AS TO THE ADMISSIBILITY OF
Application No. 28518/95
by M.D.
against Turkey
The European Commission of Human Rights sitting in private on
30 June 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 25 August 1995 by
M. D. against Turkey and registered on 12 September 1995 under file No.
28518/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen, was born in 1959 and resides
in Diyarbakir. He is represented before the Commission by Mehmet Arif
Altinkalem, a lawyer practising in Diyarbakir.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 11 October 1994 the applicant and his co-activist were taken
into police custody in Diyarbakir on suspicion of being members of an
armed organisation, the PKK. During the questioning they confessed that
they had hidden some guns and explosives in a cave close to the Çukurca
village. They also stated that the explosives in question had been used
to destroy the Education Centre in the village.
On 13 October 1994, as a result of their confession, the police
asked to be shown the place in question and took the two activists to
Çukurca village. When they approached the place in question the police
team realised that they were very close to the Northern Iraqi border.
Being afraid of the existence of possible land mines, they decided to
take the necessary precautions. While the police team were searching
for mines, the applicant suddenly started to run and tried to escape
to the Iraqi side of the border. The police called on the applicant to
surrender but the applicant continued to run and the police shot at
him. At the same time the other activist also started to run but the
police captured him immediately.
When the police found the applicant, he was lying on the ground
as he had fallen from a high rock and was not able to move. The police
team asked for an ambulance and a doctor from Narlidere village. After
the village doctor had examined the applicant he was taken to the Van
State Hospital. The diagnosis showed that the bones in his left foot
were broken due to a bullet wound and that he would have to undergo an
operation. The applicant was eventually operated on in June 1995.
In the meantime, criminal proceedings were brought against the
applicant. On 16 May 1995 the applicant's lawyer stated in the first
hearing that his client had signed his statement before the police
under duress and requested that his client be released pending trial.
The court refused to release the applicant, taking account of the state
of the evidence, the date of the applicant's remand in detention and
the nature and contents of the charges against him.
The criminal proceedings against the applicant are still pending
and he continues to be detained on remand.
COMPLAINTS
As regards Article 3 of the Convention, the applicant alleges
that during his interrogation by the police he was subjected to various
forms of ill-treatment.
As regards Article 5 para. 1 of the Convention, he complains that
the police by shooting and injuring him while he was in their custody,
violated his right to security of person.
As regards the exhaustion of domestic remedies, the applicant
states that he did not bring any criminal and civil proceedings against
the perpetrators of the alleged ill-treatment. According to the
applicant, domestic remedies are ineffective in this case, as the
provisions of the Anti-Terror Law fail to provide adequate redress.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that during his interrogation by the police he was subjected
to various forms of ill-treatment.
The Commission notes that the applicant, during the criminal
proceedings which were instituted against him, merely stated that he
had signed the statement before the police under duress, without
specifying the alleged ill-treatment.
The Commission may leave open the question whether the applicant
has exhausted domestic remedies in this respect as his complaint must
in any event be rejected for the following reasons.
The Commission recalls that under certain circumstances it can
be difficult to prove ill-treatment during imprisonment, but that the
applicant must at least indicate in precise terms the treatment of
which he complains and the circumstances in which he was exposed to
this treatment. No such indication have been provided in this case.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that the police by shooting and
injuring him while he was in their custody, violated his right to
security of person. In this respect he invokes Article 5 para. 1
(Art. 5-1) of the Convention.
However the Commission considers this complaint under Article 2
para. 2 (b) (Art. 2-2-b) of the Convention which states as follows:
"2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
b. in order to effect a lawful arrest or to prevent the escape
of a person lawfully detained...;"
The Commission notes that in this respect, too, the applicant has
not had recourse to any domestic remedy. He claims that no effective
remedy was available to him. However, the Commission may leave open
the question whether the condition under Article 26 (Art. 26) of the
Convention as to the exhaustion of domestic remedies has been complied
with, as in any event the applicant's complaint must be rejected for
the following reasons:
The Commission refers to its case-law according to which shooting
by the relevant authorities may not be regarded as arbitrary or
unreasonable in certain circumstances, and the use of reasonable force
may be justified (Application No. 28955/95, Laginha De Matos v.
Portugal, Dec. 7.4.97, unpublished).
In the present case the Commission notes that while the applicant
was trying to escape, the police called on him to surrender but the
applicant continued to run and the police shot at him. It is
undisputed that according to the domestic law, the police have the
right to open fire on a detainee who tries to escape.
In the circumstances of the present case, the Commission is of
the opinion that shooting at the applicant by the police has not been
shown to be arbitrary or unreasonable.
In particular, the Commission notes, that the applicant was
apparently shot at without an intention to kill him, and immediately
after the incident he was provided with adequate medical care.
The Commission considers that in these circumstances it must
reject this complaint as 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.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy