FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38588/97 by Bekir Sıtkı KEÇECİ 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 R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 September 1997 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 is a Turkish national, born in 1959 and currently imprisoned in Gebze , Kocaeli . He is represented before the Court by Mrs Nurten Çağlar , a lawyer 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 26 January 1993 the applicant was arrested by the police officers from the Ankara Police Headquarters at a cafe in Ankara on suspicion of being a member of an illegal organisation, the THKP-C (Turkish People’s Revolutionary Frontier Organisation). The Government submit that the applicant resisted the police when he was arrested.

The applicant was placed in custody at the Ankara Security Directorate. His wife was also taken into police custody on the same date.

The applicant alleges that when he was held in custody the police officers who are known as the C-2 squad of the Anti-Terror branch beat the applicant, hit him on the head with a nailed stick, squeezed his testicles, kept him in a cold room and did not allow him to go to the toilet. They also sexually harassed the applicant’s wife, such as trying to rape her in his presence.

On 27 January 1993 the applicant was seen by a doctor at the Ankara Forensic Medicine Institute who noted in his report the presence of the trace of a surgical operation on the forehead, an abrasion 3 cm long on the right temporal part of the head, a laceration 1 cm long over the right ear, a haematoma 2 cm across below the right eye and an ecchymosis measuring 1 cm and conjunctival hyperaemia on the right eyelid. He concluded that he would draft the final medical report after the brain surgeon’s examination at the Numune Hospital.

On 27 January 1993 the Anti-Terror Branch Director wrote a letter to the Numune Hospital requesting that a doctor see the applicant.

On the same date a doctor at the Numune Hospital sent the applicant to another hospital, as she could not perform a brain tomogram on him. The applicant was brought to the Ä°bni Sina Hospital where he was seen by a brain surgeon.

Again on the same date the Ankara Forensic Medicine Institute doctor drafted his final medical report in which he referred to the findings of the brain surgeon. As the brain surgeon did not indicate any pathological findings, the doctor concluded that the applicant’s injuries were not life threatening but would prevent him working for four days.

On 30 January 1993 a doctor at the Forensic Medicine Institute again saw the applicant. The doctor referred to the medical report of 27 January 1993 and stated that the applicant’s brain tomogram must be taken and that he must undergo medical treatment.

On 8 January 1993 the Ankara State Security Court ordered the applicant’s detention on remand.

On 20 July 1993 the applicant filed a petition with the Ankara State Security Court complaining that he had been severely tortured while in custody by the C-2 squad of the Anti-Terror Branch. He stated that he had been hit on the head with a nailed stick and that his wife had been subjected to sexual harassment in his presence. He further stated that he had been taken four times to the Numune and Ä°bni Sina Hospitals and twice to the Forensic Medicine Institute. He concluded that he could identify the C-2 squad members and that these persons had come to the hearing at the State Security Court on 11 June 1993.

On 16 August 1993 the applicant gave a statement to the Ankara public prosecutor. He reiterated his allegation of torture before the public prosecutor. He stated that his shirt had been smeared with blood as a result of the severe torture. He submitted this shirt as evidence to the State Security Court public prosecutor and the judge on 8 February 1993 and at a hearing on 20 July 1993 in the State Security Court. On 8 February 1993 he submitted to the State Security Court public prosecutor and the judge his wife’s pants that had been torn by the police officers on the attempt of rape.

On 7 September 1993 the applicant filed a petition with the office of the Ankara public prosecutor. He reiterated his allegations and gave detailed description of the police officers that tortured him in custody.

On 30 December 1994 the Ankara public prosecutor decided that no prosecution should be brought against the police officers that allegedly tortured the applicant ( takipsizlik kararı ). The prosecutor stated that the medical reports consisted of nothing but the applicant’s subjective complaints, all of which might relate to his former brain operation. The prosecutor concluded that there existed no evidence to substantiate the applicant’s allegations.

The applicant filed an objection with the Kırıkkale Assize Court which set aside the public prosecutor’s decision of 30 December 1994.

On 28 February 1995 the Ankara public prosecutor filed a bill of indictment with the Ankara Assize Court. The prosecutor charged the ten police officers of the Ankara Anti-Terror Branch with torturing the applicant pursuant to Article 243 of the Turkish Criminal Code.

On 13 March 1997 the Ankara Assize Court acquitted the police officers. In its decision the court referred to the statements of the accused police officers in which they stated that the applicant had been injured, as he resisted the police when he was arrested. In the medical reports it was clearly indicated that the applicant had been sustaining injuries. The medical report drafted by a doctor at the Forensic Medicine Institute was issued on 27 January 1993, which was one day after the applicant had been arrested on 26 January 1993, at 17.30 hours. Having regard to the fact that the applicant had resisted the police when he was arrested the findings of the medical reports were reflecting the injuries occurred at the time of arrest. Furthermore, the witnesses heard by the court stated that they had not seen applicant being tortured as they had been interrogated separately. The court concluded that there existed no evidence to substantiate that the applicant had been tortured by the accused.

On 21 March 1997 the Ankara Assize Court’s decision became final, as the public prosecutor did not lodge an appeal. The court’s decision was not served on the applicant.

B. Relevant domestic law and practice

i. Criminal law and procedure

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 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”.

Additional Article 6 of the Law on the Duties and Powers of the Police ( Polis Vazife ve Selahiyet Kanunu ) provides:

“In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions.

Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm .

In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.”

ii. 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.

iii. 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 applicant complains under Article 3 of the Convention that he was severely 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, which provides as follows:

“No one shall be subjected to torture or to inhuman degrading treatment or punishment.”

Exhaustion of domestic remedies

The Government submit that the applicant has failed to exhaust domestic remedies available to him within the meaning of Article 35 of the Convention. They submit that the applicant has failed to lodge an appeal against the decision of the Ankara Assize Court dated 13 March 1997.

The Government maintain that there exist administrative and civil remedies in Turkish law capable of redressing the applicant’s complaints and leading to the granting of compensation. The Government conclude that being able to obtain compensation constitutes an adequate and sufficient remedy in relation to the treatment contrary to Article 3 of the Convention.

In reply the applicant argues that he has exhausted all domestic remedies available to him. He submits that he was not an intervening party in the proceedings before the Ankara Assize Court. According to Turkish Law, he could not lodge an appeal against the decision of the Ankara Assize Court which became final on 21 March 1997.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 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 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 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 (cf. Yaşa v. Turkey judgment, Reports 1998-VI, p. 2431, § 73). However in the instant cas e, the Court notes that the police officers who allegedly tortured the applicant were acquitted on 13 March 1997 by the decision of the Ankara Assize Court. It seems that the persons who allegedly tortured the applicant remain unidentified.

As to an action in administrative law under Article 125 of the Constitution based on the authorities’ strict liability, the Court 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 this administrative remedy is aimed at awarding damages rather than identifying and punishing those responsible (cf., Assenov and Others v. Bulgaria judgment of 28 October 1998, to be published in Reports 1998, § 102).

Consequently, the Court concludes that the applicant was not required to bring the civil and administrative proceedings suggested by the Government.

As to the Government’s submission that the applicant has failed to lodge an appeal against the decision of the Ankara Assize Court the Court observes that the applicant was not an intervening party in the proceedings. The Court notes that under Article 371 of the Code on Criminal Proceedings only the intervening parties to the criminal proceedings have the right to initiate appeal proceedings.

The Court accordingly dismisses the Government’s objections.

The merits

The Government argue that the applicant was injured when he was arrested by the police officers. They claim that the use of force by the police was proportional under the Law on the Duties and Powers of the Police. Having regard to the fact that the applicant had a brain operation the use of force by the police who were ignorant about the applicant’s medical situation could have accelerated his medical complications.

The applicant maintains his account of events.

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 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 ADMISSIBLE , without prejudging the merits, the applicant’s complaint that he was tortured while in police custody.

Michael O’Boyle Elisabeth Palm Registrar President