FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28520/95

by Sadik ÖNDER

against Turkey

The European Court of Human Rights ( First Section) sitting on 29 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr Gaukur Jörundsson ,

Mr R. Türmen ,

Mr C. Bîrsan ,

Mrs W. Thomassen ,

Mr R. Maruste , Judges ,

Mr F. Gölcüklü , 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 28 August 1995 by Sadik Önder against Turkey and registered on 9 December 1995 under file no. 28520/95;

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 6 June 1997  and the observations in reply submitted by the applicant on 30 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1969. He is currently detained in Bayrampaşa prison in Istanbul. He is represented before the Cour t by Mr M. Selim Okçuoğlu , a lawyer practising in Istanbul.

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

A. Particular circumstances of the case

In 1989 the applicant was arrested in Kars for being a member of the Workers’ Party of Kurdistan (hereinafter PKK). He was tried in Erzincan State Security Court and imprisoned in Erzincan for 14 and a half months.

On 9 July 1994 the applicant was taken into police custody by the police officers of the Istanbul Police Headquarters anti-terrorism section on suspicion of being a member of the PKK. The police arrested 14 other persons together with the applicant.

The applicant alleges that he was ill-treated and tortured in the police car on the way to Istanbul Police Headquarters and during his detention there. During his interrogation, he was blindfolded and stripped naked. He was strung up by his arms in the form of torture known as “Palestinian hanging”. His head was hit on the walls and he was held parallel to the ground on his hands and feet. He was also electrocuted while his body was wet. He was threatened to be shot dead and insulted.

The applicant further claims that he was tortured into signing a statement in which it was stated that he had worked for and had been involved in the terrorist activities of the PKK. After having signed the statement prepared by the police, he was kept in custody for one more week so that any signs of ill-treatment would disappear. During that week, a police officer was coming to his cell at regular intervals and was smearing medicine on his wounds in order to cover up the signs of ill-treatment.

The Government submit that the applicant was questioned by the police on 15 July 1994. They have produced a copy of a statement signed by the applicant on this occasion.

On 22 July 1994 the applicant was seen by Dr. T. Taner Apaydın at Istanbul Forensic Medicine Institution together with 14 other detainees. According to the medical report prepared by Dr. Apaydın , there were no signs of beating or use of force on the bodies of the detainees.

According to the applicant, this medical examination was not conducted properly. He claims that, when he was brought for the medical examination, he was only asked if he felt any pain on his body. Although he replied that he had been tortured, the doctor did not discuss this allegation in the medical report.

The applicant alleges that he was brought to the Istanbul State Security Court Prosecutor together with other detainees on 22 July 1994. The applicant told the prosecutor that he had been tortured in police custody and forced to sign a statement. The prosecutor did not listen to him. He became angry and quarrelled with the applicant when the latter stated that he had been tortured. The prosecutor told the police officers to take the applicant and some of the detainees to the police headquarters and to bring them back on the following day. When the applicant was brought back to the police headquarters he was again tortured because he had told the prosecutor that he had been subjected to torture in police custody.

On 23 July 1994 the applicant was brought again before the Prosecutor of the Istanbul State Security Court ( Istanbul Devlet Güvenlik Mahkemesi ) and was questioned. The Government claim that this was his first appearance before the prosecutor. According to the records of this hearing, the applicant accepted that he had been imprisoned in Erzincan in 1989. However, he stated that after his release in 1992 he did not have any relation with the PKK. He denied the allegation that he was a still a member of the PKK and stated that the police had invented the statement taken in custody.

The applicant alleges that he told the prosecutor that he had been tortured once more when he was taken back to the police headquarters. Nevertheless the prosecutor did not examine this allegation and did not note this statement of the applicant in the records.

The applicant further states that he was not seen by a doctor before being questioned by the prosecutor on 23 July 1994 and consequently he does not have any medical evidence concerning the torture he had been subjected to on 22 July 1994.

According to both parties’ account, on 23 July 1994 the applicant was also brought before the Istanbul State Security Court Judge. He denied the allegations against him and stated that he was not a member of the PKK. He further declared that the statement he gave to the State Security Court Prosecutor was true. He was placed in detention on remand by the State Security Court Judge. He was transferred to a prison.

The applicant claims that he told the State Security Court Judge that he had been tortured in police custody and that he had explained this to the State Security Prosecutor.

While the applicant was held in detention in prison, he requested to see a doctor. The prison doctor prepared a provisional report for the applicant and he was sent to Eyüp Forensic Medicine Institution for medical examination. On 22 August 1994 a medical report was prepared by the institution and signed by the medical expert. The report said the following:

“The person was suffering widespread pain on his back, right arm and on both of his legs and, as a result of my examination, I have concluded that, as there exist no signs of traumatic lesion, his complaints can not be considered dangerous for his life but they would prevent him from working for one day.”   

(Registry translation)

According to the Government the report provided by the Institution said the following “the applicant complained of some pains. There is no sign of traumatic lesion. Therefore, his complaints did not constitute a danger to life but would prevent him from working for one day”.

This report was addressed to the Eyüp Prosecutor’s Office and one copy was forwarded to the applicant.

On 13 September 1994 the applicant filed a complaint with the Istanbul Public Prosecutor’s Office. He alleged that he had been ill-treated while in police custody and requested that proceedings be instituted against the officers . Nevertheless the applicant did not name any particular police officers.

On 11 January 1995 the Istanbul Public Prosecutor, having regard to the medical examination of the Eyüp Forensic Medicine Institution, decided not to prosecute the police officers Mehmet Durmuş and Murat Aydelik . The prosecutor decided that, as there had been no signs of traumatic lesion on the body of the applicant, there was insufficient evidence to open an investigation against the suspects.

On 8 February 1995 the applicant filed an objection with the B eyoğlu Assize Court ( Beyoğlu Ağır Ceza Mahkemes i ) against the public prosecutor’s decision.

On 7 March 1995 the B eyoğlu Assize Court dismissed the applicant’s objection.

On 15 June 1995 the Chamber of Medicine of Istanbul ( Istanbul Tabib Odas ı ), in the context of proceedings disciplinary, found that Dr. T. Taner Apaydın had concealed signs of torture in the medical examinations conducted on several persons between 3 February and 7 October 1994 and he was, therefore, prohibited from practising as a doctor for six months.

B. Relevant domestic law and practice

Article 17 of the Turkish Constitution provides:

“....

No one shall be subjected to torture or ill-treatment; no one shall be subjected to any penalty or treatment incompatible with human dignity.

...”

The Criminal Code ( Türk Ceza Kanunu ) provides, inter alia , the following:

Article 243:

"A president or member of a court or official body or any other public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, or engages in inhuman conduct or violates human dignity, shall be punished by up to five years' imprisonment and disqualified from holding public office temporarily or for life.

The sentence incurred under Article 452, where such conduct causes death, or under Article 456 in other cases, shall be increased by between one-third and one half."

Article 245:

"Civil servants charged with the forcible execution of an order, police officers and any other officials charged with enforcement who enforce the order concerned, either of their own accord or on the orders of their superiors, in an unlawful manner or who, in doing so, ill-treat, beat or cause bodily injury to another person shall be punished by between one and three years' imprison ment and temporarily disqualified from holding public office."

The Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ) provides, inter alia , the following:

Article 135/a:

“ The statement of the accused should be based on his free will. The accused shall not be subjected to physical or mental interference such as torture, administering medication by force, fatigue, deceit, use of physical force and hardship and other use of devices which will result in the obstruction of his free will.

No unlawful benefit shall be promised.

The statements that are extracted from the accused by using the unlawful ways described above cannot be considered as evidence even if the accused does not challenge their lawfulness.”

COMPLAINT

The applicant complains under Article 3 of the Convention that he was ill-treated and tortured in police custody.

PROCEDURE

The application was introduced on 28 August 1995 and registered on 9 December 1995.

On 13 January 1997, the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 6 June 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 30 July 1997, 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 under Article 3 of the Convention that he had been tortured in police custody.

Article 3 of the Convention provides as follows:

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

The Government submit that, if the applicant had been subjected to such a harsh treatment while he was kept in custody, the signs would not have disappeared within a week. Furthermore the Government point out that the applicant failed to report the alleged ill-treatment when he first appeared before the State Security Court Prosecutor and Judge. The first medical report stated that the applicant had not been ill-treated. The wording of the second medical report provided by Eyüp Forensic Medicine Institution on 22 August 1994 is routine and anyone complaining of pain could obtain such a report. The Government conclude that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore should be declared inadmissible.

The applicant submits that he reported his complaints when he first appeared before a domestic judicial authority and repeated them on every occasion thereafter. Although his medical examination at Eyüp Forensic Medicine Institution took place 43 days after he had been taken into police custody, he was still provided with a report saying that “... his complaints cannot be considered dangerous for his life but they would prevent him working for one day”. Furthermore the applicant submits that the medical examination conducted by Dr. T. Taner Apaydın cannot be considered reliable, having regard to the fact that the doctor was barred from practice for six months because he had concealed signs of torture in his reports concerning several persons.

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 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 § 3 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 Elisabeth Palm Registrar President