FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30492/96 by Esma ERAT and Metin SAÄžLAM 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. 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 19 December 1995 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 Commission’s partial decision of 1 December 1997,

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 are Turkish national s , born in 1968 and 1965 respectively and are currently detained in Bayrampaşa prison in Istanbul. They are represented before the Court by Ms Naciye Kaplan, Ms Filiz Köstak and Ms Bedia Buran lawyers practising in Istanbul.

A. The circumstances of the case

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

1. Regarding the first applicant

On 27 February 1995 the applicant was taken into custody in Istanbul by the police officers from the Istanbul Anti-Terror Branch ( Ter örle Mücadele Şube Müdürlüğü ).

The applicant alleges that she was physically and psychologically tortured while in custody. On the first day of her custody she was taken to a dark room and stripped naked. She was subjected to sexual harassment and electrocuted through her nipples, sexual organ, fingers and toes. She was strung up by her arms in the form of torture known as “Palestinian hanging” and was again electrocuted. This treatment continued in the following days. She was not allowed to go to the toilet and was not given food and drink. She was threatened and beaten.

On 6 March 1995 the applicant was interrogated by police officers. During her interrogation she confessed her involvement in the activities of the PKK while she was in Germany. She further stated that she had come to Turkey with a counterfeit passport in order to see her family and work for the PKK.

On 13 March 1995 the applicant was seen by Dr Günay Ağıl at the Istanbul Forensic Medicine Institute. In a medical report Dr Ağıl noted 3 white scars on the applicant’s right arm and brown scars on her right and left shoulders. The lesions on the applicant’s body occurred 7 or 10 days before the medical examination because she was still suffering from pain on her shoulders and groin. The doctor stated that the injuries were not life threatening and certified the applicant fit for work.

On 13 March 1995 the public prosecutor at the Istanbul State Security Court questioned the applicant. During her questioning the applicant refused the allegations against her and stated that she had signed her statement under duress. She further stated that she had come to Turkey from Austria with a counterfeit passport in order to see her family. The applicant concluded that she had no involvement in the activities of the PKK.

On 13 March 1995 a judge at the Istanbul State Security Court ordered the applicant’s detention on remand. During her questioning the applicant reiterated the statement she made to the public prosecutor and denied the allegations against her. She further stated that her statement had been taken under torture.

On 14 March 1995 the applicant was seen by the prison doctor, Önder Uyar who noted in his report the presence of abrasion and pigmentation on the applicant’s right and left armpits, 2x2 cm haematomas on both legs, desquamation and circle shaped pigmentation on the tibia, haematomas on the ankles, ecchymoses on both nipples, temporary paralysis of the right shoulder and numbness of both arms. The prison doctor concluded that the Istanbul Forensic Medicine Institute should draft the final medical report. The applicant alleges that the prison administration rejected her request of a further medical examination.

On 24 April 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with the Istanbul State Security Court, accusing the applicant of having been engaged in acts aimed at the separation of a part of the territory of the State. Three other persons, including the second applicant, were charged along with the applicant. The public prosecutor gave a detailed account of the acts in which all the accused were allegedly involved. The public prosecutor requested that the applicant be convicted and sentenced under Article 168/2 of the Turkish Criminal Code ( Türk Ceza Kanunu ) and Article 5 of the Prevention of Terrorism Act ( Terörle Mücadele Kanunu ).

On 1 June 1995 the applicant filed a complaint with the office of the Istanbul Pubic Prosecutor. She alleged that she was severely tortured in the Istanbul Anti-Terror Branch while in custody. She also submitted the medical report dated 14 March 1995.

On 21 September 1995 the Fatih public prosecutor decided that no prosecution should be brought ( takipsizlik karar ı ) against the police officers of the Istanbul Anti-Terror Branch. According to the public prosecutor, there existed no evidence to substantiate that the accused police officers had committed the alleged crime.

On 13 October 1995 the applicant filed an objection ( takipsizlik karar ına itiraz ) with the Istanbul Assize Court ( Ä°stanbul Ağır Ceza Mahkemesi ). She alleged that the prison administration rejected her request of a further medical examination at the Istanbul Forensic Medicine Institute. She submitted that the medical report prepared by the prison doctor should be considered as evidence of torture. The applicant concluded that she would lodge an application with the European Court of Human Rights under Article 3 of the European Convention of Human Rights in case the court would reject her objection.

On 20 November 1995 the Beyo ğ lu Assize Court rejected the applicant’s objection. The court held that there existed no evidence to substantiate that the accused police officers had committed the alleged crime.

On 17 December 1997 the Istanbul State Security Court sentenced the applicant to three years and nine months’ imprisonment under Article 169 of the Turkish Criminal Code and Article 5 of Law no. 3713.

2. Regarding the second applicant

On 8 March 1995 the applicant was taken into custody in Istanbul by the police officers from the Istanbul Anti-Terror Branch.

The applicant alleges that when he was ar rested he was shoved into a car and was forced to remain in a crouched position for three hours. He was blindfolded, insulted, hit and punched.  When he was brought to the anti-terror branch he was stripped naked and hung up on a beam. He was tied down with weight and was forced to remain in that position for a long time. He was also forced to listen to scream sounds. His testicles were squeezed. He was electrocuted through his penis and toes. He was sprayed with cold water and again electrocuted. After the electric shock he fainted. He recovered when he was again sprayed with cold water. He found himself lying on the floor. The police officers tried to move his arms and inserted an unknown object into his anus. He was then strung up by his arms in the form of torture known as “Palestinian hanging” and was once more electrocuted. He was not given food and drink for five days and was forced to sign some documents. 

On 16 March 1995 the applicant was interrogated by police officers. During his interrogation he confessed his involvement in the activities of the PKK, such as a bomb attack at premises of a political party. He stated that after the bomb attack he tried to escape from Turkey. He illegally went to Greece but was caught there and interrogated by the Greek police and the Greek secret service agents. They took him to a camp called Lavrion . After having stayed there for 15 days with the other members of the PKK and the members of the Turkish leftist organisations he moved in a house near Athens where he was trained to make bombs.

On 20 March 1995 the applicant was questioned by the public prosecutor at the Istanbul State Security Court. He rejected the allegations against him and said that he gave his statement under torture. He further rejected his involvement in the activities of the PKK and in a bomb attack at premises of a political party. He stated that he was forced to accept this allegation under duress.

On 20 March 1995 a judge at the Istanbul State Security Court ordered the applicant’s detention on remand. During his questioning the applicant reiterated the statement he made to the public prosecutor and denied the allegations against him. He stated that his statement was taken under torture.

On 20 March 1995 the applicant was seen by the prison doctor, Kemal G ü ler who noted in his report the presence of abrasion on the applicant’s left arm, numbness of armpits, a 5x5 cm lesion on the right malleolus , hyperaemic area on the left malleolus , abrasion on the left kneecap, a 2x2 cm scar on the right kneecap, edema and pain on the testicles and respiration problems. The prison doctor concluded that the Istanbul Forensic Medicine Institute should draft the final medical report. The applicant alleges that the prison administration rejected his request of a further medical examination.

On 24 April 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with the Istanbul State Security Court, accusing the applicant of having been involved in a bomb attack at premises of a political party and having been engaged in acts aimed at the separation of a part of the territory of the State. Three other persons, including the first applicant, were charged along with the applicant. The public prosecutor gave a detailed account of the acts in which all the accused were allegedly involved. The public prosecutor requested that the applicant be convicted and sentenced under Article 168/2 of the Turkish Criminal Code ( Türk Ceza Kanunu ) and Article 5 of the Prevention of Terrorism Act ( Terörle Mücadele Kanunu ).

On 25 May 1995 the applicant filed a complaint with the office of the Istanbul Pubic Prosecutor. He alleged that he was severely tortured in the Istanbul Anti-Terror Branch while in custody. He submitted the medical report dated 20 March 1995.

On 14 September 1995 the Fatih public prosecutor decided that no prosecution should be brought ( takipsizlik karar ı ) against the police officers of the Istanbul Anti-Terror Branch. According to the public prosecutor, there existed no evidence to substantiate that the accused police officers had committed the alleged crime.

On 13 October 1995 the applicant filed an objection ( takipsizlik karar ına itiraz ) with the Istanbul Assize Court ( İstanbul Ağır Ceza Mahkemesi ). He alleged that the prison administration rejected his request of a further medical examination at the Istanbul Forensic Medicine Institute. The medical report prepared by the prison doctor should be considered as evidence of torture. The applicant concluded that the he would lodge an application with the European Court of Human Rights under Article 3 of the European Convention of Human Rights in case the court would reject his objection.

On 20 May 1996 the Beyo ÄŸ lu Assize Court decided to commit for trial the police officers who allegedly tortured the applicant.

On 19 November 1997 the Istanbul public prosecutor lodged a bill of indictment with the Istanbul Assize Court against the police officers.

On 1 April 1999 the Istanbul Assize Court acquitted the police officers. The court held that there existed no evidence to substantiate that the police officers had committed the alleged crime.

On 13 April 1999 the Istanbul Assize Court’s decision became final, as the public prosecutor did not lodge an appeal.

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 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 torturing, medication by force, fatigue, deceit, use of physical force and hardness and other use of devices which will result 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 ways described above cannot be considered as evidence even if the accused does not challenge their lawfulness.”

Article 371 of the Code on Criminal Proceedings provides:

“An intervening party to a criminal proceeding can lodge an appeal being independent of the public prosecutor”.

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu , hereinafter 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. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient (Article 164 CCP).

In so far as a criminal complaint has been lodged, a complainant may file an appeal with Assize Court ( Ağır Ceza Mahkemesi ) against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP).

2. Administrative liability

Article 125 §§ 1 and 7 of the Turkish Constitution provide as follows:

“All acts and decisions of the administration are subject to judicial review...

...

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

This provision is not subject to any restriction even in a state of emergency or war. The second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as 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.

3. Civil action for damages

Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).

COMPLAINT

The applicants complain under Article 3 of the Convention that they were severely tortured while in police custody.

THE LAW

The applicants complain that they were tortured in police custody. They invoke Article 3 of the Convention.

A. The Government’s preliminary objections

1. Regarding the first applicant

The Government submit that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 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 section 13 of 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 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 him in accordance with the law of tort. The Government refer to Article 53 of the Civil Code and relevant case -law in this respect. In this regard, with reference to numerous decided cases, the Government demonstrated that the administrative courts and civil courts had awarded compensation in many cases to the victims of torture and ill-treatment.

The applicant contests the Government’s submissions. She states that she lodged a complaint with the domestic authorities about the torture to which she was subjected and on that account must be considered to have exhausted domestic remedies. Having regard to the outcome of the proceedings against the police officers, she could not be expected to exhaust domestic remedies which in any event illusory, inadequate and ineffective since torture is an administrative practice in Turkey.

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. 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 YaÅŸa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 73) In the instant cas e, criminal proceedings were taken against named police officers. However they were all later acquitted since the BeyoÄŸlu Assize Court concluded that there was insufficient evidence against them. 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. In any event the remedy relied on by the applicant in respect of her complaint that she had been tortured by police officers was a decision of the criminal courts holding those officers responsible for their crimes. Since the applicant has unsuccessfully pursued that course of action she must be taken to have exhausted domestic remedies.             

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, p. 3290, § 102).

The Court concludes, therefore, that the applicant was not required to bring the civil and administrative proceedings suggested by the Government and that she has exhausted domestic remedies in view of the outcome of the criminal proceedings against the police officers. It dismisses the Government’s objection to the admissibility of the applicant’s complaint.

2. Regarding the second applicant

In their previous submissions the Government pointed out that the application to the Commission was lodged while the proceedings concerning the applicant’s allegation was still being carried out before the Istanbul Assize Court. The Government inferred from this that the domestic remedies had not been exhausted when the application was made and that, consequently, the Court should declare the application inadmissible.

Following the decision of the Istanbul Assize Court, which acquitted the police officers who allegedly tortured the applicant, the Government submit that the applicant did not stand as an intervening party in the proceedings introduced by the public prosecutor on 19 November 1997. The Government conclude that the decision acquitting the police officers became final on 13 April 1999.

The applicant makes no submissions on this point.

The Court notes that the applicant complained to the public prosecutor about the treatment to which he was subjected while in custody. The proceedings against the police officers were concluded by the Istanbul Assize Court, which decided to acquit the police officers.

The Court reiterates that the criminal law remedies constitute an adequate remedy in the complaints concerning ill-treatment in police custody (see, for example, Kaplan v. Turkey (dec.), no. 24932/94, 19.9.2000, unpublished). In the circumstances of the present case, the Court recalls that a formal complaint lodged with the competent authority would be sufficient to fulfil the requirements of Article 35 § 1 of the Convention (see, among other authorities, Gelge ç and Ö zdemir v. Turkey (dec.), no. 27700/95, 27.4.2000 and Erdoğan v. Turkey (dec.), no. 28492/95, 21.9.1999, unpublished).

In this regard, the Court does not share the Government’s view that the applicant has failed to lodge an appeal with the Court of Cassation against the decision of the Istanbul Assize Court. The Court observes that, in Turkish law, when a criminal action is introduced by the public prosecutor, only the plaintiff as intervening party to a criminal proceeding can lodge an appeal on points of law. This remedy is not directly accessible to the complainant. The judge in charge of the case will decide on the admissibility of the appeal, after having consulted the public prosecutor. Having regard to the powers attached to the public prosecutor and the judge and their central role in the Turkish criminal law, an appeal to the Court of Cassation , which would only have had the power to remit the case for reconsideration by the first instance court, had no effective prospect of clarifying or improving the evidence available. The Court is not persuaded therefore that the appeal nominally available to the applicant in the criminal law proceedings would have been capable of altering to any significant extent the course of the investigation that was made. That being so, the applicant must be regarded as having complied with the requirement to exhaust the relevant criminal-law remedies (see, mutatis mutandis , Salman v. Turkey [GC], no. 21986/93, § 108, ECHR, 2000 and Baki Ş enses v. Turkey (dec.), 14 November 2000, unpublished).

Accordingly, the Court dismisses the Government’s preliminary objections.

B. Merits

Regarding the first applicant the Government submit that in the medical report dated 13 March 1995 it was stated that the injuries were not life threatening and that the applicant was certified to fit for work. According to the Government, in the absence of any evidence to substantiate the applicant’s allegations national courts rejected the applicant’s complaints. The Government conclude that the applicant’s complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The Government make no submissions concerning the second applicant.

The applicants maintain that they were subjected to severe torture while in police custody.

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 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.

For these reasons, the Court unanimously

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

Michael O’Boyle Elisabeth Palm Registrar President