FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 32578/96 and 32579/96 by Abdullah ÇOLAK and Ömer FİLİZER against Turkey

The European Court of Human Rights (Fourth Section) , sitting on 25 May 2000 as a Chamber composed of

Mr G. Ress, President , Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mr M. Pellonpää, Mrs S. Botoucharova, judges , Mr F. Gölcüklü, ad hoc judge , and Mr V. Berger, Section Registrar ,

Having regard to the above applications introduced with the European Commission of Human Rights on 28 December 1995 and registered on 8 August 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications was transferred to the Court,

Having regard to the Commission’s partial decision of 30 June 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 1969 and 1964 respectively.

They are represented before the Court by Ms Bedia Buran , Ms Naciye Kaplan and Ms Filiz Kostak , lawyers practising in Ä°stanbul .

A. Particular circumstances of the case

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

I. Police custody of the applicants

The applicants, accused of being members of the PKK, were taken into police custody in Ä°stanbul o n 28 April 1995 and on 29 April 1995 respectively, by policemen from the Anti-Terrorism Branch of the Istanbul Security Directorate. Both applicants claim they were beaten and insulted by the policemen on the way to the Security Directorate Building.

On 29 April 1995 the public prosecutor attached to the Istanbul State Security Court ordered the extension of the applicants' custody period until 9 May 1995.

The applicants submit that during their interrogation by the police they were kept blindfolded and forced to give information about certain people, whom they did not know. They were allegedly subjected to various forms of ill-treatment by the police officers (beatings, threats, electric shocks, etc.).

On 2 May 1995 the applicants signed police statements about their activities in the PKK and their connections with other PKK members.

On 5 May 1995 the applicants were examined by the Istanbul Forensic Medicine Institute’s medical expert along with fourteen other detainees. In his report, the institute’s doctor noted that there were no signs of beating, force or violence on the bodies of the applicants, whereas he had spotted certain signs of injury on the bodies of two other detainees.

On 22 May 1995 the first applicant underwent a second medical examination in prison. According to the prison doctor’s report, the applicant had fading bruises on his body and ecchymoses on his left foot.  The applicant was later transferred to the Fatih Forensic Medicine Institute where he was examined by another medical expert. In a report dated 20 June 1996, it was concluded that the applicants’ injuries, as cited in the report of the prison doctor, would prevent him from carrying out his work for two days.

On 18 May 1995 the second applicant was also examined by the prison doctor. In his report, the doctor noted the presence of abrasions on the penis, pain in the chest and ecchymoses under the left eye. He also noted that the applicant had described a feeling of pain while chewing and pain on both shoulders.

II. Criminal Proceedings against the applicants

On 5 May 1995 the applicants were brought before the public prosecutor attached to the Istanbul State Security Court. In their questioning they denied their police statements and rejected the allegations against them.

On 6 May 1995 they were brought before a judge of the State Security Court, and they repeated their statements taken by the public prosecutor. The judge, having regard to the nature of the accusations and the evidence already available, placed them in detention on remand.

On 22 June 1995 the public prosecutor initiated criminal proceedings against the applicants in the Istanbul State Security Court and charged them with carrying out acts aimed at the separation of a part of the State territories.

III. Criminal proceedings against the police officers

On 1 June 1995 the applicants filed a complaint with the Fatih public prosecutor alleging that they had been ill-treated while they were held in police custody.

On 21 September 1995 the Fatih public prosecutor dismissed the allegations, pointing out that there was insufficient evidence to bring any criminal proceedings against the Istanbul Security Directorate officers.

On 13 October 1995 the applicants filed an objection with the Ä°stanbul BeyoÄŸlu Assize Court against the decision of the public prosecutor.

On 14 December 1995 the Assize Court dismissed the applicants’ case on the ground that there was no evidence to file a criminal complaint against the accused police officers.

B. Relevant domestic law and practice

Constitutional provisions:

Article 17 of the Constitution provides:

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

Article 125 of the Constitution provides as follows.

“All acts or decisions of the Administration are subject to judicial review...

The Administration shall be liable for damage caused by its own acts and measures.”

Criminal law and procedure:

The 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  and administrative procedures:

Under the Code of Obligations, anyone who suffers damage as a result of an illegal act or tort may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage (Article 47). 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).

Furthermore, proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were ill-treated and tortured in police custody and submit medical reports issued by the prison doctor which refer to fading bruises and after effects of wounds.

The first applicant maintains that when he denied the allegations against him, he was throttled, beaten and kicked. He was later taken to another room, where he was strung up from his arms and beaten by a hard object. The applicant was threatened by the policemen who told him that he might share the destiny of others who disappeared in custody. The applicant maintains that this treatment continued for six days and, as a result of the torture, he suffered from hernia and had breathing problems.

The second applicant submits that when he was taken to the building of the Security Directorate, he was blindfolded. He was punched severely on his head, stomach, abdomen, and kidneys. After some time, he was made to sit on a chair and the policemen connected electrodes to his sexual organs and his toes and several electric shocks were administrated to him. He was also strung up from his arms and from time to time his testicles were squeezed. During all this time, he was questioned about certain incidents of which he had no knowledge. When he was taken back to his cell, he was forced to listen to music at an extremely high volume.

PROCEDURE

The application was introduced on 28 December 1995 before the European Commission of Human Rights and registered on 8 August 1996.

On 30 June 1997 the Commission decided to communicate the applicants’ complaint concerning ill-treatment under police custody to the respondent Government and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 3 November 1997, after an extension of the time-limit fixed for that purpose. The applicant s replied on 25 December 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicants complain of ill-treatment in police custody. They invoke Article 3 (prohibition of inhuman and degrading treatment) of the Convention.

A.  Preliminary objections

The Government assert that the applicants could have sought reparation for the harm they allegedly suffered by instituting a civil law action in the civil law or administrative courts. In order to demonstrate the effectiveness of the compensation proceedings before the civil courts, the Government refer to a decision of the Court of Cassation that they supplied to the Court.

The applicants reply that they should be considered as absolved from invoking any of the remedies referred to by the Government since these remedies cannot be regarded as effective in their situation.

As regards the civil and administrative remedies referred to by the Government, the Court points out that in the Oğur v. Turkey judgment of 20 May 1999 (to be published in Reports 1999, § 66) , it held that the applicant was not required to bring the civil and the administrative proceedings relied on by the Government in the instant case. It noted first of all that, in a civil action for redress concerning damage sustained through illegal acts or patently unlawful conduct on the part of State agents, a plaintiff had, in addition to establishing a casual link between the tort and the damage he had sustained, to identify the person believed to have committed the tort. In the instant case, however, those responsible for acts complained of by the applicants remained unknown.

Secondly, as regards the administrative-law action provided in Article 125 of the Constitution, the Court noted that this was a remedy based on the strict liability of the State, in particular for the illegal acts of its agents, whose identification was not, by definition, a pre-requisite to bringing such an action. However, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the state unlawfully and in breach of Article 3, an effective remedy must be one involving an official investigation capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, No. 96, p. 3290, §§ 102 and 117). The Court sees no reason to depart from those conclusions in the instant case and consequently, it concludes that the applicants were not further required to bring the civil and administrative proceedings suggested by the Government, as their criminal complaints were dismissed by the national authorities.

The Court considers, in the light of the foregoing, that the Government’s preliminary objections in this respect cannot be upheld.

B.  Substance of the application

The Government submit that when the applicants were first taken for medical examination on 5 May 1995 together with other detainees, the doctor at the Forensic Institute did not find any traces of injury on the bodies of the applicants. The Government further submit in this respect that two other detainees, who were taken together with the applicants to the Forensic Institute, showed signs of physical injury.

The Government also state that the injuries observed on the bodies of the applicants in the second set of medical reports do not suffice to prove that the applicants had been tortured while they were in custody. Moreover, they submit that the applicants’ allegations are insincere and are part of a scenario invented by the terrorist organisation to dishonour the active forces struggling against terrorism. The Government allege that the injuries on the bodies of the applicants are either self-induced or the result of the acts of other prisoners. Accordingly, the Government conclude that the application is inadmissible pursuant to Article 35 of the Convention.

The applicants maintain their account of events.

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, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATIONS ADMISSIBLE , without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President