FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 46506/99, 46569/99,46570/99 and 46939/99 by Kerem DURMAZ, UlaÅŸ IÅžIK,Taci Sabri UNUTMAZ and Hasan SEZAL against Turkey

The European Court of Human Rights (First Section) , sitting on 4 September 2001 as a Chamber composed of

Mrs E. Palm , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr R. Türmen , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above applications introduced on 8 December 1998 and registered on 4 March 1999, 5 March 1999, 5 March 1999 and 22 March 1999 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicants, Kerem Durmaz, Ulaş Işık, Taci Sabri Unutmaz and Hasan Sezal are Turkish nationals , born in 1980, 1977, 1979 and 1979 respectively and were serving prison sentences in Ankara at the time they made their applications. They are represented before the Court by Ms Sevil Ceylan, a lawyer practising in Ankara.

A. The circumstances of the case

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

The applicants were arrested on 27 and 28 April 1996 by police officers from the Anti-Terrorist Branch of the Ankara Police Headquarters. No reasons were given for their arrest. They were placed in custody at the Anti-terrorist Headquarters in Ankara.

On 3 May 1996 the Chief Public Prosecutor at the Ankara State Security Court stated in his written reply to letters from the mothers of the first and the fourth applicants, enquiring into the reasons for their sons’ arrests and the dates when they would be brought before a judge, that their sons’ detention had been authorised until 10 May 1996. No reasons, however, were given for the arrests in the public prosecutor’s letters.

Between 3 May and 5 May 1996 statements were taken from the applicants while in police custody.

On 7 May 1996 the applicants were taken to the Forensic Medicine Institute for a medical examination. The medical reports drawn up in relation to all of the applicants stated that “there were no external marks of violence or ill-treatment on the applicants’ bodies”.

On the same day the applicants were brought before the Public Prosecutor at the Ankara State Security Court and then before the duty judge who took statements from the applicants. The judge ordered the release of the first and the fourth applicants pending trial and the detention of the second and the third applicants pending trial.

On 23 May 1996 the Public Prosecutor at the Ankara State Security Court prepared an indictment and accused the applicants of membership of an illegal armed organisation, the Revolutionary Communists’ Union of Turkey (hereinafter the TİKB, Türkiye İhtilalci Komünistler Birliği ). The applicants were also accused of carrying out activities on behalf of the TİKB, such as taking part in demonstrations on 1 May and 8 March (Women’s day) during which they had chanted slogans and had distributed TİKB leaflets.

The public prosecutor asked the court to convict and sentence the applicants under Article 168 § 2 of the Turkish Criminal Code, which carries a punishment of maximum 15 years’ imprisonment. The public prosecutor, pursuant to Article 55 § 3 of the Turkish Criminal Code, further asked the court to reduce the sentences of the first, third and the fourth applicants by a third, as these applicants were younger than 18 years of age at the time they committed the offence.

On 19 June 1996 the first and the fourth applicants attended the first hearing before the 2 nd Chamber of the Ankara State Security Court. The second and the third applicants, who were detained in prison on remand, did not attend as they were on hunger strike. The applicants were represented by three lawyers throughout the criminal proceedings against them. The applicants denied the charges and their lawyers stated that the applicants had accepted these allegations under duress when they were in police custody and when they were brought before the duty judge following their initial detention. The court rejected the lawyers’ request that the two detained applicants be released on bail pending the outcome of their trial.

On 9 October 1996 the court concluded that there was insufficient evidence to conclude that the applicants were members of the TİKB as alleged, but found them guilty of aiding and abetting the TİKB and sentenced them under Article 169 of the Turkish Criminal Code. The first, second and third applicants were sentenced to two years and six months’ imprisonment while the second applicant, who was older than the other applicants, was sentenced to three years and nine months’ imprisonment.

The applicants’ appeal against the judgment was rejected by the 9 th Chamber of the Court of Cassation on 20 May 1998. The decision of the Court of Cassation was pronounced on 10 June 1998.

The applicants’ request to the public prosecutor to send this decision back to the Court of Cassation for a review was rejected on 30 June 1998.

The applicants allege that while they were held in police custody they were blindfolded, stripped naked and subjected to pressure hosing, hit on the head, had their testicles squeezed and were subjected to verbal insults directed at their personal integrity and at their families.

The first applicant states that following his release he underwent medical treatment for a kidney problem which was caused during his detention in police custody. He also attempted to commit suicide on 27 December 1996 by slashing his wrists because of the psychological effects of the treatment in police custody. He later received counselling and medication as part of his psychological treatment.

The second applicant also alleges that he suffered a kidney problem while in custody.

The third applicant alleges that he too suffered a kidney problem while detained on remand in prison and, on 9 May 1996 he asked to be examined by a doctor. He was examined by a doctor on 10 May 1996 who transferred his report for a further examination by a panel of specialists. The medical report drawn up on 23 May 1996 by a specialist panel stated that the applicant had suffered “a urinal bleeding which had healed and that he had passed a kidney stone, which did not pose a threat to his life”.

The fourth applicant submitted a medical report, dated 9 December 1998, from which it appears that he had been diagnosed on 2 April 1996 as suffering a facial paralysis for which he had been ordered on 9 April 1996 to undergo a continuing medical treatment, requiring 21 visits to a physiotherapist. This treatment continued until 25 April 1996, during which time the applicant could be treated by the physiotherapist 12 times. This treatment was discontinued, however, following the applicant’s arrest and subsequent detention.

B. Relevant domestic law

Article 19 of the Constitution provides:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:

...

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days...These time-limits may be extended during a state of emergency...

...

A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”

Under section 128 of the Code of Criminal Procedure, an arrested person must be brought before a judge within twenty four hours or, where the offence has been committed by more than one person, within four days.

The relevant parts of Article 168 of the Turkish Criminal Code provides as follows:

“1. Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership...or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

2. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

Article 169 of the Turkish Criminal Code provides:

“Any person, who knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

Under Article 153 of the Code of Criminal Procedure, 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 there should be a prosecution.

COMPLAINTS

The applicants complain of a violation of Articles 3, 5 §§ 1-3, 6 §§ 1-3 and Article 2 of Protocol No. 1 to the Convention.

The applicants allege that the treatment to which they were subjected to while in police custody amounted to torture in violation of Article 3 of the Convention. They submit, in particular, that while they were held in detention in the Anti-Terror branch of the Ankara Security Directorate they were blindfolded, stripped naked and subjected to pressure hosing, hit on the head, had their testicles squeezed and were subjected to verbal insults directed at their personal integrity and at their families.

The first, third and the fourth applicants submit under Article 5 § 1 (d) of the Convention that the purpose of their detention was not an educational one. The applicants all complain under Article 5 §§ 2 and 3 of the Convention that they were not informed of the reasons for their arrest; that they were not brought promptly before a judge or other officer with judicial power; and finally that they were not released pending trial.

The applicants assert under Article 6 §§ 1-3 of the Convention that their right to a fair hearing was breached because they were tried by the Ankara State Security Court which lacked independence and impartiality. They further submit that they only had the opportunity to read the public prosecutor’s written submission, submitted to the Court of Cassation , during the hearing and not before the hearing and that they were thus denied the right to respond to the public prosecutor’s observations.

The first, third and the fourth applicants complain under Article 2 of Protocol No. 1 to the Convention that their right to education was breached because they had to intermit their higher education studies in order to serve their prison sentences. The third and the fourth applicants submit that they had to withdraw from their respective high schools and had to register at a high school that teaches by correspondence. The quality of this high school was not up to the standards of an ordinary high school.

THE LAW

1. The applicants allege that the treatment to which they were subjected to during their custody amounted to torture within the meaning of Article 3 of the Convention which provides:

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

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. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court 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 Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67).

The Court notes that, although the prohibition of torture or inhuman or degrading treatment contained in Article 3 of the Convention is absolute, applicants invoking that Article are not for that reason dispensed as a matter of course from exhausting domestic remedies that are available and effective. It would not only run counter to the subsidiary character of the Convention but also undermine the very purpose of the rule set out in Article 35 § 1 of the Convention if the Contracting States were to be denied the opportunity to put matters right through their own legal system ( Jabari v. Turkey [dec.], no. 40035/98, 28.10.99, unreported).

However, the Court considers that it is not necessary to determine whether the applicants exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention since this complaint is in any event inadmissible for the following reasons.

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis , the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, § 30). The Court observes in the first place that the applicants have not produced any concrete evidence in support of their allegations of ill-treatment. The medical reports drawn up following the applicants’ detention do not contain any injuries having been sustained. While the Court recognises the difficulty for detained people to obtain evidence of ill-treatment during police custody, it notes that the applicants, who sought to challenge in their application the reliability of the medical reports, did not produce any medical evidence to contradict the results of the medical examinations carried out on their bodies at the end of their police custody. Nor did they suggest that they had ever been refused permission to see a doctor. The Court considers that it would have been possible for at least two of the applicants who were released following their detention pending the outcome of the proceedings, to be re-examined by an independent doctor in respect of their alleged ill-treatment. In the light of the seriousness of their allegations, in particular being subjected to pressure hosing, hit on their heads and their testicles squeezed, the Court considers that this treatment, if taken place, would have left signs on the applicants’ bodies which would have been observed by a medical doctor.

Even supposing that the applicants’ circumstances could have caused them to feel vulnerable, powerless and apprehensive of the representatives of the State during their custody (See Ilhan v. Turkey [GC], no. 22227/93, § 61), the Court considers it significant that the applicants or their three lawyers never referred to their very serious complaints of ill-treatment in the proceedings before the Ankara State Security Court. The Court further notes in this context that the applicants did not argue that they were prevented from doing so by intimidation or otherwise.

In the Court’s opinion the applicants have not laid the basis of an arguable claim that they were tortured in custody. It follows that the complaint under Article 3 of the Convention should be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

2. The applicants complain that their detention was in breach of  their rights under Article 5 of the Convention, the relevant parts of which provide as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

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 and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

T he Court recalls that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period runs from the date of the act complained of.

The Court observes that the first and the fourth applicants were released from custody on 7 May 1996 pending their trial. The second and the third applicants’ detention in police custody also ended the same day when the judge ordered their further detention in prison pending their trial. The applicants introduced their applications on 8 December 1998, i.e. more than six months later.

It follows that these complaints have been introduced out of time and must be rejected under Article 35 § 4 of the Convention.

3. The applicants complain that no copy of the public prosecutor’s written submission to the Court of Cassation was transmitted to them and that they were thus denied the right to respond to the same. They further complain that their right to a fair hearing was breached because they were tried and convicted by the Ankara State Security Court which lacked independence and impartiality. They invoke Article 6 of the Convention, the relevant parts of which provides as follows:

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

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

b. to have adequate time and facilities for the preparation of his defence”.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicants finally argue under Article 2 of Protocol No. 1 to the Convention that they were denied the right to education because they had to intermit their studies in order to serve their prison sentences. The relevant parts of Article 2 of Protocol No. 1 provides as follows:

“No person shall be denied the right to education ...”.

The Court notes that the fact that the applicants were only prevented during the period corresponding to their lawful detention after conviction by a court to continue their full-time education, cannot be construed as a deprivation of the right to education within the meaning of Article 2 of Protocol No.1 to the Convention ( Georgiou v. Greece [dec.], no. 45138/98, 13.1.2000, unreported; application no. 23938/94, Eur. Comm. HR, decision of 23.10.95, unreported).

In the circumstances of the case, the Court considers that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicants’ complaints concerning their right to a fair hearing by an independent and impartial tribunal;

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President