THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38578/97 by Süleyman KAPLAN against Turkey

The European Court of Human Rights, sitting on 12 June 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Mr R. Türmen , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , judges , and Mrs. S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 January 1996 and registered on 13 November 1997,

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, Süleyman Kaplan, is a Turkish national, born in 1970 and currently imprisoned in Bursa . He is represented before the Court by Ms Nesrin Hatipoğlu and Ms Nuran Paylaşan , lawyers practising in Ankara.

A. The circumstances of the case

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

On 3 May 1995 the applicant was arrested by police officers from the Anti-Terror branch of the Ankara Police Headquarters. He was accused of being a member of an illegal organisation, the TDKP/GKB ( Türk Devrimci Komünist Partisi / Genç Komünistler Birliği – The Turkish Revolutionary Communist Party/Young Communists’ Union ).

The applicant alleges that he was beaten, hung by his arms, given electric shocks to his body and threatened with death during his interrogation by the police officers.

On 15 May 1995 the applicant was examined by a doctor at the Ankara Forensic Medicine Institute who noted in his report the presence of numerous differently shaped and coloured bruises on his shoulders, on the left upper part of his fist, his back and thigh. The doctor further noted the presence of four ecchymoses on the applicant’s outer gluteal . The applicant was also suffering from pain in his chest. The doctor concluded that the applicant would be unfit for work for five days.

On 15 May 1995 the applicant was questioned by the public prosecutor, Ali Rıza Konuralp , at the Ankara State Security Court. During his questioning the applicant denied the allegations against him and stated that he had signed his statement under duress. The applicant also refused to give a detailed statement, saying that he was suffering from trauma resulting from the severe torture to which he was subjected while in police custody.

On the same day the Ankara State Security Court ordered the applicant’s detention on remand.

On 21 July 1995 the applicant submitted a written statement to the public prosecutor at the Ankara State Security Court. The statement reads as follows:

“On 3 May 1995 I was arrested by three plain-clothes men. ... They [later] told me that they were police officers. I was handcuffed and blindfolded. Thirty or forty minutes [after my arrest] I was brought to a deserted area. As soon as they took me out of the car they started beating me. At the same time they were asking me if I was a member of the terrorist organisation. ... They were also asking about the names of the other members. When I told them that I was not a member of the organisation they continued hitting and asking me the same questions again. They took off my clothes and beat me with my belt. This [treatment] continued for three hours. ... Afterwards they put a gun to my head and threatened me with death. I repeated that I had nothing to say. They told me that they would take me to Gölbaşı and that I would get lost there. They also told me that they would not kill me immediately because they wanted me first to suffer. It was getting dark. They put me in the car and drove towards a building, which, I understood afterwards, was the Ankara Police Headquarters. I was dragged into a cell. I do not remember what they were saying because I was unconscious. I only remember them hitting me. After a while they took me out of the cell and brought me into a room called “the room with mirrors”. [My wife was there]. ... They told me that they would let us go if I told them the truth. ... After a while they brought me back to the cell. Two days later they came back to my cell with some papers. They wanted me to sign the papers. After having read the papers I told them that I would not sign the papers because those papers contained untrue statements about my wife and me. They again brought me to the room with mirrors. A.K with whom I was working was there. They told me that A.K and I had been involved in illegal activities. They again asked me to sign the papers. When I refused the allegations they again started beating me. After a while they hung me by my arms. I was unconscious and naked. They squeezed my testicles, hosed me with cold water and gave electric shocks. They were giving pauses at regular intervals. During one of those pauses they brought in my wife and told her to sign the documents. They were torturing and beating my wife in front of me. They took me back to my cell after three or four hours. They again took me to the torture room and asked me if I would sign the papers. When I refused to sign the papers they recommenced the same treatment. I lost consciousness. .... They brought my wife back and started beating her. They told me that I would watch them raping her. When they started to take my wife’s clothes off I told them that I would sign all the papers and asked them not to harm my wife. I told my wife to sign all the papers as well and I signed all the papers without having read them.”

On 17 October 1995 the applicant lodged a complaint with the Ankara public prosecutor. He stated that he had been subjected to torture while in custody and requested that the police officers who tortured him be identified and brought to justice.

On 11 December 1995 the applicant appeared before the Ankara Public Prosecutor, Mehmet Bozkurt . He reiterated his allegations before the prosecutor.

On 7 May 1996 the Ankara Public Prosecutor, Ramazan Gündüz , issued a decision based on lack of jurisdiction ( görevsizlik kararı ). The prosecutor decided to transfer the case-file to the office of the Ankara Governor pursuant to Article 15 of Law no. 3713.

On 24 June 1996 the Ankara State Security Court convicted the applicant for his involvement in an armed gang. The court sentenced him to twelve years and six months’ imprisonment under Article 168/2 of the Turkish Criminal Code and Article 5 of Law no. 3713.

On 28 June 1996 Ramazan Er , the chief of police ( İl Emniyet Müdürü ) appointed Superintendent ( başkomiser ) Hilmi Eser to conduct an investigation against the police officers who allegedly tortured the applicant.

On 12 July 1996 the police officers Hayati Akça , Ali Tosun , Kadri Tuncer and Osman Menteşe gave statements to Mr Eser . They rejected the allegations of torture, stating that they had collected sufficient evidence to condemn the applicant without resorting to torture. They also stated that the applicant was injured during the struggle when he was arrested. The police officers concluded that it was probable that the applicant had intentionally injured himself in order to accuse the police officers of ill-treatment.

On 24 July 1996 the applicant gave a statement to Mr Eser . He reiterated his allegations of torture.

On 18 September 1996 Superintendent Hilmi Eser drafted a recommendation report ( fezleke ) in which it is stated that, in the light of the statements taken and the relevant evidence in the case-file, there existed no evidence to substantiate that the police officers committed the alleged crime. The report further stated:

“The medical report that the complainant relies on is dated 15 May 1995 and refers to the medical examination carried out before he had been brought before the judge. However, in his statement taken in custody the complainant did not say that he had given this statement under duress and pressure. He also did not mention that he had been subjected to ill-treatment. The complainant lodged his complaints seven months after he was detained on remand. This confirms that the complainant lodged these complaints in order to show himself as a member of the organisation and to attract the sympathy of the other members of the organisation in prison. The bruises on the applicant’s fists occurred as a result of the handcuffs. The other bruises occurred because the applicant injured himself in order to accuse the police officers.”

Mr Eser concluded that the police officers had performed their duty with diligence and recommended that no prosecution be brought against them.

On 1 October 1996 the Ankara Provincial Administrative Council ( İl İdare Kurulu ) decided to commit the accused police officers for trial ( lüzum -u muhakemelerine ). The Council further decided that the proceedings should be initiated before the Ankara Criminal Court of First Instance ( Asliye Ceza Mahkemesi ) as the matter fell within the jurisdiction of that court.

The police officers appealed. On 24 November 1998 the Supreme Administrative Court ( Danıştay ) quashed the decision of the Ankara Provincial Administrative Council of 1 October 1996 on the grounds that it was for the competent public prosecutor to initiate proceedings against the accused police officers. The Supreme Administrative Court concluded that the case-file should be transferred to the office of the competent public prosecutor.

On 25 December 1998 the Ankara public prosecutor filed a bill of indictment with the Ankara Assize Court against the four police officers who allegedly tortured the applicant. These proceedings are apparently still pending.

B. Relevant domestic law and practice

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.”

Article 135/a of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ) provides:

“ The statement of the accused should be based on his free will. The accused shall not be subjected to physical or mental interference such as torture, forced medication, fatigue, deceit, use of physical force and hardness and use of other means resulting in the obstruction of his free will.

No unlawful benefit shall be promised.

The statements that are extracted from the accused by using the unlawful means described above cannot be considered as evidence even if the accused does not challenge their lawfulness.”

Article 136 § 1 of the Turkish Code of Criminal Procedure (amended by Law no. 3842 of 18 November 1992) provides:

“The accused or a person arrested shall have access to legal assistance of one or more lawyers at any stage and level of the investigation.”

Article 31 of Law no. 3842 provides that the above right shall not be applicable to charges that fall within the jurisdiction of the State security courts.

COMPLAINT

The applicant complains under Article 3 of the Convention that he was tortured while in police custody.

THE LAW

The applicant complains that he was tortured while in police custody. He invokes Article 3 of the Convention.

The Government’s preliminary objection

The Government submit that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

The Government submit that it would have been open to the applicant to sue the Administration for damages on the basis of Article 125 of the Constitution, read in conjunction with Law no. 2577 concerning administrative proceedings. They draw attention to the fact that the Administration’s liability is engaged under these provisions without the need for a plaintiff to prove fault. In addition, the applicant failed to seek compensation in accordance with civil law remedies. The Government contend that the domestic case-law confirms that damages may be awarded against officials of the State who resort to torture against individuals. Furthermore, even if an official is acquitted of criminal charges for lack of evidence, the civil courts are not bound by that decision and may proceed to hear a claim for damages brought against that official in accordance with the law of tort. The Government refer to Article 53 of the Civil Code and relevant case-law in this respect.

Against this background, the Government observe that the applicant lodged complaints against the police officers whom he alleges ill-treated him in custody. However, he subsequently introduced the same complaints with the Commission before the public prosecutor took proceedings against these officers. In this regard, they refer to the decision of the Supreme Administrative Court of 24 November 1998 which stated that it was for the competent public prosecutor to initiate proceedings against the police officers. In the Government’s submissions, the application should be rejected on account of the applicant’s failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

The applicant contests the Government’s submissions. He states that he lodged complaints with the domestic authorities about the torture to which he was subjected and on that account must be considered to have exhausted domestic remedies.

In the applicant’s submissions it was for the authorities to identify the persons who were responsible for torturing him. The authorities were made aware of his allegations and should have carried out the necessary investigation into those allegations. However, they failed to do so. In this regard, the applicant points out that the offence with which the police officers were charged would be statute-barred on 3 November 2002.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants first to use 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 the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52).

The Court notes that Turkish law provides civil, administrative and criminal law remedies against illegal and criminal acts attributable to the State or its agents.

As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents, the Court recalls that a plaintiff to such an action must, in addition to establishing a causal link between the tort and the damage he has sustained, identify the person believed to have committed the tort (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 73). In the instant cas e, criminal proceedings were taken against the named police officers. However, it does not appear that these proceedings were actively pursued and the police officers involved still remain unidentified by the Turkish authorities. In these circumstances, the Court considers that the introduction of a tort action against the police officers would have had no reasonable prospects of success, regardless of the lesser standard of proof involved.

The Court considers that the above considerations apply equally to the Government’s assertion regarding the applicant’s failure to bring an action in administrative law under Article 125 of the Constitution. It further recalls that this remedy 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 it is aimed at awarding damages rather than identifying and punishing those responsible (cf. the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102).

The Court, therefore, concludes that the applicant was not required to exhaust the civil and administrative remedies suggested by the Government.

As to the Government’s submission that the criminal investigation into the applicant’s allegations is still pending before the national authorities the question arises whether or not the criminal investigation at issue can be regarded as effective for the purposes of the Convention. The Court considers that this question cannot be answered at this stage of the proceedings, it being closely linked to the substance of the applicant’s complaints.

As regards the substance of the applicant’s complaints, 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 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

Joins to the merits the Government’s preliminary objection based on the effectiveness of the criminal investigation against the accused police officers;

Declares the application ad missible, without prejudging the merits of the case.

S. Dollé J.P. Costa Registrar President