THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32983/96 by Özgür ÇAVUŞOĞLU against Turkey

The European Court of Human Rights ( Third Section ), sitting on 23 May 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, judges,

Mr F. Gölcüklü, ad hoc judge,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 26 August 1996 and registered on 17 September 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 8 September 1997,

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 living in İzmir (Turkey). He is represented before the Court by Ms İlhan Gül Kireçkaya , a lawyer practising in İzmir (Turkey).

A. The circumstances of the case

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

On 17 November 1995 the applicant was taken into police custody in İzmir by policemen from the Anti-Terrorism Branch of the İzmir Security Directorate. He was accused of being a member of an illegal leftist organisation. The same day the applicant was examined by the İzmir Forensic Medicine Institute’s medical expert who did not find any signs of injury on his body.

On 23 November 1995 the applicant’s lawyer visited him in the security directorate building. Having noticed that the applicant had bruises on his face and difficulty in walking, the applicant’s lawyer filed a petition with the public prosecutor alleging that the applicant had been ill-treated in custody. She further requested that the applicant be examined by a doctor.

On 27 November 1995 the applicant was examined again by a medical expert from the İzmir Forensic Medicine Institute. In the ensuing report it was stated that there were no signs of beating, force or violence on the applicant’s body. The same day, the applicant was brought before the public prosecutor and the investigating judge, who ordered that the applicant be placed in detention on remand. Subsequently, the applicant was transferred to Buca Prison.

On 28 November 1995 the applicant underwent a third medical examination in prison by a medical expert, who noted the presence of some bruises on the nose, lips and left foot caused by a blunt instrument, and concluded that these findings did not constitute a danger to life but would prevent the applicant from work for 2 days. The doctor also stated that the applicant needed 5 days’ medical treatment.

On 15 December 1995 the Ä°zmir public prosecutor initiated criminal proceedings against the applicant in the Ä°zmir State Security Court.

The applicant filed a complaint with the İzmir public prosecutor against the police officers from the Anti- Terrorism Branch of the İzmir Security Directorate and alleged that he had been ill-treated in custody. On 29 December 1995 the public prosecutor refused the applicant’s request and decided not to initiate criminal proceedings against the accused officers on the ground that there was insufficient evidence in support of the allegations. On 26 February 1996 the applicant challenged this decision before the Karşıyaka Assize Court;  on 11 March 1996 the court dismissed the case, upholding the reasoning of the public prosecutor.

The applicant filed yet another criminal complaint with the public prosecutor along with other detainees alleging that they had been ill-treated during their transfer to the Buca Prison. In this respect, they relied on the medical reports dated 28 November 1995. On 18 January 1996 the public prosecutor decided that there was no evidence to conclude that the injuries referred to in the medical reports were caused by police officers. Consequently, he refused to initiate criminal proceedings against the accused officers. The applicant challenged this decision in the Karşıyaka Assize Court. On 4 March 1996 the court upheld the first-instance decision.

On 31 January 1996 the applicant’s lawyer filed another petition with the public prosecutor and requested that the applicant should undergo a proctrological and urogenital examination in order to be able to detect signs of the torture inflicted on him.

B. Relevant domestic law

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....”

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, complaints alleging the commission 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.

COMPLAINT

The applicant complains under Article 3 of the Convention that he was tortured in police custody. In this respect, he submits that he was hung by the arms and subjected to rape with a truncheon.

THE LAW

The applicant complains of ill-treatment in police custody. He invokes Article 3 of the Convention (the prohibition of inhuman and degrading treatment).

The Government submit that the signs detected on the applicant’s body cannot be accepted as evidence of ill-treatment. They maintain that the applicant does not bring sufficient proof to determine when and how the injuries on his body occurred.

The applicant maintains his account of the 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 REMAINDER OF THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa

Registrar   President