FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36590/97 by Mehmet GÖÇ against Turkey

The European Court of Human Rights ( Fourth Section ), sitting on 6 April 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr R. Türmen,

Mr V. Butkevych, Mr J. Hedigan, judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 April 1997 and registered on 20 June 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 and living in İzmir (Turkey). He is represented before the Court by Mr Güney Dinç , a lawyer practising in İzmir .

A. The circumstances of the case

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

At the material time the applicant was employed as a clerk in the İzmir 2nd Court of Taxation. On 18 July 1995 the İzmir Civil Court of General Jurisdiction forwarded the name and workplace of the applicant to the İzmir Public Prosecutor’s Office, stating that the applicant was suspected of having stolen and falsified court documents relating to a decided divorce case.

On 25 July 1995 the Office of the Public Prosecutor referred the case to the Security Directorate.

At 5.10 p.m. on 26 July 1995 the applicant was taken into police custody and detained at the İzmir Security Department. He was accused of the above charges. The applicant gave a statement in which he denied that he had been involved in the incident relating to the court’s case file. The applicant claims that he was not permitted to contact his family or consult a lawyer. He alleges that he was insulted and beaten for two hours.

Two other suspects were also detained and statements were taken from them. A statement was also taken from Adilye Bilecen , a party to the divorce proceedings.

On 27 July 1995 an investigation record was drawn up for the applicant and the two other suspects. At 5.00 p.m. on the same day the applicant was released pursuant to the decision of the public prosecutor. The two other suspects were kept in custody.

In the evening of 27 July 1995, following his release, the applicant went to the İzmir State Hospital. He was subsequently granted four days’ sick leave by his employer. The medical report prepared at the hospital referred to the fact that the applicant was suffering from a common skin disease caused by the inflammation of the roots of his facial hair.

On 31 July 1995 the Office of the Public Prosecutor of Karşıyaka decided not to bring charges against the applicant ( takipsizlik kararı ) on the ground of lack of evidence. The decision was served on the applicant on 19 August 1995.

The public prosecutor took a statement from the applicant on 28 August 1995. In this statement the applicant stated that he had applied to the Ministry of Justice to have proceedings brought against the individual who had reported him to the authorities.

On 29 August 1995 the public prosecutor decided not to lay charges against the person named by the applicant.

On 5 September 1995 the applicant filed a complaint under Law No. 466 with the Karşıyaka Assize Court ( Ağır Ceza Mahkemesi ) against the Treasury requesting TRL 200,000,000 by way of compensation for his detention between “24 and 27 July 1995”. In the petition, the applicant’s lawyer stated, inter alia , that the applicant, while in detention, had been tortured and ill-treated by being beaten and insulted for two hours and deprived of his right to contact his family and a lawyer. As a result of his injuries, the applicant was required to take four days’ sick leave. He did not invoke any specific section of Law. no. 466.

On 14 September 1995 the three-judge Karşıyaka Assize Court commissioned one of its members ( naip hakim ) to investigate the case and draft a report. The judge designated for this purpose verified, inter alia , that the Office of the Public Prosecutor of İzmir had dropped the charges against the applicant. He also obtained information from the Security Department about the applicant’s personal, financial and social status. On 7 December 1995 the Office of the Public Prosecutor, as required by Law no. 466, submitted its opinion to the Karşıyaka Assize Court. The Public Prosecutor noted that the applicant was taken into custody on 25 July 1995, and not on 24 July 1995 as claimed, and was released on 27 July 1995. The public prosecutor recommended that the applicant be given compensation for non-pecuniary damage in an amount to be assessed by the court. This opinion was not served on the applicant. The judge found that the evidence obtained was sufficient to enable him to draft his report and decided in the exercise of his discretion under section 3 of Law No. 466 that it was unnecessary to hear the applicant.

The judge stated in his report of 7 December 1995 to the Karşıyaka Assize Court, inter alia , that the applicant had been detained for two days from 25 July to 27 July 1995 and upon his release had obtained a medical report which indicated that he had been assaulted (“ darp edildiği ”). The judge recommended that the applicant be awarded compensation for non-pecuniary damage in respect of his detention, calculated on the basis of his personal, financial and social status.

On 7 December 1995 the Karşıyaka Assize Court found that the applicant was detained for two days and qualified for compensation. In its judgment, the court noted all the complaints in the petition submitted by the applicant’s lawyer. With reference to the applicant’s personal, financial and social status, the court awarded the applicant TRL 10,000,000 by way of compensation and TRL 1,500,000 in respect of his legal fees.

The applicant’s lawyer and the Treasury both appealed against the award. The applicant’s lawyer contended on appeal that the amount of compensation was insufficient reparation for his wrongful arrest and detention. He did not challenge the dates of detention as determined by the court. On 17 October 1996 the Chief Public Prosecutor at the Court of Cassation submitted his opinion on the merits of both parties’ appeals. In his written submissions to the Court of Cassation the Chief Public Prosecutor stated that neither of the parties had grounds for appeal and advised that both their appeals be rejected. This opinion ( tebliğname ) was not submitted to the applicant.

On 7 November 1996 the 6th Chamber of the Court of Cassation for Criminal Law Matters ( Yargıtay ) upheld the judgment of 7 December 1995.

According to information submitted by the Government, the applicant has never applied to obtain the compensation awarded to him by the Karşıyaka Assize Court.

B. Relevant domestic law

1. Criminal law provisions

The Criminal Code makes it a criminal offence to subject an individual to torture or ill-treatment (Articles 243 and 245 respectively, the latter provision applying to allegations made against civil servants).

Complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate criminal offences 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 of the public prosecutor not to institute criminal proceedings.

If the alleged author of a criminal offence is a State official or civil servant, permission to prosecute must be obtained from the local administrative council (the Executive Committee of the Provincial Assembly). The decision of a local council may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.

2. Provisions governing payment of compensation

(a) Administrative liability

Article 125 of the Turkish Constitution provides as follows:

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

…

The administration shall be liable to indemnify any damage caused by its own acts and measures.”

This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration is liable to indemnify persons 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.

The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the state of emergency, which provides:

“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”

(b) Civil liability

Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 and non-pecuniary or moral damages may be awarded under Article 47.

3 . Legal provisions governing arrest and detention

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, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions."

Under section 128 of the Code of Criminal Procedure, an arrested person must be brought before a judge within twenty four hours or, where the offence has been committed by more than one person, within four days.

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 applicant complains with reference to Article 3 of the Convention that he was tortured and ill-treated by the police while in detention.

The applicant further complains that the Karşıyaka Assize Court and the 6th Chamber of the Court of Cassation for Criminal Law Matters gave judgment on his claim without holding a public hearing. He also complains that the submissions of the Office of Public Prosecutor to the first instance court and those of the Office of the Chief Public Prosecutor to the Court of Cassation were never served on him thus depriving him of the opportunity to put forward his counter-arguments. The applicant invokes Article 6 of the Convention.

THE LAW

1 . The applicant states that he was tortured in custody, in breach of Article 3 of the Convention which provides:

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

The Government state that the applicant never complained to the judicial authorities that he was ill-treated in custody. In submitting his compensation claim the applicant only made these allegations in order to secure additional compensation for wrongful arrest and detention. The applicant cannot therefore be said to have exhausted domestic remedies in respect of his allegations.

The Government, with reference to the relevant provisions of the Penal Code, stress that torture and ill-treatment are crimes which attract heavy sentences. It is open to a victim to claim compensation under administrative law where the culprit is an official of the State. A civil claim for compensation lies against the person or persons who tortured or ill-treated the victim, even if the former have been acquitted of criminal charges arising out of their conduct. In brief, victims of treatment prohibited by Article 3 can find sufficient redress in domestic law for their complaints.

The Government further observe that the applicant’s allegation must be taken to be time-barred in application of the six-months’ rule since he was released from custody on 27 July 1995 but only lodged his application with the Commission on 28 April 1997.

In the applicant’s submission, the fact that he had brought his complaint to the attention of the Karşıyaka Assize Court on 5 September 1995 was of itself sufficient to satisfy the exhaustion requirement prescribed by Article 35 § 1 of the Convention. It was incumbent on the public prosecutor under Articles 148 and 153 of the Code of Criminal Procedure to investigate that complaint once it was reported to him. However no follow-up was ever given to the complaint, either by the domestic courts or by the public prosecutor. The applicant suggests that the failure to investigate properly complaints against agents of the State is common practice in the respondent State.

The Court considers that it does not have to determine whether the applicant has failed to exhaust domestic remedies in respect of his complaint under this head since it is inadmissible for non-respect of the six-months’ rule.

The Court notes that the applicant brought his complaint to the attention of the Karşıyaka Assize Court on 5 September 1995. The public prosecutor was subsequently notified of the complaint when the applicant’s compensation request under Law no. 466 was transferred to him for observations. The public prosecutor submitted his observations to the Karşıyaka Assize Court on 7 December 1995 without reference to the applicant’s complaint of ill-treatment. Even assuming that the applicant had made out an arguable claim that he had been ill-treated as alleged, it must have become apparent to the applicant shortly 7 December 1995 that no follow-up was going to be given to his allegation.

In the Court’s opinion, the applicant cannot rely on the date of the judgment of the Court of Cassation as the final decision in the domestic proceedings for the purposes of the running of the six months’ rule since that decision only related to the amount of compensation to be awarded to the applicant for the fact that he was imprisoned but not subsequently charged. Neither the Karşıyaka Assize Court nor the Court of Cassation had jurisdiction under Law no. 466 to consider his allegation that he had been ill-treated in custody. It is also significant that the applicant never made any specific reference to his allegations in his appeal to the Court of Cassation against the amount of damages awarded by the Karşıyaka Assize Court.

Having regard to the above considerations and to the fact that the applicant only introduced his application with the Commission on 28 April 1997, the Court concludes that the complaint under Article 3 of the Convention must be rejected as inadmissible under Article 35 § 1 of Convention for failure to comply with the six-months’ rule.

2. The applicant invokes Article 6 § 1 of the Convention, which provides as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... (...).”

The applicant maintains that he had no right under domestic law to request an oral hearing on his compensation claim, either under Law no. 466 or under the general provisions of the Code of Civil Procedure or the Code of Administrative Procedure. In any event, recourse to the provisions of the latter Codes would not have assisted him given that the provisions of Law no. 466 would have been held to be lex specialis .

The applicant further complains that the Court of Cassation admitted to the file the observations of the Chief Public Prosecutor on the merits of his and the Treasury’s grounds of appeal. However, he never received a copy of those observations and was thus denied the right to respond to the observations.

The Government state that Law no. 466 was intended to provide for a special procedure for compensating individuals who have been unlawfully apprehended or detained. Compensation claims are examined on the basis of the case file. Dispensing with an oral hearing allows for a speedy and inexpensive procedure. The applicant’s claim was well documented and there were no public interest considerations at issue which would have required the court to hear oral evidence. Significantly, the applicant’s claim was determined in four and a half months.

The Government, contrary to the applicant’s submissions on this point, contend that it would have been open to him to request an oral hearing before the Court of Cassation in application of Article 438 of the Code of Civil Procedure. However, he never made such a request even though his claim was above the threshold stipulated in Article 438 as a pre-condition of holding an oral hearing.

The Government made no submissions on the applicant’s complaint in respect of the alleged breach of the principle of equality of arms.

The Court considers, in the light of the parties’ submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of their merits. The Court concludes, therefore, that this part of 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, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant ’s complaints that he was denied a fair hearing on the determination of his compensation claim on account of his inability to comment on the submissions made by the Chief Public Prosecutor to the Court of Cassation and the absence of an oral hearing;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President