YANAT and OTHERS proti Turecku

SECOND SECTION

DECISION

Application no. 28308/95
by Medeni YANAT and Others
against Turkey

The European Court of Human Rights, sitting on 2 July 2002 as a Chamber composed of

Mr J.-P. Costa, President,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs A. Mularoni, judges,

Mr F. Gölcüklü, ad hoc judge,
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 27 July 1995 and registered on 24 August 1995,

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 Commission’s decision of 20 May 1997,

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 Medeni Yanat, Mr Mehmet Bidav, Ms Gülşen Akbulut and Mr Zeki Yıldız, are Turkish nationals, who were born in 1970, 1967, 1964 and 1956 respectively. Mr Zeki Yıldız lives in Germany and is represented before the Court by Ms Hülya Üçpınar, a lawyer practising in İzmir. The current whereabouts of the other applicants is unknown.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

At the time of the events in question Medeni Yanat and Gülşen Akbulut were being tried by the İzmir State Security Court. Mehmet Bidav and Zeki Yıldız were detained in the Buca Prison in İzmir. All applicants were accused of being members of the PKK.

On 26 April 1994 Medeni Yanat and Gülşen Akbulut were brought to the İzmir State Security Court. While waiting for their hearing, they were attacked by the gendarmes in the detention room. When brought into the courtroom, the applicants chanted slogans in order to protest against the gendarmes’ treatment of them. The gendarmes attacked the applicants and squeezed Medeni Yanat’s neck in the presence of the judges, the public prosecutor and the lawyers. The gendarmes desisted when given a warning by the president of the court.

On the same day the İzmir State Security Court convicted Medeni Yanat and Gülşen Akbulut on account of their membership of the PKK and sentenced them to twelve years and six months’ imprisonment under Article 168/2 of the Turkish Criminal Code.

On the same day Zeki Yıldız and Mehmet Bidav were waiting for their relatives in the visiting room of Buca Prison. In the meantime, Medeni Yanat and Gülşen Akbulut arrived at the prison. They were brought into the entrance hall.

According to the applicants, the prison warders, instructed by their directors, assaulted the prisoners while they were in the visiting room and entrance hall.

In a report drafted and signed by 14 prison warders and directors on 26 April 1994, it is stated that 11 prisoners who were convicted of being members of the PKK requested that they be removed from their present wing because they were afraid of being attacked by other prisoners. As soon as they were removed to another wing some of the prisoners protested against the administration’s decision and demanded that the prisoners be returned to their former wing. When their demand was rejected by the administration the prisoners started to chant slogans in the visiting room and declared that they would not leave the room until the prisoners were returned to their former wing. The warders brought the prisoners to their wing when they failed to persuade them to return. The prisoners resisted and injured themselves by hitting the iron beds in the wing.

On 27 April 1994 the applicants’ representative visited the applicants in the prison. She observed that the applicants were suffering from blows, wounds and bruises to their arms, faces and eyes.

On 29 April 1994 Medeni Yanat, Zeki Yıldız and Mehmet Bidav signed a petition along with other prisoners complaining that they had been attacked by prison warders. They alleged that the chief warder of the prison, Ahmet Ayhan, had instructed the warders to attack them.

On an unspecified date the applicants petitioned the İzmir Public Prosecutor, complaining of the mistreatment which they suffered at the hands of the warders in the prison and the gendarmes in the courtroom. They alleged that they had been severely beaten by the warders and suffered injuries and bruises as a result. The applicants requested that the public prosecutor initiate an investigation and that a medical examination be carried out by the Forensic Medicine Institute.

On 11 May 1994 Zeki Yıldız and Mehmet Bidav were examined at the İzmir Forensic Medicine Institute. In a medical report drafted by a doctor at the Institute, it is stated that Zeki Yıldız had a 2 cm scar on the right temporal part of his eyebrow, two 1 cm scars on the crurista and a haematoma on the third finger of his right hand. The report concluded that Zeki Yıldız would be unfit for work for two days. It was further noted in the report that no trace of injury was observed on Mehmet Bidav’s body.

On 29 September 1994 the İzmir Public Prosecutor decided that no prosecution should be brought (takipsizlik kararı) against the prison administration and warders. According to the prosecutor, the prison administration is authorised to use necessary force in order to maintain peace and order in the prison pursuant to the Directive on the Execution of Punishments (Ceza İnfaz Yönetmeliği). The use of force applied in the present incident was in accordance with the provisions of the Directive.

On 14 December 1994 the applicants filed a petition with the office of the İzmir Public Prosecutor. They requested a copy of the investigation file no. 1994/24153.

On the same day the İzmir Public Prosecutor rejected the applicants’ request.

On 21 December 1994 the applicants filed an objection with the İzmir Assize Court against the decision of the İzmir Public Prosecutor of 29 September 1994. They complained that the public prosecutor had failed to take statements from the judges, lawyers and the public prosecutor who witnessed the ill-treatment of Medeni Yanat and Gülşen Akbulut during the hearing on 26 April 1994. They further complained that the prosecutor accepted the account of the accused warders without giving any weight to the medical report. Lastly, the applicants stated that they were denied access to the investigation file.

On 13 January 1995 the İzmir Karşıyaka Assize Court rejected the applicants’ objection. On 31 January 1995 the applicants were notified of the decision of the assize court.

On 1 August 1997 the İzmir Public Prosecutor issued a decision based on lack of jurisdiction (görevsizlik kararı) in respect of the proceedings against the gendarmes who allegedly ill-treated the applicants at the İzmir State Security Court on 26 April 1994. The public prosecutor further decided to transfer the case-file to the office of the İzmir Governor pursuant to the provisions of the Law on Prosecution of Civil Servants (Memurin Muhakematı Hakkında Kanun).

B. Relevant domestic law and practice

Criminal law and procedures

Article 17 of the Turkish 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 243 of the Turkish Criminal Code (Türk Ceza Kanunu) 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 provides:

“Civil servants charged with the forcible execution of an order, 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.”

COMPLAINTS

The applicants complain that they were subjected to treatment prohibited under Article 3 of the Convention. They claim that they were assaulted by gendarmes in the courtroom and by prison warders in the prison. The applicants submit that the warders assaulted them with truncheons, wires and chairs. They also kicked and punched them.

The applicants complain under Article 6 of the Convention that the national authorities have failed to carry out a meaningful investigation into their allegations within a reasonable time.

THE LAW

A. Regarding the first, second and third applicants

The Court notes that on 10 April 2000 the applicants’ representative was invited to submit a written statement as to the authenticity of their application. The applicants’ representative stated in her letter dated 14 August 2000 that she was trying to obtain the information requested.

On 28 August 2000 the Registry sent a letter to the applicants’ representative reminding her that the failure to reply to the Court’s request could lead to the conclusion that the applicants did not intend to pursue the application and advising her that it might result in a decision to strike the application out of the list of cases.

On 19 September 2000 the applicants’ representative sent a power of attorney on behalf of the fourth applicant.

On 19 June 2001 the applicants’ representative was invited to submit the relevant information for the other applicants.

On 26 October 2001 the Registry again sent a letter to the applicants’ representative inviting her to submit by 7 December 2001 the information requested.

On 4 February 2002 the applicants’ representative sent a letter informing the Registry that she had lost contact with the applicants and that she did not know in which prison they were currently detained. She had applied to the Ministry of Justice in order to find out the whereabouts of the applicants. However, she had failed to obtain any information from the Ministry.

The Court observes that it would appear that the applicants had not signed a power of attorney at the time of lodging their application with the Commission. Furthermore, despite numerous remainders and strike-off warnings from the Registry, the applicants’ representative failed to clarify the authenticity of the application on the grounds that she had lost contact with the applicants and that she was unaware of their whereabouts. The Court also notes that the applicants have made no direct contact with the Convention organs and have not appointed another lawyer to represent them. Given the impossibility of establishing any communication with the applicants, the Court is of the opinion that their representative cannot meaningfully continue the proceedings before it.

In these circumstances, the Court concludes that the applicants do not intend pursuing their application, within the meaning of Article 37 § 1 (a) of the Convention, and it finds no reasons of general interest concerning respect for human rights, within the meaning of the final sentence of Article 37 § 1, which would require the continued examination of the case with respect to the first, second and the third applicants.

Accordingly, the application should be struck out of the list with respect to the first, second and third applicants.

B. Regarding the fourth applicant

The applicant complains that he was subjected to treatment prohibited under Article 3 of the Convention. He claims that the prison warders assaulted him with truncheons, wires and chairs. They also kicked and punched him. The applicant further complains that the national authorities have failed to carry out a meaningful investigation into his allegations within a reasonable time. He relies on Article 6 of the Convention in this respect.

1. The Government’s preliminary objections

The Government submit that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. The Government point out that it would have been open to the applicant to sue the Administration for damages on the basis of Article 125 of the Constitution read in conjunction with section 13 of Law no. 2577 concerning administrative proceedings. They draw attention to the fact that the Administration’s liability is engaged under these provisions without the need for a plaintiff to prove fault. The Government contend that the domestic case-law confirms that damages may be awarded against officials of the State who resort to torture against individuals.

In reply, the applicant submits that he petitioned the İzmir Public Prosecutor complaining of the ill-treatment he suffered at the hands of the prison warders. The applicant maintains that he did everything that could have been expected of him to exhaust domestic remedies.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate and ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VII, pp. 2275-76, §§ 51-52).

The Court notes that Turkish law provides administrative remedies against illegal and criminal acts attributable to the State’s agents.

As to the Government’s argument that the applicant has failed to bring an action in administrative law under Article 125 of the Convention, the Court recalls that this remedy cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 of the Convention in cases like the present one. Such a remedy is aimed at awarding damages rather than identifying and punishing those responsible (see the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VI, p. 3290, § 102).

In any event, criminal proceedings were taken against the prison administration and warders. However, the İzmir Public Prosecutor decided that no prosecution should be brought against the prison administration and warders because the force applied to the prisoners was in accordance with law. The applicant’s appeal to the İzmir Assize Court was to no avail. In these circumstances, the Court considers that the introduction of an administrative law action against the prison administration would have had no reasonable prospects of success.

The Court, therefore, concludes that the applicant was not required to use the administrative remedies suggested by the Government and that he has exhausted domestic remedies in view of the outcome of the criminal proceedings against the prison warders and administration. It dismisses the Government’s objection to the admissibility of the applicant’s Article 3 complaint.

2. Merits

The Government argue that the prison warders at Buca Prison acted within the limits of their competence in order to quell the prisoners’ violent opposition. The Government further argue that the alleged treatment did not attain the minimum level of severity to bring it within Article 3 of the Convention and that the applicant failed to establish a causal link between the findings of the medical examination and his alleged ill-treatment by the prison warders.

In reply, the applicant submits that he was only allowed a medical examination three weeks after being ill-treated by the warders. He alleges that he was prevented from seeing a doctor during this period.

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, that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in respect of the first, second and third applicants;

Declares the fourth applicant’s application admissible, without prejudging the merits of the case.

T.L. Early J.P. C osta
Deputy Registrar President