THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41306/98 
by Tacettin ÖRNEK and Abdulvahap EREN 
against Turkey

The European Court of Human Rights (Third Section), sitting on 9 January 2003 as a Chamber composed of

Mr G. Ress, President
 Mr L. Caflisch
 Mr P. Kūris
 Mr R. Türmen
 Mr J. Hedigan
 Mrs M. Tsatsa-Nikolovska
 Mrs H.S. Greve, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 9 March 1998,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Tacettin Örnek and Mr Abdulvahap Eren, are Turkish nationals, who were born in 1962 and 1966 respectively and live in Yüceli Village near the town of Kızıltepe in south-east Turkey. They are represented before the Court by Mr Mahmut Vefa, a lawyer practising in Diyarbakır.

A.  The circumstances of the case

As the facts of the case are disputed between the parties, the facts have been set out separately.

1.  The facts as submitted by the applicants

On 4 January 1998 at around 23.00 to 24.00 hours police officers from the Mardin Security Directorate together with soldiers from the gendarmerie station located in the applicants’ village of Yüceli came to Yüceli village and gathered the villagers in the village square. 20 villagers, including the applicants, were singled out and were asked by members of the security forces to show the places where PKK members were hiding. When the 20 villagers refused to do so they were subjected to torture in the village square. The first applicant, who was alleged by members of the security forces to own the Kalashnikov rifle which was found in the village, was subjected to more severe torture. Half of the 20 villagers were released and the remaining half, including the two applicants, were taken to the Mardin Security Headquarters.

On 5 January 1998, between 2.30 and 2.50 a.m., the applicants were seen by a forensic doctor at the request of the director of the Mardin Security Directorate.

A medical report was prepared which stated that the first applicant, Tacettin Örnek, bore a swelling measuring 8 by 3 cm on the right side of his chin, a laceration and ecchymoses measuring 4 by 3 cm on the back of his right shoulder, a laceration measuring 6 by 2 cm on the left tibia, widespread old scars measuring 8 and 3 cm on the right knee, a laceration measuring 4 by 3 cm on the left calf and widespread lacerations around the lips.

Another medical report prepared by the same doctor for Abdulvahap Eren, the second applicant, stated that he bore old abrasions measuring 4 by 3 cm on his left tibia and 2 by 2 cm on his right tibia and 13 or 14 old scars on his right arm.

Following the medical examination the applicants were brought back to the Mardin Security Directorate and were placed in custody in order to be questioned by police officers. During the period of detention the two applicants and the other villagers were blindfolded, stripped naked, hosed with cold water, beaten with a truncheon, strung up by their arms, electric shocks were administered to their bodies and they were subjected to verbal abuse. They were threatened with death and forced to sign statements without having read them.

On 8 January 1998 the applicants were again medically examined by a doctor. The doctor drew up reports for the applicants and noted the presence of various injuries similar to those recorded in the medical reports of 5 January 1998.

The applicants also submitted to the Court copies of medical reports which were drawn up in respect of their fellow villagers who were detained with them. These reports recorded the findings of various injuries on these detainees’ bodies.

On 8 January 1998 and following their medical examinations the applicants were brought before the Criminal Court of Peace in Mardin (Mardin Sulh Ceza Mahkemesi). Tacettin Örnek, the first applicant, admitted that he had helped the PKK in the past by buying and transferring food to its members. He denied that the Kalashnikov rifle found in the village was his. Abdulvahap Eren, the second applicant, denied the charges against him but accepted that he had bought some food for PKK members on one occasion and he had done so because he was scared of the PKK whose members had killed his nephew in the past. The court ordered their detention on remand.

On 21 January 1998 the chief public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the court charging the applicants with membership of the PKK. The charges were brought under Article168 § 2 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act (Law no. 3713).

On 23 January 1998 the applicants were brought before the Diyarbakır State Security Court for a preliminary hearing. The court ordered that their detention on remand should continue on the basis of the nature of the offence and the evidence contained in the file.

At the hearing of 19 March 1998 the applicants’ lawyer asserted that his clients had been tortured during their questioning by police officers from the Mardin Security Directorate. The lawyer stated the following:

“...If the case file and the [medical] reports are examined it will be seen that my clients had been tortured. According to our criminal procedure law, statements made under torture should not be taken into account... We request that the defendants be released and that criminal proceedings be initiated against the officers who inflicted torture on them.”

The court held that the request of the applicants’ lawyer for the institution of criminal proceedings against the police officers would be considered at a later stage. The court ordered that the applicants’ detention on remand should continue on the basis of the nature of the offence and the evidence contained in the file.

At the hearing on 28 May 1998 both the applicants and their lawyer submitted to the trial court that the applicants’ statement were extracted under torture during their detention in police custody. Their lawyer further stated that Abdulvahap Eren was suffering from tuberculosis and asked the court to release the applicants on bail. The request for bail was rejected by the court for the same reasons given previously.

At the hearing on 30 July 1998 the lawyer repeated his request for bail. The court decided to release Abdulvahap Eren on bail and to reject the request in respect of Tacettin Örnek.

On 26 November 1998 the Diyarbakır State Security Court found Tacettin Örnek, the first applicant, guilty of aiding and abetting a terrorist organisation under Article 169 of the Criminal Code and sentenced him to three years and nine months’ imprisonment. The court acquitted the second applicant on the ground that there was insufficient evidence to convict him.

The first applicant appealed against the judgment. The lawyer for the applicant submitted in the appeal petition that his client had been subjected to torture as evidenced by two medical reports and the trial court had ignored the statements extracted from his client under torture. The lawyer finally referred to his client’s rights under Article 6 of the Convention and asked the Court of Cassation to overturn the judgment of 26 November 1998.

On 6 July 1999 the 9th Chamber of the Court of Cassation rejected the appeal.

No criminal proceeding have been brought against the police officers who had allegedly tortured the applicants.

2.  The facts as submitted by the Government

The Government confirm that the applicants were arrested in their village on 4 January 1998.

The Government maintain that the applicants’ allegations of ill-treatment are baseless as the first applicant’s injuries as recorded in the two medical reports had been caused when he attempted to escape in order to avoid arrest and he had fallen down from the wall he had climbed.

As regards the second applicant, the Government maintain that the injuries as recorded in the two medical records are not sufficiently serious to suggest that he was subjected to ill-treatment or torture.

B.  Relevant domestic law and practice

Article 17 of the Constitution provides:

“...

No one shall be subjected to torture or ill-treatment; no one shall be subjected to penalty or treatment incompatible with human dignity.

...”

Article 19 of the Constitution provides:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:

...

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days...These time-limits may be extended during a state of emergency...

...

A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”

Article 125 of the Constitution provides as follows insofar as relevant:

“All acts and decisions of the administration are subject to judicial review ... The Administration shall be liable for damage caused by its own acts and measures.”

This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.

Article 243 of the Criminal Code provides:

“A President or member of a court or official body or any other public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, or engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life.”

Article 245 of the Criminal Code provides:

“Civil servants charged with the forcible execution of an order and police officers and any other officials charged with enforcement who, either of their own accord or on the orders of their superiors, enforce the order concerned in an unlawful manner or who, in doing so, ill-treat, strike or cause bodily harm to another, shall be punished by between one and three years’ imprisonment and temporarily disqualified from holding public office.”

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure (the CCP) with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed, is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators.

A public prosecutor institutes criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). Only if it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, may the public prosecutor close the investigation (Article 164 CCP).

Pursuant to Article 9 (a) of Law No. 2845 on the Procedure before the National Security Courts, public prosecutors are deprived of jurisdiction in cases of alleged terrorist offences in favour of a separate system of National Security prosecutors and courts established throughout Turkey. Only these courts are competent to try cases involving the offences defined in Articles 168 and 169 of the Criminal Code.

Article 168 of the Criminal Code provides:

1. Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

2. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

Article 169 of the Criminal Code provides:

“Any person, who knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

Under Article 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”.

Pursuant to Article 5 of Law no. 3713, the penalty laid down in the Criminal Code as punishment for the offence defined in Article 4 of the Act are increased by one half.

Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).

COMPLAINTS

The applicants complain firstly that they were subjected to various types of torture during arrest and also in the course of their police custody and that the authorities failed to investigate adequately their complaints. They invoke Article 3 of the Convention

They also complain under Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention that they were prosecuted on the basis of the statements they made under torture, that they were not informed of the nature and cause of the accusation against them, that they were not given adequate time and facilities for the preparation of their defence and finally that they were deprived of their right to legal assistance during their pre-trial detention or when they were brought before the judge.

Finally, the applicants submit that they were subjected to discrimination on the ground of their ethnic Kurdish origins in breach of Article 14 taken together with the above-mentioned Articles.

THE LAW

The applicants complain that they were subjected to torture during their arrest and also whilst in police custody and that their rights under Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention were not observed during their pre-trial detention. They finally submit that they were discriminated against. They invoke Articles 3, 6 and 14 of the Convention, the relevant provisions of which provide as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 6

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1.  Admissibility

The Government maintain that the complaint under Article 3 of the Convention is inadmissible as the applicants have failed to exhaust domestic remedies within the meaning of Article 35 § 1 he Convention. In this regard, they rely on the applicants’ failure to avail themselves of the various criminal, civil and administrative remedies in Turkish law.

The Government submit that the applicants, when brought before the judge at the end of their police custody, merely submitted that they had given their statements under pressure; they did not specifically complain that they were subjected to ill-treatment or torture in custody. Furthermore, they did not make formal complaints in writing in this respect other than alleging during the trial that they were subjected to torture in police custody.

The Government further argue that the applicants could have applied to civil courts or to administrative courts in order to obtain compensation for their claims of torture and ill-treatment. In this connection the Government refer to a decision of the Council of State rendered on 30 March 1983. In this decision the brother of a person who had died in police custody in Ankara as a result of ill-treatment was awarded compensation pursuant to Article 125 of the Constitution.

As regards the criminal remedies referred to by the Government the applicants argue that by bringing their complaints to the attention of the prosecutor during the trial they did everything that could have been reasonably expected of them. In this connection they submit that both the prosecutor who questioned them at the end of their police custody and also the prosecutor who participated throughout the trial were aware of the medical reports detailing their injuries. They submit that these prosecutors were obliged under Article 153 of the Code of Criminal Procedure (see above) to investigate their allegations. They maintain that no action appears to have been taken with regard to their complaints.

As to the civil and administrative remedies referred to by the Government the applicants argue that they should be considered as absolved from the obligation to exhaust these remedies since they cannot be regarded as effective in their case.

The applicants submit that it is impossible to obtain compensation by bringing civil proceedings before first identifying those responsible and establishing in criminal courts that the act complained of indeed took place.

With regard to the administrative remedies the applicants allege that a number of provisions of domestic legislation and also Article 125 of the Constitution referred to by the Government itself, limit their chances of obtaining compensation as the events in issue had taken place in the Emergency Region.

The Court notes, as acknowledged by the Government, that the applicants have repeatedly stated during the hearings before the Diyarbakır State Security Court that they were subjected to torture during their detention in police custody. The first applicant also stated in his appeal against the judgment of 26 November 1998 that his conviction was based on the statements extracted from him under torture. Furthermore, as pointed out by the applicants, the prosecutors involved in the applicants’ case were aware of the medical reports which recorded the injuries on the applicants’ bodies. In this context the Court observes that the trial court held that the request of the applicants’ lawyer for the institution of criminal proceedings against the police officers would be considered at a later stage. The Court received no information from the parties that such an investigation has been instigated into the applicants’ complaints.

In the light of the above and in particular the clear wording of Article 153 CCP which obliges public prosecutors to investigate allegations brought to their attention, the Court finds that the applicants did everything that could reasonably be expected of them to exhaust the national channels of redress in this respect.

As regards the civil and administrative remedies referred to by the Government, the Court refers to its Ogur v. Turkey judgment of 20 May 1999 (Reports 1999-III, § 66), where it held that the applicant was not required to bring the civil and the administrative proceedings relied on by the Government. It noted first of all that a plaintiff in a civil action for redress concerning damage sustained through illegal acts or patently unlawful conduct on the part of State agents had, in addition to establishing a causal link between the tort and the damage sustained, to identify the person believed to have committed the tort. In the present case, however, there has been no investigation into the applicants’ allegations of torture and therefore those responsible for the acts complained of by the applicants remain unknown.

Secondly, as regards the administrative-law action provided in Article 125 of the Constitution, the Court noted in the Ogur judgment that this was a remedy based on the strict liability of the State, in particular for the illegal acts of its agents, whose identification was not, by definition, a prerequisite to bringing such an action. However, 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 of Article 3 of the Convention, 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 in the Convention”, requires by implication that there should be an effective official investigation. This obligation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). The Court sees no reason to depart from those conclusions in the instant case and consequently it concludes that the applicants were not required to bring the civil and administrative proceedings suggested by the Government.

The Court concludes that the application cannot be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

2.  Merits

a.  Complaint under Article 3 of the Convention

The applicants submit that both during their arrest and detention in police custody, they were subjected to various types of torture. In particular, they were blindfolded, stripped naked, hosed with cold water, beaten with a truncheon, strung up by their arms, electric shocks were administered to their bodies and they were subjected to verbal abuse and threatened with death.

The Government maintain that the injuries as recorded in the medical report drawn up in respect of the first applicant were caused when he had fallen from the wall he had climbed on while he was trying to escape and avoid being arrested. Furthermore, the injuries found on the second applicant were not severe enough to constitute torture within the meaning of Article 3 of the Convention.

The applicants refer to the four medical reports according to which both of them had various injuries on their bodies. In addition, even assuming that the first applicant’s injuries were caused when he had fallen from a wall, the Government did not explain how the second applicant or any of the other villagers who were arrested and detained with them had come to suffer the injuries detailed in medical reports. The applicants finally refer to their rights under Article 13 of the Convention and point out to their inability to set in motion an investigation into their allegations of torture.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

b.  Complaints under Article 6 of the Convention

The applicants submit that they were prosecuted on the basis of the statements they made under torture and that this prosecution has led to the conviction of the first applicant. They further argue that they were not informed of the nature and cause of the accusation against them and that they were not given adequate time and facilities for the preparation of their defence and finally that they were deprived of their right to legal assistance during the questioning by the police officers.

The Government state that the allegation that criminal charges were brought against the applicants on the basis of their statements extracted under torture lacked substantiation. When the applicants were brought before the prosecutor and the judge at the end of their police custody they had accepted the allegations against them.

The Government further state that the applicants were provided with necessary facilities in order to prepare their defence and that they were able to consult their lawyers. They finally state that all procedural requirements stipulated in Article 19 of the Constitution were complied with in relation to the applicants’ arrest and detention and that their relatives were informed of their arrest immediately.

The applicants did not allude to their complaints under Article 6 of the Convention in their observations in reply, other than submitting that they were detained on remand on the basis of their statements extracted under torture and that the second applicant had contracted tuberculosis during his detention in prison and finally that the first applicant was sentenced to three years and nine months’ imprisonment.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application raises complex issues of law and fact under the Convention, in respect of the first applicant the determination of which should depend on an examination of the merits of the application as a whole. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

As to the second applicant’s complaints under Article 6 of the Convention, the Court observes that he was acquitted at the end of the criminal proceedings. Against this background, the Court is of the opinion that any defects which may have existed at the time of the applicant’s pre-trial detention or the trial by the Diyarbakır State Security Court must be considered to have been rectified by the judgment acquitting him, and thus he can no longer claim to be a victim of the alleged violation (see Ketenoğlu and Ketenoğlu v. Turkey, nos. 29360/95 and 29361/95, judgment of 25 September 2001, §§ 36-7).

It follows that the second applicant’s complaint regarding his right to a fair hearing is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

c.  Complaint under Article 14 of the Convention

Finally, the applicants complain that they have been subjected to discriminatory treatment contrary to Article 14 of the Convention in that they were subjected to the above-mentioned treatment on account of their Kurdish origins.

The Government maintain that all individuals are equal before Turkish law without discrimination.

The Court does not consider that there is sufficient evidence to conclude that the applicants have been subjected to the alleged ill-treatment on account of their ethnic status.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints that they were subjected to treatment contrary to Article 3 of the Convention during their arrest and custody as well as the first applicant’s complaints concerning his right to a fair trial under Article 6 of the Convention;

Declares inadmissible the second applicant’s complaints concerning his right to a fair trial under Article 6 of the Convention;

 

by a majority

Declares inadmissible the applicants’ complaint that they were the victims of discriminatory treatment in breach of Article 14 of the Convention.

Vincent Berger Georg Ress 
 Registrar President

ÖRNEK AND EREN v. TURKEY DECISION


ÖRNEK AND EREN v. TURKEY DECISION