AS TO THE ADMISSIBILITY OF
Application No. 28522/95
by Nazmi TOSUNOGLU
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 March 1995 by
Nazmi TOSUNOGLU against Greece and registered on 12 September 1995
under file No. 28522/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the information submitted by the respondent
Government on 24 December 1995 and 21 March 1996 and the comments by
the applicant in reply dated 22 March 1996 and 8 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish national. He was born in 1956. He is
currently held in Trikala prison, in Greece.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
On 1 December 1988 the applicant was convicted by the three-
member Court of Appeal of Athens (trimeles efetio) to 13 years
imprisonment for robbery.
On 17 October 1989 the Disciplinary Board of Trikala prison
imposed on the applicant the disciplinary penalty of five days
detention in the segregation unit on the ground that he had engaged
himself in a fight with another prisoner for no apparent reason.
On 14 June 1991 a disciplinary penalty of ten days detention in
the segregation unit was imposed on the applicant for having tried to
escape from Trikala prison.
On 18 June 1991 the applicant was transferred to Larissa prison.
On the same day a disciplinary penalty of ten days detention in the
segregation unit was imposed on him for having attacked a prison
warden.
Between 5 September 1994 and 28 January 1995 the applicant
attended a computer training course.
On 2 March 1995 the applicant was transferred from Larissa prison
to a detention centre in Athens. The applicant claims that, when he
arrived there, at around 22h00, he reported to the policemen who had
escorted him that his suitcase was missing. The policemen reacted by
shouting at him, pushing him and beating him. The applicant threw
himself on the suitcases face downwards. The policemen forced him into
the detention centre by kicking him and pulling him by the hair.
On 3 March 1995 the applicant was transferred to Tripoli prison.
and on 7 March 1995 to the open prison of Tirintha. However, on
8 March 1995 the director of Tirintha prison requested that the
applicant be transferred to a higher security prison because there was
a high risk that he might attempt to escape.
On 16 March 1995 the Greek Ministry of Foreign Affairs was
notified by the Turkish Embassy that the applicant had complained that
he had been subjected to ill-treatment during his transfer from Larissa
to Tripoli prison. The Ministry of Foreign Affairs contacted the
Ministry of Justice which contacted the prison authorities of Larissa,
Tripoli and Tirintha. The latter replied that the applicant had never
complained of ill-treatment. The prison authorities of Tirintha
specified that the applicant had been examined on his arrival there by
a doctor who had not reported any evidence of ill-treatment. The
applicant's complaint was forwarded to the Ministry of Public Order.
On 5 April 1995, the applicant was transferred to Halkida prison.
On a date not specified, the applicant claims to have reported the
above ill-treatment incident to a public prosecutor who visited the
prison. The applicant claims that the public prosecutor refused to
entertain his complaint invoking lack of competence ratione loci.
On 16 June 1995 the Police Director of Athens ordered an
administrative inquiry into the applicant's allegations. On
18 July 1995, the applicant was visited by a policeman who asked him
to make a statement concerning the alleged ill-treatment incident.
On 1 September 1995 the administrative inquiry was concluded. In
his report, the police officer who conducted the inquiry noted that he
had examined a number of documents and heard the police officers
implicated in the incident. He also noted that the Ministry of Foreign
Affairs had failed to communicate to the Police the letter which the
applicant had addressed to the Turkish Embassy complaining of ill-
treatment.
The following facts had been established. The applicant arrived,
together with 21 other prisoners, in the detention centre in Athens on
2 March 1995. In order to eliminate the risk of escaping, the police
officers who had escorted the applicant formed with their bodies a
corridor leading from the door of to the boot of the bus where the
luggage of the prisoners could be found. The prisoners had to cross
that corridor in order to recover their luggage. The applicant,
pretending that he was tired from the long journey, tried to obstruct
the procedure, appeared to be restless and attempted to start a
conversation with one of the escorts. The experienced members of the
escort recognised a well-known method used by prisoners in their
attempts to escape. Two of them intervened and conducted the applicant
directly to the detention centre. His luggage was subsequently given
to him.
No officer pushed the applicant. The officers "realised the
applicant's intentions and acted in a preventive manner, unfortunately
for him." In any event, the police officer who conducted the inquiry
considered "it is not advisable in the circumstances to push a
prisoner, because he may take advantage of that fact and break the
human corridor and escape". His conclusion was that the applicant's
allegations were unfounded and that they must be attributed to the
applicant's frustration with his failure to escape. In the light of the
above, the officer who conducted the inquiry considered that no
disciplinary action should be taken against the officers implicated in
the incident.
On 14 September 1995 the Police Director of Athens agreed with
the recommendations of the officer who conducted the inquiry. On
2 October 1995 the General Director of the Police also approved.
On 19 October 1995, the applicant applied to the director of
Halkida Prison for a conditional release. On 20 October 1995 the
director of Halkida prison decided that 20 prisoners should be moved
away from Halkida prison to facilitate the undertaking of refurbishment
work. On 26 October 1995 the applicant, together with 19 other
prisoners, was transferred to Trikala prison.
On 14 December 1995 a special chamber of the first instance
criminal court (Simvulio Plimmeliodikon) of Trikala decided that the
applicant should not be conditionally released. The applicant appealed.
On 2 February 1996 a special chamber of the court of appeal
(Simvulio Efeton) of Trikala upheld the decision of the first instance
court on the ground that the applicant's behaviour in prison had not
been good. The court made reference to the disciplinary offences
committed by the applicant.
On a date which has not been specified the applicant was
transferred to Agia prison in Hania, Crete. He was then conditionally
released.
COMPLAINTS
1. The applicant complains that he was subjected to ill-treatment
on 2 March 1995. He invokes Article 3 of the Convention.
2. The applicant further complains that the refusal of the
authorities to grant him a conditional release constitutes a violation
of Article 7 of the Convention. It also amounts to a violation of
Article 25 of the Convention, in that it constitutes reprisals for the
application he has lodged with the Commission.
3. Finally, the applicant complains that he is being refused a fee
he is entitled to for having attended the computer training programme.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 March 1995 and registered on
12 September 1995.
On 14 December 1995 the Secretary of the Commission, acting on
the instructions of the Rapporteur, requested the Government of Greece
to inform him before 1 February 1996 whether the applicant had
complained about the alleged ill-treatment to the Greek authorities
and, if so, whether an investigation was under way.
The Government replied on 24 December 1995 and sent additional
information on 21 March 1996. The applicant submitted written comments
on 22 March 1996 and 8 June 1996.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that he was subjected to ill-treatment on 2 March 1995.
The Commission notes that the applicant claims to have raised his
complaints orally with a public prosecutor, who allegedly refused to
entertain them invoking his lack of competence ratione loci. It also
notes that the applicant's allegations have been examined by the police
authorities in the context of an administrative inquiry which concluded
that no action need be taken. However, the Commission does not consider
it necessary to examine whether, in these circumstances, the applicant
can be exempted from the obligation to exhaust domestic remedies by
raising his complaints with the competent public prosecutor
(cf. No. 21300/93, Mehiar v. Greece, Dec. 10.4.96, unpublished and
No. 23916/94, Dec. 6.4.95, unpublished).
The Commission notes, in this connection, that the applicant has
failed to provide any elements of proof that his allegations of ill-
treatment correspond to reality (cf., a contrario, Tomasi v. France,
Comm. Report 11.12.90, paras. 99-100, Eur. Court H.R., Series A
no. 241, p. 52). It follows that no appearance of a violation of
Article 3 (Art. 3) of the Convention is disclosed and that this part
of the application must be rejected as manifestly ill-founded under
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 7 (Art. 7) of the
Convention that the refusal of the authorities to grant him a
conditional release constitutes a violation of Article 7 (Art. 7) of
the Convention.
The Commission notes that the applicant has now been
conditionally released. As a result, he can no longer claim to be a
victim of a violation within the meaning of Article 25 (Art. 25) of the
Convention. Moreover, insofar as he complains about the initial
rejection on 2 February 1996 of his application for conditional
release, the Commission recalls that neither Article 7 (Art. 7) nor any
other provision of the Convention guarantees a right to be
conditionally released. It follows that this part of the application
must be rejected as incompatible with the provisions of the Convention
under Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains that he was refused a fee he is entitled
to for having attended a computer course.
The Commission notes that there is no indication that the
applicant has complained in this connection to the national
authorities. It follows that, even assuming that the applicant's claim
is capable of raising an issue under the Convention and/or its
Protocols, the applicant has failed to exhaust domestic remedies in
accordance to Article 26 (Art. 26) of the Convention. This part of the
application must be, therefore, dismissed in accordance with Article 27
para. 3 (Art. 27-3) of the Convention.
4. Finally, insofar as the applicant complains that the initial
refusal to grant him a conditional release constituted an interference
in the exercise of the right of individual petition under Article 25
(Art. 25) of the Convention, the Commission has taken note of the
reasons invoked by the national courts for refusing his conditional
release on 2 February 1996. It has also taken note of the fact that the
applicant has now been conditionally released. It, therefore, considers
that no further action need be taken in respect of this complaint.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE;
DECIDES THAT NO FURTHER ACTION NEED BE TAKEN IN CONNECTION WITH
THE ALLEGED INTERFERENCE IN THE EXERCISE OF THE APPLICANT'S RIGHT
OF INDIVIDUAL PETITION UNDER ARTICLE 25 OF THE CONVENTION.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy