FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
3 applications against Turkey
Application no. 24849/94Application no. 24850/94Application no. 24941/94
by Talip KALINby Ali GEZERby Ekrem ÖTEBAY
The European Court of Human Rights (First Section) sitting on 18 January 2000 as a Chamber composed of
MrsE. Palm, President,
MrJ. Casadevall,
MrGaukur Jörundsson,
MrC. Bîrsan,
MrsW. Thomassen,
MrR. Maruste, judges,
MrF. Gölcüklü, ad hoc judge,
andMrM. 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 applications introduced on 1 August 1994 by Talip Kalın and Ali Gezer registered on 8 August 1994 and by Ekrem Ötebay registered on 19 August 1994 against Turkey under files no.s 24849/94, 24850/94 and 24941/94;
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 26 May 1999 and the observations in reply submitted by the applicants on 19 August 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Turkish citizens and reside in Ağrı, Kahramanmaraş and Muş respectively. The first applicant was born in 1967, the second and the third applicants in 1973. They are all represented before the Court by Mr Talat Tepe, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
Application no. 24849/94
On 17 February 1994 the applicant was taken into police custody in Istanbul on suspicion of membership of the PKK. According to the official document prepared by police officers from the Istanbul Police Headquarters the applicant appears to have been arrested and taken into custody on 24 February 1994.
The applicant alleges that when he was brought to the police headquarters he was beaten, hit with the butt of a rifle and subjected to insults. He further claims that his genitals were squeezed and that he was physically and psychologically ill-treated.
On 28 February 1994 the applicant was interrogated by police officers. During his questioning he confessed in detail to his involvement in the illegal activities of the PKK. The applicant claims that he was tortured into signing his statement in which he stated that he had worked for and been involved in the terrorist activities of the PKK. He further claims that he was blindfolded and was therefore not aware of the contents of the statement he had signed.
On 9 March 1994 the public prosecutor at the Istanbul State Security Court questioned the applicant. During his questioning the applicant denied the allegations against him and stated that he signed his statement under duress while in police custody. He indicated however that he had collected money on behalf of the PKK.
On the same day the applicant, together with other detainees, was seen by Dr. T. Taner Apaydın at the Istanbul Forensic Medicine Institute. According to the medical report prepared by Dr. Apaydın, there were no signs of beating or injuries consistent with the use of force on the bodies of any of the detainees examined.
On 11 March 1994 a judge at the Istanbul State Security Court ordered the applicant’s detention on remand. During his questioning before the judge the applicant reiterated the statement he made to the public prosecutor and denied the allegations against him. He also declared that his statement had been taken under duress in police custody.
On 22 March 1994 the applicant was examined by a prison doctor who noted in his report the presence of a lesion on the applicant’s right scapula and fading bruises and ecchymosis on his arm-pits and right foot.
On 27 March 1994 the applicant filed a complaint with the office of the Istanbul public prosecutor. He alleged that he was taken into custody on 17 February 1994 by police officers from the Istanbul Police Headquarters’ Anti-Terrorism Branch and held in custody for twenty-three days in violation of domestic law. The applicant further alleged that he was subjected to ill-treatment and torture while in custody. He concluded that he was seen by a doctor at the Eyüp Forensic Medicine Institute on 30 March 1994[1] who prepared a medical report stating that the bruises on his body would prevent him from working for three days. The applicant requested the prosecutor to initiate an investigation.
The applicant later underwent a medical examination in the Eyüp Forensic Medicine Institute (EFMI). In a report to the Eyüp public prosecutor dated 30 March 1994, Dr Remzi Şendil noted the prison doctor's findings and recorded the presence of a lesion on the applicant’s right scapula. He also observed that the applicant felt pain in his legs. The report concluded that these findings were not life-threatening but would prevent the applicant from working for three days.
On 15 June 1995 the Istanbul Medical Council (Istanbul Tabib Odası), in the context of disciplinary proceedings, found that Dr. T. Taner Apaydın had concealed signs of torture in the medical examinations he had carried out on several persons between 3 February and 7 October 1994. On that account he was barred from practising as a doctor for six months.
On 23 June 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with the Istanbul State Security Court, accusing the applicant of having being engaged in acts aimed at the separation of a part of the territory of the State. Forty-five other persons, who had all been taken into police custody in the course of the operations carried out by the Istanbul police against the PKK in February 1994, were charged along with the applicant. The public prosecutor gave a detailed account of the acts in which all the accused were allegedly involved. The public prosecutor requested that the applicant be convicted and sentenced under Article 125 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.
On 21 December 1995 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court (Istanbul Ağır Ceza Mahkemesi) against the four police officers who allegedly ill-treated the applicant. According to the applicant the prosecutor decided that no prosecution should be brought against one of the police officers. The applicant filed an objection against this decision which was rejected by the Beyoğlu Assize Court.
On 27 June 1996 the Istanbul Assize Court rejected the allegation that the applicant was tortured. The court ruled that having regard to the medical examination conducted on 9 March 1994 it could not be concluded that the applicant had been tortured. The court also pointed out that it was likely that the findings in the medical report dated 30 March 1994 could be explained by factors other than ill-treatment. The court further observed that the applicant had filed his complaint on 11 July 1994, which was five months after the alleged ill-treatment. Accordingly the court held that there was no evidence on which to convict the police officers.
In March or May 1999 the Istanbul State Security Court ordered that the applicant’s case be severed from the cases against the other accused as he did not submit a defence to the court. The criminal proceedings against the applicant are still pending before the Istanbul State Security Court.
Application no. 24850/94
On 9 February 1994 the applicant was taken into police custody in Istanbul on suspicion of membership of the PKK. According to the official document prepared by police officers from the Istanbul Police Headquarters the applicant appears to have been arrested and taken into custody on 28 February 1994. When the applicant was arrested he was carrying documents relating to the PKK.
On 28 February 1994 Reşat Altay, the Head of the Anti-Terrorism Department (Terörle Mücadele Şube Müdürü) at the Istanbul Police Headquarters, requested the public prosecutor attached to the Istanbul State Security Court to authorise an extension of the applicant’s detention until 9 March 1994.
On 1 March 1994 the applicant was interrogated by police officers. During the interrogation the applicant stated that when he was a student at Istanbul University he had been a member of the Kurdistan Youth Unit (Kürdistan Gençlik Birimi), a sub-division of the PKK. He further stated that he organised meetings and conferences on behalf of this unit and worked as a courier for PKK members.
On 9 March 1994 the applicant was seen by Dr. T. Taner Apaydın at the Istanbul Forensic Medicine Institute. Dr. Apaydın observed the presence of skin wounds and ecchymosis on the applicant’s head and ecchymosis on the sole of his left foot. The doctor concluded that these injuries were not life-threatening but would prevent the applicant from working for two days.
On 9 March 1994 the public prosecutor at the Istanbul State Security Court questioned the applicant. During his questioning the applicant denied the allegations against him and stated that he signed his statement under duress while in police custody. He further stated that he was neither a member of the Kurdistan Youth Unit nor the PKK.
On 11 March 1994 a judge at the Istanbul State Security Court ordered the applicant’s detention on remand. During his questioning the applicant reiterated the statement he made to the public prosecutor and denied the allegations against him. He also affirmed that his statement was taken under duress in police custody.
In an indictment dated 23 June 1994, the Public Prosecutor attached to the Istanbul State Security Court charged the applicant with being a member of the PKK. Forty-five other persons, who had all been taken into police custody during the operations carried out by the Istanbul police against the PKK in February 1994, were charged along with the applicant. The Public Prosecutor gave a detailed account of the illegal acts in which the accused were allegedly involved. He requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.
On 23 March 1994 the applicant was examined by the prison doctor. The doctor noted in his report the presence of fading bruises on the applicant’s head, back and arm-pits as well as signs of injuries and oedema on his feet. He also observed that the applicant complained of headaches.
The applicant later underwent a medical examination at the Eyüp Forensic Medicine Institute (EFMI). In a report to the Eyüp public prosecutor dated 9 May 1994, Dr Remzi Şendil noted the prison doctor's findings and recorded the presence of fading bruises on the applicant’s arm-pits, upper back and toes. The report concluded that these injuries were not life-threatening but would prevent the applicant from working for ten days.
On 11 July 1994 the applicant filed a complaint with the Istanbul public prosecutor. He alleged that he was taken into custody on 9 February 1994 and detained for thirty-one days. He stated that he was tortured into signing a statement when blindfolded and was beaten and subjected to “Palestinian hanging” by being strung up by his arms. He requested the prosecutor to initiate an investigation.
On 5 June 1995 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court (Istanbul Ağır Ceza Mahkemesi) against the police officers who allegedly ill-treated the applicant and four other complainants.
On 15 June 1995 the Istanbul Medical Council (Istanbul Tabib Odası), in the context of disciplinary proceedings, 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. On that account he was barred from practising as a doctor for six months.
On 23 September 1996 the Istanbul Assize Court rejected the applicant’s allegation that he had been tortured. The court, with reference to the medical examination conducted on the applicant on 9 March 1994, held that the applicant had no apparent marks of torture on his body at the time. The court further observed that the medical report, dated 9 May 1994, was drawn up two months after the first medical examination and its findings could not be taken to confirm his allegation. The court concluded that there was no evidence to support his allegation that he had been tortured by police officers.
On 5 March 1999 the Istanbul State Security Court acquitted the applicant.
Application no. 24941/94
On 20 February 1994 the applicant was taken into police custody in İyikomşu village, Malazgirt (Muş), on suspicion of membership of the PKK. According to the official documents the applicant appears to have been arrested on 7 March 1994 in Malazgirt (Muş) and brought to Istanbul on 13 March 1994.
The applicant alleges that he was subjected to physical and psychological torture during the time he spent in custody.
On 15 March 1994 Reşat Altay, the Head of the Anti-Terrorist Department (Terörle Mücadele Şube Müdürü) at the Istanbul Police Headquarters informed the office of the public prosecutor at the Istanbul State Security Court that the applicant had confessed during his preliminary interrogation to his involvement in a shooting incident. Mr Altay requested the prosecutor to extend the applicant’s detention for a period of fifteen days.
On 17 March 1994 the applicant was interrogated by police officers. During his questioning he confessed to his involvement in illegal activities of the PKK.
On 18 March 1994 the applicant was seen by Dr. T. Taner Apaydın at the Istanbul Forensic Medicine Institute. According to the medical report prepared by Dr. Apaydın, there were no signs of beating or use of force on his body.
On 21 March 1994 the public prosecutor at the Istanbul State Security Court questioned the applicant. During his questioning the applicant confessed to the charges put to him and stated that he had been forced to take part in the activities of the PKK. The applicant also confirmed the accuracy of the statement he gave while in custody.
On the same date the Istanbul State Security Court judge ordered the applicant’s detention on remand. During his questioning the applicant admitted the charges against him.
On 23 June 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with the Istanbul State Security Court. The prosecutor accused the applicant of carrying out acts aimed at the separation of a part of the territory of the State. Forty-five other persons, who had all been taken into police custody during the operations carried out by the Istanbul police against the PKK in February 1994, were charged along with the applicant. The Public Prosecutor gave a detailed account of the acts in which the accused had been allegedly involved. He requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.
On 22 March 1994 the applicant was examined by the prison doctor who noted in his report the presence of swelling on the applicant’s fingertips, fading bruises on his right hand and arm-pits, wounds on his legs and phalanxes. He also observed that the applicant suffered from back pain.
The applicant later underwent a medical examination at the Eyüp Forensic Medicine Institute (EFMI). In a report to the Eyüp public prosecutor dated 9 May 1994, Dr Remzi Şendil noted the prison doctor's findings and recorded the presence of a skin wound on the applicant’s head, hands and right elbow. The report concluded that these injuries were not life-threatening but would prevent the applicant from working for seven days.
On 15 June 1995 the Istanbul Medical Council (Istanbul Tabib Odası), in the context of disciplinary proceedings, 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. On that account he was barred from practising as a doctor for six months.
On 11 July 1994 the applicant filed a complaint with the office of the Istanbul public prosecutor. He alleged that he was taken into custody on 26 February 1994 in Malazgirt and detained for three days in Malazgirt and twenty-two days in Istanbul in violation of domestic law. The applicant furthermore alleged that he was subjected to ill-treatment and torture while in custody. He was forced to walk barefoot in the snow, threats were made to his life and he was beaten. His hands were tied behind his back and he was subjected to “Palestinian hanging” by being strung up by his arms. Electric shocks were administered to him and he was forced to sign a false statement. The applicant requested the prosecutor to initiate an investigation.
On 28 September 1995 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court (Istanbul Ağır Ceza Mahkemesi) against the police officers who allegedly ill-treated the applicant.
On 7 December 1995 the Istanbul Assize Court rejected the applicant’s allegation that he had been tortured. The court, with reference to the medical examination conducted on 18 March 1994, observed that the applicant had no apparent marks of torture on his body at the time. The court further observed that the medical report, dated 9 May 1994, was drawn up two months after the first medical examination and its findings could not be taken to confirm his allegation. The court concluded that there was no evidence to support his allegation that he had been tortured and rejected it.
On 5 March 1999 the Istanbul State Security Court ordered that the applicant’s case be severed from the cases brought against the other defendants as he did not submit his defence to the court. The criminal proceedings against the applicant are still pending before the State Security Court.
B.Relevant domestic law and practice
(i) Administrative liability
Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the authorities 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 restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the authorities, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the authorities 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.
Section 13 of Law no. 2577 concerning administrative proceedings provides that any person who has suffered damage as a result of an act committed by the administration may request compensation from the administration within one year of the alleged acts. In case this request is completely or partially rejected or if no reply has been received within a time-limit of sixty days, the person involved may initiate administrative proceedings.
(ii)Criminal-law provisions against torture
The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).
Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made.
(iii)Civil proceedings
Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts.
(iv)The law relating to detention in police custody
Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.
The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987).
In provinces where a state of emergency had been declared, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate.
Article 19 of the Turkish Constitution gives a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.
Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial …, or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only…”
COMPLAINTS
1.The applicants complain under Article 3 of the Convention that they were ill-treated while in police custody.
2.The applicants complain under Article 5 § 3 of the Convention that they were not brought promptly before a judge. They claim that they had been held in police custody for twenty-three, thirty-one and twenty-five days respectively. They also claim that the official records do not reveal the correct period they spent in custody. They submit that even the periods of detention relied on by the authorities exceed the limits permitted under the Convention.
3. The applicants further allege they are the victims of discrimination in breach of Article 14 of the Convention taken in conjunction with Article 5 § 3 thereof. They allege in this connection that under the provisions of the Code of Criminal Procedure persons taken into police custody must be brought before a judge within a maximum period of four days, whereas in relation to offences which fall within the jurisdiction of the State Security Courts this period may be extended up to fifteen days.
4.The applicants complain under Article 6 §§ 1 and 3 (c) that they were denied the assistance of a lawyer during their questioning by the police and when they appeared before the public prosecutor and the investigating judge.
5.The applicants also allege that they are the victims of discrimination in breach of Article 14 taken in conjunction with Article 6 §§ 1 and 3 (c) in that under the Code of Criminal Procedure individuals have the right to the assistance of a lawyer during questioning by the police and when they appeared before the public prosecutor and investigating judge, whereas those suspected of offences which fall within the jurisdiction of the State Security Courts are prevented from enjoying this right.
PROCEDURE
The applications nos. 24849/94 and 24850/94 were introduced on 1 August 1994 and registered on 8 August 1994. The application no. 24941/94 was introduced on 11 August 1994 and registered on 19 August 1994.
On 25 November 1996 the European Commission of Human Rights decided to join and to communicate the applications to the respondent Government.
The Government’s written observations were submitted on 26 May 1997, after two extensions of the time-limit fixed for that purpose. The applicants replied on 19 August 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 applicants complain that they were tortured in police custody, not brought promptly before a judge and denied the assistance of a lawyer during their questioning by the police and later before the public prosecutor and the investigating judge. They invoke Articles 3, 5 § 3, 6 §§ 1 and 3(c) as well as Article 14 of the Convention.
Exhaustion of domestic remedies (Article 35 § 1)
Abuse of the right of application (Article 35 § 3)
The Government submit that it would have been open to the applicants to sue the Administration for damages on the basis of Article 125 of the Constitution read in conjunction with section 13 of Law no. 2577 concerning administrative proceedings. They draw attention to the fact that the Administration’s liability is engaged under these provisions without the need for a plaintiff to prove fault. In addition, the applicants failed to seek compensation in accordance with civil law remedies. The Government contend that domestic case-law confirms that damages may be awarded against officials of the State who resort to torture against individuals. Furthermore, even if an official is acquitted of criminal charges for lack of evidence, the civil courts are not bound by that decision and may proceed to hear a claim for damages brought against him in accordance with the law of tort. The Government refer to Article 53 of the Civil Code and relevant case-law in this respect.
The Government also aver that Law no. 466 envisages the payment of compensation to persons who have been unlawfully arrested or detained. The applicants could have introduced compensation proceedings before their nearest assize court within three months of the final decision taken against them. However they failed to do.
Against this background, the Government observe that the applicants lodged complaints against the police officers whom they allege ill-treated them in custody. However they subsequently introduced the same complaints with the Commission before the public prosecutor took proceedings against these officers and without having had recourse to any of the remedies referred to above. In the Government’s submission, the applications should be rejected on account of the applicants’ failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention and the principle of subsidiarity.
The Government also point to inaccuracies in the applications lodged with the Court by all three applicants as regards the dates on which they were arrested and taken into custody. The Government submit that the dates indicated in the applications are in contradiction to the dates set out in the official arrest and custody records. In the Government’s opinion the applications were instigated by the PKK and for that reason should be rejected as amounting to an abuse of process.
The applicants contest the Government’s submissions. They state that they lodged complaints with the domestic authorities about the torture to which they were subjected and on that account must be considered to have exhausted domestic remedies. Having regard to the outcome of the proceedings against the police officers, they could not be expected to exhaust other domestic remedies which in any event are illusory, inadequate and ineffective since torture is an administrative practice in Turkey.
The applicants further submit that it is extremely difficult for victims of torture to prove their allegations or to have the perpetrators brought to justice. They maintain in this connection that it is impossible for detainees to obtain medical reports proving the extent of their injuries because the doctors who issued such reports are threatened or intimidated.
In the applicants’ submissions it was for the authorities to identify the persons who were responsible for torturing them. The authorities were made aware of their allegations during the criminal proceedings and should have carried out the necessary investigation into those allegations.
The applicants contend that the decision of the Istanbul Assize Court acquitting the police officers must be taken to be the final decision on their Article 3 complaint within the meaning of Article 35 § 1 of the Convention. Since they did not intervene in the proceedings against the police officers they had no right under domestic law to appeal the acquittal.
As to the Government’s submission concerning Law No. 466 the applicants submit that this is an ineffective remedy in their case. As their length of detention would appear to be in conformity with domestic law any claim for compensation lodged under Law No. 466 would have been futile.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52).
The Court notes that Turkish law provides civil, administrative and criminal law remedies against illegal and criminal acts attributable to the State or its agents.
As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents, the Court recalls that a plaintiff to such an action must, in addition to establishing a causal link between the tort and the damage he has sustained, identify the person believed to have committed the tort (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 73) In the instant case, criminal proceedings were taken against named police officers. However they were all later acquitted since the Istanbul Assize Court concluded that there was insufficient evidence against them. In these circumstances the Court considers that the introduction of a tort action against the police officers would have had no reasonable prospects of success, regardless of the lesser standard of proof involved. In any event the remedy relied on by the applicants in respect of their complaint that they had been tortured by police officers was a decision of the criminal courts holding those officers responsible for their crimes. Since the applicants have unsuccessfully pursued that course of action they must be taken to have exhausted domestic remedies.
The Court considers that the above considerations apply equally to the Government’s assertion regarding the applicants’ failure to bring an action in administrative law under Article 125 of the Constitution. It further recalls that this remedy cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 of the Convention in cases like the present one, in that it is aimed at awarding damages rather than identifying and punishing those responsible (cf. the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998, p. 3290, § 102).
The Court concludes therefore that the applicants were not required to bring the civil and administrative proceedings suggested by the Government and that they have exhausted domestic remedies in view of the outcome of the criminal proceedings against the police officers. It dismisses the Government’s objection to the admissibility of the applicants’ Article 3 complaint.
As to the Government’s objection to the admissibility of the applicants’ Article 5 § 3 complaint, the Court observes that the applicants complain of the length of their detention in police custody, not that they had no legal remedies whereby they could obtain compensation for detention. The applicants’ complaint therefore goes to Article 5 § 3 of the Convention, whereas the remedy mentioned by the Government with reference to Law no. 266 concerns Article 5 § 5 only (see the Demir and Others v. Turkey judgment of 23 September 1998, Reports 1998, pp. 2652-53, § 37). It follows that this limb of the Government’s objection is also without foundation.
As to the Government’s final contention that the applications are an abuse of the right of application and therefore inadmissible under Article 35 § 3, the Court finds that the Government have not substantiated their claim that the applicants deliberately misled the Commission or the domestic authorities as to the dates when they were arrested and placed in custody or that the applications were fabricated for purely political purposes. This objection is also rejected.
Merits
1.Alleged violation of Article 3 of the Convention
The applicants complain that they were ill-treated by the police while in custody. They invoke Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government further maintain that torture and ill-treatment are criminal offences in Turkey and that police officers cannot have recourse to such in order to force a confession from a suspect regardless of the nature of the offence of which his is suspected. Any confession statement so obtained would be ruled inadmissible by the domestic courts.
With reference to the facts of the case, the Government state that the first applicant was medically examined on 9 March 1994 before being brought before the public prosecutor. No trace of ill-treatment was found on his person and the applicant never complained about having any medical problems. The second applicant was also examined by a doctor on the same day. The doctor found some small bruises and a graze on the second applicant’s body. The doctor was of the opinion that these injuries were not life-threatening and gave the applicant two-days’ sick leave. The third applicant was examined on 18 March 1994. As with the first applicant, no traces of ill-treatment were found on his person and the third applicant did not refer to any health problems.
The Government highlight that the applicants did not submit the above-mentioned medical reports to the Commission when lodging their applications. Furthermore, before the domestic courts the applicants relied on medical reports which were drawn up long after the events at issue. These medical reports only disclosed slight injuries which were not considered by the examining doctor to be life-threatening. Notwithstanding the fact that the third applicant never alleged either before the public prosecutor or before the investigating judge that he had been ill-treated and moreover accepted the charges of which he was accused, he nevertheless lodged a complaint that he had been ill-treated by police officers. Having regard to these considerations and to the absence of any proof that the applicants had been ill-treated in custody, the domestic court was led to acquit the accused police officers. None of the applicants lodged an appeal against the police officers’ acquittal.
For the above reasons, the Government conclude that the applicants’ Article 3 complaints should be dismissed as being manifestly ill-founded.
In reply the applicants submit that the medical examinations conducted by Dr Apaydın when the applicants were in custody cannot be relied on as Dr Apaydın had been barred from practising medicine by Istanbul Medical Council. The medical reports drawn up by the Eyüp Forensic Medicine Institute clearly indicated that the applicants had been tortured while in police custody. The applicants claim in addition that doctors are subjected to harassment and intimidation and thus refrain from carrying out medical examinations on persons who are tortured.
As regards the substance of the applicants’ complaints concerning Article 3 of the Convention, 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 complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.
2.Alleged violation of Article 5 § 3 of the Convention
The applicants rely on Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Government contest the dates relied on by the applicants. They maintain that the official records prove that the first applicant was taken into custody on 24 February 1994, and not on 17 February 1994 as alleged. Under the authority of the public prosecutor’s order of 25 February 1994 the first applicant was kept in custody until 11 March 1994. The second applicant was taken into custody, not on 9 February 1994 as claimed, but on 28 February 1994. The public prosecutor ordered his detention in custody the same day and the second applicant remained in custody until 11 March 1994. The third applicant was taken into custody on 7 March 1994 and not on 20 February 1994 as alleged. The public prosecutor ordered on 15 March 1994 that the third applicant be kept in custody and he was detained until 21 March 1994. In the Government’s submission these periods of custody must be viewed in the context of the fight against PKK terrorism and the difficulties involved in collecting evidence of a suspect’s involvement in terrorist acts.
The applicants claim that the official records do not reveal the correct period they spent in custody. They submit that, even supposing that the dates indicated in the official records were true, the periods they each spent in police custody still exceeded the limits permitted under Convention.
As regards the substance of the applicants’ complaints under Article 5 § 3 of the Convention, 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 applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.
2.Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention
The applicants state that they were denied access to legal assistance while in police custody and when they appeared before the public prosecutor and the investigating judge, in breach of Article 6 of the Convention, which provides as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing (...)
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
The Government maintain that at no stage did the applicants request legal assistance even though Article 136 of the former Code of Criminal Procedure provided for such. In the Government’s submission that provision continues to remain valid in the context of offences falling within the jurisdiction of the State Security Courts. Furthermore, the applicants’ lawyer did not make any request to the prosecutor to meet with his clients. For the above reason, the Government request the Court to declare the complaints inadmissible as being manifestly ill-founded.
The applicants dispute the Government’s reliance on Article 136 of the former Code of Criminal Procedure. They claim that offences falling within the jurisdiction of the State Security Courts are governed by Law no. 3842 which restricts an accused’s right to legal assistance at the pre-trial stage.
The Court notes that Article 6 § 3(c) of the Convention does not guarantee a self-standing right to legal assistance at the preliminary stage of a police investigation. It recalls in this respect its finding in the Imbrioscia v. Switzerland judgment of 24 November 1993 that Article 6- especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (Series A no. 275, p. 13, § 36). As it pointed out in that judgment, the manner in which Article 6 § 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case (loc. cit., p. 14, § 38).
Against this background the Court notes that the criminal proceedings against the first and third applicants are still pending before the Istanbul State Security Court. It is not for the Court to speculate on the outcome of those proceedings and in particular on the question as to whether any prejudice which the applicants may have incurred on account of the absence of a lawyer during their period of custody may be rectified during the trial. In these circumstances the Court finds that the complaints of the first and third applicants under Article 6 §§ 1 and 3(c) are premature and must therefore be considered inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
The Court further observes that the second applicant was acquitted of the charges brought against him. On that account he cannot claim to be a victim of either of the provisions invoked. His complaints under Article 6 §§ 1 and 3(c) are therefore inadmissible as being manifestly ill-founded within the meaning of Articles 35 § 3 and 4 of the Convention.
3.Alleged violation of Article 14 of the Convention
The applicants complain under Article 14 of the Convention read in conjunction with Articles 5 § 3, 6 §§ 1 and 3(c). Article 14 provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government state that the fight against terrorism, like the fight against drug trafficking, requires a different approach to be taken with respect to the length of the period of detention in comparison with other types of offences. In the Government’s submission, the applicable legal provisions are foreseeable and are strictly limited to the specific requirements of investigations into organised terrorism. They reiterate that the relevant legal framework does not exclude the guarantees under Article 6 § 3 (c) of the Convention.
The applicants submit that under the Code of Criminal Procedure individuals have the right to the assistance of a lawyer during questioning by the police and when brought before the public prosecutor and the investigating judge. However persons suspected of offences which fall within the jurisdiction of the State Security Courts are prevented from enjoying this right. They further allege that under the provisions of the Code of Criminal Procedure persons taken into police custody must be brought before a judge within a maximum period of four days, whereas in relation to offences which fall within the jurisdiction of the State Security Courts this period may be extended up to fifteen days. This in their view is constitutes discriminatory treatment.
The Court recalls that Article 14 is not concerned with all differences in treatment but only with differences having as their basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 29. § 56)
The Court notes that the distinctions impugned by the applicants are not distinctions which are made between different groups of people, but between different types of offence, according to the legislature’s view of their gravity (see mutatis mutandis the Gerger v. Turkey judgment of 8 July 1999, to be published in Reports 1999, § 69). The Court sees no ground for concluding that that approach amounts to a form of “discrimination” that is contrary to the Convention. In consequence it finds that the applicants’ complaints they are victims of a breach of Article 14 taken together with Article 5 § 3 and 6 §§ 1 and 3(c) of the Convention are inadmissible ratione materiae.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicants’ complaints that they were subjected to ill-treatment in custody and were not brought promptly before an independent judicial authority following their arrest;
DECLARES INADMISSIBLE the remainder of the application.
Michael O’BoyleElisabeth Palm
RegistrarPresident
[1] The medical report is dated 30 March 1994 although the applicant states that he filed his complaint on 27 March 1994.
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