SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 43044/05 and 45001/05
by Veli SAÇILIK and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 9 June 2009 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above applications lodged on 30 November 2005,
Having deliberated, decides as follows:
THE FACTS
The 32 applicants in application no. 43044/05, whose names, dates of birth and places of residence are set out in the attached table, are Turkish nationals. The applicants Ali Rıza Dermanlı, Birsen Dermanlı and Gönül Aslan are represented before the Court by Ms Meral Hanbayat, Mr Mehmet Ali Kırdök and Ms Mihriban Kırdök, lawyers practising in Istanbul. The applicants Hüseyin Aslan and Cemal Çakmak are represented before the Court by Ms Filiz Kalaycı, a lawyer practising in Ankara. The applicants Barış Gönülşen, Hüsne Davran and Mürüvet Küçük are represented by Mr Kazım Bayraktar, a lawyer practising in Ankara. The remaining applicants are represented before the Court by Ms Akça Yüksel and Ms Rahşan Aytaç Sala, lawyers practising in Gaziantep and Istanbul.
The applicant in application no. 45001/05, Mr Emre Güneş, is a Turkish national who was born in 1976 and lives in Antalya. He is represented before the Court by Ms Akça Yüksel.
The facts of the case, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.
On 4 April 2000 a number of remand prisoners in Burdur Prison were beaten up by gendarme soldiers on their way back from a court hearing. On 4 July 2000 eleven detainees, including nine of the applicants, informed the prison administration that, unless steps were taken to guarantee their safety, they would not be appearing at a hearing in the İzmir State Security Court scheduled for the following day.
On 4 July 2000 the Burdur public prosecutor asked the Burdur Gendarmerie Headquarters to ensure the attendance of the eleven detainees at the hearing the following day, if necessary by forceful means. The same day the Burdur Gendarmerie Headquarters asked a number of other military headquarters, including the special forces at the Antalya and Konya Commando Headquarters, to assist them in an operation planned to be carried out in the prison the following day.
At around 8.30 a.m. on 5 July 2000, members of the security forces arrived at the prison in large numbers, locked the windows to the prison cells, set fire to the cell doors and tried to confine the inmates in one part of the prison. The applicants Yunis Aydemir and Cemil Aksu suffered burns in the fire. When the inmates were confined in the same room, measuring approximately 25-30 square metres, the soldiers used tear gas and various other chemical gases. The walls of this room were then demolished with a digger and other heavy machinery before the soldiers opened fire on the inmates. The left arm of the applicant Veli Saçılık was ripped off by the digger. Furthermore, when a gas bomb was detonated nearby, it seriously damaged the applicant Şahin Geçit’s right hand and eardrum.
The soldiers then started beating the inmates, dragging them on the floor, sexually assaulting female detainees and threatening them with rape. The detainees were then handcuffed, with their hands behind their backs, and were kept in that position for a period of 15 hours. The beatings continued even after the detainees were handcuffed. The soldiers attempted to insert a truncheon and a fluorescent light stick into the anuses and vaginas of the applicants Azime Arzu Torun and Mürüvet Küçük and started raiding the detainees’ personal belongings.
The injured detainees were subsequently taken to hospital. However, it was too late for Veli Şaçılık’s arm to be stitched back and, as a result, he lost his arm. The health of a number of other applicants also worsened because of the delays. Moreover, the soldiers prevented some of the detainees from receiving medical assistance at the hospital and took them back to the prison before their treatment had been completed.
According to the medical reports, all applicants suffered various injuries, preventing them from working for periods between five and sixty days.
On 20 July 2000, lawyers representing all 33 applicants, as well as 29 other detainees, submitted a joint and detailed complaint petition to the office of the Burdur public prosecutor and asked for prosecutions to be brought against those responsible for the ill-treatment and injuries.
On 7 August 2000 the applicant Azime Arzu Torun submitted a separate petition to the Burdur prosecutor and detailed the sexual assault to which she had been subjected during the operation. According to Ms Torun, the soldiers had forced a truncheon into her vagina and the doctor who examined her had refused to establish whether her hymen had been torn. She asked the prosecutor to refer her to a hospital specialising in post-traumatic stress disorders and to carry out an investigation “in compliance with the European Convention on Human Rights”.
On 14 October 2002 the Burdur governor’s office, whose permission had been sought by the Burdur prosecutor for an investigation to be opened into the applicants’ allegations with a view to instigating prosecutions against 415 security personnel who had taken part in the operation, refused to grant such permission.
The governor’s refusal was quashed by the Antalya Regional Administrative Court on 23 January 2003 and the file was forwarded to the Burdur public prosecutor’s office for the investigation to be opened.
In the course of the investigation the prosecutors questioned the applicants and examined the medical reports detailing their injuries.
On 12 January 2005 a colonel at the Gendarmerie General Headquarters in Ankara wrote to the Burdur public prosecutor and stated that exorbitant sums of compensation were being paid to the inmates by administrative courts despite the absence of a court decision placing criminal responsibility on the administration and despite the fact that the operation in question had been conducted with a view to quelling the riots staged by prisoners acting under orders from illegal organisations and to protecting the right to life. The colonel added that there was a need for the investigation to be concluded as soon as possible so that it could be established whether or not the administration was at fault. He asked the prosecutor to provide him with information about the investigation.
In his decision of 30 March 2005 the Burdur public prosecutor decided not to prosecute any members of the security forces. The prosecutor noted that the driver of the digger which had severed Veli Saçılık’s arm had subsequently been tried for, and acquitted of, the offence of causing bodily injury by recklessness. The prosecutor also noted that a number of doctors and nurses working at the hospital where Mr Saçılık had been treated had also been tried for neglecting their duties, but had been acquitted. No appeals had been lodged against their acquittals. Criminal proceedings brought against the inmates for causing a riot were, on the other hand, still pending.
The prosecutor considered that the soldiers’ intervention had become unavoidable as a result of the actions of the inmates who had refused to surrender and had instead gone on to set fire to the objects in their dormitories and to attack the soldiers with wooden sticks and iron bars. Veli Saçılık’s arm had been severed when he had tried to throw bricks at the soldiers through the hole in the prison wall opened by the digger.
The prosecutor observed that, according to the medical reports, all the applicants had suffered various injuries, preventing them from working for periods between five and sixty days. Although Azime Arzu Torun had alleged that she had been raped with a truncheon, the medical reports showed that her hymen had been intact. There was no medical evidence of any sexual assault of the other female detainees and, as such, allegations of sexual abuse were baseless.
In the prosecutor’s opinion, the soldiers had had to resort to the use of force and firearms in order to quell the prisoners’ riot and the amount of force used had been “no more than absolutely necessary” within the meaning of Article 2 § 2 of the Convention.
An objection lodged against the prosecutor’s decision was rejected on 30 May 2005 by the Isparta Assize Court, which considered that the prosecutor’s decision was in accordance with the applicable legislation and procedure.
On 13 March 2009 the applicants’ legal representatives informed the Court that the applicant Cemal Çakmak had been killed on 17 June 2005 by members of the security forces in a military operation.[1]
Furthermore, on 7 May 2009 the legal representatives submitted to the Court a domestic court decision, terminating the criminal proceedings against the applicants for causing a riot, as the statute of limitations had been reached. It appears from this decision that the applicant Tuncay Yıldırım has died on 21 March 2002.
COMPLAINTS
The applicants complained that by failing to uphold their obligations under Articles 3, 6, 13 and 14 of the Convention, the respondent Government’s authorities had acted in contravention of Article 1 of the Convention.
Relying on Articles 3, 6, 13 and 14 of the Convention, they alleged that they had been subjected to ill-treatment and that the authorities had failed to carry out an effective investigation into their complaints. They alleged that the ill-treatment and the failure to investigate their complaints were due to the authorities’ hostility to their political opinions.
Under Article 1 of Protocol No. 1 to the Convention, the applicants complained that the soldiers had destroyed their personal belongings in the prison.
THE LAW
The Court notes that the present cases concern the same events and complaints. It is appropriate therefore to join and examine them together.
The applicants complained that the soldiers and the investigating authorities had acted in breach of Articles 1, 3, 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.
1. As regards the applicants Hüseyin Kilit, Ahmet Gün, Yusuf Timur, Mustafa Candan, Kamil Yıldız and Yaşar Çavuş
At the time application no. 43044/05 was lodged, no powers of attorney were submitted to the Court in respect of the above-named applicants. However, the application forms had not been signed by the applicants but by their lawyers. On three occasions the Registry of the Court requested the legal representatives to submit letters of authority signed by these applicants. Although the representatives informed the Registry in writing that they would comply with that request, they have failed to do so.
In the light of the above, the Court cannot but conclude that the complaints brought by the above-named individuals must be dismissed for want of an “applicant” for the purposes of Article 34 of the Convention. Consequently, the application, in so far as it concerns these applicants, must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009).
2. As regards the applicants Cemal Çakmak and Tuncay Yıldırım
When application no. 43044/05 was lodged, the legal representatives did not submit to the Court a power of attorney in respect of these two applicants. When requested to do so by the Registry, the legal representatives submitted a power of attorney signed by Cemal Çakmak’s mother, and informed the Registry that Mr Çakmak was no longer alive. When requested by the Registry to provide information about the date and the circumstances in which Mr Çakmak had died, the legal representatives informed the Court that Mr Çakmak had been killed by members of the security forces in a military operation on 17 June 2005.
Similarly, on 7 May 2009 the legal representatives submitted to the Court a domestic court decision from which it appears that Mr Tuncay Yıldırım has died on 21 March 2002. They submitted a power of attorney signed by Tuncay Yıldırım’s father.
The Court observes that the application was lodged on 30 November 2005, some five and a half months after Mr Çakmak’s death and some three and a half years after Mr Yıldırım’s death and that no information was provided in the application form about the deaths. As such, the Court considers that, unlike a close relative who may be allowed to pursue an application concerning ill-treatment lodged by an applicant who dies in the course of the proceedings before the Court (see Aksoy v. Turkey, no. 21987/93, Commission decision of 19 October 1994, Decisions and Reports (DR) 79, p. 67), the parents of Mr Çakmak and Mr Yıldırım do not have the requisite standing under Article 34 of the Convention as the incidents in question did not directly involve them but their deceased sons. It follows that the application, in so far as it concerns Mr Cemal Çakmak and Mr Tuncay Yıldırım is also incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
3. As regards the remaining applicants, namely Veli Saçılık, Hüseyin Tiraki, Halil Tiryaki, Yunis Aydemir, Yusuf Demir, İbrahim Bozay, Hakan Baran, Kazım Ceylan, Hüseyin Bulut, Cemil Aksu, Necla Çomak, Şahin Geçit, Hayrullah Kar, Mehmet Leylek, Birsen Dermanlı, Veysel Yağan, Fikret Lüle, Ali Rıza Dermanlı, Cavit Temürtürkan, Azime Arzu Torun, Gönül Aslan, Barış Gönülşen, Hüsne Davran, Mürüvet Küçük and Emre Güneş
(a) Concerning the complaint under Article 3 of the Convention
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these applicants’ complaints under Article 3 of the Convention, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of them to the respondent Government.
(b) As regards the complaints under Articles 1, 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention
The Court finds that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the complaints by the applicants Veli Saçılık, Hüseyin Tiraki, Halil Tiryaki, Yunis Aydemir, Yusuf Demir, İbrahim Bozay, Hakan Baran, Kazım Ceylan, Hüseyin Bulut, Cemil Aksu, Necla Çomak, Şahin Geçit, Hayrullah Kar, Mehmet Leylek, Birsen Dermanlı, Veysel Yağan, Fikret Lüle, Ali Rıza Dermanlı, Cavit Temürtürkan, Azime Arzu Torun, Gönül Aslan, Barış Gönülşen, Hüsne Davran, Mürüvet Küçük and Emre Güneş under Article 3 of the Convention concerning the ill-treatment to which they were allegedly subjected in prison and the effectiveness of the investigation carried out into their allegations at the national level;
Declares the remainder of the applications inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
ANNEX
List of applicants in application no. 43044/05
Name
Date of birth
Place of residence
1
Mr Veli Saçılık
1977
Ankara
2
Mr Hüseyin Tiraki
1977
Adana
3
Mr Cemal Çakmak
1966
Erzincan
4
Mr Halil Tiryaki
1959
Vevey, Switzerland
5
Mr Yunis Aydemir
1971
Ankara
6
Mr Yusuf Demir
1957
Istanbul
7
Mr İbrahim Bozay
1956
Malatya
8
Mr Hakan Baran
1971
Ankara
9
Mr Kazım Ceylan
1969
Delémont, Switzerland
10
Mr Hüseyin Bulut
1952
Istanbul
11
Mr Cemil Aksu
1977
Artvin
12
Ms Necla Çomak
1975
Ankara
13
Mr Şahin Geçit
1968
İzmir
14
Mr Hayrullah Kar
1955
Antalya
15
Mr Hüseyin Kilit
1969
Erzincan
16
Mr Mehmet Leylek
1959
Malatya
17
Mr Ahmet Gün
1969
Tokat
18
Mr Yusuf Timur
1965
Erzincan
19
Ms Birsen Dermanlı
1971
Tunceli
20
Mr Mustafa Candan
1966
Tunceli
21
Mr Veysel Yağan
1967
Tunceli
22
Mr Fikret Lüle
1972
Ankara
23
Mr Ali Rıza Dermanlı
1969
Tunceli
24
Mr Cavit Temürtürkan
1974
Basle, Switzerland
25
Mr Kamil Yıldız
1973
Tunceli
26
Mr Yaşar Çavuş
1975
Tunceli
27
Ms Azime Arzu Torun
1975
Istanbul
28
Ms Gönül Aslan
1976
Ankara
29
Mr Barış Gönülşen
1974
İzmir
30
Mr Tuncay Yıldırım
1971
Çanakkale
31
Ms Hüsne Davran
1960
Adana
32
Ms Mürüvet Küçük
1970
Tunceli
[1]. The killing is the subject matter of another application currently pending before the Court: Cangöz and Others v. Turkey, no. 7469/06.
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