FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30494/96 by Gülizar TUNCER and Ali DURMUŞ against Turkey

The European Court of Human Rights, sitting on 19 June 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , Mr F. Gölcüklü , ad hoc judge , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 26 February 1996 and registered on 19 March 1996,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Gülizar Tuncer and Ali Durmuş , are Turkish nationals, born in 1966 and 1963 respectively and living in Istanbul.

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

A. The circumstances of the case

1. The applicants’ version of the facts

Both applicants are practising lawyers and they are mainly involved in cases of political prisoners in Istanbul.

(a) Events of 8 January 1996

On 8 January 1996 the applicants went to Alibeyköy in Istanbul in order to attend the funeral of Rıza Boybaş and Orhan Özen , who had been allegedly killed by the security forces in the Ümraniye prison.

During the funeral the applicants were beaten by police officers and were subsequently arrested. Following their arrest the applicants were taken to a bus where they were beaten, insulted and hit with truncheons.

The applicants were brought to the Eyüp Stadium along with 1054 people who were also arrested during the funeral. In the stadium they were again beaten, kicked and hit with truncheons. Their identity cards, money and valuables were seized by the police officers.

Metin Göktepe , a journalist with the Evrensel newspaper, was killed by the police officers after having been beaten in the stadium.

While the applicants were in the Eyüp Stadium their colleagues requested from the Eyüp Magistrate’s Court ( Sulh Ceza Mahkemesi ) that the applicants be brought before the competent public prosecutor.

On the same day the Eyüp Magistrate’s Court rejected this request on the grounds that the public prosecutors were entitled to authorise the detention of suspects in police custody for up to four days in respect of crimes committed by three or more persons.

The applicants were released at 6 p.m. on the same day.

(b) Proceedings before the domestic authorities

On 9 January 1996 the applicants lodged an application with the office of the Eyüp public prosecutor concerning the treatment that they were subjected when they were arrested. The applicants requested the public prosecutor to order their examination by a doctor of forensic medicine.

On 9 January 1996 the applicants were seen by Dr. Remzi Şendil at the Eyüp Forensic Institute.

In a medical report it is stated that the first applicant was suffering from bruising on her right shoulder, an irregular ecchymosis of 3 cm in diameter on her right shoulder blade, pain in the back of neck and shoulder, an ecchymosis of 4 cm in diameter on the right crursis and irregular ecchymosis on the exterior femoral. It is also noted that the applicant should be examined in a hospital since she was suffering from vaginal bleeding.

In a medical report for the second applicant it is stated that he was suffering from a violet-coloured bruising of 3 cm in diameter on the right shoulder, bruising of 5 cm in diameter on the right arm, bruising of 15-20 cm in diameter on the left shoulder and around the shoulder-blade and bruising of 2 cm in diameter on the back. The applicant was also suffering from ecchymosis on the back and pain on his legs. It is concluded that the applicant would be unfit for work for ten days.

On 15 January 1996 the Eyüp public prosecutor decided to transfer the preliminary investigation file to the District Governor of Eyüp in Istanbul as it concerned the prosecution of civil servants. At a later stage the file was transferred to the Provincial Administrative Council.

On 17 January 1996 the applicants, together with others who had been arrested and subjected to ill-treatment in the events of 8 January 1996, filed a petition with the Eyüp public prosecutor. They requested the prosecutor to initiate an investigation concerning their arbitrary arrest. They also complained of the treatment they had been subjected to and the death of Metin Göktepe . The Eyüp public prosecutor decided to transfer this request to the Provincial Administrative Council.

On 8 February 1996 the Provincial Administrative Council issued a decision to commit the police officers for trial ( lüzum -u muhakeme kararı ).

On 6 March 1996 the applicants lodged an objection with the Supreme Administrative Court ( Danıştay ) against the decision of the Istanbul Provincial Administrative Council on the ground that M. Ali Aydın Akdemir should be prosecuted together with the police officers since he was the chief of police in the Eyüp District.

On 3 April 1996 the Supreme Administrative Court upheld the decision of the Provincial Administrative Council and rejected the applicants’ objection.

On an unspecified date the Eyüp public prosecutor filed a bill of indictment with the Eyüp Assize Court against the police officers who allegedly ill-treated the applicants.

On an unspecified date the Eyüp Assize Court decided to transfer the case-file to the Aydın Assize Court for security reasons. At a later stage the Aydın Assize Court decided to transfer the case-file to the Afyon Assize Court on the same grounds.

At a hearing on 18 October 1996 before the Afyon Assize Court the applicants requested to take part in the proceedings as intervening party. During the hearing the applicants gave a detailed account of the events of 8 January 1996.

On 18 December 1996 Dr. Cüneyt Atasoy at the Istanbul Forensic Medicine Institute drafted the final medical report concerning the first applicant. Having regard to the findings of the medical examination of 9 January 1996 Dr. Atasoy concluded that the applicant would be unfit for work for ten days.

On 28 May 1997 the Afyon Assize Court ordered that the applicants’ case be severed from the cases against the other accused police officers who were allegedly involved in the killing of Metin Göktepe .

On 5 November 1999 the Afyon Assize Court acquitted the police officers on the ground that there existed no evidence in the case file to substantiate that the accused police officers were responsible for the alleged ill-treatment. 

The proceedings are still pending before the Court of Cassation .

2. The Government’s version of the facts

According to the Government the applicants were not amongst the 1054 persons who were arrested and subsequently taken to the Eyüp stadium on 26 February 1996.

B. Relevant domestic law and practice

1. Criminal law and procedures

Article 17 of the Turkish Constitution provides:

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

Article 243 of the Turkish Criminal Code ( Türk Ceza Kanunu ) provides:

“A President or member of a court or official body or any other public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, or engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life. ...”

Article 245 provides:

“Civil servants charged with the forcible execution of an order, police officers and any other officials charged with enforcement who, either of their own accord or on the orders of their superiors, enforce the order concerned in an unlawful manner or who, in doing so, ill-treat, strike or cause bodily harm to another shall be punished by between one and three years’ imprison ment and temporarily disqualified from holding public office.”

2. The law relating to detention in police custody

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

Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides:

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

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

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

(3) 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;

(4) 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;

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

(6) 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

(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only.”

3. Administrative law provisions

Article 125 of the Turkish Constitution provides as follows:

“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 section 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.

4. 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 section 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 applicants complain under Article 2 of the Convention that there exist no guarantees to safeguard their right to life in domestic law. The applicants submit that the police officers aimed at killing them in the events of 8 January 1996. They point out that a journalist in fact was killed in the same incident.

The applicants complain under Article 3 of the Convention that they were ill-treated by the police officers.

The applicants complain under Article 5 § 1 of the Convention that they were unlawfully and arbitrarily deprived of their liberty.

The applicants complain under Article 5 § 1 (c) that there existed no reasonable suspicion for their arrest and that they were not arrested for the purpose of bringing them before the competent legal authority.

THE LAW

The applicants claim that they were subjected to treatment prohibited under Article 3 of the Convention. They further claim that there exist no guarantees to safeguard their right to life in domestic law and that they were unlawfully and arbitrarily deprived of their liberty.  They invoke Articles 2, 3 and 5 of the Convention.

A. Alleged violation of Article 2 of the Convention

1. The Government’s preliminary objections

The Government submit that it is doubtful whether the applicants can claim to be victims within the meaning of Article 34 of the Convention. The Government point out that the applicant’s allegation that the police officers killed a journalist did not directly and personally harm them.

The applicants maintain their account of events.

The Court reiterates that t he system of individual petition provided under Article 34 of the Convention excludes applications by way of actio popularis . Complaints must therefore be brought by or on behalf of persons who claim to be victims of a violation of one or more of the provisions of the Convention. Such persons must be able to show that they were “directly affected” by the measure complained of (see, for example, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, § 44).

The Court observes that the remoteness of the relationship between the applicants and the journalist, as regards the alleged killing of the latter, suffices to show that the applicants did not feel personally concerned by the alleged incident.  

The Court, therefore, is of the opinion that the applicants cannot claim to be victims within the meaning of Article 34 of the Convention regarding to their complaint of the death of the journalist.

2. Merits

The applicants argue that there exist no guarantees to safeguard their right to life in domestic law. They point out that the authorities have a positive obligation to take preventive measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual. In this regard, t hey maintain that the police officers aimed at killing them when they were arrested.

The Government submit that the applicants’ complaints should be rejected since they were not killed in the incident.

The Court observes that the applicants’ complaints under this head are closely linked to the State’s obligation under Article 3 of the Convention. The Court therefore does not find it necessary to examine these complaints under Article 2 of the Convention.

B. Alleged violation of Article 3 of the Convention

1. The Government’s preliminary objection

The Government submit that the applicants have failed to exhaust domestic remedies in that they did not lodge an objection with the Supreme Administrative Court ( Danıştay ) against the decision of the Istanbul Provincial Administrative Council of 8 February 1996.

The applicants maintain that they lodged an objection with the Supreme Administrative Court ( Danıştay ) on 6 March 1996 against the decision of the Istanbul Provincial Administrative Council.

The Court observes that the Provincial Administrative Council issued a decision to commit the police officers for trial on 8 February 1996. The Court further observes that the applicants lodged an objection with the Supreme Administrative Court ( Danıştay ) against the decision of the Istanbul Provincial Administrative Council on the ground that M. Ali Aydın Akdemir should be prosecuted since he was the chief of police in the Eyüp District at the time of the events at issue. On 3 April 1996 the Supreme Administrative Court upheld the decision of the Provincial Administrative Council and rejected the applicants’ objection.

Accordingly, the Court finds that the applicants exhausted the domestic remedies suggested by the Government. The Court, therefore, rejects the Government’s preliminary objections.

2. Merits

According to the Government the applicants were not arrested on 26 February 1996 and therefore they could not have been subjected to the alleged treatment.

The applicants maintain that they were beaten with truncheons, kicked, subjected to insults and sworn at by the police officers.

The Court considers, in the light of the parties’ submissions, that the applicants’ complaints under this head raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of merits of the application as a whole. The Court concludes, therefore, that 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.

C. Alleged violation of Article 5 of the Convention

1. The Government’s preliminary objections

According to the Government the applicants were not arrested on 26 February 1996. It appears from the custody records of the Istanbul Security Directorate that the applicants were not amongst the 1054 detainees that had been taken to the Eyüp stadium.

The Government submit that assuming that the applicants were arrested on 26 February 1996, they have failed to exhaust domestic remedies. According to the Government it would have been possible for the applicants to apply for compensation using the procedure laid down in Law no. 466 for those who had been unlawfully deprived of their liberty or, having been detained in accordance with a procedure prescribed by law, had been acquitted, among other possible outcomes.  

The applicants refute the Government’s argument. Any complaint under Law no. 466 would be futile since they could have no possibilities to prove before the domestic courts that they had been arrested on 8 January 1996.

The Court notes that the date of applicants’ arrest is disputed between the parties. However, the issue before the Court at this stage of the proceedings is not whether the matters alleged by the applicants disclose a violation of the provision invoked or at what date the applicants had actually been arrested. The issue before the Court is whether the applicants have exhausted domestic remedies within the meaning of Article 35 of the Convention.

In this respect, the Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 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 also requires that the complaints intended to be made 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 do mestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431 § 71).

However, the Court is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in the present the case, the applicants did everything that could reasonably be expected of them to exhaust the national channels of redress (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, § 54).

The Court observes that the applicants, together with others who had been allegedly arrested and subjected to ill-treatment in the events of 8 January 1996, filed a petition with the Ey ü p public prosecutor on 17 January 1996. They requested the prosecutor to initiate an investigation concerning the legality of their arrest. However, the Ey ü p public prosecutor decided to transfer this request to the Provincial Administrative Council. The Court further observes that it appears that the applicants’ complaints concerning their arbitrary arrest received no serious examination during the procedures before the Provincial Administrative Council and the Afyon Assize Court.

Against this background the Court concludes that the applicants did everything that could reasonably be expected of them to exhaust the national channels of redress.

The Court accordingly dismisses the Government’s objections.

2. Merits

The applicants refute the Government’s statement that they were not arrested on 26 February 1996. They submit that the ill-treatment that they were subjected to during the funeral proved that they were unlawfully and arbitrarily arrested.

The Government maintain their account of events.

The Court considers, in the light of the parties’ submissions, that the case 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 as a whole. The Court concludes, therefore, that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaint that they were subjected to treatment prohibited under Article 3 of the Convention; that they were unlawfully and arbitrarily deprived of their liberty; that there existed no reasonable suspicion for their arrest and that they were not arrested for the purpose of bringing them before the competent legal authority.

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President