CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 novembre 2004

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THE FACTS The applicant is a Turkish national who was born in 1977. At the material time he ran a fast-food restaurant. He is now in Germany. He was represented before the Court by Mr Özcan Kılıç, a member of the Istanbul Bar. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.   The applicant's arrest and detention in police custody   On 11 November 1995, after a certain A.Y. had tipped the police off about a secret meeting of members of the armed organisation Devrimci Halk Kurtuluş Partisi Cephesi (“ DHKP-C ”), police officers of the anti-terror branch of the security police headquarters in Istanbul (“the anti-terror branch”) arrested the applicant and four others. According to the arrest report, the applicant had violently resisted arrest by the police officers and refused to get into the car, shouting “Where are you taking me, you fascist torturers? You're taking me away to eliminate me. My name is Ali Şahin Pütün.” He allegedly had to be immobilised by force. On the same day the applicant was taken into police custody at the anti-terror branch in Fatih (Istanbul). On 13 November 1995 the public prosecutor at the Istanbul National Security Court (“the public prosecutor”, “the National Security Court”) granted the anti-terror branch's request to keep the applicant in police custody until 20 November 1995. While he was in their custody the police officers tortured the applicant with the aim of extracting a confession from him. They suspended him by his arms, with his hands tied behind his back – a method known as “Palestinian hanging” –   and gave him electric shocks. During the interrogations the applicant was allegedly kept blindfolded, deprived of sleep and made to endure continuous threats and insults. On 18   November 1995 the applicant confessed and made statements, but refused to sign them. On 20 November 1995, the last day of police custody, the anti-terror branch ordered the applicant to be examined by the Istanbul Institute of Forensic Medicine. In his preliminary report drawn up on the same day, the forensic medical expert made the following conclusions: “... having regard to the mark of an old 1.5 cm linear graze to the right forearm, to the various traces of lesions on both feet that have formed scabs and the lack of strength in the patient's arms, he should be transferred to a civilian hospital for a neurological examination.   ...” Still on 20 November 1995, after the above-mentioned neurological examination, the applicant was questioned by the public prosecutor. The applicant contested the arrest report and claimed that he had never used force against the police officers. Moreover, he denied the accusations made against him and alleged that his confessions had been extracted from him under torture. At about 6.05 p.m. the public prosecutor attempted to commit the applicant for trial before the judge of the National Security Court. As the evidence in the case file was too voluminous his attempt was unsuccessful and the applicant was kept in custody until the next day. On 21 November 1995 the applicant was finally brought before the judge. He accepted the statements he had made before the prosecutor, but categorically denied the ones taken by the police. In view of the state of the evidence and the charges brought against the applicant, the judge ordered the applicant to be released on bail. The prosecutor lodged an objection against that order. The judge allowed the objection and ordered the applicant to be detained pending trial. The applicant was then imprisoned in Bayrampaşa Prison (Istanbul). 2.     The criminal proceedings against the officers responsible for the applicant during his detention in police custody   On an unknown date between the end of November and the beginning of December 1995 a criminal investigation was apparently commenced following a complaint lodged by the applicant against the officers responsible for him during his detention in police custody. On 11   December 1995 the public prosecutor in charge of investigating the case declared that he had no jurisdiction ratione loci and relinquished jurisdiction to the Fatih Public Prosecutor's Office. In his order the public prosecutor took care to specify that the allegations of ill-treatment referred to him had been corroborated by the medical report of the Institute of Forensic Medicine of 20   November 1995 and the opinion of the neurological clinic, and thus fell within the scope of Articles 243 to 245 of the Criminal Code. The case file was accordingly transferred to the Fatih Public Prosecutor's Office. On 28   November   1997 the prosecution joined the applicant's file to two other cases that were pending and instituted criminal proceedings in the Istanbul Assize Court against eight police officers accused of ill-treating three detainees, including the applicant. The prosecution sought the conviction of the police officers for inflicting ill-treatment with a view to extracting confessions, within the meaning of Article 243 of the Criminal Code. The police officers implicated in the offence complained of by the applicant, namely, T.K. and S.A., pleaded not guilty. According to them, it was not uncommon for members of armed organisations to make false accusations against police officers in order to intimidate them and, in the present case, the injuries found on the applicant's body could only have been caused by the scuffle that had occurred when he was arrested. In a judgment of 6 December 2000 the Istanbul Assize Court found the two police officers T.K. and S.A. guilty of breaching Article 243 § 1 of the Criminal Code and sentenced them both to one year's imprisonment. It also suspended them from duty for three months. Under Article 59   § 2 of the Criminal Code the length of those measures was reduced to ten months' imprisonment and two and a half years' suspension from duty for T.K., and to eleven months and twenty days' imprisonment and two months and twenty-seven days' suspension from duty for S.A. Under section 6 of the Execution of Sentences Act (Law no. 647) the Assize Court also decided to defer execution of the penalties, being satisfied that the accused were unlikely to reoffend. On 27 May 2002 that judgment was upheld by the Court of Cassation in so far as it concerned police officer T.K. and overturned in respect of police officer S.A. The applicant was absent throughout the proceedings, having fled Turkey as soon as he had been released on bail on 9 May 1996. 3.     The criminal proceedings against the applicant In an indictment of 4 December 1995 the public prosecutor sought the conviction of the applicant, among others, under Article 169 of the Criminal Code, which makes it an offence to assist or give shelter to an armed gang. He also asked for the sentence to be increased by half in accordance with section 5 of the Prevention of Terrorism Act (Law no. 3713). In support of his request the public prosecutor referred, inter alia , to the applicant's disputed confession to the police. At the first hearing before the National Security Court, which was held on 27   February 1996, the applicant challenged the indictment again. His lawyer submitted that there was no solid evidence whatsoever against his client as the confession relied on by the prosecution had no probative value since the statement had not been signed by the accused. Referring to the medical report recording blows and injuries inflicted on the applicant, the lawyer also stated his wish to enquire about the progress of the criminal proceedings brought by the Fatih Public Prosecutor's Office against the police officers who had interrogated his client. He applied, lastly, for the applicant to be released on bail. The National Security Court dismissed the application for bail without giving reasons. It reserved the subsequent procedure and fixed the next hearing for 9 May 1996 on account of the large number of cases referred to it. On 28 March 1996 the applicant's lawyer made a further application for his client to be released on bail, arguing that there was no reason to believe that he was intending to evade justice: he had a fixed abode, family dependents and a business to run. The lawyer submitted that keeping the applicant in detention until the hearing of 9 May 1996 could not be justified by the need to secure evidence because it had already been gathered. On the same day the National Security Court refused the applicant's application for bail, on the basis of “the contents of the file” and the “state of the evidence”. His lawyer appealed against that decision. At the hearing on 9 May 1996 the National Security Court granted the lawyer's application for bail and ordered the applicant to be bailed subject to conditions. After being released the applicant absconded and left Turkey for Germany. On 24 December 2002 the National Security Court declared the prosecution against the applicant time-barred. B.     Relevant domestic law and practice The relevant provisions of Turkish law regarding criminal proceedings in respect of ill-treatment suffered at the hands of agents of the State and the available administrative and civil remedies in that connection appear, inter alia , in the Ali Şahmo v. Turkey decision (no. 37415/97, 1 April 2003). Among these provisions, the following ones should be reiterated: Article 243 of the Criminal Code “Any ... public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, 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. The sentence incurred under Article 452, where such conduct causes death ... shall be increased by between one-third and one half.” Article 59 of the Criminal Code “Where the court considers that, besides the mitigating statutory excuses, there are mitigating circumstances in favour of reducing the sentence [imposed] on the perpetrator, the death penalty shall be commuted to a period of life imprisonment and life imprisonment to 30 years' imprisonment. Other sentences shall be reduced by up to one sixth.” Section 6 of the Execution of Sentences Act (Law no. 647)   “Where a person who has never been sentenced ... to a penalty other than a fine is sentenced to ... a fine ... and/or [up to] one year's imprisonment ... execution of the sentence may be suspended if the court is satisfied that [the offender], having regard to his criminal record and tendency to break the law, will not reoffend if his sentence is thus suspended ...” With regard to the police-custody measures in force at the material time, the maximum periods of detention without judicial control were longer in relation to proceedings before the National Security Courts. In such a case, it was possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, reproducing Article 11 of Legislative Decree no. 285 of 10 July 1987). Under Article 128 § 4 of the Code of Criminal Procedure an arrested person could challenge any measure extending the period of police custody ordered by a public prosecutor with a view to securing his or her immediate release. At the material time, however, section 31 of Law no.   3842 closed that option to persons accused of offences triable by the National Security Courts. COMPLAINTS Relying on Article 3 of the Convention, the applicant complained in the first place that he had been tortured while in police custody by officers of the anti-terror branch of the security police headquarters. In that connection he also criticised the unsatisfactory response by the courts to his allegations. ... THE LAW A.     Complaints under Article 3 of the Convention The applicant submitted that the ill-treatment inflicted on him while he was in police custody and the inadequacy of the courts' response to the complaint that he had lodged in that connection amounted to a violation of Article 3 of the Convention, which reads as follows:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... 2.     The Court's assessment The Court reiterates that the purpose of the rule laid down by Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see Selmouni v. France [GC], no.   25803/94, § 74, ECHR 1999 ‑ V). Where an individual has an arguable claim that there has been a violation of Article   3, the notion of an effective remedy for the purposes of Article 13 entails, on the part of the State, a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see Selmouni , cited above, §   79; Aksoy v. Turkey , judgment of 18   December 1996, Reports of Judgments and Decisions 1996-VI, p.   2287, §   98; and Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports 1998 ‑ VIII, p.   3290, §   102). In the instant case the applicant's allegations, as brought to the attention of the authorities and which no one has challenged as being unarguable, were serious in nature both regarding the offence alleged and the status of the persons charged. It thus remains to examine the Government's objection in the light of the above considerations, in other words to evaluate the determination of the authorities to identify and prosecute the persons responsible. In that connection the outcome of the criminal proceedings against the applicant's interrogators must of course be taken into account notwithstanding the fact that they were concluded on 27 May 2002, after the parties had communicated written observations on the admissibility and merits of the case. Although the Court must refer primarily to the circumstances existing at the time of the incidents complained of, it is not precluded from having regard to information coming to light subsequently and up until the merits of the case are examined (see Yaşa v. Turkey , judgment of 2 September 1998, Reports 1998 ‑ VI, p.   2437, §   94), particularly in respect of allegations of treatment prohibited by Article 3 of the Convention, which must be examined with the utmost care (see Ülkü Ekinci v. Turkey , no. 27602/95, §   136, 16 July 2002). In the instant case the official investigations, commenced at the applicant's initiative and conducted promptly first by the public prosecutor and then by the judges dealing with the merits, resulted in the conviction by the Istanbul Assize Court of police officers S.A. and T.K. for inflicting ill-treatment with a view to extracting confessions, contrary to Article 243   §   1 of the Turkish Criminal Code. It follows that the remedy of a criminal complaint, as provided for in Turkish law, proved to be adequate in respect of the applicant's complaint and did indeed give him an opportunity to succeed in his efforts to establish the facts and the responsibilities imputable to his interrogators. In that connection the applicant's submission that the police officers acted with impunity has no merit since Article 3 does not entail the right for an applicant to have third parties sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed the imposition of a particular sentence (see, mutatis mutandis , Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I, and Tanlı v. Turkey , no. 26129/95, § 111, ECHR 2001 ‑ III). In the light of Article 35 of the Convention (like Article   13), what is important is whether and to what extent a breach by the State of the above-mentioned obligation to carry out an effective investigation can be regarded as having impeded the victim's access to other available and sufficient remedies by which to establish the responsibility of agents of the State for acts amounting to a violation of Article 3 and, if applicable, to obtain redress. There is no evidence of such a breach or impediment having occurred in the instant case, given the measures taken by the authorities to prosecute the two police officers in question and the fact that they were subsequently tried and one of them sentenced with final effect by an ordinary court for inflicting ill-treatment on others. Although he criticised the way in which the criminal courts reached their conclusion, the applicant never indicated that he had attempted to take an active part in the criminal proceedings instituted against his torturers. He could definitely, however, at the very least have joined the criminal proceedings as a civil party seeking redress for both his pecuniary and non-pecuniary loss in the proceedings in the Batman Assize Court. Failing that, the applicant also had a more than reasonable chance of successfully suing in civil and/or administrative proceedings the police officer T.K., who had been convicted with final effect by a criminal court, or even his superiors. In the instant case the applicant therefore had a series of domestic criminal, civil and administrative remedies which he failed to exhaust, without, however, demonstrating that there existed special circumstances   absolving him from the obligation to do so (see Aytekin v. Turkey , judgment of 23   September 1998, Reports 1998 ‑ VII, p.   2828, §   85; compare, for example, Aksoy, cited above, p.   2277, § 57, and Kurt v. Turkey , judgment of 25 May 1998, Reports 1998 ‑ III, pp.   1176-77, §   83).   Having regard to the foregoing considerations and to the particular circumstances of the present case, the Court allows the Government's objection and rejects this part of the application for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. ...