FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24209/94 
by Yusuf FIDAN 
against Turkey

The European Court of Human Rights (First Section), sitting on 29 February 2000 as a Chamber composed of

Mrs E. Palm, President
 Mr L. Ferrari Bravo, 
 Mr Gaukur Jörundsson, 
 Mr B. Zupančič, 
 Mr T. Panţîru, 
 Mr R. Maruste, judges,

Mr F. Gölcüklü, ad hoc judge

and Mr M. O’Boyle, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 13 May 1994 and registered on 26 May 1994,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a Turkish citizen, born in 1951 in the Kulp district of Diyarbakır.  He lives in Bingöl.  He is represented before the Court by Mustafa Sezgin Tanrıkulu, a lawyer practising in Diyarbakır.

The facts as submitted by the parties may be summarised as follows:

On 15 October 1993 the applicant was taken into police custody in Bingöl, on suspicion of being linked to an illegal organisation.  Two days later, the applicant's wife, Nuriye, was also taken into police custody.

On 18 October 1993 the applicant was interrogated by the police.  His statements were placed on record and the applicant signed the document.  According to his statement, the applicant's son Yetişen was a member of the PKK (Labour Party of Kurdistan).  After Yetişen had been wounded in clashes with soldiers, the applicant took him home, where, for 10 days, he and his wife took care of him. While nursing Yetişen, and after his recovery, the applicant and his wife, met other members of the PKK and assisted them.

On 20 October 1993,

-  the applicant was brought before the Public Prosecutor of Bingöl.  The same day, he was questioned by the Public Prosecutor and by the local Justice of the Peace (Sulh Ceza Hakimi).  The latter placed him in detention on remand ;

-  he was examined at the 1st Division of Bingöl Central Infirmary.  The presence of a superficial bruise covering a surface of 3 x 5 cm on the applicant's wrist was mentioned in a medical examination report prepared by A.Y., doctor at the Bingöl Central Health Service ;

-  he made a written statement to the police according to which he had bruised himself in the course of police detention ;

-  Nuriye was taken to a doctor for a gynaecological examination.  The police requested that the report should indicate whether she had had sexual intercourse by way of coitus or sodomy.  She refused in the beginning to be examined and started to cry.  Following threats from the four policemen who were accompanying her, she allowed C.O., doctor at the Bingöl Central Health Service, to examine her.  Although the policemen were present during this examination, they could not see her, as she was behind a curtain.  In his report, C.O. mentioned that the applicant’s wife did not have sexual intercourse in the previous days.

Also on 20 October 1993 Nuriye was brought before the Bingöl Public Prosecutor, were she complained about her forced gynaecological examination.  The prosecutor told her that nothing would happen to her and released her.

On 28 October 1993 the Chief Public Prosecutor of the State Security Court of Diyarbakır issued an indictment against the applicant and his wife and charged them both with assisting the PKK and acting as their accomplices.  Criminal proceedings were initiated against the applicant and his wife before the 1st Chamber of the State Security Court of Diyarbakır under file number 1993/727.

On 9 November 1993 the applicant's legal representative submitted a petition to the court, asserting that the applicant's statement to the police had been given under pressure.  He also stressed that before the Public Prosecutor and the local Justice of the Peace, the applicant had only admitted having taken care of his injured son. He also submitted that the applicant risked losing his job if his detention continued.  He requested the applicant's release.  The court dismissed this request.

On 15 December 1993 the first hearing took place before the State Security Court of Diyarbakır in the absence of the applicant.  The applicant's legal representative asserted that the applicant had been subjected to ill-treatment while in police custody and once again requested the applicant's release.  The Court granted the request and released the applicant.

On 23 March 1994 the applicant was acquitted for lack of evidence.

In a statement to the Bingöl Public Prosecutor dated 9 February 1995, the applicant complained about his ill-treatment while in detention and alleged that he had been suspended by the arms, although he admitted that he did not remember for how long.

On 29 March 1995 N.A., a police officer accused by the applicant of ill-treatment, gave a statement before the Bingöl Public Prosecutor.  He declared that while the applicant was in custody, he had noted that the applicant had a bruise on his wrist.  The applicant had told him that he had fallen asleep with his hand on the radiator and had hurt himself in this way. N.A. stated further that he had sent the applicant to be seen by a doctor, to whom the applicant gave the same account of the facts.

On 24 April 1995 a similar statement was given to the public prosecutor by another police officer accused of ill-treatment, H.S.  On 27 April 1995 a third police officer, H.T., gave a similar statement.

On 8 September 1995 A.Y., the doctor who had delivered the medical certificate on 20 October 1993, made a statement at the request of Bingöl Public Prosecutor, in which he maintained his conclusions of that report, adding that the origin of the bruise found on the applicant’s wrist could not be determined. 

On 5 October 1995, as a result of an investigation opened into the applicant's allegation of ill-treatment during custody, the Bingöl Public Prosecutor issued a decision not to prosecute for lack of sufficient evidence.  The decision mentioned that the applicant had been examined by a doctor, who reported the existence of a bruise on the inside of the wrist, but was not able to state the cause of the bruise.

The applicant appealed against the decision of non-prosecution of 5 October 1995.  On 29 November 1995 the Muş Assize Court quashed the decision of 5 October 1995, on the basis that the medical certificate of 20 October 1993 had not been confirmed by the competent Forensic Institute.

In an indictment of 19 December 1995, the Bingöl Public Prosecutor charged N.S., H.S. and H.T. of having tortured the applicant and his wife, and of having violated the private life of the applicant’s wife by obliging her to undergo a gynaecological examination.  The indictment did not provide reasons, but pointed out that it should be for a court to assess the evidence and decide whether the applicant’s allegation was substantiated.  

On 15 March 1996, a medical report by the Malatya Forensic Medical Institute confirmed the medical certificate of 20 October 1993 and maintained that the origin of the injury could not be determined.  

In its judgment of 16 May 1996 the Bingöl Assize Court acquitted the police officers accused of ill-treatment, on the ground that the applicant had not provided sufficient and convincing evidence in support of his allegation of ill-treatment.  The court noted that while in detention, the applicant had stated that he had fallen asleep with his hand on the radiator.  The court noted furthermore that, according to the medical report of 15 March 1996 made by the Forensic Medical Institute of Malatya, it was not possible to determine whether the bruise on the applicant's wrist was caused by him falling asleep with his hand on the radiator or by ill-treatment. 

The Court also decided that the police officers had no intention of interfering with the private life of the applicant’s wife when they made her undergo a gynaecological examination, but were trying to protect themselves against a possible accusation of rape.

On 31 May 1996 the applicant appealed against the decision of the Bingöl Assize Court.  On 7 May 1997 the Court of Cassation upheld the decision of 16 May 1996.

COMPLAINTS

1. The applicant complains, under Article 3 of the Convention, that he was tortured for 5 days in police custody. In particular he asserts that he was subjected to "Palestinian hanging".  He maintains that he was under pressure when he signed the statements taken by the police.

2. The applicant alleges a violation of Article 8 of the Convention.  He complains that his wife was forced to undergo a gynaecological examination, the results of which were set out in a medical report.  In relation to this complaint, in a statement submitted to the Court on 20 February 1999, his wife complained about her alleged forced examination, alleging that it constituted an infringement of her right to respect for her private life.  

PROCEEDINGS BEFORE THE COURT

The application was introduced on 13 May 1994 and registered on 26 May 1994.

On 7 December 1994 the Commission decided to communicate the applicant's complaint concerning his alleged ill-treatment by the police and the alleged forced medical examination of his wife and to declare the remainder of the application inadmissible.

The Government's written observations were submitted on 29 March 1995 and on 26 February 1996. The applicant replied on 17 May 1995 and on 15 January 1996. 

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 8 December 1998 the Court decided to request further information as to the complaint concerning the alleged forced medical examination of the applicant’s wife.

The applicant submitted the requested information on 20 February 1999.  On the same date, Nuriye Fidan submitted a statement concerning her alleged forced examination.  The Government replied on 12 March 1999.

THE LAW

1. The applicant complains that he was tortured for 5 days while in police custody.  In particular he asserts that he was subjected to the "Palestinian hanging".  He maintains that he was under pressure when he signed the statements taken by the police.  He invokes Article 3 of the Convention, which provides :

« No one shall be subjected to torture or to inhuman or degrading treatment or  punishment. » 

The Government contend in the first place that the applicant failed to exhaust domestic remedies available to him.  In particular, they point out that the applicant could have appealed to the Assize Court against the prosecutor's refusal to prosecute.

The applicant responds that in Turkey torture is a continuing administrative practice and tortures are not investigated.  Therefore, domestic remedies are ineffective.  He submits in this respect that as a result of his application before the Commission, his house was raided by members of the Anti-Terrorist Branch of the Security Directorate.  The Attorney General, B.S., advised him that filing complaints with the Commission against Turkey is not a good thing to do.

The applicant rejects the arguments of the respondent Government and maintains that he had exhausted domestic remedies.

As to the merits, the Government contest that the applicant has been subjected to "Palestinian hanging".  They point out that the applicant did not complain about any form of ill-treatment to the doctor who examined him on 20 October 1993; on the contrary, he had declared the same day that the bruise had been caused by the fact that, while in detention, he had fallen asleep with his arm on a heating unit.

The Government point out also that, had the applicant been subjected to "Palestinian hanging", this would had left marks on both his wrists, not only on one.  On the other hand, had the applicant been hanged only by one hand, this would have broken his arm or dislocated his shoulder.

The applicant submits that, while subjected to "Palestinian hanging", the victim is not immobile, and it would be possible for one hand to escape being marked.  He also submits that it would be impossible for an individual to sleep in a position of self-inflicted cruelty such as the Government describe.

The Court has examined the Government’s objection based on Article 35 of the Convention, arguing that, at the time the application was lodged with the Commission, the applicant had not exhausted domestic remedies available to him.

In this regard, the Court recalls that it can accept the fact that the last stage of domestic remedies may be reached after the lodging of the application but before it is called upon to state its opinion as to admissibility (Eur. Court H.R., Ringeisen v. Germany judgment of 16 July 1971, Series A no. 13, p. 38, para. 91).

The Court notes that in the present case the applicant filed an appeal against the Bingöl Public Prosecutor’s decision of 5 October 1995.  As a result, the police officers accused of torture were charged but eventually acquitted by the Bingöl Assize Court.  The Court further notes that although the applicant appealed against this judgment, the Court of Cassation upheld it on 7 May 1997.

The Court therefore considers that the Government’s objection cannot be accepted.

As to the merits, the Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.  The assessment of this minimum is relative : it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, the age and state of health of the victim (see Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 65-67, §§ 162, 167 ; Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517-18, §§ 52 and 53).

The mere possibility that the injuries were sustained in a manner other than that alleged by the applicant is not sufficient reason for rejecting a complaint (cf. Tomasi v. France, Comm. Report 11.12.90, Eur. Court HR, Series A no. 241-A, p. 52, § 100).  It must, however, be established that the injuries in question actually occurred in the way alleged by the applicant, and it is not normally for the Court to substitute its own assessment of the facts for that of the domestic courts.  Cogent reasons are needed before the Court departs from the findings of the national courts (Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, § 30). 

The Court also held that in circumstances where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined ... [the] Convention, requires by implication that there should be an effective and thorough official investigation. (see Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, no. 96, p. 3290, § 102).

In the present case, the Court notes that the applicant complains that he was subjected to “Palestinian hanging” for five days, while he was in police custody, and submitted in support of his allegations a medical certificate revealing a superficial bruise on his wrist, covering a surface of 3 x 5 cm.  However, the doctor who examined the applicant stated that it could not ascertain how the applicant received this injury.  Likewise, the Bingöl Assize Court acquitted the police officers on the ground that there was insufficient evidence to support the applicant’s allegations.

The Court has not been supplied with information, which could permit it, independently of the domestic courts, to establish that the applicant’s injury was inflicted in the manner alleged.  In particular, the applicant does not provide any details concerning his alleged “hanging”, while neither of the above-mentioned medical reports gives an indication of the timing of the injury.  Therefore, the Court finds it impossible to establish on the basis of the evidence before it, whether or not the applicant’s injury was caused as he alleged, by “Palestinian hanging”.

Since the evidence before it does not provide a basis to find that the applicant was subjected to treatment that attained a sufficient level of severity to come within the scope of Article 3, the Court considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 of the Convention on account of the alleged ill-treatment.

As to the adequacy of the domestic investigation, the Court notes that no enquiry started until February 1995, when the applicant was heard by the public prosecutor.  However, it underlines the steps taken by the public prosecutor charged with the investigation.  It notes in particular, that the public prosecutor proceeded to the hearing of the three policemen accused and of the doctor who had examined the applicant on 20 October 1993.  Furthermore, a supplementary medical report was obtained from the Forensic Medical Institute of Malatya, which confirmed on 15 March 1996 that it was impossible to determine whether the bruise on the applicant’s wrist was caused by him falling asleep with his hand on a radiator or by ill-treatment.  Finally, the Court notes that, following an indictment by the Bingöl public prosecutor, the Bingöl Assize Court acquitted the police officers for lack of evidence.

In the light of the above, and despite the fact that the domestic inquiry did not start until a year and a half after the alleged ill-treatment, the Court is of the view that the authorities took the necessary steps to identify and prosecute those responsible and therefore, that they did carry out an effective investigation into the applicant’s complaint.

It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also alleges a violation of Article 8 of the Convention.  He complains that his wife was forced to undergo a gynaecological examination, the results of which were set out in a medical report.

Article 8 of the Convention provides:

« 1. Everyone has the right to respect for his private and family life, his home and his  correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. »

The Government submit that in some circumstances, where a risk of defamation against security officers with regard to sexual violence is foreseen, gynaecological examination of female suspects proves necessary to avoid this risk and protect security officers from being the target of calumnies by the PKK.  The applicant's wife was examined in these circumstances and she could have refused to be examined.  However, she did not do so and the examination took place with her consent.  The Government also contend that the applicant was also informed of the gynaecological examination of his wife.

The applicant claims that his wife was subjected to the gynaecological examination against her will.  He alleges that this constitutes an infringement of Article 8 of the Convention, without specifying which rights protected under that provision were infringed.  

The Court notes, that the applicant submitted a statement of his wife, in which she complains of her forced examination and alleges that this constituted an infringement of her right to respect for her private life.  The Court considers that it is open to the applicant, as close relative of the victim, to raise a complaint concerning allegations by her of violations of the Convention (see, mutatis mutandis, Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, pp. 2429-2430, §§ 65-66).

As to the merits of the complaint, the Court considers, in the light of the parties’ submissions, that it raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.  It concludes, therefore, that this complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaint that the forced gynaecological examination of his wife constituted a violation of Article 8 of the Convention ;

DECLARES INADMISSIBLE the applicant’s complaint that he was submitted to treatment contrary to Article 3 of the Convention.

Michael O'Boyle                          Elisabeth Palm 
 Chamber Registrar                          Chamber President

24209/94 - -


- - 24209/94