexually abused (her legs were separated and, while pressing their feet on her face, the perpetrators tried to insert a wooden truncheon over the top of her underwear and then forced the same truncheon into her mouth. Also, her breasts were exposed, she was molested and threatened with rape);

- she was stripped and held under cold water;

- she was given electric shocks;

- she was constantly verbally abused; and

- she was made to run on the spot for long periods of time.

The applicant was not placed in a cell but was forced to sit in a narrow corridor on the concrete floor. She was deprived of food or was only given bread, sometimes with water. She was also forced to listen to loud music.

The applicant was interrogated and pressurised into accepting claims that she was connected with the PKK and worked under the instructions of the PKK. She identified one of her interrogators, who was introduced to her as a member of the anti-terrorist team, as Mr A.-H. G, a PKK confessor. Her interrogators threatened to kill her and she was made to sign a statement without reading it. She did not have access to a lawyer. Nor were her relatives informed that she had been taken into custody.

The physical torture stopped a few days before the applicant was taken to court. The applicant believes that the aim was to allow her to recover from the effects of the torture.

On 21 November 1995 the applicant and the other detainees were brought before the prosecutor at the Diyarbakır State Security Court ( Diyarbakır Devlet Güvenlik Mahkemesi ) . Her arrest was ordered and she was taken to Diyarbakır High Security Prison.

The applicant was released on bail at the first hearing before the Diyarbakır State Security Court on 15 February 1996.

MKM employees who were arrested at various dates following the applicant’s release were questioned about the applicant’s alleged links with the PKK and about the applicant’s movements, such as the time she came to work and the time she left.

On 29 July 1996 the applicant and two of her friends were followed by four unmarked cars with no licence plates. Three of these cars also followed the car in which the applicant and her friends were travelling the next day.

The Government

From information and documents submitted by the Government within the framework of application no. 25354/94 and their written observations submitted in the present case, the following appears.

On 6 November 1995 Mr Y.K. was arrested by security forces near the village of Genç . During interrogation he confirmed that he had been sent to the area by the MKM in order to support the PKK. A search of the MKM offices was carried out and a number of publications containing pro-PKK propaganda, as well as firearms and ammunition, were found. A judicial investigation was opened by the public prosecutor’s office at the Diyarbakır State Security Court into the applicant’s involvement in these matters. She was taken into custody on 10 November 1995 because of her suspected membership of the illegal terrorist organisation PKK.

The applicant was given a medical examination at the Diyarbakır Forensic Medicine Institute on the day she was taken into custody at the Diyarbakır Provincial Gendarmerie Headquarters and later on 21 November 1995. According to the report drawn up on 21 November 1995 by a forensic doctor, no traces of blows or other signs of violence were found on the applicant’s body.

Following the close of the investigation conducted by the public prosecutor, a prosecution was instigated before the Diyarbakır State Security Court and an indictment filed. Besides the applicant, nine other persons, including Ms T.Y. and Mr Y.K., were accused in the indictment of membership of the PKK. At a hearing on 15 February 1996 a decision was taken to release the applicant on bail.

On 24 November 1995 the applicant made a statement to her legal representatives about her alleged ill-treatment during her detention. This statement was subsequently submitted to the Court and forwarded to the Government. After notice of the present application was given to the Government, the applicant was questioned by the public prosecutor about her allegations. She told the public prosecutor that the police officers had not treated her badly.

Following the introduction of the present complaints with the former Commission, an investigation was carried out by the Diyarbakır chief public prosecutor. On 15 January 1997 the public prosecutor, Halil Türkmen , issued a decision not to pursue the investigation. Having regard to the medical reports obtained on 10 and 21 November 1995, he considered that, apart from the applicant’s allegations, there was no evidence that the applicant had been subjected to torture. This decision could not be served on the applicant and the applicant did not show any diligence in trying to ascertain the outcome of the investigation into her allegations. She did not, therefore, appeal against this decision.

B. Relevant domestic law and practice

1. Criminal law and procedure

The Turkish Criminal Code makes it a criminal offence:

- to deprive an individual unlawfully of his or her liberty (Article 179

generally, Article 181 in respect of civil servants);

- to issue threats (Article 191);

- to subject an individual to torture or ill-treatment (Articles 243 and 245);

- to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450).

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure ( Ceza Muhakemeleri Usulü Kanunu , hereafter referred to as “CCP” ), with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution (Article 153). Complaints may be made in writing or orally. Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged, within fifteen days after notification of the decision to the complainant, with the president of the assize court in whose jurisdiction the public prosecutor who had taken the decision not to prosecute works (Article 165 CCP). The president of the assize court may request the public prosecutor to send him or her the investigation file. In order to reach a decision, the president may also ask for the investigation to be broadened by the local Magistrates’ Court judge ( Sulh Ceza Mahkemesi Hakimliği ) (Article 166 CCP). If the president concludes that there are insufficient grounds to initiate a prosecution, he or she may reject the appeal (Article 167 CCP). If the president agrees with the grounds invoked by the appellant, he or she may decide to order a prosecution. The public prosecutor is obliged to enforce the president’s decision (Article 168 CCP).

Legal provisions governing the payment of compensation to persons who have been arrested, detained or acquitted

Section 1 of Law No. 466 on the payment of compensation to persons arrested or detained or acquitted provides insofar as relevant:

“Compensation shall be paid by the State in respect of all damage sustained by persons

who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;

who have not been immediately informed of the reasons for their arrest or detention;

who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;

who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;

whose close family have not been immediately informed of their arrest or detention;

who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”

Constitutional provisions on administrative liability

Article 125 of the Turkish Constitution provides as follows insofar as relevant:

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

This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.

Under Article 13 of Law no. 2577 on administrative proceedings, anyone who has sustained damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring proceedings before the administrative courts, whose proceedings are in writing.

Civil law provisions

Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Civil Obligations ( Borçlar Kanunu ), an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Civil Obligations and non-pecuniary or moral damages awarded under Article 47 of this Code. The civil courts are not bound by the findings of a criminal court as to a defendant’s liability (Article 53).

However, under Article 13 of Law No. 657 on State employees, anyone who has sustained loss as a result of the exercise of official duties by a civil servant may, in principle, only bring an action against the public authority in whose service the civil servant concerned works and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Civil Obligations). If, however, the act is found to be illegal or tortious and, consequently, is no longer considered as an “administrative” act or deed, the civil courts may allow a claim for damages against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Civil Obligations).

COMPLAINTS

The applicant complains that she was tortured whilst in custody and that the authorities failed to investigate adequately her complaint. She invokes Articles 3 and 13 of the Convention.

She further complains that she was detained for eleven days and was not brought before a judge within a reasonable time. She invokes Article 5 § 3 of the Convention.

THE LAW

The applicant complains of her treatment in police custody. She invokes Articles 3, 5 § 3 and 13 of the Convention, the relevant provisions of which provide as follows:

Article 3:

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

Article 5 § 3:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power...”

Article 13:

“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.”

1. Exhaustion of domestic remedies

The Government submit that as regards her complaint under Article 3 of the Convention, the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. They submit 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, where agents of the State are at fault. The State can subsequently recover any compensation paid from those responsible for the harm caused. Furthermore, the State cannot escape from its liability to pay compensation in respect of damage shown to have been caused by its agents or to have occurred in connection with the provision of security. In this regard, the Government indicate that the administrative courts have awarded compensation in many cases involving death, injury or damage to property.

The Government further submit in the alternative that the applicant could also have lodged a civil action for compensation for damage sustained through illegal acts or patently unlawful conduct on the part of the State’s agents.

In the above connection, the Government observe that the applicant did not avail herself of any of these remedies. Furthermore, the applicant failed to provide any evidence that there were insurmountable obstacles which prevented  her from taking proceedings before the Turkish courts.

The Government also maintain that the applicant, who was heard by the public prosecutor and the judge of the Diyarbakır State Security Court on 21 November 1995 following her detention, made no allegations of ill-treatment. Furthermore, when the applicant was questioned by the public prosecutor, who opened an investigation into her allegations following the introduction of the present case with the former Commission, she stated that the police officers had not behaved badly towards her. The Government finally point to the applicant’s failure to lodge an appeal pursuant to Article 165 of the CCP against the public prosecutor’s decision not to prosecute.

The applicant maintains that she was not required to pursue the domestic remedies relied on by the Government, given that these remedies are illusory, inadequate and ineffective. The applicant stresses in this connection that there is an administrative practice of denying the provision of effective remedies within the meaning of Article 13 of the Convention. Furthermore, and in any event, domestic remedies are ineffective in her case owing to the failure of the legal system to provide her with redress and having regard to the consideration that the situation in south-east Turkey at the time of her arrest was such that potential applicants had a well-founded fear of reprisals if they were to invoke remedies.

The applicant further contends that the adequacy of the investigation carried out by the domestic authorities into her complaints remains to be established by the Government. The applicant argues that her complaint was effectively dismissed by a non-prosecution decision dated 15 January 1997. No details have been provided by the Government about the investigation which was carried out by the public prosecutor, other than an assertion that the applicant was questioned by the prosecutor and had allegedly confirmed that the members of the security forces who had questioned her had not behaved badly towards her. However, the Government have failed to provide this statement. The applicant refers to her own statements lodged in support of her application in which she confirms that she suffered ill-treatment and torture. She maintains her allegations. She also draws attention to the fact that she gave evidence under oath to the delegates of the Commission in the  course of their hearings in application no. 25354/94.

As to the two medical reports which led the prosecutor to take a decision not to prosecute, the applicant refers to an Amnesty International report entitled “Turkey: Human Rights and the Health Professions” and to a Physicians for Human Rights report entitled “Torture in Turkey and its Unwilling Accomplices”, both published in 1996. The applicant invites the Court to find that, in the light of her own evidence about the treatment she suffered and the evidence of a practice of torture contained in these reports, no credence should be given to medical reports which suggest that there was no evidence of ill-treatment in the absence of a full investigation into the facts on which her complaints were based.

The Court recalls that Article 35 § 1 of the Convention only requires an applicant to exhaust remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress. An applicant does not need to exhaust remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach. However, a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent court or other authority (see Epözdemir v. Turkey , (dec.), no. 57039/00, 31.1.2002, unreported, and No. 20357/92, Dec. 7.3.94, D.R. 76-A, p. 80). The Court also recalls that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (see the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 68).

The Court notes that ill-treatment in custody is prohibited by the Turkish Criminal Code. It has not been disputed in the instant case that if such acts did take place, as alleged, they would constitute criminal offences. The Turkish legal system provides in such instances for an investigation to be carried out by the public prosecutor who, on the basis of the evidence, decides whether or not to initiate a prosecution against the alleged perpetrators. In the event of a decision not to prosecute, the complainant has the right under Article 165 of the Code of Criminal Procedure to appeal the decision to the president of the nearest assize court.

The Court observes that the applicant herself did not bring her allegations to the attention of the national authorities despite the fact that she had a number of opportunities to do so. She could have, for example, informed the prosecutor at the Diyarbakır State Security Court when she was brought before him on 21 November 1995 following her detention in custody. In the alternative, she could have informed the judges or the prosecutor during her trial before the Diyarbakır State Security Court. No evidence has been submitted to the Court to show that the applicant took any such initiative.

However, following the introduction of the present complaints with the former Commission, an investigation was started by the Diyarbakır public prosecutor. On the basis of the medical reports indicating that her body bore no signs of ill-treatment, the prosecutor took a decision not to prosecute on 15 January 1997. This decision could have been appealed. However, the applicant did not lodge an appeal and therefore waived her right to seize this final opportunity to bring to the attention of the appeal judge the complaints which she subsequently lodged with the former Commission. Even though the Government state that this decision could not be formally served on her, the Court considers that the applicant must be presumed to be aware of it. She has not in fact contested this.

The Court concludes, therefore, that in so far as it is contended that the public prosecutor’s decision was not justified by the available evidence, it was open to the applicant to avail herself of her right to appeal to the president of the nearest assize court who could, on examination of the provisions of the domestic law and the evidence, including witness statements and medical reports, have directed that a prosecution or other investigatory measures be carried out (see Epözdemir v. Turkey cited above). The Court further considers that the applicant could also have submitted to the president of the assize court her concerns about the reliability of the medical reports and challenge the assertion that she had told the public prosecutor that she had not been ill-treated in custody.

The Court does not find it established, therefore, that such an appeal would have been devoid of any chance of success. The Court 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 mutadis mutandis , Epözdemir v. Turkey cited above; Keçeci v. Turkey (dec.), no. 38588/97, 17.10.2000, Fidan v. Turkey (dec.), no. 24209/94, 29.2.2000, both unreported).

The Court further notes that the applicant has not provided any elements which would substantiate that she would have been subjected to intimidation if she had appealed against the decision of the public prosecutor.

In these circumstances, the Court does not deem it necessary to establish whether, as alleged by the Government, the applicant told the public prosecutor during the course of the investigation that the members of the security forces who questioned her had not behaved badly towards her.

Consequently, the Court finds that in the circumstances of this case the applicant cannot be considered as having complied with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention. The applicant’s complaint under Article 3 of the Convention must therefore be rejected in application of Article 35 §§ 1 and 4 of the Convention.

2. Six months

As to the applicant’s complaint under Article 13 of the Convention, the Court notes that this complaint was not introduced until after the present application had been communicated to the respondent Government. The Court observes in this context that the applicant’s custody ended on 21 November 1995 and the applicant invoked her complaint under Article 13 of the Convention in her observations in reply to those of the Government submitted to the Court on 30 March 1999, i.e. more than six months later. The Court considers that this complaint must be declared inadmissible for non-compliance with the six-months rule laid down in Article 35 § 1 of the Convention.

3. Merits

As to the applicant’s complaint under Article 5 § 3 of the Convention  regarding the length of her eleven-day period of custody, the Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and of 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 unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of her period of custody;

Declares inadmissible the remainder of the application.

S. Dollé J .-P. Costa Registrar President