European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33860/03
by Gülçin BOZDEMİR and Maşallah YEŞİLMEN
against Turkey

The European Court of Human Rights (Second Section), sitting on 11 September 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 6 August 2003,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Gülçin Bozdemir and Mrs Maşallah Yeşilmen, are Turkish nationals who were born in 1970 and 1979 respectively and live in Istanbul. They are the sister and wife of Şabettin Yeşilmen, allegedly a member of the PKK (the Kurdistan Workers’ Party), an illegal organisation. They are represented before the Court by Mrs F. Karakaş Doğan and Mrs E. Keskin, lawyers practising in Istanbul.

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

On 27 November 1997 at 1 a.m. and 4 a.m., the applicants’ separate flats were raided by police officers from the anti-terrorist branch of the Istanbul Police Headquarters. They were looking for Şabettin Yeşilmen. Subsequently, they took him, the applicants and their children into custody.

The applicants and their children were subjected to ill-treatment both when they were in their flats and when they were taken to the police headquarters. In particular, Gülçin Bozdemir was stripped naked, beaten, insulted and threatened with the killing of her children. She was also forced to see her brother being injured. Maşallah Yeşilmen was insulted and threatened with the killing and torture of her children. She was beaten with a truncheon. She received blows to her hands and abdomen. She was stripped naked and threatened with rape in the presence of her husband.

The applicants were detained at police headquarters until 28 November 1997. On this date, when Şabettin Yeşilmen confessed to the charges against him, allegedly as a result of the ill-treatment that he and his family members had suffered, the applicants and their children were taken to their homes by the police. The detention of the applicants and their children at the Istanbul Police Headquarters was not registered.

On 2 December 1997 the applicants lodged a complaint with the Fatih public prosecutor’s office, alleging that they had been taken into custody on 28 November 1997 and subjected to ill-treatment at the Istanbul Police Headquarters.

On the same day, Gülçin Bozdemir was examined by a doctor from the Istanbul branch of the Human Rights Foundation of Turkey, who observed a purple bruise measuring 8 x 5 cm on the upper left arm, a purple bruise of 6 x 2 cm on the left biceps, a purple bruise of 4 x 4 cm on the right biceps, a purple bruise of 7 x 5 cm and a yellow-green bruise of 3 x 2 cm on the left thigh, and a purple  bruise of 3 x 4 cm on the left foot. The doctor diagnosed Gülçin Bozdemir as suffering from, inter alia, soft tissue trauma, an upper respiratory tract infection and acute stress disorder. On 28 July 1998 a committee of three doctors from the same organisation drafted a medical report on Gülçin Bozdemir’s medical examination and concluded that the diagnosis of soft tissue trauma and acute stress disorder were consistent with the applicant’s allegations of ill-treatment, and that it was possible that the applicant was suffering from an upper respiratory tract infection as a result of the alleged ill-treatment.

On 3 December 1997, at the request of the Fatih public prosecutor, the applicants were examined by a doctor at the Istanbul branch of the Institute of Forensic Medicine. The doctor reported the following in respect of Maşallah Yeşilmen:

“There are purple and yellow bruises on the left palm. She complains of pain in her neck.”

As regards Gülçin Bozdemir, the doctor reported the following:

“Purple-green bruises of 3 cm and 2 cm in diameter are observed on the left and right biceps respectively. There are also purple green bruises of 1.5 cm and 2 cm in diameter on the left thigh and left foot.”

The doctor certified Gülçin Bozdemir and Maşallah Yeşilmen as being unfit for work for three days and one day respectively.

On an unspecified date Şabettin Yeşilmen contended before the court which tried him that his sister, Gülçin Bozdemir, had been tortured before his eyes when he was in police custody.

On 13 April 2000 the Fatih public prosecutor issued a decision not to prosecute six police officers from the anti-terrorist branch of the Istanbul Police Headquarters. In his decision, the public prosecutor noted that there was no evidence, such as an arrest report, documents containing the applicants’ statements or witness statements, in support of the applicants’ allegation that they had been taken into police custody on 27 and 28 November 1997. He therefore concluded that there was insufficient evidence to bring criminal proceedings in relation to the applicants’ allegations of ill treatment.

The decision of 13 April 2000 was not served on the applicants or their representatives. The applicants’ representatives obtained this decision from the Fatih public prosecutor’s office in October 2002.

On 30 October 2002 the applicants lodged an objection to the decision of 13 April 2000. In support of their petition, the applicants submitted the medical report of 28 July 1998 concerning Gülçin Bozdemir’s medical examination.

On 11 April 2003 the Beyoğlu Assize Court dismissed the applicants’ objection, holding that the decision of 13 April 2000 had been in accordance with the law.

COMPLAINTS

The applicants complained under Article 5 of the Convention that they had been taken into police custody without their detention having been officially recorded.

The applicants contended under Article 3 of the Convention that they had been subjected to ill-treatment while in police custody.

The applicants further complained under Article 8 of the Convention of ill treatment in the presence of their children and Şabettin Yeşilmen. The applicants also complained under Article 8 of the Convention that the police had raided their homes at night and without a warrant issued by a judge.

The applicants stated under Articles 6 and 13 of the Convention that there had been no adequate or effective investigation into their allegations of ill treatment.

The applicants finally contended under Article 13 of the Convention that they had had no opportunity was unable in the absence of an effective investigation to bring compensation proceedings against the officers who had inflicted ill treatment on them.

THE LAW

The Court considers that the applicants’ submissions under Articles 3 and 8 of the Convention should be examined from the standpoint of Article 3 alone. It further considers that it cannot, on the basis of the case file, determine the admissibility of these complaints, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court considers that this part of the application should be examined from the standpoint of Article 3 of the Convention. It further considers that it cannot, on the basis of the case file, determine the admissibility of this complaint, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are not required to answer for their acts before an international body prior to having had an opportunity to put matters right through their own legal system (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, § 50).

The Court further reiterates that it is sufficient that the complaints intended to be made subsequently before it should have been raised, at least in substance and in compliance with the formal requirements, before the national authorities (see Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I; Gökçe and Demirel v. Turkey, no. 51839/99, 22 June 2006, § 63).

The Court notes that, in their submissions to the domestic authorities, namely the Fatih public prosecutor’s office and Beyoğlu Assize Court, the applicants did not complain, either in form or substance, that their right to respect for their homes had been violated as a result of the police operation.

It follows that the applicants have failed to exhaust domestic remedies and that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning their alleged ill-treatment in police custody and the right to an effective remedy in this regard, the alleged failure of the authorities to conduct an effective investigation and the alleged unlawfulness of their detention;

Declares the remainder of the application inadmissible.

S. Dollé F. Tulkens
Registrar President