FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27309/95 by Ahmet DÄ°ZMAN against Turkey

The European Court of Human Rights ( First Section ) sitting on 18 January 2000 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall, Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr R. Türmen, Mr B. Zupančič, Mr R. Maruste, judges ,

and Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 March 1995 by Ahmet Dizman against Turkey and registered on 12 May 1995 under file no. 27309/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 16 April 1996 and the observations in reply submitted by the applicant on 7 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1969 and living in Adana (Turkey).

He is represented before the Court by Professor Kevin Boyle and Ms Françoise Hampson , both university teachers at the University of Essex.

A. Particular circumstances of the case

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

The applicant gives the following account.

On 3 October 1994 Rehib Çabuk and Sefer Cerf were killed in Adana . They were respectively the district leader and administrative board member of HADEP ( Halkın Demokrasi Partisi - People’s Democracy Party ), a pro- kurdish political party. The applicant was a witness to the killing and attended their funeral on 4 October 1994.

On 5 October 1994, at about 11 a.m., while the applicant was reading a newspaper in the Erzurumlular Café in the Mutlu neighbourhood in Adana , two persons, who later identified themselves as policemen, entered the café. Both had pistols tucked into their waistbands. The applicant believes that they were from the anti-terrorism branch of the police. They told the applicant to come with them. He was put in a white car (Renault- Toros model) with registration number 01 HC 644, parked opposite the café. In the car there were two other police officers, armed with MP-5 automatic weapons. The applicant's elder brother, who was also in the café, asked the police officers why they were taking his brother away. The police stated that they wished to ask him a few questions and would return him to the café.

The car drove in the direction of Kabaktepe and stopped in a deserted field. The applicant was taken out of the car. As soon as he got out, the police officers started to punch and kick him and to beat him with the butt of their guns. The police officers told the applicant that they had seen him at the funeral of Sefer Cerf and Rehib Çabuk the day before. They threatened him that if he continued to be involved in such activities, his end would be like those of the dead HADEP members.

The police officers questioned the applicant about some local people. They forced the applicant to report the activities of local shopkeepers, who were allegedly selling the newspaper " Özgür Ülke " and collecting money, presumably for the PKK. The applicant was threatened that if he did not report about the political activities of these shopkeepers regularly, he would be killed. During this time, he was continuously beaten by the officers.

The applicant denied that he was involved in such activities and protested that they had no reason to treat him like a criminal. He was then put into the car and driven towards the town. Before releasing him, the officers gave an address to the applicant and ordered him to be there on the following Friday evening.

When the applicant reached home, his relatives took him to the hospital.

In a report dated 7 October 1994, the Adana Forensic Medical Institution found that the applicant's left jawbone had been broken. The report concluded that the fracture did not constitute a danger to life but would prevent him from carrying out his work for twenty-five days.

On the same day the applicant filed a criminal complaint with the Adana Public Prosecutor and requested to initiate criminal proceedings against the responsible police officers. He gave a detailed account of the incident and described the features of the officers. He received no reply to his request and is not aware of any proceedings that may have been initiated against the accused police officers.

The Government submit the following.

On 10 October 1994 the Adana Public Prosecutor commenced an investigation into the applicant’s allegations about ill-treatment. A medical report was issued on 7 October 1994 which mentions only the applicant's broken left jawbone without finding any other visible signs of injury or ecchymosis . The Government contend that it is not sufficient to conclude from this report that the applicant had been beaten. In this regard they draw attention to the fact that the applicant, despite a broken jaw, went to see a doctor two days after the incident, a fact which they find bewildering.

On 30 April 1999 the Government informed the Court that pursuant to the Act on the Procedure for the Prosecution of the Civil Servants, the public prosecutor declared lack of jurisdiction and transferred the case-file to the Adana Administrative Council. On 24 November 1994 the Adana Administrative Council found that there was not enough evidence to initiate criminal proceedings against the allegedly accused police officers and consequently refused to do so. The decision of the Adana Administrative Council was automatically transferred to the Supreme Administrative Council and, on 31 May 1996, the Supreme Administrative Council quashed the decision of the Administrative Council. Criminal proceedings were then initiated against the accused police officers in the Adana Criminal Court and, on 29 December 1997, the police officers were acquitted of the charges against them.

In the meantime, the Adana Police Disciplinary Council initiated proceedings against the accused police officers. In a hearing before the Council, the police officers stated that they had questioned the applicant during a search conducted in the café and maintained that they had not taken him away for interrogation. On 7 December 1994 the Disciplinary Council held that it was not possible to sentence the accused police officers for the alleged offence on the basis of the evidence in the case file.

B. Relevant domestic law and practice

Constitutional Provisions

Article 125 of the Turkish Constitution provides as follows:

(translation)

"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 procedures

The Turkish 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).

For criminal offences, 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 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 of the public prosecutor not to institute criminal proceedings within fifteen days of being notified (Article 165 of the Code of Criminal Procedure).

If the alleged author of a crime is a State official or civil servant, permission to prosecute must be obtained from local administrative councils. The local council decisions may be appealed to the State Council; a refusal to prosecute is subject to an automatic appeal of this kind.

Civil and administrative procedures

Under Section 1 of Law no. 466, a person who has been wrongfully held in police custody may apply to the local assize court for compensation within three months of a decision to drop the charges against him.

Furthermore, any illegal act by a civil servant, whether a crime or a tort, which causes pecuniary or non-pecuniary damage may be subject of a claim for compensation before the ordinary civil courts.

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

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 5, 6, 13 and 14 of the Convention.

As to Article 2, the applicant complains that the threats made to his life by the agents of the state while he was arrested and the lack of any effective system for ensuring the protection of his right to life constitute a violation of the obligation to protect the right to life.

As to Article 3, the applicant alleges that he was arrested and taken to a deserted place, where he was subjected to inhuman and degrading treatment by plain-clothes police officers. In this respect, the applicant submits a medical report issued by the Adana Forensic Institute, which states that the applicant’s left jaw-bone was broken and that his injuries would prevent him from work for twenty-five days.

As to Article 5, he alleges that he was arrested in circumstances that cannot be justified. He also asserts he was not given any reason for his arrest and maintains that his arrest was not lawful. He further alleges that he has no means of receiving compensation for his illegal arrest unless the public prosecutor brings criminal proceedings against the police officers responsible for the treatment to which he was subjected.

As to Article 6, the applicant further maintains that his right of access to a court was breached. In this respect, he submits that he was not allowed to initiate civil proceedings before an independent and impartial tribunal in the absence of prosecution brought against the persons responsible for the treatment to which he was subjected.

As to Article 13, he complains of the lack of any independent national authority before which his complaint can be brought with any prospect of a fair treatment or success.

As to Article 14, the applicant complains of discrimination on the grounds of ethnic origin and political activities, in the enjoyment of his rights under Articles 2, 3, 5 and 6 of the Convention.

PROCEDURE

The application was introduced on 31 March 1995 and registered on 12 May 1995.

On 15 September 1995 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 16 April 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 7 June 1996, also after an extension of the time-limit.

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 applicant makes complaints in respect of his arrest, alleging, inter alia , that he was ill-treated. He invokes Article 2 (right to life), Article 3 (prohibition on inhuman and degrading treatment), Article 5 (right to liberty), Article 6 (right of access to court), Article 13 (right to effective national remedies for Convention breaches) and Article 14 (prohibition on discrimination).

Exhaustion of domestic remedies:

The Government maintain that the application is inadmissible as the applicant has failed to exhaust domestic remedies before lodging an application with the Court. In this regard, the Government first refer to the pending investigation of the public prosecutor about the applicant’s allegations about ill-treatment. They further assert that the applicant could have sought reparation for the harm he allegedly suffered by instituting a civil law action in the civil or administrative courts.

The applicant replies that the administrative and civil remedies suggested by the Government cannot be regarded as effective in his situation.

The Court observes that on 30 April 1999 the Government informed the Court that the Adana Public Prosecutor declared lack of jurisdiction and transferred the case-file to the Adana Administrative Council for investigation. The Government further stated that on 24 November 1994 the Adana Administrative Council issued a discontinuation order on the ground that the evidence in the case-file did not suffice to initiate criminal proceedings against the accused police officers.  The Court was also informed that on 31 May 1996 the Supreme Administrative Court had quashed the decision of the Administrative Court and that criminal proceedings were initiated against the accused police officers in the Adana Criminal Court. The Court further found out that on 29 December 1997 the Adana Criminal Court had delivered its judgment and acquitted the police officers of the charges against them.

In these circumstances, the Court finds that the criminal proceedings that are referred to by the Government are terminated on 29 December 1997 with the final decision of the Adana Criminal Court.

As regards the civil and administrative remedies referred to by the Government, the Court points out that in its judgment of 20 May 1999 in the case of Oğur v. Turkey, it held that the applicant was not required to bring the civil and the administrative proceedings as those relied on by the Government in the instant case see ( Oğur v. Turkey, judgment of 20 May 1999, § 69). It noted first of all that, a plaintiff in a civil action for redress, concerning damage sustained through illegal acts or patently unlawful conduct on the part of State agents 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 applicant 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 prerequisite to bringing such an action. 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, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms in the Convention”, requires by implication that there should be an effective official investigation. This obligation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov v. Bulgaria, judgment of 28 October 1998, Reports, 1998-VIII, No. 96, p. 3290, § 102). The Court sees no reason to depart from those conclusions in the instant case and consequently it concludes that the applicant was not required to bring the civil and administrative proceedings suggested by the Government.

The Court considers, in the light of the foregoing, that the Government’s submission that the applicant has failed to exhaust domestic remedies cannot be upheld.

Merits:

1. The applicant submits under Article 2 of the Convention that the threats made to his life by the agents of the state while he was arrested and the lack of any effective system ensuring the protection of his right to life constitute a violation of Article 2 of the Convention. In their observations the Government did not comment on this complaint.

The applicant alleges under Article 3 of the Convention that he was arrested and taken to a deserted place, where he was subjected to inhuman and degrading treatment by plain-clothes police officers. In this respect, the applicant submits a medical report issued by the Adana Forensic Institute, which states that the applicant’s left jaw-bone was broken and that his injuries would prevent him from working for twenty-five days.

The Government state that the injuries that were observed on the applicant’s body did not suffice to conclude that the applicant had been beaten. In this regard they point out that the applicant, despite his broken jaw, had gone to see a medical doctor two days after the incident, which they find bewildering. They also state that the applicant’s allegations were not accurate as the medical report mentions only the applicant's broken left jawbone without finding any other visible signs of injury or ecchymosis .

The applicant maintains his account of events.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of 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.

2. The applicant alleges under Article 5 of the Convention that he was arrested in circumstances that cannot be justified. He also asserts he was not given any reason for his arrest and maintains that his arrest was not lawful. He further alleges that he has no means of receiving compensation for his illegal arrest unless the public prosecutor brings criminal proceedings against the police officers responsible for the treatment to which he was subjected.

The Government do not comment on this complaint.

The applicant maintains his account of events.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of 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.

3. The applicant further maintains under Article 6 of the Convention that his right of access to a court was breached. In this respect, he submits that he was not allowed to initiate civil proceedings before an independent and impartial tribunal in the absence of prosecution brought against the persons responsible for the treatment to which he was subjected. The applicant further complains of lack of any independent national authority before which, his complaint can be brought with any prospect of a fair treatment or success. The applicant also complains under Article 13 that he has no effective remedies in respect of the matters complained of.

The Government further maintain that there are several effective domestic remedies at the applicant’s disposal. They argue that domestic criminal, civil and administrative laws provide the applicant with adequate means of redress in respect of his complaints.

The Court recalls that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Aydın v. Turkey judgment of 25 September 1997, Reports 1997 - VI, p. 1894, § 99). Furthermore, Article 6 § 1 applies to a civil claim for compensation in respect of ill-treatment allegedly committed by State officials (see, for example, the Aksoy judgment of 18 December 1996, Reports 1996-VI, no. 26, p. 2285, § 92).

In the instant case, the Court observes that the applicant has never instituted proceedings before either the civil or administrative courts to seek compensation in respect of the suffering to which he was subjected to by the police officers.

It appears to the Court that the essence of the applicant’s complaint under Article 6 § 1 of the Convention is the failure of the national authorities to conduct an effective investigation. The Court recalls that in the case of Aksoy v. Turkey, cited above, it considered that since the applicant had not actually brought a civil claim for damage, it was more appropriate to examine this complaint in relation to the more general obligations on States under Article 13 to provide an effective remedy in respect of violations of the Convention. The Court, noting that the nature of the complaint under Article 6 § 1 of the Convention in the present case is comparable to the complaint in the Aksoy case, finds that there are no reasons to reach a different conclusion.

The Court considers therefore that it is appropriate to examine this complaint in relation to the general obligation on States under Article 13 to provide an effective remedy in respect of violations of the Convention.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of 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.

4. The applicant alleges under Article 14 of the Convention of discrimination on the grounds of ethnic origin and political opinion, in the enjoyment of his rights under Articles 2, 3, 5 and 6 of the Convention.

The Government have not addressed these allegations beyond denying the factual basis of the substantive complaints.

The applicant maintains his account of events.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of 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, by a majority,

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

Michael O’Boyle Elisabeth Palm Registrar President