SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12101/03 
by Durmuş KURT and Others 
against Turkey

The European Court of Human Rights (Second Section), sitting on 23 May 2006 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr R. Türmen
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Ms D. Jočienė, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 10 March 2003,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Durmuş Kurt, Mr Nurettin Kılıçarslan, Mrs Zübeyde Kayar and Mr Cafer Cangöz, are Turkish nationals who were born in 1958, 1972, 1970 and 1957 respectively, and live in Tunceli and Tokat. They are represented before the Court by Mr M.A. Kırdök and Mrs M. Kırdök, lawyers practising in Istanbul.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 15, 16 and 17 June 1995, as part of a police operation against an illegal organisation, the TKP-ML/TIKKO (Communist Party of Turkey/Marxist-Leninist, Turkish Workers and Peasants’ Liberation Army), the applicants were arrested and taken into custody at the anti-terrorist branch of the Istanbul Security Directorate.

On 28 June 1995 the applicants were taken before the public prosecutor at the Istanbul State Security Court. They maintained before the prosecutor that they had been interrogated under duress and ill-treated by the police for ten days while in custody. They contended that they were beaten, punched, hosed, subjected to Palestinian hanging, deprived of sleep and threatened with death. Whilst being hung, electric shocks were administered to them through cables attached to their genitals.

On the same day the applicants were examined by a doctor at the Forensic Medicine Institute who noted the following marks on their bodies:

– Durmuş Kurt: one yellow and one green lesion of 2 x 2 cm on the right shoulder, a lesion of 3 x 0,5 cm on the inner part of the upper arm. The doctor certified him unfit for work for three days.

– Nurettin Kılıçarslan: four scab-covered lesions of 5 x 0.5 cm which are positioned parallel to each other in the right armpit and a graze of 5 x 1 cm on the right thigh. The doctor certified him unfit for work for three days.

– Zübeyde Kayar: three scab-covered lesions measuring 4 x 0.5 cm which are positioned parallel to each other in the left armpit. The doctor noted that she had complained of pain and numbness in both arms and hands. He further noted impaired movement in both arms. However, he considered that a final report could only be drawn up once she had been examined by a hospital neurology service. It appears from the case file, however, that the additional examination was never carried out.

– Cafer Cangöz: a lesion of 0.5 x 0.5 cm on the right shoulder and a scab-covered lesion of 0.1 x 0.5 cm in the middle of the upper scapular region. The doctor certified him unfit for work for one day.

On 21 July 1995 the Istanbul Public Prosecutor decided that he had no jurisdiction over the case and transmitted the case file to the Fatih Public Prosecutor for investigation.

On 15 November 1995 the Fatih Public Prosecutor decided not to prosecute the on-duty police officers who allegedly tortured the applicants whilst in custody, for lack of evidence.

On 27 November 1996 the Ministry of Justice notified the Istanbul Public Prosecutor that the decision of non-prosecution of 15 November 1995 issued by the Fatih Public Prosecutor lacked sufficient reasoning, and that a more comprehensive investigation must be conducted into the complaints of the applicants.

On 16 July 1997 the Fatih Public Prosecutor sent a report to the Istanbul Public Prosecutor summarising the facts and the applicants’ complaints that they had been tortured whilst in custody between 15 and 28 June 1995 by officers working in the anti-terrorist branch of the Istanbul Security Directorate. The Fatih Public Prosecutor requested the Istanbul Public Prosecutor to file a bill of indictment with the Istanbul Assize Court, charging five police officers with inflicting torture, contrary to Article 243 § 1 of the Criminal Code.

By an indictment filed on 2 September 1997, the public prosecutor instituted criminal proceedings against five police officers for having tortured the applicants and professional misconduct.

On 27 October 1997 the Istanbul Assize Court heard four of the police officers who had been on duty while the applicants were in custody. They denied having ill-treated the applicants. The applicants maintained before the court that they had been subjected to ill-treatment in police custody and gave the names of the officers who had ill-treated them. On the same day the applicants filed a petition with the court to intervene in the proceedings as civil parties.

On 29 December 1997 the fifth police officer’s statement was taken before the Tunceli Assize Court, which was then sent to the Istanbul Assize Court.

On 9 October 1998 the court heard witnesses who confirmed that the applicants had been subjected to torture, and the applicants identified two of the defendant police officers who had ill-treated them.

In hearings on 30 October 1998 and 9 November 2000, the applicants further identified other defendant police officers who had participated in the acts of torture.

On 19 November 2002, the Assize Court decided to discontinue the proceedings against the four police officers as the prosecution of the offences had became time-barred. The Assize Court acquitted the last police officer for insufficient evidence.

On 23 January 2003 the applicants appealed before the Court of Cassation against this judgment.

B.  Relevant domestic law

A full description of the domestic law may be found in the judgment of Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 95-98, ECHR 2004-IV (extracts)).

COMPLAINTS

1.  The applicants complained under Article 3 of the Convention that they were subjected to various forms of ill-treatment while in police custody and that the authorities had not conducted an effective investigation into their allegations of ill-treatment.

2.  The applicants further complained under Article 6 § 1 of the Convention that they did not have access to court as no effective and timely investigation was conducted into their complaints of being subjected to ill-treatment in police custody. They maintained that the criminal proceedings initiated against the police officers who had allegedly tortured them were not initiated within time, and were therefore discontinued by virtue of the statute of limitations. Moreover, one of the accused was acquitted, thus depriving them altogether of the possibility to claim damages for the ill-treatment they had allegedly sustained.

3.  The applicants finally submitted, under Article 13 of the Convention, that the investigations and ensuing criminal proceedings could not be considered to have been thorough, effective and timely, since they offered no prospect of identifying those responsible or a future claim for compensation.

THE LAW

1.  The Court first observes that the allegation of being subjected to ill-treatment in police custody made by the applicant Cafer Cangöz is substantially the same as that examined in application no. 28039/95, which gave rise to a judgment (Cangöz v. Turkey, no. 28039/95, 4 October 2005). Consequently, by virtue of Article 35 §§ 2 (b) and 4 of the Convention, the Court is unable to examine again this applicant’s claims in the present case.

2.  The other applicants complained under Article 3 of the Convention that they were subjected to ill-treatment in police custody.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3.  The other applicants complained under Article 6 § 1 and 13 of the Convention that they did not have effective access to a court to seek compensation for the suffering which they had allegedly experienced in police custody, as the authorities failed to conduct a timely and effective investigation into their complaints.

However, the Court finds that this complaint should be examined exclusively under Article 13 of the Convention. Moreover, it considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first three applicants’ complaints of being subjected to ill-treatment in police custody and the lack of an effective investigation by the authorities into that allegation;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

KURT AND 3 OTHERS v. TURKEY DECISION


KURT AND 3 OTHERS v. TURKEY DECISION