FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26145/95 by Hacı OĞUZ and Baki OĞUZ against Turkey

The European Court of Human Rights ( First Section) , sitting on 5 December 2000 as a Chamber composed of

Mrs W. Thomassen , President , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , Mr L. Ferrari Bravo , judges , Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 14 July 1994 and registered on 9 January 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 Commission’s partial decision of 26 June 1995,

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 , who were born in 1954 and 1971 respectively and they both live in the province of Siirt (Turkey). They are represented before the Court by Mr Philip Leach, a lawyer practising in London.

A. The circumstances of the case

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

The first applicant, who had been detained several times between 1983 and 1990, became a member of the Siirt Branch of the Human Rights Association in 1990. Following his election as chairman of the Siirt Branch in August 1992, the applicant received several threats from the Siirt Security Department as a result of his activities.

On 26 February 1993 the first applicant was taken into police custody by policemen from the Anti-Terrorism Branch of the Siirt Security Directorate, in relation with an investigation conducted by the Siirt Public Prosecutor. Subsequently, he was placed in detention on remand and criminal proceedings were initiated against him. On 25 June 1993 the applicant was released on bail and on 1 December 1993 he was acquitted of the charges against him.

On 17 January 1994 the security officers from the Siirt Security Department came to the first applicant’s house and conducted a search of his house. At the time of the events, the applicant’s wife, his sister, and his eight children were present at home. During the search, the police officers found a black plastic bag, which contained a defensive-type hand grenade, a full Kalashnikov cartridge and some Kalashnikov bullets. The applicant states that this bag was brought and left by the police officers themselves. Following the search, the police officers took the applicant, his sister Sinem and his daughter Halime into custody. A few hours later, the applicant’s wife and his second daughter were also taken into police custody and the applicant’s other children aged between two to thirteen years were left on their own at home without the supervision of an adult. Following their interrogation, on 19 January 1994 the first applicant and his family members who were also detained with him, were taken to the Siirt Forensic Medicine Institute to be examined by a medical expert. According to the report of the Siirt Forensic Institute’s medical expert, dated 19 January 1994, there were no signs of injury on their bodies. Thereafter, on the same day, the applicant and his relatives were taken to the Siirt Magistrate’s Court in Criminal Matters. The court ordered the applicant to be placed in detention on remand, whereas it released the rest of the detainees.

The Siirt Public Prosecutor declared lack of jurisdiction and transferred the case-file to the Diyarbakır State Security Court. The Diyarbakır State Security Court Public Prosecutor initiated criminal proceedings against the first applicant and charged him with aiding and abetting the PKK under Section 169 of the Turkish Criminal Code and for illegal possession of explosives and firearms under Section 264 of the Turkish Criminal Code. On 9 November 1994 the court acquitted the applicant of aiding and abetting the PKK. It further decided to send the case to the Siirt Assize Court for a further examination of the allegation about illegal possession of explosives and firearms. On 4 April 1995 the Siirt Assize Court found the applicant guilty of illegal possession of explosives and firearms. Consequently it sentenced the applicant to 25 days’ imprisonment and a fine. It further suspended the execution of these sentences.

B. Relevant domestic law

Criminal law and procedure:

The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants).

In general, in respect of criminal offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the local public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a              prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision not to institute criminal              proceedings.

Civil action for damages:

Section 1 of Law No. 466 on the payment of compensation to persons 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 released 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."

COMPLAINTS

The applicants complain of violations of Articles 3, 8, 13 and 14 of the Convention.

As to Article 3 of the Convention , the applicants complain that the first applicant, Hacı Oğuz , was subjected to ill-treatment during his police custody between 17-19 January 1994. In this respect, it is claimed that Hacı Oğuz was punched, kicked, given electric shocks, beaten on the soles of his feet ( falaka ), strung up by his arms ( palestinian hanging) and hosed with pressurised cold water. It is further submitted that he had been subjected to psychological torture in the form of threats made against his family.

The second applicant, Baki OÄŸuz , further complains under Article 3 of the Convention that the inability to receive news from his brother during his police custody that lasted for two days amounted to inhuman treatment.

The applicants also maintain that when Hacı Oğuz and his wife were taken in police custody, their children had to stay alone in the house for two days without the supervision of an adult. They further contend that the constant harassment of their family constitute a violation of Article 3.

As to Article 8 of the Convention, the applicants maintain that the search conducted on the first applicant’s house amounted to a breach of their right to private and family life.

As to Article 13 of the Convention, the applicants complain of the lack of any independent authority before which they can bring their complaints.

As to Article 14 of the Convention in conjunction with Article 8 , the applicants maintain that the illegal search of Hacı Oğuz’s house was a direct result of a deliberate policy targeted to Hacı Oğuz on ground of his ethnic origin.

THE LAW

The applicants complain of ill-treatment of the first applicant in police custody, and illegal search of his house. In this respect, they invoke Articles 3 (prohibition of inhuman and degrading treatment), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination).

The Court considers that it does not have to determine the victim status of the applicants and whether the first applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention since the application is inadmissible in any event on other grounds.

1. The first applicant complains under Article 3 of the Convention that he was subjected to ill-treatment during his police custody. Moreover, under Article 13 of the Convention the applicant complains about the lack of any independent authority before which he could bring his complaints.

The Government maintain that the complaints raised under Articles 3 and 13 of the Convention should be rejected for non-exhaustion of domestic remedies on two grounds. Firstly, they submit that the applicant had the possibility of requesting compensation pursuant to Law no. 466 of 7 May 1964, which guarantees the possibility of awarding damages to any person who has been unlawfully deprived of his liberty, or who, after being lawfully detained, is not subsequently committed for trial or is acquitted or discharged after standing trial. Secondly, the Government contend that the applicant could have filed a criminal complaint with the Public Prosecutor or submitted his allegations about ill-treatment before the national courts.

As to the merits of the complaints, the Government maintain that the applicant’s allegations are unsubstantiated. In this respect, they submit a medical report, issued at the end of the applicant’s police custody, to the effect that there were no signs of ill-treatment on his body. The Government further contend that any torture in the form as alleged by the applicant would definitely leave traces even long time after the incidents. They also stress that the applicant or his lawyer could have complained of ill-treatment when he was brought before the investigating judge or during the proceedings in the State Security Court.

The applicant submits that the remedies referred to by the Government were illusory, inadequate and ineffective because both torture and denial of effective remedies were carried out as a matter of administrative practice. In these circumstances the applicant claims that he should not be required to pursue domestic remedies before lodging an application with the Court.

In the instant case, it is claimed that Hacı Oğuz was punched, kicked, given electric shocks, beaten on the soles of his feet ( falaka ), strung up by his arms, which were tied together behind his back ( palestinian hanging ) and hosed with pressurised cold water.

The Court observes in the first place that the applicant has not produced any concrete evidence in support of his allegations of ill-treatment. While the Court recognises the difficulty for the detained people to obtain evidence of ill-treatment during police custody, in the instant case, the applicant did not even submit to the Court a detailed explanation about the treatment he had suffered in custody. Moreover, the applicant did not produce any medical evidence to contradict the results of the medical examination carried out on his person at the end of his police custody on 19 January 1994. Nor did he suggest that he had ever been refused permission to see a doctor. The Court further notes that any ill-treatment inflicted in the way as alleged by the applicant, particularly the electric shocks and palestinian hanging, be expected to leave visible signs of injury (see Kaplan v. Turkey ( dec ), no. 24932/94, 19.9.2000, not published).

Even supposing that the applicant’s circumstances could have caused him feel vulnerable, powerless and apprehensive of the representatives of the State during his custody (See the above cited Labita v. Italy judgment and the Ilhan v. Turkey [GC], no. 22227/93, § 63), the Court cannot see any reason why the applicant or his lawyer has never referred to their complaints about ill-treatment in the proceedings before the Diyarbakır State Security Court or subsequently before the Siirt Assize Court. 

In the Court’s opinion the applicant has not laid the basis of an arguable claim that he was ill-treated at the hands of the police. Moreover, the national authorities had no evidence whatsoever to start an investigation about the applicant’s allegations. In the particular circumstances of the case, the Court considers that the procedural obligation of the authorities of the respondent State cannot be said to have been breached (see the above-cited decision of Kaplan v. Turkey and the Ş.T. v. Turkey ( dec ), No. 28310/95, 9. 11.1999, unpublished).

For these reasons the Court finds that the complaints under Articles 3 and 13 of the Convention are inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

2. The first applicant further complains both in his own name and on behalf of his children that his children had to stay alone in the house for two days without the supervision of an adult when he was taken in police custody together with his wife. He invokes Article 3 of the Convention in this respect.

The second applicant, Baki OÄŸuz , also complains under Article 3 of the Convention that the inability to receive news from his brother during his police custody that lasted for two days amounted to inhuman treatment.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, the age and state of health of the victim (see Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 65-67, §§ 162, 167).

In the instant case, the Court observes that the second applicant was aware of the fact that his brother was in police custody and kept in detention at the police station. It is further observed from the case-file that his brother was kept in detention for two days between 17-19 January 1994, within the legal time limit.

The Court considers that the situations of which the applicants complain are not such as to raise a problem from the point of view of Article 3 of the Convention. Accordingly, this part of the complaints is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicants maintain under Article 8 of the Convention that the search of their house that was carried out by policemen from the Siirt Security Directorate was unlawful.

The Government contend that the search of the applicant’s house did not interfere with his rights under Article 8 of the Convention as it was carried in accordance with Turkish Law (Articles 94 and 100 of the Criminal Procedure Code). They maintain that upon information that the applicant was aiding and abetting the PKK, the policemen from the Siirt Security Directorate carried out a search of the applicant’s house with his permission. In this respect, they submit the Court an incident report dated 17 January 1994, which is signed by the applicant Hacı Oğuz , his sister Sinem Oğuz and his daughter Halime Oğuz , that indicates that they gave permission for a search of their house.

The applicants maintain their account of the events.

The Court recalls that the expression in accordance with law within the meaning of Article 8 § 2 requires firstly that the impugned measure should have a basis in the domestic law. It also refers to the quality of the law in question, requiring it should be accessible to the person concerned who must be able to foresee its consequences, and compatible with the rule of law ( Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 20, § 27).

In the present case, pursuant to Article 94 of the Turkish Criminal Procedure Code the applicant’s house was searched by policemen from the Siirt security Department in order to find evidence about the allegations that the applicant had been aiding and abetting the PKK. It is also clear from the incident report, which was drafted in accordance with Article 100 of the Turkish Criminal Procedure Code, that the applicant had given authorisation for the search in dispute. This incident report is signed by the applicant, his sister Sinem OÄŸuz and his daughter Halime OÄŸuz . Accordingly it is observed that the interference served a legitimate aim and was carried out in accordance with the domestic legislation.

It follows that there is no appearance of a violation of the applicants’ rights to respect for his home and therefore this part of the application should be rejected for being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicants complain that they are victims of Article 14 of the Convention taken together with Article 8 of the Convention on ground of their ethnic origin.

The Court notes that the reason for the search carried out in the applicant’s house and his subsequent detention was the suspicion that the applicant had been aiding and abetting an illegal organisation and not that he belonged to a particular ethnic origin as alleged. Therefore, the Court considers that the evidence relied on by the applicants does not support an appearance of a violation under this head. It finds that the complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 of the Convention.  

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Wilhelmina Thomassen Registrar President