FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29359/95 by Özgül Saki against Turkey

The European Court of Human Rights (First Section) , sitting on 15 May 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. G ölcüklü , ad hoc judge

Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 September 1995 and registered on 23 November 1995,

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, a physics teacher, is a Turkish national, born in 1967 and living in Istanbul. She is represented before the Court by Mr Engin Cinmen, a lawyer practising in Istanbul.

A. The circumstances of the case

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

On 1 May 1994, at 8.50 a.m., the applicant was arrested in the Moda district of Istanbul by plainclothes police officers and was taken to Kadıköy police station for interrogation. The reason for her arrest was the arresting police officer’s suspicion that she was going to participate in an unauthorised 1 May demonstration. According to the applicant, the police officers assaulted and beat her when they were putting her into the car and also while she was in the car. The applicant submits that when the police officers took her to the police station and told her that they would subject her to a body search, she refused to be searched by a male officer. The applicant claims that at this point, Abdullah Süzer, a police commissioner, beat her. She was then searched by a female officer.

Later the same day, the applicant was transferred to YeldeÄŸirmeni police station in order to check whether she had any previous criminal records. It was subsequently established that she had no previous criminal records and she was released the same evening at 10 p.m. According to the document she signed before her release, she had suffered no material or moral damages and she declared to be prepared to come back to the station in the future if further information was needed from her. According to the applicant, the police commissioner told the applicant before her release that if she made a complaint about him, he would kill her.

On 3 May 1994 the applicant, in person, submitted a letter to the Kadıköy public prosecutor in which she complained of the treatment to which she had been subjected. The applicant does not have a copy of this letter in her possession, and neither have the Government, who were requested by the Court to do so, submitted a copy. The prosecutor sent her to the Kadıköy Branch of the Forensic Medicine Institute where she was examined by a doctor and a medical report was issued. According to this report, there were abrasions on her legs which had been caused by rubbing against a surface and which had formed scabs. The medical report concluded that these findings did not constitute a danger to her life but would prevent her from carrying out her work for three days.

The prosecutor, pursuant to the provisions of the Law on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu), sent the file to the Kadıköy District Administrative Council (Kadıköy İlçe İdare Kurulu) in order to seek authorisation to prosecute the police commissioner who had allegedly ill-treated the applicant.

Another statement was taken from the applicant at a police station on 5 September 1994 in which the applicant maintained her allegations that she had been beaten and threatened.

In its decision of 29 December 1994 the District Administrative Council stated that the medical report in question had been issued three days after the incident and that it was possible that the applicant’s injuries had been sustained through other causes during this time. It also pointed out that the applicant had signed a statement prior to her release in which she declared that she had suffered no material or moral damages. The District Administrative Council, pursuant to Article 5 of the Law on the Prosecution of Civil Servants and Article 164 of the Code of Criminal Procedure (Ceza Muhakemeleri Usulü Kanunu) , decided not to authorise the prosecution of the police commissioner in question. This decision was appealed ex officio to the Istanbul Regional Administrative Court ( İstanbul Bölge İdare Mahkemesi) , which has jurisdiction to hear appeals from district administrative councils. In a final decision of 29 May 1995 the Regional Administrative Court upheld the decision of the District Administrative Council.

B. Relevant domestic law and practice

Article 90 of the Turkish Constitution provides:

“... International treaties which come into effect under lawful procedure shall have the force of law ...”

Article 17 of the Turkish Constitution provides:

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

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

“... any ... 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 of the Criminal Code 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’ imprisonment and temporarily disqualified from holding public office.”

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure (hereinafter the 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 by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP).

A public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation (Article 164 CCP).

If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils. An appeal against a decision by a district administrative council lies with the Regional Administrative Court. If a decision not to prosecute is taken, the case is automatically referred to that court. If a decision to prosecute has been taken, the case is referred to the public prosecutor for further action.

COMPLAINTS

The applicant complains of a violation of Article 3 of the Convention in that while she was in the hands of the police between 8.50 a.m. and 10 p.m. on 1 May 1994 she was physically and mentally abused. Invoking Article 13 of the Convention, she further alleges that there is no independent national authority before which her complaint could be brought with any prospect of success.

THE LAW

The applicant complains of violations of Articles 3 and 13 of the Convention in that she was physically and mentally abused in the course of her arrest as well as during her detention in the police station and that she has no effective remedy in respect of these matters.

1. Exhaustion of domestic remedies

The Government submit that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in that she did not invoke Article 3 of the Convention in the proceedings before the Regional Administrative Court and did not even submit any observations to that court while her appeal was being processed. In this respect they refer to the Court’s judgment in the case of Ahmet Sadık v. Greece (judgment of 15 November 1996, Reports 1996-V).

The applicant argues in reply that the decision of the District Administrative Council was appealed ex officio by the Council itself as required under domestic law. At that time, she had not even been sent a copy of the decision of the District Administrative Council. She further submits that according to the legal provisions in force, the Regional Administrative Court does not invite complainants to submit any information at that stage of the proceedings. Under Turkish law it had therefore not been possible for her to invoke her rights under the Convention in the proceedings before the Regional Administrative Court. Nevertheless, a copy of the written complaint submitted by her to the prosecutor was in the case file on the basis of which the Regional Administrative Court took its decision.

The Court reiterates that the rule of exhaustion of domestic remedies contained 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 1996-VI, pp. 2275-76, §§ 51-52, and the Akdıvar and Others judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67).

The Court observes that it is not in dispute between the parties that the proceedings before the District Administrative Council and the Istanbul Regional Administrative Court were set in motion as a result of the applicant’s complaint to the public prosecutor that she had been ill-treated by police. There is therefore a clear distinction between this case and the case of Ahmet Sadık v. Greece (loc. cit.) referred to by the Government, where the applicant failed to raise in domestic proceedings either the provision of the Convention (Article 10) or the substantive right guaranteed by that provision (freedom of expression) which he alleged had been breached in the subsequent Strasbourg proceedings (loc. cit., p. 1654, §§ 32-33). Mr Sadık thus deprived the national authorities of the opportunity to put matters right through their own legal system (loc. cit., p. 1653, § 30). In the present case, however, both the District Administrative Council and the Regional Administrative Court must have been acutely aware that the applicant complained of having been subjected to ill-treatment by police, an act prohibited not only by domestic law but also by the Convention which is directly applicable in the Turkish legal order. The fact that the applicant apparently did not actively participate in the proceedings before the Regional Administrative Court does not alter this. In any event, it is not clear to what extent a reproach may be made of the applicant in this respect, given that she was not sent a copy of the decision of the District Administrative Council.

Having brought her complaint before the public prosecutor, who had the duty under domestic law to investigate her allegations, the applicant must be considered to have made use of the remedies that are normally available and sufficient in the domestic legal system to enable her to obtain redress for the breaches alleged. In the light of the foregoing, the Court concludes that this application cannot be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

2. Merits

The Government argue that the applicant’s allegation of ill-treatment by  police is baseless because the forensic medical report was obtained three days after the end of the custody period. Moreover, that report does not establish that any kind of ill-treatment occurred.

In respect of the complaint under Article 13 of the Convention, the Government submit that the Law on the Prosecution of Civil Servants offers a full remedy and is furnished with the possibility of an appeal.

The applicant maintains that her injuries were caused as a result of the ill-treatment she suffered in police custody. She states that as soon as she got over the shock caused by her ordeal, she went to the public prosecutor who sent her for a medical examination.

Finally, she argues that the district administrative councils are outdated institutions lacking independence, consisting, as they do, of public servants such as the police commissioner responsible for her ill-treatment. In those circumstances it is hardly surprising that such councils do not readily authorise the prosecution of public servants.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that the application 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. Consequently, these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring them inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm Registrar President