AS TO THE ADMISSIBILITY OF
Application no. 32357/96
by Sevtap VEZNEDAROĞLU
The European Court of Human Rights (Second Section) sitting on 7 September 1999 as a Chamber composed of
Mr M. Fischbach,
Mr G. Bonello,
Mr P. Lorenzen,
Mr A.B. Baka,
Mr E. Levits, Judges,
Mr F. Gölcüklü, ad hoc Judge
with Mr E. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 April 1996 by Sevtap Veznedaroğlu against Turkey and registered on 22 July 1996 under file no. 32357/96;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 19 December 1997 and the observations in reply submitted by the applicant on 20 February 1998;
Decides as follows:
The applicant is a Turkish national, born in 1966 and currently living in Istanbul, Turkey. She is an associate professor of public law at the Faculty of Law of Kocaeli University. At the time of the events giving rise to her application, the applicant was living in Diyarbakır.
She is represented before the Court by Mr M. Sezgin Tanrıkulu, a lawyer practising in Diyarbakır.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant may be summarised as follows.
The applicant was at the relevant time a research student in public law at Diyarbakır University and married to a lawyer who had been the provincial president of the Diyarbakır Human Rights Association in 1990. According to the applicant she was constantly followed by the police on account of her husband’s position.
On 4 July 1994, at about 3 p.m., the applicant was arrested by 8 policemen at her home on suspicion of membership of the Kurdistan Workers Party (“PKK”), an illegal organisation. She was taken to the forensic doctor to be examined. After the doctor’s examination she was blindfolded and taken to an unknown destination where she was placed in a cell. After a certain period of time, she was again blindfolded and taken to another room to be interrogated.
The applicant was interrogated by approximately 15 policemen and accused of forming links with and of working for the PKK abroad. She was then undressed and hung by her arms. She was given electric shocks to her mouth and sexual organs. After half an hour she was taken down as she had fainted. The interrogators, while threatening her with death and rape, told her not to work on human rights matters. She was then taken to her cell. The next day she was again tortured and threatened with death and rape. The torture continued for four days. During the first two days of her custody the applicant was not given anything to eat. Thereafter she was given only a piece of bread and a few olives.
During her detention she was requested to sign some documents. She was told that she would be tortured and raped if she did not agree to sign them. The applicant signed the documents. In the documents, by way of explanation for the marks of torture on her body, it was stated that the applicant had fallen while indicating a place used by the PKK. The policemen applied cream to the applicant’s injuries.
On 13 July 1994 the police officers brought her to the forensic doctor who drew up a report which stated: “Upon the examination of Sevtap Veznedaroglu, violet-coloured bruises were identified on the left upper arm 1 by 1 cm and on the right tibia 3 by 1 cm”.
On 15 July 1994 the applicant, accompanied by police officers, was taken to the Diyarbakır State Hospital where she was examined by a forensic doctor. In his report dated 15 July 1994 the doctor noted the presence of the same bruising on the applicant’s arm and leg as indicated in the earlier report of 13 July 1994. The report concluded that the applicant’s health was not at risk and that she was fit to work.
On 15 July 1994 the applicant was brought before the Public Prosecutor at the Diyarbakır State Security Court. Her file contained the medical reports dated 4, 13 and 15 July 1994. The applicant maintained before the Public Prosecutor that she had signed the confession statement under pressure and as a result of being tortured while in detention. The Public Prosecutor recorded in the file that the applicant did not acknowledge the statement which she gave to the police.
On the same day the applicant appeared before a substitute judge attached to the Diyarbakır State Security Court. The applicant repeated to the judge that she did not acknowledge the statement taken from her by the police “since she had been tortured and held under duress for many days ... and that the police had held her wrist and forced her to sign the police statement”. The applicant’s statement was recorded in the minutes of the hearing before the judge. The judge directed that the applicant be released from custody. The Public Prosecutor for his part ordered that the applicant stand trial before the Diyarbakır State Security Court on a charge of being a member of the PKK.
On 18 July 1994 the applicant was given a certificate by the Medical Faculty Hospital of Dicle University indicating that she was unable to work for 20 days. According to the medical report the applicant was suffering from bronchopneumonia.
On 30 November 1995 the applicant was acquitted by the Diyarbakır State Security Court on the ground of lack of evidence. The applicant was not in court on that day. In its ruling the court noted as follows the declarations made by the applicant during a court hearing held on 13 October 1994 and which was recorded in the minutes.
“Although the accused admitted to the offence with which she was charged in her statements to the police, at a later stage during the proceedings before the judicial organs she claimed that she had made them under duress and even torture and had signed them without having read them.”
The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Articles 243 and 245 respectively, the latter provision applying to allegations made against civil servants).
Complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the Public Prosecutor or the local administrative authorities. The Public Prosecutor and the police have a duty to investigate criminal offences reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the Public Prosecutor not to institute criminal proceedings.
If the alleged author of a criminal offence is a State official or civil servant, permission to prosecute must be obtained from the local administrative council (the Executive Committee of the Provincial Assembly). The decision of a local council may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.
The applicant complains under Article 3 of the Convention that she was tortured while in police custody.
The application was introduced on 6 April 1996 and registered on 22 July 1996.
On 30 June 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 19 December 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 20 February 1998.
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.
The applicant and the Government submitted further information on the application on 22 June and 13 July 1999 respectively.
The applicant stated that she had been tortured while in police custody in violation of Article 3 of the Convention, which stipulates:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The Government assert that the application should be declared inadmissible on account of the applicant’s failure to comply with the admissibility conditions contained in Article 35 § 1 of the Convention.
In the first place, the applicant cannot be considered to have exhausted domestic remedies since she never filed a formal complaint with the Public Prosecutor with a view to the opening of a criminal investigation into her allegations. The Government stress in this connection that when the applicant appeared before the substitute judge at the Diyarbakır State Security Court on 15 July 1994 she simply declared that the statements had been taken from her under duress and ill-treatment. In addition, the applicant never raised the substance of her complaint during her trial. She only indicated to the court that she had made her statements under duress without providing any concrete information about having been subjected to ill-treatment. In fact, the applicant did not appear in court on 30 November 1995 when she was acquitted of the charges brought against her.
The Government further maintain that it would also have been open to the applicant to institute compensation proceedings before either the civil or administrative law courts in respect of her allegation. Her failure to do so provided an additional justification for rejecting her complaint for non-exhaustion of domestic remedies.
Secondly, the Government contend that the application should be rejected for non-compliance with the six-month rule. They observe in this connection that although the applicant was released from police custody on 15 April 1994 she only lodged her application with the Commission on 6 April 1996. In the Government’s submission, it was not open to the applicant to invoke the date of her acquittal, namely 30 November 1995, as the starting point for the running of the six-month rule since that decision had no bearing on her allegation of ill-treatment.
The applicant states that she repeatedly complained to the authorities about being tortured. She maintains that the Public Prosecutor on 15 July 1994 deliberately omitted to include in the case file her complaint that she had been tortured. She repeated this complaint on the same day to the judge attached to the Diyarbakır State Security Court who ordered her release and raised the matter again on 13 October 1994 when she appeared at a hearing before the latter court. The Diyarbakır State Security Court, which acquitted her on 30 November 1995, referred in its decision to the fact that she had alleged that she had been tortured. However that court did not provide her with any information as to the authority which would be competent to receive her complaint. For that reason she was obliged to lodge her complaint with the Commission within six months of the date of her acquittal.
The applicant submits that had she applied to the Commission when the criminal proceedings were pending against her, the Government would have objected to the admissibility of her complaint on the ground that domestic remedies had not yet been exhausted. Accordingly, she decided to await the outcome of the trial.
The applicant further contends that, in any event, domestic remedies are ineffective in the respondent State in respect of a complaint of torture and that there is an officially tolerated practice of torture in custody.
The Court recalls that, according to Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. In the Government’s submission neither of these conditions have been satisfied in the instant case.
The Court observes at the outset that there has never been any “final decision” within the meaning of Article 35 § 1 of the Convention on the applicant’s complaint since no follow-up was ever given by the authorities to her allegation that she had been tortured while in custody between 4 and 15 July 1994. It notes in this connection that, contrary to the Government’s assertion, the applicant can be considered to have brought the substance of her complaint to the notice of the substitute judge at the Diyarbakır State Security Court on 15 July 1994 and did not merely challenge the admissibility of her statements as evidence against her. Moreover, even if on the same day the Public Prosecutor did not note the applicant’s complaint in the interrogation records, she can reasonably be considered to have mentioned to him that she had been compelled to sign her statement under the effects of torture. In the Court’s opinion these allegations should have been sufficient in themselves to alert the authorities to investigate her complaint, especially since she had just been released after fourteen days’ detention and there was medical evidence in the file indicating bruising to her arm and leg. It further notes that the applicant repeated her allegation at a hearing before the Diyarbakır State Security Court on 13 October 1994. The record of that hearing clearly indicates that she used the word “torture” before the court. In fact the court reminded itself of that declaration in its final ruling on 30 November 1995.
Having regard to these circumstances the Court considers that the applicant can be considered to have done all that could be expected of her to bring her complaint to the attention of the authorities with a view to the opening of an investigation into her allegation.
The Court does not accept the Government’s argument that the applicant’s failure to sue for compensation rendered her application inadmissible. It recalls in this connection that the only remedies which Article 35 of the Convention requires to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see the Selmouni v. France judgment of 28 July 1999, to be published in Reports of Judgments and Decisions 1999-, § 75). It further recalls that where an individual has an arguable complaint that there has been a violation of Article 3 the notion of an effective remedy entails, on the part of the State, a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see the above-mentioned Selmouni judgment, § 79; and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3290 § 102) .On that understanding the Court considers that the applicant’s complaint cannot be rejected on the ground that she did not pursue a remedy in damages under either civil or administrative law.
For the above reasons the Court dismisses the Government’s objection to the admissibility of the application under this head.
The Court does not accept either the Government’s contention that the application is time-barred. Although it is the case that in the absence of domestic remedies the six months’ period runs from the act complained of in the application, special considerations could apply in exceptional circumstances where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-months’ period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances.
In the opinion of the Court, it was not unreasonable for the applicant to have awaited the verdict of the Diyarbakır State Security Court before lodging her application with the Commission on 6 April 1996. Even if it is the case that the proceedings before that court cannot be considered a final part of the chain of local remedies in respect of her complaint that she had been tortured, it is nevertheless true that they were closely connected with the substance of that complaint. She had clearly made her allegation that she had been tortured a live issue before the court in the belief that, if the court were to exclude the statement she made in custody, an investigation would be opened into the merits of her allegation.
Having regard to these considerations, the Court concludes that the six months’ period can be taken to run as of the date of the applicant’s acquittal, namely 30 November 1995. Since her application was lodged with the Commission on 6 April 1996, it is not time-barred under Article 35 § 1 of the Convention.
2. The Government stress that following the communication of the applicant’s complaint an investigation was conducted into the authenticity of the medical certificate allegedly drawn up by the Medical Faculty attached to Dicle University Court granting her 20 days’ sick leave. That investigation revealed that there was reason to suggest that the figure “20” had been falsified, all the more so since it was difficult to understand why such a long period of sick leave would be granted on the strength of two bruises. Furthermore, the investigation also established that there was no record in the hospital of the certificate having been issued to the applicant. The Government assert that it must be concluded that the medical certificate, the only concrete evidence submitted by the applicant, was falsified and should therefore be discounted.
The applicant states that the Dicle University Medical Faculty did not keep a general register of all patients who had been treated there. Each Department had its own register. She asserts that the Department of Internal Medicine provided her with a medical report authorising her to take 20 days’ sick leave. It was on the basis of that report that her Law Faculty allowed her to take sick leave. The applicant refers to a letter dated 12 January 1998 in which the President of the Department of Internal Medicine informed the Head of the Dicle University Medical Faculty that the applicant had been examined on 18 July 1994 standing up and for that reason no medical record had been kept of her examination. A copy of that letter had been sent to the Diyarbakır State Security Court and to the Ministry on their request following the communication of her application to the respondent Government.
As regards the substance of the applicant’s complaints, the Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, the application 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, by a majority,
DECLARES THE APPLICATION ADMISSIBLE
Erik Fribergh Christos Rozakis
32357/96 - -
- - 32357/96