AS TO THE ADMISSIBILITY OF
Application No. 24565/94
by K.O.S.
against Turkey
The European Commission of Human Rights sitting in private on
4 December 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 June 1994 by
K.O.S. against Turkey and registered on 7 July 1994 under file No.
24565/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 11 October 1994 to communicate the
application;
- the observations submitted by the respondent Government on
1 March 1995 and the observations in reply submitted by the
applicant on 24 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Kurdish born British citizen, was born in 1955
and resides at Waterlooville, Hampshire, England. He is represented
before the Commission by Professor Kevin Boyle and Ms. Françoise
Hampson, both of the University of Essex, England.
A. Particular circumstances of the case
The facts of the case as presented by the parties may be
summarised as follows.
The applicant states that the following occurred.
On 29 December 1993 the applicant was returning from a visit to
his family in Northern Iraq and was at Diyarbakir Airport, awaiting a
flight to England. While in the control area of the airport, he was
approached by airport and security officers, his passport was taken
away, and he was rudely escorted to a room in the airport. Five other
persons were also thus detained.
The applicant, along with the others, was then forced to empty
his pockets of all money, tickets and other valuables. He was refused
permission to telephone the British Embassy and was forced to sign a
paper in Turkish, a language he can neither read nor speak. That
evening the applicant and the five others were taken to a security
police station, known as the "Aminiat".
All were detained there from 29 December 1993 to 1 January 1994.
During these three days they were called one after the other to a room
where they were beaten up. The applicant submits he was handcuffed,
punched on the head and stomach, hit in the stomach with the butt of
a Kalashnikov rifle and threatened with execution by having a gun put
to his head.
The applicant's account is confirmed by the statement of two
other detainees, T. A. and Z. B., who state that on the day they were
brought to the "Aminiat" they were sworn at in Turkish, verbally abused
and hit and kicked, at times with Kalashnikovs. The statement goes on
to say that three days later the applicant and in particular N. M. were
tortured.
It was not until the second day of his detention that the
applicant was informed of the reason why he was being held, which was
suspicion of robbery. However, no definite details of the alleged
offence were forthcoming, and indeed the allegations by the police kept
changing. These ranged from a claim of involvement in a $ 85 million
raid on a bank to theft of DM 25,000 from a cashier's hand. No attempt
was made to search for a large sum of money in the applicant's luggage
until the last day of his detention at that station, i.e.
1 January 1994.
The applicant continually asked for an interpreter as he was
unable to understand the questions he was asked in Turkish and his
English was not understood either. However, it was not until
1 January 1994 at 11.00 hours that an English translator was brought,
but this person spoke very little English. By that time the police had
finished asking their questions and all the applicant was asked was his
name, whether he had been to any bank in Diyarbakir and where he wanted
to travel to. During the three days of investigation he and the other
detainees were forced to sign a number of papers in Turkish.
On the same day, 1 January 1994, the detainees were taken to a
hospital to sign a paper that they had not been harmed and had been
treated well. On the way to the hospital the police threatened that the
detainees' guts would be pulled out by hand if they complained of any
ill-treatment before the doctor.
Also on 1 January 1994 the applicant appeared before a court. The
detainees had been designated a Turkish lawyer to conduct their
defence. However, the lawyer did not know either English or Kurdish and
it is not clear how she could represent them. The applicant was merely
asked what his name was and whether he had been to a bank. The
applicant was then told by his lawyer that he would be released but
that the judge was waiting for a fax to come from the border to confirm
that he had entered Turkey on 29 December 1993. However, this appeared
in any case from a stamp in the applicant's passport and, if
confirmation was needed, a fax was only a matter of minutes.
On 1 January 1994 the applicant and the other detainees were
detained in Diyarbakir main jail together with convicted criminals. He
believes that they were only kept in prison in order for their bruises
to disappear before their release.
At no time was the applicant offered access to a lawyer of his
own choosing, nor was one offered for free. Instead he was designated
a fee charging lawyer with whom he could not communicate and who asked
him few relevant questions. The lawyer later demanded a fee of
8,000,000 Turkish Lira for each detainee but was eventually willing to
accept an interim payment of 1,500,000 Turkish Lira.
The applicant was released on 4 January 1994 and left immediately
for the United Kingdom. Upon his return he was still feeling the
effects of the treatment, primarily feeling sick and dizzy and he
consulted his doctor on 10 January 1994. Apart from a small bruise on
the applicant's chest the doctor found no external marks but he did
notice some anxiety and arranged for him to have three weeks off work
in order to recover from his ordeal.
For the whole of his detention the applicant was not allowed to
communicate with the outside world. As a result, his family had no
knowledge of his whereabouts, or whether he was alive or dead. The
applicant submits that they had no news from him from the moment on 29
December 1993, when he failed to arrive home, until his release on 4
January 1994, and they suffered anguish as a result. The above-
mentioned statement of T. A. and Z. B. reports, however, that two of
the detainees were released on 2 January 1994 and that they contacted
the relatives of the others who were at that time still detained.
Hereupon, the applicant's father in law contacted the British Foreign
and Commonwealth Office. While the British Embassy in Ankara were
making enquiries into the applicant's situation on 4 January 1995, his
father in law was informed that he had been released.
Following written enquiries by the applicant the Foreign Office
informed him on 1 February 1994 that the British Embassy in Ankara were
awaiting a report concerning the applicant's detention from the Turkish
Ministry of Foreign Affairs. The Foreign Office made it clear to the
applicant that the British Government could not pursue compensation for
him, but it did provide him with a list of Ankara-based lawyers able
to correspond in English.
The respondent Government state the following.
Following a formal complaint made by the bank cashier A. B. and
a witness statement that the applicant and two other persons had stolen
an amount of German Marks from the cashier, the applicant was
apprehended on 29 December 1993. He was identified by A. B. and four
other bank clerks on 30 December 1993. On that day, an extension of the
detention period was requested from the competent public prosecutor in
order to complete the investigation. Leave for a further two days of
detention was granted.
As soon as an interpreter was found, the applicant's statement
was taken on 1 January 1994. Thereupon, a summary report of the police
investigation was prepared and submitted to the public prosecutor. On
the same day the applicant was transferred to the State Hospital where
he was examined by a doctor who put a mark on the referral note
indicating that no sign of violence was found on the applicant's body.
Also on 1 January 1994, upon the request of the public
prosecutor, the competent judge ordered the continued detention of the
applicant and two of the other detainees.
The applicant signed a power of attorney for a lawyer to act as
his representative on 3 January 1994. He was released on
4 January 1994.
Criminal proceedings were initiated against the applicant and two
others by the public prosecutor on 5 January 1994. The applicant and
the two co-defendants were acquitted by judgment of 18 May 1994 since
there was not sufficient evidence to substantiate the charge against
them. Moreover, in the judgment notice was given to the competent
public prosecutor to consider initiating an investigation into the bank
cashier A. B. with a view to criminal proceedings.
B. Relevant domestic law and practice
Civil and administrative procedures
Article 125 of the Turkish Constitution provides as follows:
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its own
acts and measures."
Any illegal act by civil servants, be it a crime or tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts and the administrative
courts.
Pursuant to Article 41 of the Civil Code, an injured person may
file a claim for compensation against the alleged perpetrator:
"Every person who causes damage to another in an unlawful manner,
be it wilfully or be it negligently or imprudently, is liable for
compensation."
Pursuant to Article 46, any victim of an assault may claim
material damages:
"The person who has been injured is entitled to compensation for
the expenses as well as for the losses resulting from total or
partial disability to work due regard being had to the detriment
inflicted on the economic future of the injured party."
Moral damages may also be claimed under Article 47:
"... the court may, taking into consideration the particular
circumstances, award adequate general damages to the injured..."
Article 2 of the Administrative Judgment Procedure Code
(No. 2577, 6.1.82) stipulates in para. (b) that
"... Requests for full compensation may be filed by those whose
personal rights have directly been damaged by administrative acts
and actions."
Proceedings before the administrative courts are in writing.
Decisions of administrative courts can be appealed to the Council of
State.
Criminal procedures
The Turkish Criminal Code makes it a criminal offence to subject
someone to torture or ill-treatment (Article 243 in respect of torture
and Article 245 in respect of ill-treatment, inflicted by civil
servants), to threaten someone (Article 191) and to deprive someone
unlawfully of his liberty (Article 179 in general and Article 181 when
committed by civil servants).
In general, in respect of criminal offences, complaints may be
lodged, pursuant to Articles 151 and 153 of the Code of Criminal
Procedure, with the public prosecutor or the local administrative
authorities. The public prosecutor and the police have a duty to
investigate crimes reported to them, the former deciding whether a
prosecution should be initiated, pursuant to Article 148 of the Code
of Criminal Procedure. A complainant may appeal against the decision
of the public prosecutor not to institute criminal proceedings within
fifteen days of being notified (Article 165 of the Code of Criminal
Procedure).
If the alleged author of a crime is a State official or civil
servant, permission to prosecute must be obtained from local
administrative councils. The local council decisions may be appealed
to the State Council; a refusal to prosecute is subject to an automatic
appeal of this kind.
COMPLAINTS
The applicant alleges violations of Articles 2, 3, 5, 6, 13, 14
and 18 of the Convention.
As to Article 2, the applicant complains of the life-threatening
nature of the detention in the hands of the State in South-East Turkey,
of the lack of any effective system for ensuring protection of the
right to life and of the inadequate protection of the right to life in
domestic law.
As to Article 3, he complains of having been ill-treated while
in detention and of discrimination on grounds of race or ethnic origin.
As to Article 5, he complains that his detention was not for any
of the authorised purposes specified in Article 5, and he adds that the
detention falls outside the terms of the derogation made by Turkey.
As to Article 6, he complains of the nature of the hearing before
a local judge on 1 January 1994. He states that he was not informed
promptly and in a language which he understood and in detail of the
nature and cause of the accusation against him (para. 3 a). Nor was he
given facilities or adequate time for the preparation of any defence
to the allegations of robbery (para. 3 b). He was given no opportunity
to address the court himself, since no adequate translation facility
was provided, and he did not have access to a lawyer of his own
choosing, nor was one provided free of charge (para. 3 c). Furthermore,
he was not provided with the services of an interpreter (para. 3 e).
As to Article 13, he complains of the lack of any independent
national authority before which his complaints can be brought with any
prospect of success.
As to Article 14, he considers that there has been discrimination
on grounds of race or ethnic origin in the enjoyment of his rights
under Articles 2, 3 and 5. In regard to Article 3 he considers that he
has also been discriminated against on account of his membership of or
association with a national minority.
As to Article 18, he states that the interferences in the
exercise of his Convention rights were not designed to secure the ends
permitted under the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 June 1994 and registered on
7 July 1994.
On 11 October 1994 the Commission decided to communicate the
application to the Turkish Government who were invited to submit their
observations on its admissibility and merits before 6 January 1995.
By letter of 27 January 1995 the Commission's Secretary pointed
out to the Government that the period for the submission of the
Government's observations had expired and that no extension of that
time-limit had been requested. It was added that the application was
being considered for inclusion in the list of cases for examination by
the Commission at its February session.
Observations were submitted by the Government on 1 March 1995.
On 2 March 1995 the Commission decided to adjourn the examination
of the admissibility and to invite the applicant's representatives to
respond to the Government's observations before 24 April 1995.
Observations in reply were submitted by the applicant on 24 April
1995.
THE LAW
1. The applicant complains of violations of Article 2 (Art. 2)
(right to life), Article 3 (Art. 3) (the prohibition of inhuman and
degrading treatment), Article 5 (Art. 5) (the right to liberty and
security of person), Article 13 (Art. 13) (the right to effective
national remedies for Convention breaches), Article 14 (Art. 14) (the
prohibition of discrimination) and Article 18 (Art. 18) (the
prohibition against using authorised Convention restrictions for
ulterior purposes) of the Convention in connection with his detention
by the Turkish authorities.
The Government argue that the applicant has failed to comply with
the requirement under Article 26 (Art. 26) of the Convention to exhaust
domestic remedies before lodging an application with the Commission.
They submit in particular that the applicant could have lodged
a complaint concerning his alleged ill-treatment with the public
prosecutor through the assistance of the lawyer who represented him at
the trial. Furthermore, having regard to the notice given in the
judgment of acquittal to the public prosecutor to consider initiating
criminal proceedings against the bank cashier A. B., the applicant may
pursue these proceedings and claim compensation for damages.
The applicant maintains that there is no requirement that he
pursue domestic remedies. He submits that he was unable to pursue
remedies while in Turkey, since upon his release from detention he was
very frightened of further action that might be taken against him were
he to make a complaint to the authorities. His fear should be seen
against the background of the fact that while in detention he had been
specifically warned not to speak to outsiders about his treatment. He
submits that his fear was well-founded given the way in which others
of Kurdish origin or affiliation have been treated in South-East
Turkey. In this respect he refers to statements made in certain other
cases pending before the Commission and to the report of 6 January 1994
of the United Nations Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (E/CN.4/1994/31).
Aside from his fear of pursuing domestic remedies, the applicant
states that he cannot afford to pay to instruct a lawyer in Turkey
directly or indirectly via a lawyer in the United Kingdom. He is not
able to have legal aid for such a case, and his own income is not
sufficient to pay lawyers' fees. In any event he considers that in this
case any alleged remedy is illusory, inadequate and ineffective because
there is an administrative practice of non-respect for the rule which
requires the provision of effective domestic remedies. This claim is
in his opinion strengthened by the fact that there is no indication
that the request made by the acquitting court to the public prosecutor
to consider a complaint against A.B. has made any progress.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute remedies, do not in reality offer any chance of redressing
the alleged breach. It is furthermore established that the burden of
proving the existence of available and sufficient domestic remedies
lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong,
Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77, p.
18, para. 36, and Nos. 14116/88 and 14117/88, Sargin and Yagci v.
Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).
The Commission notes that the acts of which the applicant
complains, the alleged unlawful deprivation of his liberty and the ill-
treatment he suffered in the course of his detention, are prohibited
by the Turkish Criminal Code and that it is not in dispute that, if
such acts took place, this would have been in contravention of the
criminal law to which the police are subject. The Turkish legal system
provides in such instances for an investigation to be carried out by
the public prosecutor who takes the decision whether or not to initiate
a prosecution against the alleged perpetrators.
In the case of Aksoy v. Turkey (No. 21987/93, Dec. 19.10.94,
unpublished), which also concerned allegations of ill-treatment during
detention, the Commission noted that prior to the applicant's release
from detention, he had a meeting with the public prosecutor, and the
Commission found no reason to doubt that during their conversation
there had been elements which should have made the public prosecutor
initiate an investigation or, at the very least, try to obtain further
information from the applicant about his state of health or about the
treatment to which he had been subjected. The Commission was therefore
satisfied that the applicant had availed himself of a proper remedy
when appearing before the public prosecutor prior to his release and
that he was not obliged to pursue in the circumstances any further
remedies.
In the present case, there is no indication that the alleged ill-
treatment has been the subject of any complaint or that information
about it has been conveyed to the authorities competent to proceed to
an investigation of the matter. Although the fear of reprisal which the
applicant states prevented him upon his release from complaining of the
alleged detention and ill-treatment might not at that time have been
wholly unfounded, the Commission notes that the applicant has since
left Turkey and gone home to the United Kingdom.
Furthermore, the Commission considers that the applicant has not
substantiated his claim that he would be unable to afford to instruct
a lawyer in Turkey. In this respect the Commission also notes that the
applicant was provided with a list of Ankara-based lawyers able to
correspond in English. It does not appear that the applicant has
contacted one of these lawyers with a view to lodging a complaint
and/or a claim for compensation.
The Commission finds that the situation in the present case is
therefore to be distinguished from that obtaining in the Aksoy case.
Moreover, a doubt as to the effectiveness of a particular remedy is not
a sufficient excuse under Article 26 (Art. 26) for not trying it.
Furthermore, an examination of the application by the Commission
does not disclose the existence of any other special circumstances
justifying, according to the generally recognised rules of
international law, the failure in the present case to exhaust the
available domestic remedies.
Consequently, the Commission finds that in the circumstances of
the present case the applicant cannot be considered as having complied
with the exhaustion of domestic remedies rule laid down in Article 26
(Art. 26) of the Convention.
This part of the application must therefore be rejected for non-
exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicant further complains of a violation of his rights
under Article 6 (Art. 6) of the Convention (the right to a fair trial
and respect of the rights of defence) in relation to the criminal
proceedings which were conducted against him in Turkey.
The Commission notes, however, that the applicant was finally
acquitted by judgment of 18 May 1994. In this repect, therefore, the
applicant can no longer be considered a victim of a violation of his
Convention rights, within the meaning of Article 25 (Art. 25) of the
Convention.
This part of the application is accordingly manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
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