FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28310/95 by Åž. T. against Turkey

The European Court of Human Rights ( First Section ) sitting on 9 November 1999 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr C. Bîrsan,

Mr B. Zupančič, Mr T. Panţîru, Judges , 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 17 April 1995 by Åž. T. against Turkey and registered on 24 August 1995 under file no. 28310/95;

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

Having regard to the observations submitted by the respondent Government on 6 May 1997 and the observations in reply submitted by the applicant on 25 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1971 and living in Diyarbakır .

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

The applicant is a member of the Diyarbakır Bar and practises as a lawyer in Diyarbakır .

On 18 January 1993 the applicant was arrested and taken to the Diyarbakır Security Directorate for interrogation. He was detained for a period of seven days before appearing before the State Prosecutor.

On 25 January 1993 the prosecutor charged the applicant with being a member of an armed gang, the PKK (Article 169 of the Turkish Penal Code), and applied for him to be detained on remand. The applicant was also accused of participating in the activities of the PKK, forming committees on its behalf, trying to recruit new militants for their mountain guerrilla teams and possessing illegal documents and two guns.

On the same day the applicant was detained on remand.

At a hearing on 15 March 1993 before the Diyarbakır State Security Court, the applicant denied all the charges and claimed that he was forced to sign a confession statement prepared by the police while being blindfolded. He maintained that he was not a member of PKK. He stated that one of the guns in question belonged to his father who held a licence for it and that the other was unlicensed and belonged to him. He also submitted that it was not he but his brother who tried to recruit new militants for the PKK’s mountain guerrilla teams and possessed the illegal documents on behalf of the armed gang at their house. He stated that after his brother’s death, he still kept these illegal documents on account of his fear of the gang and his brother’s warnings that these documents should be delivered to the gang in the future.

On 19 April 1993 the Diyarbakır State Security Court released the applicant on bail.

In a judgment dated 31 December 1993, the court found the applicant guilty of an offence under Article 169 of the Turkish Criminal Code. It sentenced the applicant to three years’ and nine months imprisonment. It also decided to prohibit him from entering the public service for three years. The court held that although the applicant had denied all the accusations, he had confirmed before the court that he was in possession of documents in order to deliver them to the gang sometime in the future. The court considered this acknowledgement as evidence of the applicant’s aim of becoming a member of the armed gang.

The applicant appealed against this judgment. He reiterated the defence which he had made before the State Security Court. On 26 October 1994 the Court of Cassation upheld the decision of the lower court.

COMPLAINTS

The applicant complains of a violation of Article 3 of the Convention.

He alleges that during his interrogation by the police, he was physically and mentally abused. He claims that he was deprived of adequate food and drink and that he was subjected to various forms of ill-treatment such as being sprayed with high-pressure cold water, given electric shocks and hung by the arms. He notes that he was interrogated by the police although as a lawyer he should have been interrogated by the Public Prosecutor.

PROCEDURE

The application was introduced on 17 April 1995 and registered on 24 August 1995.

On 25 November 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 6 May 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 25 July 1997.

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 complains that he was tortured while in detention between 18 January 1993 and 25 January 1993 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 maintain that in the proceedings before the Diyarbakır State Security Court the applicant only made vague allegations about having been subjected to pressure and force. He did so in order to have his statement declared inadmissible by the court. However, at the same time he relied on those parts of that same statement which he considered favourable to his defence. The Government state that such an attitude is inconsistent with the behaviour of an individual who claims to have been ill-treated in custody.

The Government assert that the applicant, who was released long before judgment was given in his case, could have lodged a complaint with the Public Prosecutor. He failed to do so. In submitting his complaint directly to the Commission he denied the domestic authorities the opportunity to address the merits of his complaint. For this reason, the Government argue that the application should be declared inadmissible on the basis of the non-exhaustion rule.

Without specifying a date, the applicant submits in reply that he told the Prosecutor attached to the State Security Court that he had been tortured. In his opinion this was sufficient notice of his complaint under Articles 152 - 153 of the Code on Criminal Procedure. However, no follow-up was given to his complaint. This, in his view, indicates that there are no effective remedies in respect of a torture complaint in domestic law and that there exists in Turkey an administrative practice of torture.

As to the merits of the Article 3 complaint, the Government contend that the applicant has not produced any evidence which would in any way substantiate that he was ill-treated in custody. In particular, he did not provide any indications in his application form lodged with the Commission as to the sort of treatment to which he was allegedly subjected.

In support of their argument, the Government rely on two medical certificates - which have not been produced before the Court - showing that the applicant was medically examined before and at the end of his time in custody. There is no indication that any trace of ill-treatment was found on his body. Furthermore, the applicant’s co-accused, Beşir Çakır , who was detained in custody at the same time as the applicant, did not made any complaint about ill-treatment and did not plead at the hearing on 15 March 1993 that he was forced or pressurised into signing a statement.

The Government also maintain that the applicant was a trainee lawyer at the time of his arrest. Accordingly, he had no right to be brought before the Public Prosecutor for questioning.

The Government contend that the applicant’s complaint should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

As to the Government’s reliance on the medical report, the applicant points out that a proper medical examination was never carried out on him. In his submission, the absence of marks of torture on the bodies of victims of torture is not inconsistent with the systematic practice of torture in Turkey, including mental torture. The applicant further states that the Prosecutor should have had him examined by the forensic medicine department. The fact that he did not do so proves that he was tortured. Furthermore, it would have been open to the Prosecutor to take statements from the two persons who were in custody with him: his brother, and Beşir Çakır who, he affirms, also stated before the Diyarbakır State Security Court that he had been forced to sign a statement. According to the applicant, that declaration should have been sufficient to give rise to a presumption of torture. Unfortunately his declaration had not been recorded on account of the court’s workload. The applicant insists that he had the status of a lawyer at the time of his arrest and on that account should have been questioned by the Public Prosecutor and not by the police.

The Court considers that it does not have to determine whether the applicant exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention since the application is inadmissible on other grounds.

In the Court’s opinion, the applicant has not substantiated that he informed the Public Prosecutor that he had been tortured in police custody or that the Public Prosecutor was in any way put on notice of his allegation. It further observes in this connection that in the proceedings before the Diyarbakır State Security Court the applicant confined himself to challenging the admissibility of his confession statement. He alleged that he had been forced to sign the statement and refers to having been blindfolded at the time. However, apart from blindfolding the applicant did not at any stage refer to having been ill-treated in any other way or give any indication of the sort of ill-treatment which he allegedly suffered.

It is also to be observed that the applicant did not specifically set out in his application form to the Commission the details of his alleged ill-treatment. These only emerged in a letter dated 27 July 1995 which the applicant sent to the Secretariat of the Commission in response to a request for further particulars of his allegation. It would appear surprising that given the gravity of the allegations made in that letter that the applicant, a lawyer, did not make any specific reference to these, either in his initial application to the Commission or at his trial. It is to be further noted that, although the applicant has contested the veracity of the medical reports referred to by the Government, he has not submitted any medical evidence of either physical injuries to his body or mental trauma consistent with having been tortured as alleged.

In the Court’s opinion the applicant has not laid the basis of an arguable claim that he was tortured in custody. It follows that he has not made out a case either that the authorities failed in their procedural obligation under Article 3 of the Convention to investigate his claim (see the Assenov v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p.p. 3293, § 117). For these reasons the Court considers that the complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President