CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 novembre 1999

.s800EAC49 { font-size:12pt } .s598389FD { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:16pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s23A41E03 { width:36pt; display:inline-block } .sBA8DCCFC { width:35.45pt; display:inline-block } .sE55CAA3E { width:1.26pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s31BEBB9E { width:7.26pt; display:inline-block } .s9872C2C6 { width:15.43pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .s55070D65 { margin-top:0pt; margin-bottom:0pt; text-indent:35.45pt; text-align:justify } .s4D28B2E2 { width:24pt; display:inline-block } .s21B97EC1 { width:25.99pt; display:inline-block } .sACBC61AB { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; text-align:justify } .sC83B07C { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-align:justify } .sD5954E93 { width:13.35pt; display:inline-block } .s33E1B184 { width:256.83pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .sFBBFC6C9 { width:290.51pt; display:inline-block } FIRST SECTION   DECISION   AS TO THE ADMISSIBILITY OF   Application no. 27599/95 by Enver UYKUR against Turkey     The European Court of Human Rights (First Section) sitting on 9 November 1999 as a Chamber composed of     Mrs   E. Palm, President ,   Mr   J. Casadevall,   Mr   L. Ferrari Bravo,   Mr   Gaukur Jörundsson,   Mr   R. Türmen,   Mr   C. Bîrsan,   Mrs   W. Thomassen, Judges,   and   Mr   M. O’Boyle, 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 27 April 1995 by Enver Uykur against Turkey and registered on 13 June 1995 under file no. 27599/95;     Having regard to the report provided for in Rule 49 of the Rules of Court;     Having regard to the observations submitted by the respondent Government on 29   April 1996 and the observations in reply submitted by the applicant on 21 June 1996;     Having deliberated;     Decides as follows: THE FACTS   The applicant is a Turkish citizen of Kurdish origin, born in 1953 and living in Osmaniye, Adana.   He is represented before the Court by Mr Kevin Boyle and Ms Françoise Hampson, both university teachers at the University of Essex.   A.   Particular circumstances of the case     The facts of the case, as submitted by the applicant , may be summarised as follows.     The applicant was the deputy district leader of the Motherland Party ( Anavatan Partisi -ANAP) and a member of the party’s executive board. He later became the chairman of the Osmaniye Branch of the Democratic Party (DEP). He resigned from the DEP before it was closed down.     On 4 December 1994 the applicant was taken into custody by members of the security forces. During his detention, he was beaten with sticks, punched in the face and his testicles were squeezed. He was blindfolded throughout the detention and subjected to continuous interrogation. He was sworn at and forced to sign a statement. When he refused to sign without first reading the statement, he was hosed with water and subjected to electric shocks and “hung” for a period of time. He did not receive food, nor was he allowed to rest.     In a statement to the Osmaniye Criminal Court ( Sulh Ceza Mahkemesi ) dated 6   December 1994, the Public Prosecutor of Osmaniye requested that the applicant be remanded in detention. He stated that the applicant was suspected of collecting money for the PKK and disseminating propaganda against the indivisibility of the State.     On the same day the applicant was brought before the Osmaniye Criminal Court of First Instance ( Sulh Ceza Mahkemesi ). Before the court the applicant denied the allegations. He requested his release. The court found no grounds for remanding the applicant and released him.     One week later the applicant was taken from the town centre by the Anti-Terror Police. The police threatened him that he would be killed if he stayed in the area. He was further threatened that he would be taken to the police headquarters every two days.   On 15 February 1995 the applicant filed a complaint with the Public Prosecutor of Osmaniye. He complained about the treatment to which he was subjected during his custody and his subsequent surveillance. He alleged that that the police “were coming to his address and disturbing him. They even threatened me indicating the flat of a Turkish police officer downstairs. They are provoking that family, encouraging them to commit an offence against us. I suspect that they listen to my house and my telephone.” The applicant deposed that he lived in fear of being killed, accused Constable Ali Karabıçak of being responsible and requested that an investigation be opened, that witnesses be heard and that Constable Ali   Karabıçak be punished.     In a statement dated 23 February 1995 to the Public Prosecutor of Osmaniye, Hatice   Gül, who had been taken into custody by the security forces, stated that during her detention she had been questioned about the activities of the applicant. The police had asked her whether she had any information on the applicant’s connections with the PKK and whether she knew that the applicant had been assisting the PKK. In her statement , she stated that she had been persecuted and tortured during her detention and that a police officer made a threat against the applicant’s life. She stated that she too had lodged a complaint against Constable Ali Karabıçak.     The Government dispute the applicant’s account. They maintain that the anti-terror department of Adana Police Headquarters carried out operations in Osmaniye against the PKK between 11   and 14 November 1994. The house of Yaşar Şimşek was searched during these operations and four video tapes were seised. These tapes depicted the PKK engaged in unlawful activities including raids. Yaşar Şimşek subsequently confessed to the police on 5 December 1994 and on the following day to the public prosecutor that the applicant had entrusted these tapes to him. The applicant’s house was searched on 4 December 1994 with his permission and he was taken into custody. The applicant denied the accusations put to him and remained silent when confronted with Yaşar Şimşek’s statement about the provenance of the video tapes. The applicant refused to sign the protocols indicating that he had been taken into custody and that he had heard Yaşar Şimşek’s oral statement regarding the video tapes. He wrote on both protocols “I cannot sign.”     In his statement to the Public Prosecutor taken on 6 December 1994 the applicant denied that he had made Yaşar Şimşek watch the impugned video tapes and stated there was no serious dispute between the two of them. He asserted that a certain Abdullah Can had given him a video recorder but not for the purpose of watching PKK tapes. He declared that he did not have any sympathy for the PKK and had never viewed the tapes in question.     The interrogation ended on 6 December 1994 whereupon the applicant was brought to a clinic for a medical check up. A medical report dated 6 December 1994 states that no traces of ill-treatment or torture were founded on the applicant’s body.     On the same day the applicant was brought before a magistrate. He was released pending trial.     The Osmaniye Public Prosecutor sent the preliminary investigation file to the Konya State Security Prosecutor together with a decision of non-jurisdiction dated 9 December 1994. The Public Prosecutor attached to the Konya State Security Court filed an indictment dated 13 March 1995 accusing the applicant of having violated Article 168 of the Turkish Penal Code in that he had made PKK video tapes available to third parties for unlawful propaganda purposes.     On 15 February 1995 the applicant lodged a complaint with the Osmaniye Public Prosecutor alleging that he had been tortured during his detention and on being released was subjected to surveillance. The Public Prosecutor took a statement from the applicant the same day. The applicant accused Constable Ali Karabıçak of being responsible and of continuing to threaten him. The applicant stated that he only suspected that his house was being watched and his telephone tapped. He requested the Public Prosecutor to hear the evidence of Abdullah Toprak and Hatice Gül. The applicant declared that these witnesses had been forced to give evidence against him.     The Public Prosecutor heard the statements of Abdullah Toprak and Hatice Gül on 23   February and 21 April 1995 respectively. Abdullah Toprak stated that the police had asked him questions when he was in the police station about the applicant’s involvement in the PKK. However, he could not say if the applicant had been tortured since the applicant had not been in the police station at the time. Abdullah Toprak mentioned that he was blindfolded when in detention. Hatice Gül stated that she did not know anything about the applicant’s allegations that he had been tortured. She stated that Constable Ali Karabıçak had questioned her and she had replied that she did not know the applicant.     On 24 April 1999 the Public Prosecutor issued a decision not to bring charges against Constable Ali Karabıçak for lack of evidence. The decision was served on the applicant on 5   April 1995. In the decision the applicant was informed of his right to appeal against it. The applicant did not appeal and the decision became final on 21 May 1995.     COMPLAINTS     The applicant complains of violations of Articles 3, 8, 10, 13 and 14 of the Convention.     As to Article 3, he alleges a violation on account of his treatment in detention, the aim of which was to intimidate him.     As to Article 8, he alleges that the surveillance to which he was subjected constitutes an unjustified interference with his right to respect for his private life, home and correspondence.     As to Article 10, he alleges that his detention and surveillance and the treatment to which he was subjected during his detention were aimed at deterring him from the lawful exercise of his right to freedom of expression.     As to Article 13, he alleges that on account of intimidation, harassment and extra-judicial killings of persons of Kurdish origin in Adana, he fears for his life and is therefore absolved from seeking to exhaust domestic remedies.     As to Article 14, he complains of discrimination in the enjoyment of his rights under Articles 3, 8, 10 and 13 of the Convention.     PROCEDURE     The application was introduced on 27 April 1995 and registered on 13 June 1995.     On 4 December 1995 the European Commission of Human Rights decided to communicate the application to the respondent Government.     The Government’s written observations were submitted on 29 April 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 21 June 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.     THE LAW   1.   The Government maintain that the applicant has failed to exhaust domestic remedies and on that account his application should be declared inadmissible under Article 35 § 1 of the Convention. They stress that ill-treatment of a detainee by a police officer is a criminal offence pursuant to Article 245 of the Turkish Criminal Procedure Code. In their submission, the Osmaniye Public Prosecutor properly investigated the applicant’s allegations and found them to be unsubstantiated. The Government refer to domestic court decisions in which prosecutions have been successfully brought against police officers.   The Government assert in this connection that the Osmaniye Public Prosecutor took statements from Abdullah Toprak and Hatice Gül on 21 February and 21 April 1995 respectively, as requested by the applicant. Both witnesses affirmed that they knew nothing about the applicant’s allegations that he had been tortured in detention or that he had been placed under surveillance.     The Government also stress that the applicant refused to be taken to a doctor for a medical examination since there were no traces of ill-treatment to be found on his body. The Government further question why the applicant only applied to the Osmaniye Public Prosecutor on 15 February 1995, 69 days after his release from custody.     Furthermore, the Government observe that the Osmaniye Public Prosecutor took a decision not to proceed with the case for want of evidence substantiating the applicant’s allegations. It would have been open to the applicant to appeal against the Public Prosecutor’s decision under Article 165 of the Court of Criminal Procedure. However, he failed to avail himself of this right.     The applicant maintains that there is an administrative practice of violating Article 3 of the Convention in respect of persons held in incommunicado detention. He draws attention to the findings of the 1993 and 1995 reports of the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a 1995 report of Amnesty International and a 1993 report of the United Nations Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions concerning Turkey. In the applicant’s submission, the findings contained in these reports confirm the absence of any effective remedy in the respondent State to secure redress in respect of ill-treatment in custody. The applicant also disputes the Government’s reliance on the number of prosecutions brought against members of the security forces. He contends that none of the cases adduced by the Government concern a prosecution arising out of the alleged torture of a political activist.     The applicant notes that the Government have not provided any information as to whether or not an investigation was opened into the identity of the police officer whom he alleged ill-treated him. The applicant is also critical of the investigation which was undertaken by the Public Prosecutor. He challenges the Government’s reliance on the testimony of Hatice Gül. He notes that this witness, when questioned by the Public Prosecutor, departed from the evidence which she had previously given. The applicant further maintains that the testimony of Abdullah Toprak is inconclusive and cannot be said to undermine the applicant’s allegations.     The Court considers that it does not have to pronounce on whether the applicant failed to exhaust domestic remedies by not appealing against the Public Prosecutor’s decision of nolle prosequi or whether the applicant is correct in his submission that he had no effective remedy in respect of his complaints. In the Court’s opinion, these issues are linked to the nature of the complaints which the applicant lodged with the Public Prosecutor and the response which the Public Prosecutor could have been expected to give to them. It will accordingly examine the merits of those complaints.   2.   The applicant complains of ill-treatment while in detention, contrary to Article 3 of the Convention, which provides:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”     The applicant maintains that the treatment to which he was subjected amounts to torture, having regard to the physical and mental suffering which he endured.     The Government state that the applicant’s allegations are without substance. They recall that no traces of torture or ill-treatment were found on his body when he was taken to a clinic immediately after his release. In their submission, had he been subjected to treatment of the severity alleged the doctor who examined him would have noted evidence of such in his report. It is equally significant that the applicant did not complain of ill-treatment when brought before the magistrate on 6 December 1994; nor did he appeal against the Public Prosecutor’s decision not to press charges.     The applicant contends that the so-called medical report relied on by the Government cannot be said to undermine the credibility of his complaint. He maintains that it does not contain a statement of his allegations or any clinical description or reasons. The applicant also claims that not all of the ill-treatment which he suffered would necessarily have left any physical signs of injury on his body. In the applicant’s submission, the 1993 and 1995 reports of the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provide conclusive evidence that pressure is brought to bear on doctors to issue misleading reports and that torture is a systemic in the respondent State. The applicant also finds corroboration for this argument in a report produced by the Turkish Medical Association in March 1995 as well as in a report dated 19 December 1994 in which Amnesty International concluded that “intimidation and interference in forensic medical investigation by the security forces or judicial personnel appears to be commonplace and results in routine falsification of medical reports on victims of torture.”     The Court observes that the applicant has not adduced any concrete evidence of having been ill-treated as alleged. It further considers that the materials relied on by the applicant cannot per se raise a presumption that he was ill-treated while in custody so as to make out an arguable complaint of ill-treatment. He has not produced any evidence which serves to contradict the results of the medical examination carried out on his person following his release from detention. The applicant also draws attention to the evidence given by Hatice   Gül and Abdullah Toprak. However, neither of these witnesses were able to corroborate that the applicant had been ill-treated. Even in her statement of 21 February 1995 Hatice Gül did not depose that the applicant had been tortured. The Court must also have regard to the fact that the applicant allowed a considerable period of time to elapse before he actually made a formal complaint to the Public Prosecutor. The very same official took a statement from the applicant on 6 December 1994. However on that occasion the applicant made no reference whatsoever to his allegation.     The Court recalls that 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, 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 in ... [the] Convention”, requires by implication that there should be an effective official investigation capable of leading to the identification and punishment of those responsible (see the Assenov v. Bulgaria judgment of 28 October 1998 , Reports of Judgments and Decisions 1998, p. 3290, § 102).     The Court considers that the applicant has not made out an arguable claim that he was ill-treated at the hands of the police (c.f. the Aksoy v. Turkey judgment of 18   December   1996, Reports 1996, p. 2287, § 99). The Public Prosecutor had no evidence on which to lay the basis of a case against Constable Ali Karabıçak. In the particular circumstances of the case, it considers that the procedural obligation of the authorities of the respondent State cannot be said to have been breached.     For these reasons the Court finds that the applicant’s complaint under Article 3 is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.   3.   The applicant complains under Article 8 of the Convention that he has been the victim of surveillance. Article 8 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 applicant asserts that he has been targeted on account of his past involvement in the activities of political parties which were legal at the time. Although he has ceased to be a political activist, he is still subjected to surveillance.     The Government submit that the applicant was taken into custody on suspicion of collaborating with the PKK. His house was searched in light of Yaşar Şimşek’s confession. It is these factors which explain any interference with the applicant’s rights under Article 8. The Government stress that these procedures were necessary in order to clarify a well-founded suspicion of the applicant’s involvement in an illegal organisation. They contend that the applicant has in no way substantiated that he was constantly disturbed at his home and that his house and telephone were placed under surveillance.     The applicant disputes this argument. He maintains that there is clear prima facie evidence that there has been an interference with his Article 8 rights.     The Court observes that the applicant has not adduced any evidence which can lay the basis of an arguable claim that his house was placed under surveillance by the authorities or that his telephone was tapped. It notes in this respect that when the applicant lodged his complaint with the Osamiye Public Prosecutor on 15 February 1995 he merely stated that he suspected that this was the case. Furthermore, in his reply to the Government’s observations the applicant stated that he would forward to the Court further proof of his complaint. No further elements have ever been sent.     The Court considers that the complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.   4.   The applicant contends that he was the victim of a systematic and continuing violation of his right to freedom of expression guaranteed under Article 10 of the Convention, which provides:   “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.   2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”     The applicant states that the fact of his detention and the surveillance to which he has been subjected provides clear proof of a concerted effort to stifle his right to express and communicate his views and opinions and to sanction him for the opinions which he held in the past when he was a political activist. At the very least, he has been the victim of “a chilling effect”.     The Government maintain that the applicant’s allegations amount to an abuse of the right of petition.     The applicant disputes this assertion. He reiterates that there is a clear prima facie case that there has been an interference with his rights under this head.     The Court recalls that it has found that the applicant’s complaints under Articles 3   and   8 are inadmissible as being manifestly ill-founded. The applicant relies on those complaints in support of his Article 10 complaint. It must equally be concluded that the latter complaint is inadmissible as being manifestly ill-founded within the meaning of Articles 35   §   3 and 4 of the Convention.   5.   The applicant contends that there is a pattern of intimidation, harassment and extra-judicial killings of Kurds by the security forces in Adana. The applicant states that he fears for his life and must be considered absolved from seeking to exhaust domestic remedies. He relies on Article 13 of the Convention, which provides:   “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”     The applicant refers to his earlier submissions on the absence of effective remedies in the respondent State and the existence of an administrative practice of a violation of Article 3 of the Convention.     The Government maintain that the applicant’s allegations amount to an abuse of the right of petition.     The applicant rejects this assertion.     The Court observes that the applicability of Article 13 of the Convention requires the existence of a grievance which is arguable in terms of the Convention (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, p. 23, § 52). Having regard to its findings on the applicant’s complaints under Articles 3, 8 and 10 of the Convention, the Court finds that the complaint under this head is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.   6.   The applicant contends that he is a victim of violation of Article 14 of the Convention, which provides:   “The enjoyment of the rights and freedoms set forth in this 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.”     In the applicant’s submission, his rights under Articles 3, 8, 10 and 13 have been violated simply on account of his past association with political parties which advocated greater rights for the Kurdish minority in Turkey.     With reference to Article 10 of the Turkish Constitution, the Government state that all Turkish citizens, irrespective of their origin, have the same rights and opportunities. They refer in this respect to many people of Kurdish origin who occupy high positions in public life.     The applicant maintains that the Government’s reliance on the provisions of the Constitution are of no relevance.     The Court considers that the evidence relied on by the applicant does not support an appearance of a violation under this head. It finds the complaint inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.         For these reasons, the Court, unanimously,   DECLARES THE APPLICATION INADMISSIBLE .         Michael O’Boyle   Elisabeth Palm   Registrar   President