FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31866/96

by Kadir SATIK and others

against Turkey

The European Court of Human Rights ( First Section) sitting on 31 August 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr Gaukur Jörundsson ,

Mr B. Zupančič ,

Mr T. Pantiru ,

Mr R. Maruste , Judges ,

Mr F. G ölcüklü, ad hoc Judge,

with 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 26 July 1995 by Kadir SATIK, Murat SATIK, Ali Haydar ÖZDEMİR, Songül DİRİBAŞ, Fesih YILMAZ, Saime SEFER, Yaşar YAĞCI, Terzan ADIBELLİ, Mehmet ERMİŞ, Abdülkadir ERASLAN against Turkey and registered on 12 June 1996 under file no. 31866/96;

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 8 December 1997 and the observations in reply submitted by the applicants on 10 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The ten applicants are all Turkish citizens and are all currently detained in Buca Prison, İzmir . The applicants are Kadir Satık , Murat Satık , Ali Haydar Özdemir , Songül Diribaş , Fesih Yılmaz , Saime Sefer , Yaşar Yağcı , Terzan Adıbelli , Mehmet Ermiş and Abdulkadir Eraslan .

The applicants are represented before the Court by Mr Tuncer Fırat , a lawyer practising in İzmir .

A. Particular circumstances of the case

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

1 . The facts as presented by the applicants

On 20 July 1995 the 10 applicants, along with 12 other prisoners, were taken from their cells to an area of the prison in order to be brought before the Izmir State Security Court for trial.

While the applicants together with the other prisoners were waiting to be collected, prison officials tried to search them including their shoes. They objected to the search, stating that it was an arbitrary act and that they would refuse to be taken to court if the prison administration insisted on carrying out the search.

In view of the applicants’ resistance, the prison administration enlisted the help of gendarmes who were waiting outside the prison to accompany the prisoners to court.

Approximately 50 gendarmes, 30 prison warders and prison administrators subsequently attacked the applicants and other prisoners with truncheons and wooden planks.

As a consequence, one of the ribs of the applicant Terzan Adıbelli was broken and the liver of the applicant Yaşar Avcı was damaged. The other applicants sustained injuries to their bodies.

2 . The facts as presented by the Government

The Government dispute this version of the incident. With reference to the investigation carried out by the Public Prosecutor, they maintain that more that 20 prisoners refused to be searched before being taken to court. They linked themselves together and proceeded towards the prison exit. When they were descending the staircase, still linked, they fell on top of one and another. They hit the wall and the handrail. Four prison warders were also injured in the crush.

The same day the applicants, after having waited for some time, were taken to the State Security Court in Ä°zmir in prison vehicles.

3. The applicants’ complaint to the authorities

At the hearing, the applicants’ representatives made complaints against the persons responsible for the assault. They stated that the applicants had been beaten before being taken to court and requested the court to examine and take note of their injuries and to investigate the incident.

The court noted the applicants’ condition and decided to postpone the proceedings on the grounds that it was impossible to hold a hearing in such circumstances. In its decision, the court ordered that the applicants be examined by a doctor with a view to determining whether they had been assaulted as alleged. The court also ordered that the medical findings together with the minutes of the hearing be sent to the Office of the Izmir Public Prosecutor with a view to the opening of an investigation. A letter to that effect was sent the same day to the Public Prosecutor.

Also on 20 July 1995 the father of one of the applicants, Abdulkadir Eraslan , lodged a complaint about the incident with the Office of the Public Prosecutor in Izmir . On the same day, the Public Prosecutor wrote to the Public Prosecutor at Buca Prison requesting him to take a statement from Abdulkadir Eraslan and to have him medically examined if he complained about being tortured. The statement and any medical report drawn up were to be sent to him.

4. The investigation of the Public Prosecutor

On 20 July 1995 the İzmir Public Prosecutor carried out a preliminary investigation in response to the court’s decision. The Public Prosecutor went to the prison on 20 July 1995 to take statements from several of the victims. On the same day the prison doctor examined all the detainees and those whose injuries were found to be serious were taken to hospital. Since two of the applicants ( Mehmet Ermiş and Terzan Adıbelli ) had to be taken to hospital, their statements could only be taken by the Public Prosecutor on 14 August 1995.

( a) the applicants’ statements to the Izmir Public Prosecutor

On 20 July 1995 statements were taken from the victims, including 8 of the 10 applicants: Kadir Satık , Murat Satık , Ali Haydar Özdemir , Songül Diribaş , Saime Sefer , Yaşar Yağcı , Fesih Yılmaz and Abdülkadir Erarslan . The statements of the two other applicants Mehmet Ermiş , and Terzan Adıbelli were taken on 14 August 1995, after their discharge from hospital.

The applicants were consistent in their statements in alleging that they had been taken from their cells and assembled in front of the prison door. They were ordered by the prison administrators and the warders to take off their shoes. This was the first occasion on which such an order had ever been given. The applicants refused to comply and stated that a search could be carried out on them using metal detectors. The prison administrators then admitted the gendarmes who were outside the prison and they, together with the prison warders, began to hit them.

In their statements to the Public Prosecutor some of the applicants gave the names of the warders involved while others gave their ranks. Some applicants also stated that they could identify those responsible for the assault.

On 25 July 1995 a second statement was taken from Abdülkadir Eraslan . He told the Public Prosecutor that on the day of the incident he and other prisoners had protested about being subjected to inhuman treatment. He stated that a number of warders and gendarmes then hit the protestors with batons and wooden sticks. The beatings continued until they had reached the exit gate.

On 14 August 1995 four remaining victims including the applicants Mehmet Ermiş and Terzan Adıbelli gave statements to the Public Prosecutor. These statements were consistent with the statements given by the other applicants.

(b) the statements of the prison staff to the Izmir Public Prosecutor

On 20 July 1995 three prison officials were questioned by the Public Prosecutor. They were all consistent in stating that the prisoners had been repeatedly warned by their superiors that they had to submit to a search procedure. The prisoners objected and refused to be taken to court. The gendarmes then tried to lead them by the arms down the stairs of the prison. However, the prisoners formed a chain and this created a crush on the stairs. Some of the prisoners had to jump to safety while others fell. They injured themselves when they hit the walls, the stairs, and the iron railings. Several warders were also injured.

(c) the medical reports on the applicants

In the presence of the Public Prosecutor who arrived at Buca Prison at 6:00 p.m. on 20 July 1995, 18 of the prisoners (including 8 of the 10 applicants: Kadir Satık , Murat Satık , Ali Haydar Özdemir , Songül Diribaş , Fesih Yılmaz , Saime Sefer , Yaşar Yağcı , and Abdulkadir Eraslan ) were medically examined by a forensic doctor ( adli tabip ) at 8.30 p.m. The reports indicated that they all had been hit on the head and/or other parts of the body. While the injuries were described in detail, no explanation was given for their cause. The applicants Terzan Adıbelli and Mehmet Ermiş were sent to hospital for medical examinations.

On 21 July 1995 the Buca Prison Administration sent 4 more applicants for a medical examination. Fesih Yılmaz was sent to İzmir Dental Hospital, Kadir Satık , Murat Satık and Ali Haydar Özdemir were sent to İzmir State Hospital. The hospital discharge report for Terzan Adıbelli (date illegible) indicated that he suffered “general body trauma as a result of battery” ( darp ).

On 9 October 1995 a forensic doctor from the İzmir State Hospital went to the Buca Prison to examine Terzan Adıbelli , Murat Satık and Yaşar Avcı . He reported that Terzan Adıbelli and Yaşar Avcı had been hospitalised between 20 and 25 July 1995 and Murat Satık between 20 and 28 July 1995. He noted that a final medical report would be drafted later.

On 18 August 1995 a doctor from the Forensic Medicine Institute examined, inter alia , Mehmet ErmiÅŸ and reported in detail to the Office of the Public Prosecutor that that applicant had wide-spread bruising to his body and face ( ÅŸiÅŸlik , ekimoz ). The report noted that the injuries were not life threatening and that he would recover within 20 days.

On 17 November 1995 a physicist from the Forensic Medicine Institution reported that Terzan Adıbelli and Yaşar Avcı who had been re-examined on 9 October 1995 had suffered from “general body trauma as a result of battery”. Terzan Adıbelli had not been able to do any prison work for 15 days and Yaşar Avcı for 10 days. The report stated that they would recover.

5. The criminal proceedings

The Public Prosecutor decided on 9 April 1996 not to prosecute the Director of Buca Prison and his staff for alleged ill-treatment of the prisoners. Two prisoners’ lawyers challenged this decision but their challenge was rejected on 25 June 1996 by the President of the Karsiyaka Assize Court.

An investigation was opened against the gendarmes at the Buca Prison. However the Office of the Izmir Public Prosecutor took the view that it had no jurisdiction to pursue this investigation since the incident arose out of the exercise by the gendarmes of their administrative duties. The investigation file was accordingly transferred on 11 April 1996 to the Administrative Council of Izmir . The Government state that the latter’s investigation is still continuing pursuant to the provisions of the law governing the prosecution of civil servants.

On 29 July 1997, following a request for information on the incident, the Izmir Public Prosecutor wrote to the Ministry of Justice. He informed the Ministry that the incident arose out of the refusal of prisoners at Buca Prison to submit to a search. The prisoners objected to being taken to court and they bunched together while descending the stairs leading to the main gate. Some of them fell injuring themselves. Some members of the prison staff were also hurt.

B. Relevant domestic law and practice

1. Criminal procedure

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 of the Code of Criminal Procedure – “CCP”). The 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.

Insofar as a criminal complaint has been lodged, a complainant may file an appeal 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).

2. Administrative liability

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

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

…

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

This provision is not subject to any restriction even in a state of emergency or war. the second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as 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.

3. Civil action for damages

Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court of the issue of the defendant’s guilt (Article 53).

PROCEDURE

The application was introduced on 26 July 1995 and registered on 12 June 1996.

On 20 May 1997, the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 8 December 1997, after an extension of the time-limit fixed for that purpose. The applicants replied on 10 February 1998.

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.

COMPLAINTS

The applicants complain of violations of Articles 2 and 3 of the Convention. As to Article 2, the applicants submit that the gendarmes, prison warders and their superiors assaulted them with the intention to kill.

As to Article 3, they complain that they were assaulted and subjected to inhuman treatment after an arbitrary decision of the prison administration to search them. The applicants maintain that the assault was planned and organised in order to intimidate them.

THE LAW

The applicants complain that their rights under Articles 2 and 3 of the Convention have been violated. These Articles provide:

“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.”

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

As to the whether the applicants have complied with the requirements of Article 35 § 1 of the Convention

The Government asserted that the applicants failed to exhaust domestic remedies and on that account their complaints should be declared inadmissible under Article 35 § 4 of the Convention. They referred to the two investigations initiated by the Public Prosecutor, the first in response to the decision of the Izmir State Security Court of 20 July 1995, the second following the lodging of complaints by the applicants, their families and their lawyers with the Public Prosecutor.

On 9 April 1996 the Public Prosecutor took a decision not to proceed with the prosecution. A challenge to this decision was rejected on 25 June 1996 by the President of the Karsiyaka Assize Court.

Further proceedings were brought against the gendarmes involved in the incident at the Buca prison. However for reasons of jurisdiction the investigation file was transferred to the Izmir Administrative Council. The Government stated that the latter’s investigation is still continuing pursuant to the provisions of the law governing the prosecution of civil servants.

The Government stressed that the authorities have shown a special interest in the investigation of the applicants’ complaints. They drew attention to the fact that the Minister of Justice has requested the Izmir Public Prosecutor to inform him about the state of the proceedings.

The Government in support of this objection to the admissibility of the applicants’ complaints maintained that it was also open to the applicants to sue for compensation under the provisions of the Civil Code or of the Administrative Procedure Law. As to proceedings under the latter law, the Government draw attention to the fact that the administrative courts in Turkey have handed down decisions ordering the administration to indemnify victims of its failure to secure and respect their human rights. Given that the applicants have not availed themselves of any of these remedies they must be considered to have failed to comply with the requirements of Article 35 § 1 of the Convention.

The applicants accepted that the Public Prosecutor conducted an investigation in response to the complaints which they had lodged. However, the decision was taken to discontinue the proceedings against the prison staff and the appeal against that decision taken by two of their fellow prisoners was to no avail. They point out that the decision of the Karsiyaka Assize Court of 25 June 1996 was only served on them on 23 June 1997 when they went to the Public Prosecutor’s office.

As to the proceedings against the gendarme and police officers, the applicants maintained that they have not been informed of the outcome of the investigation.

The applicants disputed the effectiveness of a civil law remedy in the circumstances of their complaint. The only remedy which would have been effective to redress their complaint was the prosecution and punishment of those who had violated their human rights. They further contended in opposition to the Government’s view that a decision not to discontinue criminal proceedings against an accused for lack of evidence would be binding on a civil court faced with a compensation claim arising out of the same set of facts. They drew attention to judgments of the Court of Cassation in support of this argument.

The Court notes that the applicants complain that they were ill-treated at the hands of the authorities by being subjected to a severe and unjustified assault. Their complaint was brought to the attention of the Public Prosecutor on the very day that the incident occurred. A number of measures were subsequently taken to investigate the applicants’ allegations. However, no definite conclusion has yet been reached on what actually happened at Buca Prison on the day in question. According to the Government the investigation with respect to the gendarmes is still continuing. In the Court’s opinion, the issue of whether the investigation can be said to be an effective remedy in respect of the applicants’ complaint can only be answered on the basis of a careful examination of the measures which have actually been taken to clarify the facts surrounding the incident and to follow-up the applicants’ allegations. For that reason the Court joins to the merits the Government’s objection to the admissibility of this complaint under this head to its examination of the effectiveness of the investigation conducted by the authorities.

The Court would further note that the civil and administrative law remedies referred to by the Government cannot in the circumstances be considered effective remedies which must first be exhausted by the applicants before lodging their complaint under the Convention. That complaint concerns an alleged violation of one of the most fundamental provisions in the scheme of the Convention which cannot be redressed solely through the award of compensation to the victims.

As to whether the applicants’ complaints can be said to be inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4

The Government maintained that the applicants’ complaints were manifestly ill-founded and inadmissible under Article 35 §§ 3 and 4 of the Convention. They contended that the conduct of a search procedure on prison inmates was a normal part of prison life and was carried out in the interests of security. A decision to search the applicants’ shoes cannot be construed as an arbitrary and degrading procedure, as alleged by the applicants. In their view there were grounds for considering that the applicants, all facing trial on charges of terrorism, had intentionally planned to refuse the search with a view to provoking an incident. The applicants were obliged under Article 14 of the Code of Criminal Procedure to attend court and it was not open to them to threaten the prison administration with a boycott of their presence at the court on specious grounds.

The Government referred to the findings of the investigation into the incident to dispute the credibility of the applicants’ account. They maintained that the applicants deliberately chose the moment when all the prisoners were assembled to resist being searched and taken to court. They knew that the prison administration would react to their refusal. However, neither the gendarmes nor the prison warders had any opportunity to intervene in view of the fact that the prisoners started to fall down the staircase since they had bunched themselves together.

Moreover, the Government pointed to several inconsistencies in the applicants’ allegations. The first applicant, Mr Satık , together with four other applicants, had complained to the Public Prosecutor that their statements had not been taken since they were in hospital. In response to their request to be heard, the Public Prosecutor ordered the prison administration to bring Mr Satık to his office. However he refused to attend. Furthermore, Mr Satık and several other applicants claiming to have been seriously injured and close to death refused on three occasions to attend a hospital for a further medical examination.

The applicants claimed that the prison administration was under no legal obligation to use force to secure their attendance at court. In their submission the use of force is only ordained by a court where force is deemed necessary. Even if a prisoner refuses to attend court the court has a discretion on whether that prisoner should be forcibly brought before it. They refer to precedents in this connection. They stated that they had been brought before the Izmir State Security Court on 13 June 1995. The court fixed the next hearing for 20 July 1995 but did not order that they be forcibly made to attend that hearing.

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 applicants’ complaint under Article 3. The Court concludes, therefore, that this complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, by a majority

JOINS TO THE MERITS the question of whether the applicants have exhausted domestic remedies;

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

Michael O’Boyle Elisabeth Palm Registrar President