SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33234/96 by N.Ö. against Turkey

The European Court of Human Rights ( Second Section ), sitting on 30 March 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr A.B. Baka, Mr A. Kovler, judges ,

Mr F. Gölcüklü, ad hoc judge,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 September 1996 and registered on 30 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Turkish citizen, was born in 1960 and lives in the village of Altınakar , Diyarbakır , Turkey.

In the proceedings before the Court, the applicant is represented by Mr Sedat Çınar , a lawyer at the Diyarbakır Bar.

A. Particular circumstances of the case

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

The applicant

On 21 June 1993 the applicant’s husband, Mehmet Sıddık Öncü (M.Ö.), was arrested in the hamlet of Dikmetaş (“ Kırkat ” in Kurdish) of the Ortaşar village ( Çınar ) by gendarmes from the Diyarbakır gendarme regiment ( “ Alay Komutanlığı ” ). Another person, Cemil Garipkuş (C.G.), was also arrested at the same time.

The applicant states this was not the first occasion on which her husband was arrested. He had on an earlier occasion been taken from the village and beaten by gendarmes.

The applicant claims that on 21 June 1993 gendarmes searched their house between 4.00 a.m. and 8.30 a.m. Her husband was taken away on a jeep along with C.G. by gendarmes who had arrived by helicopter. The applicant maintains that one of the commanding officers had grey hair, was about 50 years old and was referred to as “ Apo ” by the gendarmes. Her husband and C.G. were taken to a wooded area outside the village. Her husband was stripped naked and strung up by his arms using the form of torture known as Palestinian hanging. The gendarmes fastened a rope to his genitals and pulled on it. Electric shocks were administered to his body and he was subjected to torture until 5.00 p.m. Her husband’s health deteriorated. He was taken to Çınar Gendarme Station. C.G. was tortured up until 7.00 p.m.

The search of her house ended at 7.30 p.m. She and her children were ill-treated during the time of the search.

The arrest record drawn up by the gendarmes, dated 21 June 1993, mentioned that gendarmes in a joint operation involving members of the Diyarbakır Provincial Central Gendarme Command and Çınar District Gendarme Command had surrounded Dikmetaş hamlet following information that the inhabitants had been providing assistance to and sheltering PKK militants. M.Ö. and C.G., despite a warning being issued, had resisted arrest and tried to flee. The report indicated that the security forces had to use force to arrest them and take them into custody. According to the report M.Ö. and C.G had been arrested for questioning and with the aim of bringing them before a judicial authority. The report was signed by M.Ö. and C.G. as well as by two team commanders and two operations commanders.

On 22 June 1993 M.Ö. was taken to the emergency unit of the Diyarbakır State Hospital. A medical report dated 22 June 1993 referred to the following marks having been found on M.Ö.’s body: three bruises, each 10 cm long, on the back of his arm; bruises on his back; a rash and bruise on the joint of his collarbone. The report was signed by Dr Uğur N. Yüce . M.Ö. was put in the urology unit in the section reserved for detainees.

The applicant was released from the hospital to Diyarbakır gendarme regiment headquarters. His questioning continued under medical control. His health deteriorated and he had to be transferred back to the hospital. In a letter dated 4 July 1993 Hakan Polat , a senior officer, requested the Chief Medical Officer of the Diyarbakır State Hospital to admit the applicant for treatment.

On 5 July 1993 the public prosecutor attached to the Diyarbakır State Security Court went to the detainees’ unit in the Diyarbakır State Hospital. A report drawn up on the same day referred to the fact that M.Ö. could not speak and that he had traces of blood around his mouth. The public prosecutor’s report indicated that a statement could not be taken from M.Ö.

Also on 5 July 1993 the public prosecutor heard the statement of C.G. The latter deposed that at the time of their arrest they had not attempted to flee and that the gendarmes had arrested them in Dikmetaş village. C.G. stated that he did not know the deceased prior to their joint arrest and detention. C.G. declared that he came from another village and had been arrested while visiting Dikmetaş village. The report also mentioned that C.G. had remained in custody with M.Ö. until the latter was taken to hospital on 4 July 1993.

On 5 July 1993 M.Ö. died at the Dicle University Hospital.

On 5 July 1993 two doctors carried out an autopsy on M.Ö.’s body in the presence of the prosecutor attached to the Diyarbakır State Security Court. The prosecutor drew up a detailed report. The doctors’ findings in the report mentioned, among other injuries, fractures with bruising on three of the deceased’s ribs. Bruises were also found on his arms and buttocks as well as slight bruising and lesions to his right foot. Blood was found in the deceased’s mouth. An examination of the deceased’s skull and brain revealed internal bleeding. The doctors requested that an examination of a number of parts of M.Ö.’s body including his heart, pancreas, liver and brain be carried out by the Istanbul Forensic Medicine Institute.

On 6 or 7 July 1993 the religious leader (imam) of Ortaşar Village was called to the Çınar Gendarme Station and informed that M. Ö. “had become cancerous while in custody like all other P.K.K. sympathisers and had died”. The applicant claims that unknown persons telephoned her around the same time informing her that her husband had died.

On 8 July 1993 C.G. stated in a petition to the Diyarbakır State Security Court challenging his arrest that he had been tortured while in custody and had been forced to sign a prepared statement. He denied that he had attempted to flee when arrested by the gendarmes on 21 June 1993.

On 8 July 1993 M.Ö.’s brother, Nafiz , submitted a petition to the Public Prosecutor’s Office at the Diyarbakır State Security Court in which he stated that he feared for his brother’s life. On the same day the Public Prosecutor’s Office at the Diyarbakır State Security Court arranged for the issue of a burial licence and M. Ö.’s body was released to his family. The family were informed in the burial licence that a full autopsy had been carried out on the deceased.

On 22 July 1993 the prosecutor attached to the Diyarbakır State Security Court declared that he lacked jurisdiction to investigate M.Ö.’s death and transferred the case file to the Diyarbakır public prosecutor so that the latter could carry out a preliminary investigation.

On 2 September 1993 C.G. appeared before the Diyarbakır State Security Court. He declared that he was innocent of the charges brought against him and requested his release. He was remanded in custody. The court ordered the Çınar court of first instance to obtain the statements of the gendarmes who had drawn up the arrest and detention record of 21 June 1993.

On 11 October 1993 Burhanettin Aykenar , commander of Çınar Gendarme Station, declared in a statement made before the Çınar court of first instance that he had no precise recollection of the incident leading to the arrest and detention of C.G., but relied on the accuracy of the records drawn up at the material time. Burhanettin Aykenar had signed the arrest and detention record of M.Ö. and C.G.

On 14 October 1993 the Diyarbakır State Security Court heard the statements of two gendarmes who were involved in C.G.’s arrest and detention. They confirmed the content of the arrest and custody records which they had signed.

On 8 December 1993 Burhanettin Aykenar made a second statement in respect of the death of M.Ö. He deposed that M.Ö. and C.G. had attempted to flee from the security forces and had to be restrained by force. They were brought to Çınar medical unit. Bruises were found on their bodies as a result of the application of force to effect their arrest. He stated that both men were handed over to the Diyarbakır gendarme regiment following a medical check.

On 28 March 1994 the Diyarbakır gendarme regiment informed the Diyarbakır public prosecutor that the two gendarmes who had questioned M.Ö. had been killed in a confrontation with terrorists.

On 29 April 1994 Ender Köseoğlu , a gendarme officer attached to Çınar gendarme regiment, stated that force had to be used to detain 30 villagers on 21 June 1993. He stated that Sergeant Önder Pala and Corporal Yüksel Bayar had been in the interrogation team. The latter officers had identified three of the detainees as being members of the PKK. Two of the detainees, M.Ö. and Nurettin Temiz , were feeling unwell and he was ordered to transfer them to hospital on 22 June 1993. He stated that he handed over the third detainee, C.G., to Sergeant Önder Pala . M.Ö. remained in hospital until 26 June 1993.

At the conclusion of the preliminary investigation, the Diyarbakır public prosecutor accused the two gendarmes who had taken M.Ö. into custody of having caused the death of a third party through their professional negligence. The prosecutor based his finding in particular on the report prepared by the Forensic Medical Institute which concluded that: “severe wounds had been found on the deceased’s body and that death had resulted from cranial trauma provoking cerebral bleeding”. In application of Article 96 of the Penal Code which provides that “the death of a suspect brings an investigation to an end”, the public prosecutor, on 6 April 1994, issued a decision not to bring charges against the two gendarmes. The applicant only learned about the decision on 6 February 1996.

On 13 February 1996 the applicant challenged the public prosecutor’s decision of 6 April 1994 before the President of the Siverek Assize Court. The President, on the basis of the file submitted to him, dismissed the applicant’s challenge on 6 March 1996.

The Government

On 21 June 1993 the security forces from the Diyarbakır gendarme regiment carried out “the spring operation” in the Dikmetaş hamlet. The applicant’s husband, M.Ö., was arrested together with another villager when they were trying to flee from the security forces. The gendarmes had to use force to apprehend them.

After their arrest and their statement concerning, inter alia , the discovery of a shelter measuring 4 by 3 metres, a gun and ammunition,  M.Ö. was taken to the Çınar medical unit and then to the Diyarbakır State Hospital on 22 June 1993. He was put in the wing reserved for detainees. There he was questioned about, inter alia , his links with the PKK. The public prosecutor attached to the Diyarbakır State Security Court was informed about the incident.

M.Ö. was considered well enough to be questioned and was taken back into custody at the Diyarbakır gendarme regiment headquarters. However, his state of health deteriorated and he had to be transferred again to the Diyarbakır State Hospital on 4 July 1993.

On 5 July 1993 the prosecutor attached to the Diyarbakır State Security Court was unable to question M.Ö. on account of the latter’s state of health. On 5 July 1993 M.Ö. was transferred from the Diyarbakır State Hospital to the Dicle University Hospital, also in Diyarbakır . M.Ö. died there a few hours later.

On 5 July 1993 an autopsy was carried out on his body. Tissue samples were taken from the body and sent to the Istanbul Forensic Medecine Institute for analysis. In a report dated 17 September 1993 the Forensic Medicine Institute stated that M.Ö. had died from a brain haemorrhage as a result of a blow to the head.

On 22 July 1993 the public prosecutor attached to the Diyarbakır State Security Court issued a supplementary decision of non-jurisdiction and sent the preliminary investigation file to the Diyarbakır Chief Public Prosecutor’s Office. He noted that his Office lacked jurisdiction to deal with the matter and that the Diyarbakır Chief Public Prosecutor’s Office should determine whether M.Ö’s death was caused by the gendarmes on duty at the time.

In a letter dated 27 November 1993 Arif Ekmen , the Çınar District Gendarme Commander, wrote to the public prosecutor informing him that he had identified two of the gendarmes who had arrested M.Ö. on 21 June 1993 as Hakan Polat , a senior officer, and Burhanettin Aykenar , a sergeant. He stated that the names of other gendarmes involved could be obtained through the Provincial Central Regiment Command. Arif Ekmen confirmed that on 22 June 1993, M.Ö. was sent to the Provincial gendarme regiment headquarters, Diyarbakır , for interrogation.

On 3 December 1993 the public prosecutor wrote to the Çınar District Commander stating that he wanted to interview Hakan Polat and Burhanettin Aykenar in connection with the death of M.Ö.

On 8 December 1993 Burhanettin Aykenar deposed that he and other gendarmes  under the command of Hakan Polat went to Dikmetaş hamlet on 21 June 1993 at around five past midnight. He stated that he was the Central Station Commander of Ortaşar village ( Çınar ). When they entered Dikmetaş hamlet, two individuals began to flee and they gave chase. They had to be forcibly apprehended using a rifle butt. The arrestees showed them two shelters where they discovered guns and documents. M.Ö. was brought to Çınar medical unit. A medical report noted bruising on M.Ö.’s body. The bruises occurred as a result of the arrest of the accused. M.Ö. was held in Çınar gendarme regiment headquarters. A request was made to question M.Ö. about his involvement in PKK activities. M.Ö. was taken to the Provincial Regiment headquarters at Diyarbakır for questioning on 22 June 1993. It was later learned that M.Ö had died in Diyarbakır State Hospital. Burhanettin Aykenar denied that M.Ö. had been tortured at the time of his arrest. Force was applied since M.Ö. had resisted arrest. Burhanettin Aykenar signed the arrest record as a unit commander.

Following a request for information made by the Office of the Public Prosecutor of Diyarbakır on 20 January 1994 and 8 March 1994 regarding the circumstances surrounding the death of M.Ö, Colonel Eşref Hatipoğlu replied in writing on 28 March 1994 stating that M.Ö. was questioned by Sergeant Önder Pala and Corporal Yüksel Bayar of the Diyarbakır gendarme regiment. Colonel Eşref Hatipoğlu affirmed that M.Ö. was brought to the hospital by Ender Köseoğlu . Colonel Eşref Hatipoğlu stated that Sergeant Önder Pala and Corporal Yüksel Bayar were killed in clashes with the PKK. Sergeant Önder Pala and Corporal Yüksel Bayar had been both been assigned to the task of questioning anyone detained as a result of the operation carried out in the district in question. This is confirmed in a letter which Colonel Eşref Hatipoğlu wrote to the Interrogation Unit Directorate on 20 June 1993.

In the light of this information the Diyarbakır public prosecutor, on 6 April 1994, decided to not to bring criminal proceedings against Sergeant Önder Pala and Corporal Yüksel Bayar of the Diyarbakır gendarme regiment. In his decision the public prosecutor stated:

“ Two PKK members, M.Ö. and C.G., were arrested by force by the Diyarbakir Gendarme regiment during the the “Spring operations” which were begun after 20 June 1993. After they had given statements about two shelters where a gun and PKK-related documents were found it was decided to broaden the investigation and they were brought from Çınar to Diyarbakır by the accused gendarme officers who were assigned to interrogation team. There the accused assaulted M.Ö. As a result of the assault M.Ö. was twice transferred to hospital and died after the second transfer. An autopsy was carried out on his body. Tissue samples were taken from and sent to the Istanbul Forensic Medecine Institute for analysis. In its report the Forensic Medecine Institute stated that M.Ö. had died from a brain haemorrage as a result of a head injuries. It is understood that the two accused gendarme officers committed the offence.

It has been decided to issue a decision to discontinue the criminal proceedings ( Takipsizlik karari - non-prosecution decision ) under the provisions of Article 96 of the Criminal Code having regard to the correspondence of Gendarme Commander Office dated 28 March 1994 and numbered 0621-270-94/2418 and additional correspondence dated 30 May 1993 and 20 July 1993 in which the Gendarme Commander Office has stated that the accused Önder Pala was wounded in a confrontation with PKK members in the region of Neygul Hill ( Diyarbakır-Kulp ) on 28 January 1994 and died on 17 February 1994 in Diyarbakır Military Hospital. Furthermore, Yüksel Baysar was killed in a confrontation with the PKK in Diyarbakır -Lice on 22 October 1993.”

B. Relevant domestic law

a. Constitutional provisions on administrative liability

Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:

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

…

The administration shall be liable to make reparation for 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 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.

Proceedings against the administration may be brought before the administrative courts. The proceedings are in writing.

b. Criminal law and procedure

The Turkish Criminal Code ( Türk Ceza Kanunu ) makes it a criminal offence:

– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);

– to issue threats (Article 191);

– to subject an individual to torture or ill-treatment (Articles 243 and 245);

– to commit unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450).

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 CCP, with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP).

A public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient (Article 164 CCP).

Insofar as a criminal complaint has been lodged, a complainant may file an appeal with the Assize Court ( Ağır Ceza Mahkemesi ) against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP).

c. Civil-law provisions

Any illegal act by police officers or other 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 Code of Obligations ( Borçlar Kanunu ), 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 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47.

e. Impact of Decree no. 285

In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State security prosecutors and courts established throughout Turkey.

The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § i , provides that all security forces under the command of the regional governor shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces committed in the context of the exercise of official duties must issue a decision of lack of jurisdiction ( görevsizlik kararı ) and transfer the case to the District Administrative Council ( İlçe İdare Kurulu ). These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.

COMPLAINTS

The applicant complains that her husband died as a result of torture inflicted on him by gendarmes while in custody. She invokes Articles 2 and 3 of the Convention.

The applicant also maintains that the unlawful arrest of her husband constituted an interference with his right to liberty and security of the person, in breach of Article 5 § 1 of the Convention.

The applicant also complains, with reference to Article 5 § 3 of the Convention, that her husband was not brought promptly before a judge after his arrest.

Furthermore, the applicant alleges with reference to Article 5 § 4 of the Convention, that her husband had been held in custody for fifteen days and did not have under Turkish law any remedy which would have allowed him to contest the lawfulness of his custody.

Finally, the applicant complains that her husband did not have the benefit of legal assistance during his time in custody. She maintains that this failing gives rise to a violation of Article 6 § 3 (c) of the Convention.

PROCEDURE

The application was introduced on 13 September 1996 and registered on 30 September 1996.

On 7 April 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 20 August 1997. The applicant replied on 12 November 1997, after an extension of the time-limit.

On 23 January 1998 the Commission granted the applicant legal aid.

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

1. The applicant maintains that her husband, M.Ö., was tortured by members of the security forces and died in consequence thereof. She invokes Articles 2 and 3 of the Convention, which provide respectively:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

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

( i ) The Government’s preliminary objection

The Government maintain that it was not possible to prosecute the two gendarme officers responsible for the offences at issue under the Penal Code since they were no longer alive. They maintain that the applicant has not substantiated her assertion that the deceased gendarmes were not responsible for her husband’s death. The Government point to the fact that the President of the Siverek Assize Court rejected a similar assertion in his decision of 6 March 1996.

The Government maintain that it was open to the applicant to have the decision of 6 March 1996 re-opened if she can establish new facts or new evidence in respect of the circumstances surrounding her husband’s death. This course of action is foreseen in Article 167 § 2 of the Code of Criminal Procedure.

Moreover, in application of Article 129 § 5 of the Constitution, the applicant could have brought an action before an administrative court alleging that she had suffered harm as a result of the acts of the agents of the State. Notwithstanding this possibility, the applicant did not take proceedings against the Ministry of the Interior although the prosecutor’s non-jurisdiction decision of 6 April 1994 expressly referred to the fact that two named gendarmes agents had been charged with the death of her husband. By introducing an application with the Convention institutions instead of availing herself of domestic remedies, the applicant had failed to comply with the requirement to exhaust domestic remedies. On that account, her application should be declared inadmissible.

The applicant states in reply that the courts in the state of emergency region are not impartial and that public prosecutors do not conduct effective investigations into complaints of torture by members of the security forces. Any dissent to the measures taken in the region to repress organisations threatening the territorial integrity of the State is treated as treason.

The applicant further contends that there is an administrative practice of torture and that victims are afraid to bring complaints of torture to the notice of the authorities.

The applicant maintains that it would be impossible for her to have the investigation into her husband’s death re-opened. She states in this connection that her challenge to the non-prosecution decision had been rejected without any reasons having been given.

With reference to Convention case-law, the applicant maintains that domestic remedies aimed at compensating relatives of victims of torture are not effective and on that account she cannot be criticised for not having availed herself of them.

The Court recalls with reference to its settled case-law that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 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. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see among many other authorities, the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52; more recently, the Tankrikulu v. Turkey judgment of 8 July 1999, to be published in Reports 1999, § 76).

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 the part of State agents, the Court notes that a plaintiff in such an action must, in addition to establishing a causal link between the tort and the damage he or she has sustained, identify the person believed to have committed the tort. In the instant case, the applicant disputes the accuracy of the authorities’ conclusion on the identity of the gendarmes who were responsible for her death. Her primary aim in lodging her complaint under the Convention was to secure a ruling that her husband was tortured and killed by State agents and that no effective investigation was carried out into the circumstances which led to his death. On that account the applicant cannot be faulted for not taking a civil action. The Court recalls in this connection that a Contracting State’s obligation under Articles 2, 3 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault or torture might be rendered illusory if in respect of complaints under those Articles an applicant were to be required to exhaust a remedy which only led to an award of damages (see the Aytekin v. Turkey judgment of 23 September 1998, Reports -VII, p. 2828, § 84; the Selmouni v. France judgment of 28 July 1999. To be published in Reports 1999, § 79). The Court observes that similar considerations apply with respect to an action in administrative law under Article 125 of the Constitution based on the authorities’ strict liability.

For the above reasons the Court considers that the applicant was not required to bring the civil and administrative proceedings in question and the preliminary objection concerning such proceedings is unfounded.

With regard to the criminal-law remedies the Court notes that it is not in dispute that an investigation was opened into the death of her husband. On the other hand, the applicant contests its effectiveness and in particular the outcome. The Court considers that this is a matter which must be examined on the merits. For that reasons it joins the preliminary objection concerning remedies in criminal law to the merits of the complaints under Articles 2 and 3 of the Convention.

(2) Merits

The applicant states that the only basis for the public prosecutor’s decision not to prosecute was the information provided by the Diyarbakır gendarme regiment. In the applicant’s submission the Diyarbakır gendarme regiment merely provided the public prosecutor with the names of deceased gendarmes. The public prosecutor did not conduct an investigation into the accuracy of the information provided with a view to determining whether the named gendarme officers were indeed the culprits. He did not examine the register of officers kept by the gendarme regiment. Since interrogation teams consist of at least three gendarmes it must be concluded that not all the names of the culprits were supplied.

The applicant further maintains that Burhanettin Aykenar who had declared in his statement of 11 October 1993 that he could not remember the incident was nonetheless able to recall the precise events exactly two months later when he gave a different account of them in his statement of 8 December 1993 to the public prosecutor.

Moreover, the applicant alleges that Ender Köseoğlu whose statement was taken on 29 April 1994, 23 days after the non-prosecution decision, lied in his testimony. The applicant contends in this connection that interrogators have to use code-names. It is therefore strange that Ender Köseoğlu was able to identify the names of the gendarmes who interrogated her husband.

As further proof of the inadequacy of the investigation into her husband’s death, the applicant maintains inter alia that a transfer record ( teslim tesellüm belgesi ) was not prepared when M.Ö. was removed from Çınar gendarme regiment to the Diyarbakır gendarme regiment.

Neither the Ministry of Interior nor Diyarbakır Gendarme Commander’s Office attempted to carry out an effective investigation.

The applicant maintains that despite taking criminal proceedings against C.G., the public prosecutor did not take into consideration the relevance of C.G.’s file to the investigation into the death of her husband.

The applicant finally contends that she was not informed about the progress in the investigation nor about the decision not to proceed with the charges against the deceased gendarme officers.

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.

2. The applicant invokes Article 5 of the Convention, which provides to the extent relevant:

“1. 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 a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The applicant asserts that her deceased husband’s arrest was arbitrary in violation of Article 5 § 1 of the Convention. Furthermore, he was not brought promptly before a judge after his arrest, in violation of Article 5 § 3. The applicant also contends, with reference to Article 5 § 4, that he was held in custody for fifteen days and did not have any remedy in domestic law which would have allowed him to contest the lawfulness of his detention.

The Court observes that the applicant’s husband was taken into custody on 21 June 1993 and died on 5 July 1993 while still under the control of the security forces. Since her application was lodged with the Commission on 13 September 1996 her complaints under this head must be considered time-barred in application of the six-months’ rule provided for in Article 35 § 1 of the Convention and therefore inadmissible under Article 35 § 4.

3. The applicant further contends that the fact her husband was denied access to a lawyer in custody gives rise to a breach of Article 6 § 3 (c) of the Convention, which states:

“Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

The Court observes that, as with the applicant’s complaint under Article 5 of the Convention, the complaint under this head must also be declared inadmissible for non-compliance with the six-months’ rule in application of Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, by a majority,

JOINS TO THE MERITS THE GOVERNMENT’S PRELIMINARY OBJECTION CONCERNING THE EFFECTIVENESS OF THE INVESTIGATION CONDUCTED INTO THE DEATH OF THE APPLICANT’S HUSBAND;

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaints that her husband was ill-treated in custody and died as a consequence and that no effective investigation was carried out by the authorities into his death;

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President