CEDH · CASELAW;CLIN;ENG — 18 novembre 2004

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Turkey (dec.) - 31734/96 Decision 18.11.2004 [Section III] Article 35 Article 35-1 Exhaustion of domestic remedies Ill-treatment: identification, prosecution and conviction of perpetrators in criminal proceeding, opening the possibility of civil claim: non-exhaustion Article 34 Victim Loss of victim status on account of abandonment of criminal charges In 1995 the applicant suffered ill-treatment during police custody, which lasted nine days. The police officers responsible for the custody were prosecuted. The prosecution service noted that the accusations of ill-treatment were corroborated by the medical examination carried out at the close of police custody. The police officers were questioned and pleaded not guilty. Three years after proceedings had been opened, an assize court found two police officers guilty of ill-treatment with a view to obtaining confessions. They were both given suspended prison sentences of less than one year and temporarily suspended from their duties for less than three months. The Court of Cassation quashed the conviction of one of the police officers. The domestic proceedings came to a close after the parties had communicated their written observations to the Strasbourg Court on the admissibility and merits of the case. The applicant had not joined the proceedings before the assize court as a party and had not made use of the opportunities for bringing actions to establish civil and/or administrative liability available under domestic legislation with a view to obtaining compensation. He complained before the Court about the light sentences imposed on his torturers. The criminal proceedings against the applicant finally ended with a judgment by the State Security Court announcing the end of the limitation period for prosecution. Inadmissible under Article 3: In the event of an arguable claim of violation of Article   3, the concept of an effective remedy (which implied an obligation on the State to conduct an investigation capable of leading to the identification and punishment of those responsible) did not imply either the right to have a third party convicted in the criminal courts or an obligation as to result which supposed that any proceedings had necessarily to be settled by a conviction, or even by the imposition of a specific sentence. With regard to Article 35 of the Convention (as for Article   13), what was decisive was whether, and to what extent, a breach by the respondent State of its obligation to carry out an effective investigation could be regarded as having hindered the victim’s access to other domestic remedies which were available and sufficient in order to establish the liability of public servants for actions that entailed a violation of Article 3 and, if appropriate, to obtain redress. In this case, taking into account the measures taken by the criminal authorities against the police officers in question, there had not been such a failure or hindrance. Under domestic law, the applicant had on hand a series of remedies in criminal, civil and administrative law, which were available and sufficient, which he had failed to exhaust, and he had not substantiated the existence of special circumstances which would allow him to be dispensed from that necessity. He could have applied to join the criminal proceedings as an intervening civil party and claimed compensation for both his pecuniary and non-pecuniary damage, and, even without such an approach, he had more than reasonable prospects of winning a civil or administrative action against the police officer who was finally convicted or even against the latter’s superiors. In those circumstances, the Court allowed the objection of non-exhaustion of domestic remedies raised by the respondent Government. Inadmissible under Article 6: The applicant complained of the composition of the State Security Court before which he had been committed for trial and of the violation of his defence rights during the trial. The Court held that, having regard to the result required by Article 6 – a fair trial – the decision to discontinue criminal proceedings had to be regarded as a measure constituting redress for the alleged violations of Article 6.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes