FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31246/96 by Ayfer ERCAN against Turkey

The European Court of Human Rights (First Section), sitting on 17 October 2000 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 January 1996 and registered on 30 April 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1975 and currently imprisoned in Istanbul. She is represented before the Court by Mr Özcan Kılıç , 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 26 July 1995 the applicant was together with her boyfriend, Tarık Ziya Yıldırım , in a park in Bakırköy , Istanbul when a policeman asked to see their identity cards. The policeman searched them and found two guns in a bag belonging to Tarık Ziya Yıldırım . He called the police station asking for a group of police officers to come and take them into police custody.

While they were waiting Tarık Ziya Yıldırım and the policeman suddenly started to fight. Both of them were hit by bullets. The applicant and his boyfriend tried to escape but the police officers arrived caught them. The policeman died on the spot and Tarık Ziya Yıldırım died after his admission to the hospital.

The applicant was taken into police custody for interrogation at the Istanbul Police Headquarters.

On 28 July 1995 the Istanbul Police Headquarters requested the public prosecutor attached to the Istanbul State Security Court to authorise an extension of the applicant’s detention period.

On the same date the public prosecutor at the Istanbul State Security Court authorised the Istanbul Police Headquarters to extend the detention period until 8 August 1995 starting from 26 July 1995.

On 8 August 1995 the Istanbul Police Headquarter again requested the public prosecutor to authorise an extension of one day of the applicant’s detention period. On the same day the public prosecutor authorised the police headquarters to extend the detention period for one day.

On 8 August 1995 the applicant was interrogated by the police officers. During the interrogation she stated that she was a member of an illegal organisation, namely the Leninist Guerrilla Troops ( Leninist Gerilla Birlikleri ), the armed fraction of the illegal Turkish Communist Labour Party/Leninist ( Türkiye Komünist Emek Partisi /Leninist ). She further stated that in the struggle between Tarık Ziya Yıldırım and the policeman she shot the latter.

The applicant alleges that she was physically and physiologically tortured into signing her statement.

On 9 August 1995 the applicant was seen by a doctor at the Istanbul Forensic Medicine Institute who noted in his report that there were no signs of beating or injuries consistent with the use of force on her body.

On 9 August 1995 the applicant was brought before the public prosecutor at the Istanbul State Security Court. She denied the allegations against her and stated that she did not shoot the policeman. She further rejected her statement in the police custody.

On 9 August 1995 the applicant was brought before a judge at the Istanbul State Security Court. She denied the allegations against her and stated that her statement taken in police custody was untrue. The State Security Court judge decided the applicant’s detention on remand.

On 11 August 1995 the applicant was seen by the prison doctor who noted in his report that the applicant lost power of her left hand and was suffering from numbness on her left arm from her shoulders to her fingers. The doctor further stated that the applicant had pain moving her left arm.

On 17 August 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with the Istanbul State Security Court, accusing the applicant having been a member of an illegal armed organisation and killing of a policeman. The public prosecutor requested that the applicant be convicted and sentenced under Article 146 of the Criminal Code.

On 23 October 1995 a group of doctors at the Istanbul Forensic Medicine Institute issued a medical report in which it is noted that the applicant had been examined on 11 August, 2 October and 11 October 1995. In the medical examination on 2 October 1995 it was found that the applicant had difficulties in moving her left shoulder and that she was suffering from flexion and extension on her arm. She had also similar problems on her fists and on her right shoulder. The applicant was also suffering from negative biceps and stiloradial reflexes and lesion on the upper, middle and lower brachial pecsus . In the medical examination conducted on 11 October 1995 it was found that the applicant was suffering from lesion on brachial pecsus , negative bone reflexes and hipostasis on the right arm. The doctors certified that the applicant was unfit for work for 15 days.

On 24 January 1996 the applicant filed an application with the office of the Fatih public prosecutor in Istanbul, alleging that she had been subjected to torture while in police custody. She stated that she was electrocuted, hosed with cold water, beaten and insulted. She was hit on the soles of her feet ( falaka ) and was subjected to sexual harassment. She was kept standing handcuffed and was not allowed to sleep. She was strung up by her arms in the form of torture known as “Palestinian hanging”. She submitted the medical examination results as evidence of torture.

On 25 April 1996 the Fatih public prosecutor decided that no prosecution should be brought ( takipsizlik kararı ) against the police officers from the Istanbul Police Headquarters. The prosecutor stated that the applicant had been summoned for the purpose of giving a statement regarding to her allegations. However, she failed to appear before his office. The police officers that were questioned denied the allegations. On 9 August 1995 the applicant was seen by a doctor who noted in his report that there were no signs of beating or injuries consistent with the use of force on her body. The prosecutor concluded that the applicant failed to substantiate her allegations.

On 22 May 1996 the applicant filed an objection ( takipsizlik kararına itiraz ) with the Istanbul Assize Court. She referred to the medical report dated 23 October 1995 as evidence to her allegations.

On 7 August 1996 the Beyoğlu Assize Court rejected the applicant’s objection.

On 4 May 1998 the Istanbul State Security Court convicted the applicant of membership an illegal organisation. It sentenced the applicant to lifetime imprisonment under Article 146/1 of the Turkish Criminal Code.

On 2 March 1999 the Court of Cassation upheld the decision of the Istanbul State Security Court.

B. Relevant domestic law and practice

i. 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 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 136 § 1 of the Turkish Code of Criminal Procedure (amended by Law 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 3842 provides that the above provision shall not be applicable for charges that fall under the jurisdiction of the State Security Courts.

ii. 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.”

Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.

At the material time section 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the state security courts, any arrested person had to 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.

COMPLAINTS

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

The applicant complains under Article 5 § 1 (a) and (c) of the Convention that she was not arrested for the purpose of bringing before a competent legal authority. She submits that she was arrested solely for the purpose of extracting untrue statements.

The applicant complains under Article 5 § 3 of the Convention that she was kept in police custody for fifteen days without being brought before a judge.

The applicant complains under Article 5 § 4 of the Convention that Turkish law does not provide any remedy by which she can challenge the lawfulness of her arrest.

The applicant complains under Article 6 § 1 of the Convention that she was not tried by an independent and impartial tribunal.

The applicant complains under Article 6 § 3 (c) of the Convention that she was not permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the State Security Court judge.

The applicant complains that she is the victim of discrimination in breach of Article 14 of the Convention taken in conjunction with Article 5 § 3 thereof. She alleges in this connection that under the provisions of the Code of Criminal Procedure persons taken into police custody must be brought before a judge within a maximum period of four days, whereas in relation to offences which fall within the jurisdiction of the State Security Courts this period may be extended up to fifteen days.

The applicant finally complains that she is the victim of discrimination in breach of Article 14 of the Convention in conjunction with Article 6 §§ 1 and 3 (c) of the Convention in that under Code of Criminal Procedure individuals have the right to the assistance of a lawyer during questioning by the police and when they appeared before the public prosecutor and investigating judge, whereas those suspected of offences which fall within the jurisdiction of the State Security Courts are prevented from enjoying this right.

THE LAW

The applicant complains that she was tortured in police custody, not brought promptly before a judge and denied the assistance of a lawyer during their questioning by the police and later before the public prosecutor and the investigating judge. She invokes Articles 3, 5 §§ 1 (a), (c) and 3, 6 §§ 1 and 3 (c) as well as Article 14 of the Convention.

The Government’s preliminary objection

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

The Government observe that the application to the Commission was lodged on 26 January 1996 while the proceeding concerning the applicant’s allegation was still being carried out by the national authorities. The Government infer 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.

In reply the applicant maintains that the domestic remedies are ineffective in cases concerning allegations of torture. The applicant further submits that it is extremely difficult for victims of torture to prove their allegations or to have the perpetrators brought to justice. She maintains in this connection that it is impossible for detainees to obtain medical reports proving the extent of their injuries.

As regards to the Government’s submission that the applicant failed to await the result of the proceeding before the national authorities the Court recalls its Ringeisen judgment of 16 July 1971, where it held that “it must be left open to the Commission to accept the fact that the last stage of such remedies may be reached shortly after the lodging of the application but before the Commission is called upon to pronounce itself on admissibility” ( Ringeisen v. Austria, judgment of 16 July 1971, § 91).

The Court points out that the proceedings concerning the applicant’s allegations were concluded on 7 August 1996, which is before the Court has delivered its decision on admissibility.

In the light of the foregoing, the Court rejects the Government’s argument and concludes that the applicant can be considered to have exhausted domestic remedies.

The merits

1. Alleged violation of Article 3 of the Convention

The applicant complains that she was tortured by the police while in custody. She invokes Article 3 of the Convention.

With reference to the facts of the case the Government state that the applicant was medically examined on 9 August 1995 before being brought before the public prosecutor. No trace of ill-treatment was found on her body. Furthermore, before the Court the applicant relied on medical reports which were drawn up long after the events at issue. Notwithstanding the fact that the applicant never alleged either before the public prosecutor or before the investigating judge that he had been ill-treated, she nevertheless lodged a complaint that she had been ill-treated by police officers. Having regard to these considerations and to the absence of any proof that the applicant had been ill-treated in police custody, the domestic court was lead to acquit the accused police officers.

The applicant maintains her account of events.

As regards the substance of the applicant’s complaints concerning Article 3 of the Convention, 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.

2. Alleged violation of Article 5 § 1 (a) and (c) of the Convention

The applicant alleges that she was not arrested for the purpose of bringing before a competent legal authority. She submits that she was arrested solely for the purpose of extracting untrue statements. She invokes Article 5 § 1 (a) and (c) of the Convention.

The parties make no submissions on this complaint.

As to the applicant’s complaint under Article 5 § 1 (a) of the Convention the Court observes that the applicant had not been detained after she was convicted by a competent court at the time she lodged her application with the Commission.

As to the applicant’s complaint under Article 5 § 1 (c) of the Convention, the Court notes that the "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). The Court further notes that having a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances (see, the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, § 32).

In the instant case it appears that the applicant was arrested while she was trying to escape from the police officers. It seems that in the same incident the applicant’s boyfriend was wounded and that a policeman died.

The aforementioned elements on their own are sufficient to support the conclusion that there was “reasonable suspicion” for the applicant’s arrest.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. Alleged violation of Article 5 §§ 3 and 4 of the Convention

The applicant complains that she was kept in police custody for fifteen days without being before a judge. She further alleges that Turkish law does not provide any remedy by which she can challenge the lawfulness of her arrest. She invokes Article 5 §§ 3 and 4 of the Convention.

The Government draw attention to the extremely serious nature of the terrorist offences in question and highlight that the Court had already acknowledged in the past the special features and difficulties of investigating terrorist offences.

The applicant maintains her account of events.

As regards the substance of the applicant’s complaints concerning Article 5 §§ 3 and 4 of the Convention, 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.

4. Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention

The applicant complains that she was not tried by an independent and impartial tribunal. She submits that Istanbul State Security Court could not be regarded as an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention. The military judge who sat in it was dependent on the executive and, more specifically, on the military authorities, because while performing his judicial duties he remained an officer and maintained his links with the armed forces and his hierarchical superiors.

The applicant further alleges that she was not permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the State Security Court judge. She invokes Article 6 §§ 1 and 3 (c) of the Convention.

The Government submit that the procedure for the appointment of the military judges sitting as members of the State Security Courts and the safeguards they enjoyed in the performance of their judicial duties are enshrined in the Constitution and the relevant legislation. The arguments concerning these judges’ responsibility towards their commanding officers and the rules governing their professional assessment were overstated; their duties as officers were limited to obeying military regulations and observing military courtesies. They were safe from any pressure from their hierarchical superiors, as such an attempt was punishable under the Military Criminal Code. The assessment system applied only to military judges’ non-judicial duties. In addition, they had access to their assessment reports and could even challenge their content in the Supreme Military Administrative Court.

As regards the substance of the applicant’s complaints concerning Article 6 §§ 1 and 3 (c) of the Convention, 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.

5. Alleged violation of Article 14 of the Convention

The applicant complains under Article 14 of the Convention read in conjunction with Articles 5 § 3, 6 §§ 1 and 3 (c).

The applicant submits that under the Code of Criminal Procedure individuals have the right to the assistance of a lawyer during questioning by the police and when brought before the public prosecutor and the investigating judge. However persons suspected of offences which fall within the jurisdiction of the State Security Courts are prevented from enjoying this right. She further alleges that under the provisions of the Code of Criminal Procedure persons taken into police custody must be brought before a judge within a maximum period of four days, whereas in relation to offences which fall within the jurisdiction of the State Security Courts this period may be extended up to fifteen days. This in her view is constitutes discriminatory treatment.

The Government make no submissions on this complaint.

The Court recalls that Article 14 is not concerned with all differences in treatment but only with differences having as their basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other (see the Kjeldsen , Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 29. § 56).

The Court notes that the distinctions impugned by the applicant are not distinctions which are made between different groups of people, but between different types of offence, according to the legislature’s view of their gravity (see mutatis mutandis the Gerger v. Turkey judgment of 8 July 1999, to be published in Reports 1999, § 69). The Court sees no ground for concluding that that approach amounts to a form of “discrimination” that is contrary to the Convention. In consequence it finds that the applicant’s complaints that she is the victim of a breach of Article 14 taken together with Article 5 § 3 and 6 §§ 1 and 3 (c) of the Convention are inadmissible ratione materiae .

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaints under Articles 3, 5 §§ 3 and 4, 6 §§ 1 and 3 (c) of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President