FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27306/95 by Hayriye KÄ°ÅžMÄ°R against Turkey

The European Court of Human Rights ( First Section ) sitting on 14 December 1999 as a Chamber composed of

Mr J. Casadevall, President , Mr Gaukur Jörundsson, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, judges , Mr B. Zupančič,

Mr F. Gölcüklü, ad hoc judge

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 Hayriye KiÅŸmir against Turkey and registered on 12 May 1995 under file no. 27306/95;

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

– the Commission’s decision, of 15 September 1995, to communicate the application;

– the observations submitted by the respondent Government on 14 February 1996 and the observations in reply submitted by the applicant on 3 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who was born in 1948, is a Turkish national and she resides in Diyarbakır .

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

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

A. Particular circumstances of the case

The applicant gives the following account.

On 6 October 1994 at about 1.30 a.m., seven police officers from the Diyarbakır Security Directorate, who were looking for the applicant’s son Aydın Kişmir , came to the applicant’s house in Diyarbakır . The police officers questioned the applicant about her son’s whereabouts. Aydın had previously been taken into police custody on 26 August 1993, placed in detention on remand 8 September 1993 and released on 10 November 1993. Therefore, as he was afraid to find himself in the hands of the police once again, he was hiding at his relative Barış’s house in Diyarbakır . Bearing all this in mind, the applicant’s mother told the police officers that Aydın had gone to İstanbul .

The police officers further questioned the applicant’s two other sons, İrfan and Turan , who also confirmed that their brother was in İstanbul . The officers conducted a search in the house and allegedly took a certain amount of German marks. Five of the police officers left, taking İrfan and Turan with them, whereas two others stayed and continued to question the applicant and her daughter, Saniye , until morning.

At about 7 a.m. on the same day, there was a change of shift. That morning the applicant's husband, Mersin , returned home. The police stayed for two days and two nights, changing shifts at 8 a.m. and 8 p.m. After the second day, the police forced the applicant's husband to sign a paper.

The police officers took İrfan and Turan to the Police Academy where they were questioned about Aydın for an hour and a half. Thereafter İrfan and Turan were taken to Diyarbakır State Hospital to be examined by a doctor. From the hospital they were brought back to the Police Academy and again interrogated about Aydın .

The police asked İrfan about his relative, Barış . İrfan informed them that he knew Barış , who was both a childhood friend of Aydın’s and a relative, and gave his address. Consequently, the police went to Barış's house, taking İrfan with them.

On the morning of 6 October 1994, Barış's mother (E.K.) warned Aydın when she saw the police vehicles in front of the door. Aydın and Barış tried to run away but were caught while they were going up onto the roof. As the police were taking Aydın , Barış and Barış's brother, Yılmaz , downstairs, Aydın once again attempted to escape. Yılmaz and Barış heard one of the police officers say that he was going to kill Aydın , but the other officers stated that they needed Aydın for interrogation. Aydın was caught in the doorway and made to lie face down. He was handcuffed and a gun was held to his head. According to İrfan , Aydın was beaten. Yılmaz states that Aydın’s head was bleeding and he was shouting.

Thereafter, Barış and Yılmaz were put in one vehicle and Aydın in another and they were taken to the Police Academy. After ten minutes, they were taken to the State Hospital for a medical control. They were then put back into the vehicle. Yılmaz and Barış were in the back seat. Yılmaz heard the two policemen sitting in the front saying " Aydın told the doctors at the hospital that he had been tortured and that he was going to be killed. Let him come to the 'camp'. We'll show him that death will not be that easy." Yılmaz , Barış and Aydın entered to the Police Academy together. İrfan was also brought back to the Police Academy. Later, he realised that Aydın had joined them. İrfan states that as soon as the police officers brought Aydın , he was taken for torture. İrfan heard Aydın scream that his arm was going to break off and that he could neither clap his hands nor was he able to walk. The rest of the time Aydın was constantly screaming and saying that he was innocent.

Barış and Yılmaz were put into different cells. Yılmaz was in cell no. 13 where he could hear Aydın screaming. Yılmaz was later moved into cell no. 8, from where he could hear most of the conversations between the police officers and Aydın . He heard the police officers threaten Aydın , telling him that death would not be easy. Aydın was saying that he was innocent, that he could not walk or clap his hands. The torture lasted about one hour. Yılmaz , looking through the grill in the door, saw that Aydın was being taken away by the policemen, who were holding him from his arms and dragging him along the ground.

On 7 October 1994 Yılmaz was taken to the interrogation room. He was asked if Aydın was a member of the organisation (i.e. the PKK). He was further questioned about Barış's relationship with Aydın and the reason why Barış’s family let Aydın stay in their house.

On 8 October 1994 Yılmaz signed a statement of 7 pages, which the police had drawn up. He does not know what they contained. He was taken to Diyarbakır State Hospital and was forced to tell the doctor that he had not been tortured. He was released after the medical examination. İrfan was also released on 8 October 1994, following a medical examination.

When İrfan returned home, he and Yılmaz told the applicant that Aydın was in custody and he was being very badly tortured. The applicant went to the Human Rights Association (IHD) for help and on 8 October 1994 he applied to the Public Prosecutor attached to the State Security Court for information. The prosecutor acknowledged on 10 October 1994 that the applicant's son was under police custody.

On 11 October 1994 at about 6 p.m., the police went to the applicant's house and thereafter to Barış's house. They told the neighbours that Barış was in a coma, and that the applicant had to go and pick up Aydın’s body. On the morning of 12 October 1994 the neighbours informed the applicant and she went to the hospital. The police first denied any knowledge. She was about to go home when her brother-in-law, Ahmet , arrived, saying that the police had told him that Aydın's body was at the morgue. The police at the hospital continued to deny that they had Aydın's body. Two hours later they acknowledged that Aydın’s body was indeed at the morgue. However, the applicant’s request to see his son was refused. The Prosecutor at the hospital told the applicant’s relative Ahmet that Aydın had thrown himself from the seventh floor and asked Ahmet whether he wanted to prosecute. Ahmet told the public prosecutor that there was no use in filing a complaint as Aydın had been killed by the police who then tried to cover up his death by saying that he had thrown himself from the seventh floor.

Aydın's burial certificate states that Aydın had been reported dead on 12 October 1994. The necessary forensic and medical examination of the body and the autopsy were performed on 13 October 1994. When the applicant requested a copy of the autopsy report, she was told that all documents had been sent to Ankara. On 13 October Aydın was buried.

The respondent Government make the following submissions.

The Government do not dispute the facts submitted by the applicant up until the detention of Aydın Kişmir .

On 6 October 1994 Aydın Kişmir was arrested in Diyarbakır along with Barış Kalkan , Mehmet Şirin Demir , Turan Kişmir , Behçet Ekinci , İrfan Kişmir and Yılmaz Kalkan for collaborating with the PKK.

When the policemen entered Barış Kalkan’s flat to arrest Aydın Kişmir , Aydın tried to escape but lost his balance and fell down the stairs, hitting a wall. He was arrested in the entrance of the building. A false identity card was found on him.

Immediately after his arrest, he was taken to Diyarbakır State Hospital to have his wounds attended to. According to the medical report he had two wounds, one on the right eye and another on the right foot toe. The doctor stated that the wounds were not of a dangerous nature. Later the same day, Aydın Kişmir was again taken to the Diyarbakır State Hospital for treatment of a bleeding wound in the head, a 6 cm. long laceration in the occipital area. The doctor stated that Aydın Kişmir did not need hospitalisation and gave him medication.

Thereafter the applicant's son was taken to the police headquarters and put in a cell, without being interrogated. According to the statement of Ramazan Kutlu , a detainee from the same cell with Aydın Kişmir , the police gave Aydın his medication regularly. In the early hours of 11 October 1994 Aydın Kişmir's condition deteriorated. He died as he was being taken to the hospital.

On 12 October 1994 an autopsy was conducted in Diyarbakır . The autopsy report stated that Aydın Kişmir's death had occurred due to asphyxia. As the cause of asphyxia could not be identified, certain dissections of body parts were sent to the Forensic Institute Directorate in İstanbul for further forensic investigation. According to the report of the Chemical Analysis Section of the Institute, dated 7 December 1994, no toxicological evidence was detected on any of the body parts sent. On 12 December 1994 a second report was prepared by the hystopathological laboratory stated that no peculiarities were detected on any of the body parts that are sent for investigation. Subsequently, on 25 January 1995, a final report was issued by the First Committee of Experts of the Ministry of Justice, Directorate of Forensic Medicine, which reads as follows:

“1. External examination and autopsy did not yield traces of any trauma or concussion other than skin lacerations on the top of the head, on the side of right eye-brow and on the great toe; therefore the death could not have resulted by any such action;

2. No toxicological traces were detected in the organs, which leaves out the possibility of toxic death;

3. Although cyanosis in the face, lips and finger nail beds and sub-pleural bleeding in the lungs point to asphyxia, no traces of any tissue damage at and around the neck or of any damage due to pressure in the abdominal and chest region have been found; it is therefore concluded that death was not a result of mechanical asphyxiation;

4. Since a high rate of oedema is detected in the lungs and the brain, and ulcer formation and bleeding is observed in the stomach, the cause of death is considered to be the general condition of anoxia and that the asphyxia findings are based on lung oedema resulting in insufficient aspiration;

It is unanimously concluded that death occurred due to respiratory insufficiency.”

On 7 November 1995 the Diyarbakır Public Prosecutor gave a decision of non- prosecution as he concluded that there had been no ill-treatment or torture.

The Diyarbakır Public Prosecutor conducted a further investigation into the death of Aydın Kişmir and on 19 December 1996 he gave a decision of non-prosecution once again. This decision was served on the applicant on 27 January 1997.

The applicant further submitted an expert report, from a British doctor, which states that Aydın Kişmir’s death could in fact be due to the action of the custodians, as asphyxial death may occur without leaving specific external injuries.

B. Relevant domestic law and practice

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). As regards unlawful killings, there are provisions dealing with manslaughter (Articles 452, 459) and murder (Articles 448, 450).

In general, in respect of criminal offences, complaints may be lodged, pursuant to Articles 151 and 153 of the 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 not to institute criminal proceedings.

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."

Civil and administrative procedures

The principle of administrative liability is reflected in the additional Article 1 of Law 2935 of 25 October 1983 on the State of Emergency, which provides:

(translation)

"...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."

Any illegal act by civil servants, be it a crime or a tort, which causes material or non-material damage may be the subject of a claim for compensation before the ordinary civil courts and the administrative courts.

COMPLAINTS

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

As to Article 2, the applicant refers to the death of her son in custody, in circumstances suggesting that he died under or as a result of torture. She alleges that the Government failed to protect her son's right to life. She further refers to the lack of any effective system for ensuring protection of the right to life and to the inadequate protection of the right to life in domestic law.

As to Article 3, the applicant alleges that her son was tortured in custody and died under or as a result of torture.

As to Article 6, the applicant submits that she 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 her son was subjected.

As to Article 13, the applicant complains of the lack of any independent national authority before which these complaints can be brought with any prospect of success.

As to Article 14, in conjunction with Articles 2, 3 and 13 she complains of an administrative practice of discrimination on grounds of ethnic origin.

PROCEEDINGS BEFORE THE COURT

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

On 15 September 1995 the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 14 February 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 3 April 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 complains of the death of his son while he was in police custody. He invokes Article 2 (the right to life), Article 3 (the prohibition on inhuman and degrading treatment), Article 6 (the right to fair trial), Article 13 (the right to effective national remedies for Convention breaches) and Article 14 (the prohibition on discrimination) of the Convention.

Preliminary Objections:

The Government maintain that the application is inadmissible as the applicant has failed to exhaust domestic remedies as required under Article 35 § 1 of the Convention. In this regard they submit that the applicant did not challenge the public prosecutor’s decision of non-prosecution. They further submit that in so far as the applicant is convinced that the state was responsible for the death of her son, the applicant should have initiated administrative proceedings that are available under Turkish law and which are effective. Moreover, they state that it is also possible to take civil proceedings seeking compensation.

The applicant responds that pursuant to Article 165 of the Turkish Criminal Procedure Code, the request to challenge a decision of non-prosecution should be accompanied by proof and facts, which justify the opening of prosecution. They submit that this was difficult in their case as the applicant was denied access to the autopsy report. They further maintain that a challenge to a decision of non-prosecution offers no prospect of success. As regards the civil and administrative remedies referred to by the Government, the applicant submits that these remedies cannot be regarded as effective in her situation.

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 OÄŸur v. Turkey, it held that the applicant was not required to bring the civil and administrative proceedings as those relied on by the Government in the instant case. 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 causal 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. However, the investigation, which the Contracting States were obliged by Articles 2 or 13 of the Convention to conduct in cases of fatal assault, had to be able to lead to the identification and punishment of those responsible.

That obligation accordingly could not be satisfied merely by awarding damages. Otherwise, if an action based on the state’s strict liability were to be considered a legal action that had to be exhausted in respect of complaints under Articles 2 or 13, the State’s obligation to seek those guilty of fatal assault might thereby disappear (see the Oğur v. Turkey judgment cited above, § 66).

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 further considers that the Government’s preliminary objection as to the criminal procedure raises issues that are closely linked to those raised by the applicant’s complaints under Articles 2 and 13 of the Convention (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, no. 88, § 78).

Consequently, the Court dismisses the Government’s preliminary objection in so far as it relates to the civil and administrative remedies relied on. It joins the preliminary objection concerning remedies in criminal law to the merits.

As regards the merits of the complaints:

The applicant alleges that his son was killed as a result of torture under police custody. She further complains of the lack of any independent and national authority before which these complaints can be brought with any prospect of success and discrimination in the enjoyment of her Convention rights. She also submits that she 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 her son was subjected. In this respect, she invokes Articles 2, 3, 6, 13 and 14 of the Convention.

The Government deny all the allegations concerning the ill-treatment and torture of the applicant's son. They contend that the applicant's son had died because of natural causes while he was in police detention.

The applicant maintains her account of events.

The Court considers, in the light of the parties' submissions, that the case 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. The Court concludes therefore, that the application is not 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 APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Josep Casadevall Registrar President