In the case of Aksoy v. Turkey (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr Th�r Vilhj�lmsson,
Mr F. G�lc�kl�,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr J. Makarczyk,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 April, 24 October and
26 November 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 100/1995/606/694. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court on 4 December 1995 by the
Government of Turkey ("the Government") and on 12 December 1995 by the
European Commission of Human Rights ("the Commission"), within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 21987/93) against the Republic of Turkey lodged with the
Commission under Article 25 (art. 25) on 20 May 1993 by Mr Zeki Aksoy,
a Turkish citizen.
The Government's application referred to Article 48 (art. 48);
the Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Turkey recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request and of the application was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Articles 3, 5 para. 3,
6 para. 1 and 13 of the Convention (art. 3, art. 5-3, art. 6-1,
art. 13).
2. On 16 April 1994 the applicant was shot and killed. On
20 April 1994 his representatives informed the Commission that his
father wished to continue with the case.
3. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant's father (who shall,
henceforward, also be referred to as "the applicant") stated that he
wished to take part in the proceedings and designated the lawyers who
would represent him.
On 26 March 1996 the President granted leave, pursuant to
Rule 30 para. 1, to Ms Fran�oise Hampson, a Reader in Law at the
University of Essex, to act as the applicant's representative.
4. The Chamber to be constituted included ex officio
Mr F. G�lc�kl�, the elected judge of Turkish nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 5 December 1995, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr L.-E. Pettiti, Mr J. De Meyer,
Mr J.M. Morenilla, Mr F. Bigi, Mr A.B. Baka, Mr J. Makarczyk and
Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43). Following the death of Mr Bigi,
Mr Th�r Vilhj�lmsson, the first substitute, became a member of the
Chamber.
5. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyers and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
applicant's memorial on 7 March 1996 and the Government's memorial on
15 March 1996.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 April 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr B. �aglar, Ministry of Foreign Affairs, Agent,
Ms D. Ak�ay,
Mr T. �zkarol,
Mr A. Kurudal,
Mr F. Erdogan,
Mr O. Sever,
Ms M. G�lsen, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Ms F. Hampson, University of Essex,
Mr K. Boyle, Barrister-at-Law, Counsel,
Mr K. Yildiz,
Mr T. Fisher,
Ms A. Reidy, Advisers.
The Court heard addresses by Mr Danelius, Ms Hampson, Mr �aglar
and Ms Ak�ay.
AS TO THE FACTS
I. Circumstances of the case
A. The applicant
7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the
time of the events in question, lived in Mardin, Kiziltepe, in
South-East Turkey, where he was a metal worker. He was born in 1963
and was shot and killed on 16 April 1994. Since then, his father has
indicated that he wishes to pursue the case (see paragraph 3 above).
B. The situation in the South-East of Turkey
8. Since approximately 1985, serious disturbances have raged in
the South-East of Turkey between the security forces and the members
of the PKK (Workers' Party of Kurdistan). This confrontation has so
far, according to the Government, claimed the lives of 4,036 civilians
and 3,884 members of the security forces.
9. At the time of the Court's consideration of the case, ten of
the eleven provinces of south-eastern Turkey had since 1987 been
subjected to emergency rule.
C. The detention of the applicant
10. The facts in the case are in dispute.
11. According to the applicant, he was taken into custody on
24 November 1992, between 11 p.m. and midnight. Approximately
twenty policemen had come to his home, accompanied by a detainee called
Metin who, allegedly, had identified the applicant as a member of the
PKK, although Mr Aksoy told the police that he did not know Metin.
12. The Government submitted that the applicant was arrested and
taken into custody on 26 November 1992 at around 8.30 a.m., together
with thirteen others, on suspicion of aiding and abetting
PKK terrorists, being a member of the Kiziltepe branch of the PKK and
distributing PKK tracts.
13. The applicant stated that he was taken to
Kiziltepe Security Headquarters. After one night, he was transferred
to Mardin Antiterrorist Headquarters.
He was allegedly detained, with two others, in a cell measuring
approximately 1.5 x 3 metres, with one bed and a blanket, but no
pillow. He was provided with two meals a day.
14. He was interrogated about whether he knew Metin (the man who
had identified him). He claimed to have been told: "If you don't know
him now, you will know him under torture."
According to the applicant, on the second day of his detention
he was stripped naked, his hands were tied behind his back and he was
strung up by his arms in the form of torture known as
"Palestinian hanging". While he was hanging, the police connected
electrodes to his genitals and threw water over him while they
electrocuted him. He was kept blindfolded during this torture, which
continued for approximately thirty-five minutes.
During the next two days, he was allegedly beaten repeatedly
at intervals of two hours or half an hour, without being suspended.
The torture continued for four days, the first two being very
intensive.
15. He claimed that, as a result of the torture, he lost the
movement of his arms and hands. His interrogators ordered him to make
movements to restore the control of his hands. He asked to see a
doctor, but was refused permission.
16. On 8 December 1992 the applicant was seen by a doctor in the
medical service of the sub-prefecture. A medical report was prepared,
stating in a single sentence that the applicant bore no traces of blows
or violence. According to Mr Aksoy, the doctor asked how his arms had
been injured and was told by a police officer that he had had an
accident. The doctor then commented, mockingly, that everyone who came
there seemed to have an accident.
17. The Government submitted that there were fundamental doubts as
to whether the applicant had been ill-treated while in police custody.
18. On 10 December 1992, immediately before his release, Mr Aksoy
was brought before the Mardin public prosecutor.
According to the Government, he was able to sign a statement
denying any involvement with the PKK and made no complaint about having
been tortured.
The applicant, however, submitted that he was shown a statement
for signature, but said that its contents were untrue. The prosecutor
insisted he sign it but Mr Aksoy told him that he could not because he
could not move his hands.
D. Events on the applicant's release
19. Mr Aksoy was released on 10 December 1992. He was admitted to
Dicle University Medical Faculty Hospital on 15 December 1992, where
he was diagnosed as suffering from bilateral radial paralysis (that is,
paralysis of both arms caused by nerve damage in the upper arms). He
told the doctor who treated him that he had been in custody and strung
up with his arms tied behind his back.
He remained at the hospital until 31 December 1992 when,
according to the Government, he left without having been properly
discharged, taking his medical file with him.
20. On 21 December 1992, the public prosecutor decided that there
were no grounds to institute criminal proceedings against the
applicant, although eleven of the others detained with him were
charged.
21. No criminal or civil proceedings have been brought in the
Turkish courts in relation to the alleged ill-treatment of the
applicant.
E. The death of the applicant
22. Mr Aksoy was shot dead on 16 April 1994.
According to his representatives, he had been threatened with
death in order to make him withdraw his application to the Commission,
the last threat being made by telephone on 14 April 1994, and his
murder was a direct result of his persisting with the application.
The Government, however, submitted that his killing was a
settling of scores between quarrelling PKK factions.
A suspect, allegedly a member of the PKK, has been charged with
the murder.
6. The Commission's findings of fact
23. Delegates of the Commission heard evidence from witnesses in
the case in Diyarbakir between 13 and 14 March 1995 and in Ankara
between 12 and 14 April 1995, in the presence of representatives from
both sides who were able to cross-examine the witnesses. In addition,
the Commission heard oral submissions on admissibility and the merits
at hearings in Strasbourg on 18 October 1994 and 3 July 1995.
After evaluating the oral and documentary evidence, the
Commission came to the following conclusions with regard to the facts:
(a) It was not possible to make a definite finding as to the
date on which Mr Aksoy was arrested, although this clearly took place
no later than 26 November 1992. He was released on 10 December 1992,
therefore he was detained for at least fourteen days.
(b) On 15 December 1992 he was admitted to hospital and was
diagnosed with bilateral radial paralysis. He left hospital on
31 December 1992 on his own initiative, without having been properly
discharged.
(c) There was no evidence that he had suffered any disability
prior to his arrest, nor any evidence of any untoward incident during
the five days between his release from police custody and his admission
to hospital.
(d) The Commission noted that the medical evidence indicated
that the applicant's injuries could have had various causes, but one
of these could have been the trauma suffered by a person who had been
strung up by his arms. Moreover, radial paralysis affecting both arms
was apparently not a common condition, although it was consistent with
the form of ill-treatment known as "Palestinian hanging".
(e) The delegates heard evidence from one of the policemen who
had interrogated Mr Aksoy and from the public prosecutor who saw him
prior to his release; both claimed that it was inconceivable that he
could have been ill-treated in any way. The Commission found this
evidence unconvincing, since it gave the impression that the
two public officers were not prepared even to consider the possibility
of ill-treatment occurring at the hands of the police.
(f) The Government offered no alternative explanation for
Mr Aksoy's injuries.
(g) There was insufficient evidence to enable any conclusions
to be drawn with regard to the applicant's other allegations of
ill-treatment by electric shocks and beatings. However, it did seem
clear that he had been detained in a small cell with two other people,
all of whom had had to share a single bed and blanket, and that he had
been kept blindfolded during interrogation.
II. Relevant domestic law and practice
A. Criminal-law provisions against torture
24. The Turkish Criminal Code makes it an offence for a
government employee to subject someone to torture or ill-treatment
(Article 243 in respect of torture, and Article 245 in respect of
ill-treatment).
25. Article 8 of Decree no. 430 of 16 December 1990 provides as
follows:
"No criminal, financial or legal responsibility may be claimed
against the State of Emergency Regional Governor or a
Provincial Governor within a state of emergency region in
respect of their decisions or acts connected with the exercise
of the powers entrusted to them by this decree, and no
application shall be made to any judicial authority to this
end. This is without prejudice to the rights of an individual
to claim indemnity from the State for damage suffered by them
without justification."
26. Prosecutors are under a duty to investigate allegations of
serious offences which come to their attention, even if no complaint
is made. However, in the state of emergency region, the investigation
of criminal offences by members of the administration is taken up by
local administrative councils, composed of civil servants. These
councils are also empowered to decide whether or not to bring a
prosecution, subject to an automatic judicial review before the
Supreme Administrative Court in cases where they decide not to
prosecute (Legislative Decree no. 285).
B. Administrative law remedies
27. Article 125 of the Turkish Constitution provides as follows:
"All acts or decisions of the administration are subject to
judicial review ...
The administration shall be liable to indemnify any damage
caused by its own acts and measures."
By virtue of this provision, the State is liable to indemnify
any person who can prove that he has suffered damage in circumstances
where the State has failed in its duty to safeguard individual life and
property.
C. Civil proceedings
28. Any illegal act which causes damage committed by a
civil servant (except the regional or district prefects in the
state of emergency region) may be the subject of a claim for
compensation before the ordinary civil courts.
D. The law relating to detention in police custody
29. Pursuant to Article 128 of the Code of Criminal Procedure, a
person arrested and detained shall be brought before a justice of the
peace within twenty-four hours. This period may be extended to
four days when the individual is detained in connection with a
collective offence.
The permissible periods of detention without judicial control
are longer in relation to proceedings before the State security courts.
In such a case, it is 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, re-enacting Article 11 of Decree
having the force of law no. 285 of 10 July 1987).
In the region under emergency rule, however, a person arrested
in connection with proceedings before the State security courts may be
detained for four days in the case of individual offences and
thirty days in the case of collective offences before being brought
before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of
25 October 1983).
30. Article 19 of the Turkish Constitution gives to a detained
person the right to have the lawfulness of his detention reviewed, on
application to the court with jurisdiction over his case.
E. The Turkish derogation from Article 5 of the Convention
(art. 5)
31. In a letter dated 6 August 1990, the Permanent Representative
of Turkey to the Council of Europe informed the Secretary General of
the Council of Europe that:
"The Republic of Turkey is exposed to threats to its
national security in South East Anatolia which have steadily
grown in scope and intensity over the last months so as to
amount to a threat to the life of the nation in the meaning of
Article 15 of the Convention (art. 15).
During 1989, 136 civilians and 153 members of the
security forces have been killed by acts of terrorists, acting
partly out of foreign bases. Since the beginning of 1990
only, the numbers are 125 civilians and 96 members of the
security forces.
The threat to national security is predominantly occurring in
provinces [i.e. Elazig, Bing�l, Tunceli, Van, Diyarbakir,
Mardin, Siirt, Hakk�ri, Batman and Sirnak] of
South East Anatolia and partly also in adjacent provinces.
Because of the intensity and variety of terrorist actions and
in order to cope with such actions, the Government has not
only to use its security forces but also take steps
appropriate to cope with a campaign of harmful disinformation
of the public, partly emerging from other parts of the
Republic of Turkey or even from abroad and with abuses of
trade-union rights.
To this end, the Government of Turkey, acting in conformity
with Article 121 of the Turkish Constitution, has promulgated
on May 10, 1990 the decrees with force of law nos. 424 and
425. These decrees may in part result in derogating from
rights enshrined in the following provisions of the
European Convention for Human Rights and Fundamental Freedoms:
Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8,
art. 10, art. 11, art. 13). A descriptive summary of the new
measures is attached hereto. The issue of their compatibility
with the Turkish Constitution is currently pending before the
Constitutional Court of Turkey.
The Government of Turkey will inform the Secretary General of
the Council of Europe when the measures referred to above have
ceased to operate.
This notification is given pursuant to Article 15 (art. 15) of
the European Convention of Human Rights."
Attached to this letter was a "descriptive summary of the
content of the Decrees which have the force of law nos. 424 and 425".
The only measure therein described relating to Article 5 of the
Convention (art. 5) was as follows:
"The Governor of the state of emergency region can order
persons who continuously violate the general security and
public order, to settle at a place to be specified by the
Minister of the Interior outside the state of emergency region
for a period which shall not exceed the duration of the
state of emergency ..."
32. By a letter of 3 January 1991 the Permanent Representative of
Turkey informed the Secretary General that Decree no. 430 had been
enacted, which limited the powers previously afforded to the Governor
of the state of emergency region under Decrees nos. 424 and 425.
33. On 5 May 1992 the Permanent Representative wrote to the
Secretary General that:
"As most of the measures described in the decrees which have
the force of Law nos. 425 and 430 that might result in
derogating from rights guaranteed by Articles 5, 6, 8, 10, 11
and 13 of the Convention (art. 5, art. 6, art. 8, art. 10,
art. 11, art. 13) are no longer being implemented, I hereby
inform you that the Republic of Turkey limits henceforward the
scope of its Notice of Derogation with respect to Article 5 of
the Convention (art. 5) only. The Derogation with respect to
Articles 6, 8, 10, 11 and 13 of the Convention (art. 6,
art. 8, art. 10, art. 11, art. 13) is no longer in effect;
consequently, the corresponding reference to these Articles
(art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted
from the said Notice of Derogation."
PROCEEDINGS BEFORE THE COMMISSION
34. In his application of 20 May 1993 (no. 21987/93) to the
Commission, Mr Aksoy complained that he had been subjected to treatment
contrary to Article 3 of the Convention (art. 3) during his detention
in police custody in November/December 1992; that, during the course
of his detention, he was not brought before a judge or other authorised
officer in violation of Article 5 para. 3 (art. 5-3); and that he was
not provided with the opportunity to bring proceedings against those
responsible for his ill-treatment, in violation of Articles 6 para. 1
and 13 (art. 6-1, art. 13).
Following Mr Aksoy's death on 16 April 1994, his
representatives alleged that the killing was a direct result of his
application to the Commission and was an interference with his right
of individual petition under Article 25 of the Convention (art. 25).
35. The Commission declared the application admissible on
19 October 1994. In its report of 23 October 1995 (Article 31)
(art. 31), it expressed the opinion, by fifteen votes to one, that
there had been a violation of Article 3 (art. 3) and that there had
been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to
three, that there had been a violation of Article 6 para. 1 (art. 6-1)
and that no separate issue arose under Article 13 (art. 13); and,
unanimously, that no further action need be taken in respect of the
alleged interference with the effective exercise of the right of
individual petition under Article 25 (art. 25).
The full text of the Commission's opinion and of the
two separate opinions contained in the report is reproduced as an annex
to this judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-VI), but a copy of the Commission's report is obtainable
from the registry.
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FINAL SUBMISSIONS TO THE COURT
36. At the hearing, the Government invited the Court to reject the
application on the ground that the available domestic remedies had not
been exhausted or, in the alternative, to find that there had been no
violation of the Convention.
37. On the same occasion, the applicant asked the Court to find
violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3,
art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had
been aggravated because the measures complained of formed part of an
administrative practice. He also requested just satisfaction pursuant
to Article 50 of the Convention (art. 50).
AS TO THE LAW
I. THE COURT'S ASSESSMENT OF THE FACTS
38. The Court recalls its constant case-law that under the
Convention system the establishment and verification of the facts is
primarily a matter for the Commission (Articles 28 para. 1 and 31)
(art. 28-1, art. 31). While the Court is not bound by the Commission's
findings of fact and remains free to make its own appreciation in the
light of all the material before it, it is only in exceptional
circumstances that it will exercise its powers in this area (see the
Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of
Judgments and Decisions 1996-IV, p. 1214, para. 78).
39. In the instant case, it must be recalled that the Commission
reached its findings of fact after a delegation had heard evidence in
Turkey on two separate occasions, in addition to hearings in Strasbourg
(see paragraph 23 above). In these circumstances, the Court considers
that it should accept the facts as established by the Commission
(see, mutatis mutandis, the above-mentioned
Akdivar and Others judgment, p. 1214, para. 81).
40. It is thus against the background of the facts as found by the
Commission (see paragraph 23 above) that the Court must examine the
Government's preliminary objection and the applicant's complaints under
the Convention.
II. THE GOVERNMENT'S PRELIMINARY OBJECTION
A. The arguments of those appearing before the Court
41. The Government asked the Court to reject the applicant's
complaint under Article 3 of the Convention (art. 3) on the ground
that, contrary to Article 26 of the Convention (art. 26), he had failed
to exhaust the domestic remedies available to him. Article 26
(art. 26) provides:
"The Commission may only deal with the matter after all
domestic remedies have been exhausted, according to the
generally recognised rules of international law, and within a
period of six months from the date on which the final decision
was taken."
The applicant (see paragraph 3 above), with whom the Commission
agreed, argued that he had done all that could be expected of him to
exhaust domestic remedies.
42. The Government contended that the rule relating to the
exhaustion of domestic remedies was clearly established in
international law and in the case-law of the Convention organs, and
required the applicant to avail himself of all national remedies unless
these clearly offered him no chance of success. In fact, Mr Aksoy
could have had recourse to three different types of domestic remedy:
a criminal prosecution, a civil action and/or administrative
proceedings (see paragraphs 24-28 above).
43. With regard to the first of these options, they submitted that
he could have complained about the alleged ill-treatment to the
public prosecutor who saw him on 10 December 1992 (see paragraph 18
above). However, according to the Government, Mr Aksoy gave no
indication on that occasion or at any time subsequently that he had
been ill-treated during his time in police custody.
Articles 243 and 245 of the Criminal Code, which were in force
throughout Turkey, penalised the use of torture and ill-treatment for
the extraction of confessions (see paragraph 24 above).
Legislative Decree no. 285 on the state of emergency region transferred
the power to carry out investigations into criminal acts allegedly
committed by civil servants from the public prosecutors to the
administrative councils (see paragraph 26 above). However, decisions
by the administrative councils not to prosecute were always reviewed
by the Supreme Administrative Court. In this connection, the
Government submitted a number of judgments reversing orders made by
administrative councils in the state of emergency region and ordering
criminal proceedings to be brought against members of the gendarmerie
and security police in respect of allegations of ill-treatment of
detainees, and other rulings on sentencing for similar forms of
misconduct.
44. Nonetheless, the Government reasoned that criminal proceedings
were perhaps not the most appropriate remedy in this type of case,
because of the emphasis placed on the rights of the accused as opposed
to those of the complainant. They therefore drew the Court's attention
to the existence of an administrative remedy under Article 125 of the
Turkish Constitution (see paragraph 27 above). In order to receive
compensation under this provision, an individual needed only to show
that there was a causal link between the acts committed by the
administration and the wrong suffered; there was no requirement to
prove serious misconduct on the part of a government agent. In this
connection, the Government submitted examples of administrative
decisions in which compensation had been awarded in respect of death
caused by torture in police custody.
45. In addition, the Government argued that Mr Aksoy could have
brought a civil action for damages. Again, they referred to a number
of decisions of the domestic courts, including a judgment of the
Court of Cassation in a case concerning a claim for damages for
torture, where it was held that offences committed by members of the
security forces were governed by the Code of Obligations and that,
under Article 53 of that Code, an acquittal for lack of evidence in
criminal proceedings was not binding on the civil courts.
46. While the applicant did not deny that the remedies identified
by the Government were formally part of the Turkish legal system, he
claimed that, in the region under emergency rule, they were illusory,
inadequate and ineffective because both torture and the denial of
effective remedies were carried out as a matter of administrative
practice.
In particular, he argued that reports by a number of
international bodies showing that the torture of detainees continued
to be systematic and widespread in Turkey raised questions about the
commitment of the State to bringing an end to this practice. In this
respect he referred to the European Committee for the
Prevention of Torture's Public Statement on Turkey (15 December 1992);
the United Nations Committee against Torture's Summary Account of the
Results of the Proceedings Concerning the Inquiry on Turkey
(9 November 1993); and the United Nations Special Rapporteur on
Torture's Report of 1995 (E/CN.4/1995/34).
47. He stated that there was a policy on the part of the
State authorities of denying that torture ever took place, which made
it extremely difficult for victims to succeed in receiving compensation
and in having those responsible brought to justice. For example, it
was now impossible for individuals alleging torture to obtain medical
reports proving the extent of their injuries, because the forensic
medical service had been reorganised and doctors who issued such
reports were either threatened or moved to a different area.
Prosecutors in the state of emergency region routinely failed to open
investigations into alleged abuses of human rights and frequently
refused even to acknowledge complaints. Such investigations as were
carried out were biased and inadequate. Furthermore, lawyers and
others who acted for the victims of human rights violations were
subjected to threats, intimidation and abusive prosecutions and
individuals were afraid to pursue domestic remedies because reprisals
against complainants were so common.
In these circumstances, the applicant claimed that he should
not be required to pursue domestic remedies before making a complaint
to Strasbourg.
48. In any case, he maintained that he had informed the
public prosecutor on 10 December 1992 that he had been tortured
(see paragraph 18 above) and asserted that, even if he had not, the
prosecutor could plainly have observed that he did not have the proper
use of his hands.
The failure of the prosecutor to start a criminal investigation
made it extremely difficult for the applicant to avail himself of any
domestic remedy. It was not possible for him to take steps to ensure
that a criminal prosecution was brought, for example by challenging a
decision not to bring a prosecution in the administrative courts
(see paragraph 26 above), because the lack of investigation meant that
no formal decision not to prosecute was ever made. In addition, this
failure prejudiced his chances of victory in civil or administrative
proceedings, because in order to succeed with either type of claim it
would have been necessary to prove that he had suffered torture, and
in practice a ruling to that effect by a judge in criminal proceedings
would have been required.
49. Finally, he reminded the Court that no remedy was available
even in theory in relation to his complaint regarding the length of
time he was detained without judicial control, since this was perfectly
lawful under the domestic legislation (see paragraph 29 above).
50. The Commission was of the opinion that the applicant had been
injured during his time in police custody (see paragraph 23 above).
It followed that, although it was not possible to establish exactly
what happened during his meeting with the public prosecutor on
10 December 1992, there must undoubtedly have been elements which
should have prompted the latter to open an investigation or, at the
very least, try to obtain further information about the applicant's
state of health and the treatment to which he had been subjected. The
applicant had done all that could be expected of him in the
circumstances, particularly in view of the facts that he must have felt
vulnerable as a result of his detention and ill-treatment and that he
suffered health problems requiring hospitalisation following his
release. The threats which he claimed to have received after
making his application to the Commission and his death in circumstances
which had not been fully clarified, were further elements which
supported the view that the pursuance of remedies might have been
attended by risks.
In view of its finding that the applicant had done all that
could be required of him to exhaust domestic remedies, the Commission
decided that it was not necessary to determine whether there was an
administrative practice on the part of the Turkish authorities of
tolerating human rights abuses.
B. The Court's assessment
51. The Court recalls that the rule of exhaustion of domestic
remedies referred to in Article 26 of the Convention (art. 26) 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
dispensed from answering before an international body for their acts
before they have had an opportunity to put matters right through their
own legal systems. The rule is based on the assumption, reflected in
Article 13 of the Convention (art. 13) - with which it has close
affinity -, that there is an effective remedy available in respect of
the alleged breach in the domestic system whether or not the provisions
of the Convention are incorporated in national law. In this way, it
is an important aspect of the principle that the machinery of
protection established by the Convention is subsidiary to the
national systems safeguarding human rights (see the
Akdivar and Others judgment cited at paragraph 38 above, p. 1210,
para. 65).
52. Under Article 26 (art. 26), normal recourse should be had by
an applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the
remedies in question must be sufficiently certain not only in theory
but in practice, failing which they will lack the requisite
accessibility and effectiveness.
However, there is no obligation to have recourse to remedies
which are inadequate or ineffective. In addition, according to the
"generally recognised rules of international law" to which Article 26
(art. 26) makes reference, there may be special circumstances which
absolve the applicant from the obligation to exhaust the
domestic remedies at his disposal. The rule is also inapplicable where
an administrative practice consisting of a repetition of acts
incompatible with the Convention and official tolerance by the
State authorities has been shown to exist, and is of such a nature as
to make proceedings futile or ineffective (see the above-mentioned
Akdivar and Others judgment, p. 1210, paras. 66 and 67).
53. The Court emphasises that its approach to the application of
the rule must make due allowance for the fact that it is being applied
in the context of machinery for the protection of human rights that the
Contracting Parties have agreed to set up. Accordingly, it has
recognised that Article 26 (art. 26) must be applied with some degree
of flexibility and without excessive formalism. It has further
recognised that the rule of exhaustion is neither absolute nor capable
of being applied automatically; in reviewing whether it has been
observed it is essential to have regard to the particular circumstances
of each individual case. This means amongst other things that it must
take realistic account not only of the existence of formal remedies in
the legal system of the Contracting Party concerned but also of the
general legal and political context in which they operate, as well as
the personal circumstances of the applicant (see the above-mentioned
Akdivar and Others judgment, p. 1211, para. 69).
54. The Court notes the provision under Turkish law of criminal,
civil and administrative remedies against the ill-treatment of
detainees by the agents of the State and it has studied with interest
the summaries of judgments dealing with similar matters provided by the
Government (see paragraphs 43-45 above). However, as previously
mentioned (paragraph 53), it is not here solely concerned with
the question whether the domestic remedies were in general effective
or adequate; it must also examine whether, in all the circumstances of
the case, the applicant did everything that could reasonably be
expected of him to exhaust the national channels of redress.
55. For the purposes of this examination, the Court reiterates that
it has decided to accept the Commission's findings of fact in the
present case (see paragraphs 39-40 above). The Commission, as has been
seen (in paragraph 50 above), was of the view that the applicant was
suffering from bilateral radial paralysis at the time of his interview
with the public prosecutor.
56. The Court considers that, even if it were accepted that the
applicant made no complaint to the public prosecutor of ill-treatment
in police custody, the injuries he had sustained must have been clearly
visible during their meeting. However, the prosecutor chose to make
no enquiry as to the nature, extent and cause of these injuries,
despite the fact that in Turkish law he was under a duty to investigate
(see paragraph 26 above).
It must be recalled that this omission on the part of the
prosecutor took place after Mr Aksoy had been detained in
police custody for at least fourteen days without access to legal or
medical assistance or support. During this time he had sustained severe
injuries requiring hospital treatment (see paragraph 23 above). These
circumstances alone would have given him cause to feel vulnerable,
powerless and apprehensive of the representatives of the State. Having
seen that the public prosecutor was aware of his injuries but had taken
no action, it is understandable if the applicant formed the belief that
he could not hope to secure concern and satisfaction through national
legal channels.
57. The Court therefore concludes that there existed special
circumstances which absolved the applicant from his obligation to
exhaust domestic remedies. Having reached this conclusion it does not
consider it necessary to examine the applicant's claim that there
exists an administrative practice of withholding remedies in breach of
the Convention.
III. THE MERITS
A. Alleged violation of Article 3 of the Convention (art. 3)
58. The applicant alleged that he was subjected to treatment
contrary to Article 3 of the Convention (art. 3), which states:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government considered the allegations of ill-treatment to
be unfounded. The Commission, however, found that the applicant had
been tortured.
59. The Government raised various objections to the way in which
the Commission had evaluated the evidence. They pointed to a number
of factors which, in their view, should have given rise to serious
doubt as to whether Mr Aksoy had been ill-treated as he claimed.
For example, they questioned why the applicant had made no
complaint to the public prosecutor about having been tortured
(see paragraph 18 above) and found it difficult to understand why, if
he had indeed been subjected to torture, he had not made any
inculpatory confession. They also found it suspicious that he had
waited for five days between being released from police custody and
contacting the hospital (see paragraph 19 above) and observed that it
could not be assumed that nothing untoward had occurred in the
meantime. Finally, they raised a number of points relating to the
medical evidence, including the facts that the applicant took his
medical records with him when he left hospital and that there was no
medical evidence of burns or other marks left by the application of
electric shocks.
60. The applicant complained of having been ill-treated in
different ways. He claimed to have been kept blindfolded during
interrogation, which caused disorientation; to have been suspended from
his arms, which were tied together behind his back
("Palestinian hanging"); to have been given electric shocks, which were
exacerbated by throwing water over him; and to have been subjected to
beatings, slapping and verbal abuse. He referred to medical evidence
from Dicle University Medical Faculty which showed that he was
suffering from a bilateral brachial plexus injury at the time of his
admission to hospital (see paragraph 19 above). This injury was
consistent with Palestinian hanging.
He submitted that the treatment complained of was sufficiently
severe as to amount to torture; it was inflicted with the purpose of
inducing him to admit that he knew the man who had identified him.
In addition, he contended that the conditions in which he was
detained (see paragraph 13 above) and the constant fear of torture
which he suffered while in custody amounted to inhuman treatment.
61. The Court, having decided to accept the Commission's findings
of fact (see paragraphs 39-40 above), considers that where an
individual is taken into police custody in good health but is found to
be injured at the time of release, it is incumbent on the State to
provide a plausible explanation as to the causing of the injury,
failing which a clear issue arises under Article 3 of the Convention
(art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A
no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria
judgment of 4 December 1995, Series A no. 336, p. 26, para. 34).
62. Article 3 (art. 3), as the Court has observed on many
occasions, enshrines one of the fundamental values of democratic
society. Even in the most difficult of circumstances, such as the
fight against organised terrorism and crime, the Convention prohibits
in absolute terms torture or inhuman or degrading treatment or
punishment. Unlike most of the substantive clauses of the Convention
and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no
provision for exceptions and no derogation from it is permissible under
Article 15 (art. 15) even in the event of a public emergency
threatening the life of the nation (see the Ireland
v. the United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 65, para. 163, the Soering v. the United Kingdom judgment of
7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal
v. the United Kingdom judgment of 15 November 1996, Reports 1996-V,
p. 1855, para. 79).
63. In order to determine whether any particular form of
ill-treatment should be qualified as torture, the Court must have
regard to the distinction drawn in Article 3 (art. 3) between this
notion and that of inhuman or degrading treatment. As it has remarked
before, this distinction would appear to have been embodied in the
Convention to allow the special stigma of "torture" to attach only to
deliberate inhuman treatment causing very serious and cruel suffering
(see the Ireland v. the United Kingdom judgment previously cited,
p. 66, para. 167).
64. The Court recalls that the Commission found, inter alia, that
the applicant was subjected to "Palestinian hanging", in other words,
that he was stripped naked, with his arms tied together behind his
back, and suspended by his arms (see paragraph 23 above).
In the view of the Court this treatment could only have been
deliberately inflicted; indeed, a certain amount of preparation and
exertion would have been required to carry it out. It would appear to
have been administered with the aim of obtaining admissions or
information from the applicant. In addition to the severe pain which
it must have caused at the time, the medical evidence shows that it led
to a paralysis of both arms which lasted for some time
(see paragraph 23 above). The Court considers that this treatment was
of such a serious and cruel nature that it can only be described as
torture.
In view of the gravity of this conclusion, it is not necessary
for the Court to examine the applicant's complaints of other forms of
ill-treatment.
In conclusion, there has been a violation of Article 3 of the
Convention (art. 3).
B. Alleged violation of Article 5 para. 3 of the Convention
(art. 5-3)
65. The applicant, with whom the Commission agreed, claimed that
his detention violated Article 5 para. 3 of the Convention (art. 5-3).
The relevant parts of Article 5 (art. 5) state:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence ...
...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article (art. 5-1-c)
shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power ..."
66. The Court recalls its decision in the case of Brogan and Others
v. the United Kingdom (judgment of 29 November 1988, Series A
no. 145-B, p. 33, para. 62), that a period of detention without
judicial control of four days and six hours fell outside the strict
constraints as to time permitted by Article 5 para. 3 (art. 5-3). It
clearly follows that the period of fourteen or more days during which
Mr Aksoy was detained without being brought before a judge or other
judicial officer did not satisfy the requirement of "promptness".
67. However, the Government submitted that, despite these
considerations, there had been no violation of Article 5 para. 3
(art. 5-3), in view of Turkey's derogation under Article 15 of the
Convention (art. 15), which states:
"1. In time of war or other public emergency threatening the
life of the nation any High Contracting Party may take
measures derogating from its obligations under [the]
Convention to the extent strictly required by the exigencies
of the situation, provided that such measures are not
inconsistent with its other obligations under
international law.
2. No derogation from Article 2 (art. 2), except in respect
of deaths resulting from lawful acts of war, or from
Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7)
shall be made under this provision (art. 15-1).
3. Any High Contracting Party availing itself of this right
of derogation shall keep the Secretary General of the
Council of Europe fully informed of the measures which it has
taken and the reasons therefor. It shall also inform the
Secretary General of the Council of Europe when such measures
have ceased to operate and the provisions of the Convention
are again being fully executed."
The Government reminded the Court that Turkey had derogated
from its obligations under Article 5 of the Convention (art. 5) on
5 May 1992 (see paragraph 33 above).
1. The Court's approach
68. The Court recalls that it falls to each Contracting State, with
its responsibility for "the life of [its] nation", to determine whether
that life is threatened by a "public emergency" and, if so, how far it
is necessary to go in attempting to overcome the emergency. By reason
of their direct and continuous contact with the pressing needs of the
moment, the national authorities are in principle better placed than
the international judge to decide both on the presence of such an
emergency and on the nature and scope of the derogations necessary to
avert it. Accordingly, in this matter a wide margin of appreciation
should be left to the national authorities.
Nonetheless, Contracting Parties do not enjoy an unlimited
discretion. It is for the Court to rule whether, inter alia, the
States have gone beyond the "extent strictly required by the
exigencies" of the crisis. The domestic margin of appreciation is thus
accompanied by a European supervision. In exercising this supervision,
the Court must give appropriate weight to such relevant factors as the
nature of the rights affected by the derogation and the circumstances
leading to, and the duration of, the emergency situation (see the
Brannigan and McBride v. the United Kingdom judgment of 26 May 1993,
Series A no. 258-B, pp. 49-50, para. 43).
2. Existence of a public emergency threatening the life of
the nation
69. The Government, with whom the Commission agreed on this point,
maintained that there was a public emergency "threatening the life of
the nation" in South-East Turkey. The applicant did not contest the
issue, although he submitted that, essentially, it was a matter for the
Convention organs to decide.
70. The Court considers, in the light of all the material before
it, that the particular extent and impact of PKK terrorist activity in
South-East Turkey has undoubtedly created, in the region concerned, a
"public emergency threatening the life of the nation"
(see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961,
Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the
United Kingdom judgment, p. 78, para. 205, and the above-mentioned
Brannigan and McBride judgment, p. 50, para. 47).
3. Whether the measures were strictly required by the
exigencies of the situation
(a) The length of the unsupervised detention
71. The Government asserted that the applicant had been arrested
on 26 November 1992 along with thirteen others on suspicion of aiding
and abetting PKK terrorists, being a member of the Kiziltepe branch of
the PKK and distributing PKK tracts (see paragraph 12 above). He was
held in custody for fourteen days, in accordance with Turkish law,
which allows a person detained in connection with a collective offence
to be held for up to thirty days in the state of emergency region
(see paragraph 29 above).
72. They explained that the place in which the applicant was
arrested and detained fell within the area covered by the
Turkish derogation (see paragraphs 31-33 above). This derogation was
necessary and justified, in view of the extent and gravity of PKK
terrorism in Turkey, particularly in the South East. The investigation
of terrorist offences presented the authorities with special problems,
as the Court had recognised in the past, because the members of
terrorist organisations were expert in withstanding interrogation, had
secret support networks and access to substantial resources. A great
deal of time and effort was required to secure and verify evidence in
a large region confronted with a terrorist organisation that had
strategic and technical support from neighbouring countries. These
difficulties meant that it was impossible to provide judicial
supervision during a suspect's detention in police custody.
73. The applicant submitted that he was detained on
24 November 1992 and released on 10 December 1992. He alleged that the
post-dating of arrests was a common practice in the state of emergency
region.
74. While he did not present detailed arguments against the
validity of the Turkish derogation as a whole, he questioned whether
the situation in South-East Turkey necessitated the holding of suspects
for fourteen days or more without judicial supervision. He submitted
that judges in South-East Turkey would not be put at risk if they were
permitted and required to review the legality of detention at shorter
intervals.
75. The Commission could not establish with any certainty whether
the applicant was first detained on 24 November 1992, as he claimed,
or on 26 November 1992, as alleged by the Government, and it therefore
proceeded on the basis that he was held for at least fourteen days
without being brought before a judge or other officer authorised by law
to exercise judicial power.
76. The Court would stress the importance of Article 5 (art. 5) in
the Convention system: it enshrines a fundamental human right, namely
the protection of the individual against arbitrary interference by the
State with his or her right to liberty. Judicial control of
interferences by the executive with the individual's right to liberty
is an essential feature of the guarantee embodied in Article 5 para. 3
(art. 5-3), which is intended to minimise the risk of arbitrariness and
to ensure the rule of law (see the above-mentioned
Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt
judicial intervention may lead to the detection and prevention of
serious ill-treatment, which, as stated above (paragraph 62), is
prohibited by the Convention in absolute and non-derogable terms.
77. In the Brannigan and McBride judgment (cited at paragraph 68
above), the Court held that the United Kingdom Government had not
exceeded their margin of appreciation by derogating from their
obligations under Article 5 of the Convention (art. 5) to the extent
that individuals suspected of terrorist offences were allowed to be
held for up to seven days without judicial control.
In the instant case, the applicant was detained for at least
fourteen days without being brought before a judge or other officer.
The Government have sought to justify this measure by reference to the
particular demands of police investigations in a geographically vast
area faced with a terrorist organisation receiving outside support
(see paragraph 72 above).
78. Although the Court is of the view - which it has expressed on
several occasions in the past (see, for example, the above-mentioned
Brogan and Others judgment) - that the investigation of terrorist
offences undoubtedly presents the authorities with special problems,
it cannot accept that it is necessary to hold a suspect for
fourteen days without judicial intervention. This period is
exceptionally long, and left the applicant vulnerable not only to
arbitrary interference with his right to liberty but also to torture
(see paragraph 64 above). Moreover, the Government have not adduced
any detailed reasons before the Court as to why the fight against
terrorism in South-East Turkey rendered judicial intervention
impracticable.
(b) Safeguards
79. The Government emphasised that both the derogation and the
national legal system provided sufficient safeguards to protect
human rights. Thus, the derogation itself was limited to the strict
minimum required for the fight against terrorism; the permissible
length of detention was prescribed by law and the consent of a
public prosecutor was necessary if the police wished to remand a
suspect in custody beyond these periods. Torture was prohibited by
Article 243 of the Criminal Code (see paragraph 24 above) and
Article 135 (a) stipulated that any statement made in consequence of
the administration of torture or any other form of ill-treatment would
have no evidential weight.
80. The applicant pointed out that long periods of unsupervised
detention, together with the lack of safeguards provided for the
protection of prisoners, facilitated the practice of torture. Thus,
he was tortured with particular intensity on his third and fourth days
in detention, and was held thereafter to allow his injuries to heal;
throughout this time he was denied access to either a lawyer or a
doctor. Moreover, he was kept blindfolded during interrogation, which
meant that he could not identify those who mistreated him. The reports
of Amnesty International ("Turkey: a Policy of Denial", February 1995),
the European Committee for the Prevention of Torture and the
United Nations Committee against Torture (cited at paragraph 46 above)
showed that the safeguards contained in the Turkish Criminal Code,
which were in any case inadequate, were routinely ignored in the
state of emergency region.
81. The Commission considered that the Turkish system offered
insufficient safeguards to detainees, for example there appeared to be
no speedy remedy of habeas corpus and no legally enforceable rights of
access to a lawyer, doctor, friend or relative. In these
circumstances, despite the serious terrorist threat in
South-East Turkey, the measure which allowed the applicant to be
detained for at least fourteen days without being brought before a
judge or other officer exercising judicial functions exceeded the
Government's margin of appreciation and could not be said to be
strictly required by the exigencies of the situation.
82. In its above-mentioned Brannigan and McBride judgment (cited
at paragraph 68), the Court was satisfied that there were effective
safeguards in operation in Northern Ireland which provided an important
measure of protection against arbitrary behaviour and incommunicado
detention. For example, the remedy of habeas corpus was available to
test the lawfulness of the original arrest and detention, there was an
absolute and legally enforceable right to consult a solicitor
forty-eight hours after the time of arrest and detainees were entitled
to inform a relative or friend about their detention and to have access
to a doctor (op. cit., pp. 55-56, paras. 62-63).
83. In contrast, however, the Court considers that in this case
insufficient safeguards were available to the applicant, who was
detained over a long period of time. In particular, the denial of
access to a lawyer, doctor, relative or friend and the absence of any
realistic possibility of being brought before a court to test the
legality of the detention meant that he was left completely at the
mercy of those holding him.
84. The Court has taken account of the unquestionably serious
problem of terrorism in South-East Turkey and the difficulties faced
by the State in taking effective measures against it. However, it is
not persuaded that the exigencies of the situation necessitated the
holding of the applicant on suspicion of involvement in terrorist
offences for fourteen days or more in incommunicado detention without
access to a judge or other judicial officer.
4. Whether the Turkish derogation met the formal requirements
of Article 15 para. 3 (art. 15-3)
85. None of those appearing before the Court contested that the
Turkish Republic's notice of derogation (see paragraph 33 above)
complied with the formal requirements of Article 15 para. 3
(art. 15-3), namely to keep the Secretary General of the
Council of Europe fully informed of the measures which were taken in
derogation from the Convention and the reasons therefor.
86. The Court is competent to examine this issue of its own motion
(see the above-mentioned Lawless judgment, p. 55, para. 22, and the
above-mentioned Ireland v. the United Kingdom judgment, p. 84,
para. 223), and in particular whether the Turkish notice of derogation
contained sufficient information about the measure in question, which
allowed the applicant to be detained for at least fourteen days without
judicial control, to satisfy the requirements of Article 15 para. 3
(art. 15-3). However, in view of its finding that the impugned measure
was not strictly required by the exigencies of the situation
(see paragraph 84 above), the Court finds it unnecessary to rule on
this matter.
5. Conclusion
87. In conclusion, the Court finds that there has been a violation
of Article 5 para. 3 of the Convention (art. 5-3).
C. Alleged lack of remedy
88. The applicant complained that he was denied access to a court,
in violation of Article 6 para. 1 of the Convention (art. 6-1), which
provides, so far as is relevant:
"In the determination of his civil rights ..., everyone is
entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law
..."
In addition, he claimed that there was no effective domestic
remedy available to him, contrary to Article 13 of the Convention
(art. 13), which states:
"Everyone whose rights and freedoms as set forth in [the]
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."
89. The Government contended that, since the applicant had never
even attempted to bring proceedings, it was not open to him to complain
that he had been denied access to a court. They further argued, as
they had in connection with their preliminary objection
(see paragraphs 41-45 above) that there were a number of effective
remedies available.
90. For the applicant, the prosecutor's decision not to open an
investigation had effectively rendered it impossible for him to enforce
his civil right to compensation (see paragraph 48 above). He submitted
that, under Turkish law, civil proceedings could not be contemplated
until the facts concerning the events had been established and the
perpetrators identified by a criminal prosecution. Without this,
civil proceedings had no prospect of success. In addition, he stated
that the ability to seek compensation for torture would represent only
one part of the measures necessary to provide redress; it would be
unacceptable for a State to claim that it fulfilled its obligation
simply by providing compensation, since this would in effect be to
allow States to pay for the right to torture. He claimed that the
remedies necessary to meet his Convention claims either did not exist,
even in theory, or did not operate effectively in practice
(see paragraphs 46-47 above).
91. The Commission found a violation of Article 6 para. 1
(art. 6-1), for the same reasons that it found in the applicant's
favour under Article 26 of the Convention (art. 26) (see paragraph 50
above). In view of this finding, it did not consider it necessary to
examine the complaint under Article 13 (art. 13).
1. Article 6 para. 1 of the Convention (art. 6-1)
92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies
the "right to a court", of which the right of access, that is, the
right to institute proceedings before a court in civil matters,
constitutes one aspect (see, for example, the Holy Monasteries
v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37,
para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1)
applies to a civil claim for compensation in respect of ill-treatment
allegedly committed by agents of the State (see, for example, the
Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22).
93. The Court notes that it was not disputed by the applicant that
he could in theory have brought civil proceedings for damages in
respect of his ill-treatment. He did claim that the failure of the
prosecutor to mount a criminal investigation in practice meant that he
would have had no chance of success in civil proceedings
(see paragraph 90 above). The Court recalls, however, that because of
the special circumstances which existed in his case (see paragraph 57
above), Mr Aksoy did not even attempt to make an application before the
civil courts. Given these facts, it is not possible for the Court to
determine whether or not the Turkish civil courts would have been able
to deal with Mr Aksoy's claim, had he brought it before them.
In any event, the Court observes that the crux of the
applicant's complaint concerned the prosecutor's failure to mount a
criminal investigation (see paragraph 90 above). It further notes the
applicant's argument that the possibility of seeking compensation for
torture would represent only one part of the measures necessary to
provide redress (also in paragraph 90 above).
94. In the Court's view, against this background, it is more
appropriate to consider this complaint in relation to the more general
obligation on States under Article 13 (art. 13) to provide an effective
remedy in respect of violations of the Convention.
2. Article 13 of the Convention (art. 13)
95. The Court observes that Article 13 (art. 13) guarantees the
availability at national level of a remedy to enforce the substance of
the Convention rights and freedoms in whatever form they might happen
to be secured in the domestic legal order. The effect of this Article
(art. 13) is thus to require the provision of a domestic remedy
allowing the competent national authority both to deal with the
substance of the relevant Convention complaint and to grant appropriate
relief, although Contracting States are afforded some discretion as to
the manner in which they conform to their obligations under this
provision (art. 13) (see the Chahal judgment cited at paragraph 62
above, pp. 1869-70, para. 145). The scope of the obligation under
Article 13 (art. 13) varies depending on the nature of the applicant's
complaint under the Convention (see the above-mentioned
Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy
required by Article 13 (art. 13) must be "effective" in practice as
well as in law, in particular in the sense that its exercise must not
be unjustifiably hindered by the acts or omissions of the authorities
of the respondent State.
96. The Court would first make it clear that its finding (in
paragraph 57 above) that there existed special circumstances which
absolved the applicant from his obligation to exhaust domestic remedies
should not be taken as meaning that remedies are ineffective in
South-East Turkey (see, mutatis mutandis, the
Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14,
para. 77).
97. Secondly, the Court, like the Commission, would take judicial
notice of the fact that allegations of torture in police custody
are extremely difficult for the victim to substantiate if he has been
isolated from the outside world, without access to doctors, lawyers,
family or friends who could provide support and assemble the necessary
evidence. Furthermore, having been ill-treated in this way, an
individual will often have had his capacity or will to pursue a
complaint impaired.
98. The nature of the right safeguarded under Article 3 of the
Convention (art. 3) has implications for Article 13 (art. 13). Given
the fundamental importance of the prohibition of torture
(see paragraph 62 above) and the especially vulnerable position of
torture victims, Article 13 (art. 13) imposes, without prejudice to any
other remedy available under the domestic system, an obligation on
States to carry out a thorough and effective investigation of incidents
of torture.
Accordingly, as regards Article 13 (art. 13), where an
individual has an arguable claim that he has been tortured by agents
of the State, the notion of an "effective remedy" entails, in addition
to the payment of compensation where appropriate, a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible and including effective access for the
complainant to the investigatory procedure. It is true that no express
provision exists in the Convention such as can be found in Article 12
of the 1984 United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, which imposes a duty to
proceed to a "prompt and impartial" investigation whenever there is a
reasonable ground to believe that an act of torture has been committed.
However, in the Court's view, such a requirement is implicit in the
notion of an "effective remedy" under Article 13 (art. 13)
(see, mutatis mutandis, the Soering judgment cited at paragraph 62
above, pp. 34-35, para. 88).
99. Indeed, under Turkish law the prosecutor was under a duty to
carry out an investigation. However, and whether or not Mr Aksoy made
an explicit complaint to him, he ignored the visible evidence before
him that the latter had been tortured (see paragraph 56 above) and no
investigation took place. No evidence has been adduced before the
Court to show that any other action was taken, despite the prosecutor's
awareness of the applicant's injuries.
Moreover, in the Court's view, in the circumstances of
Mr Aksoy's case, such an attitude from a State official under a duty
to investigate criminal offences was tantamount to undermining the
effectiveness of any other remedies that may have existed.
100. Accordingly, in view in particular of the lack of any
investigation, the Court finds that the applicant was denied an
effective remedy in respect of his allegation of torture.
In conclusion, there has been a violation of Article 13 of the
Convention (art. 13).
D. Alleged violation of Article 25 para. 1 of the Convention
(art. 25-1)
101. The applicant alleged that there had been an interference with
his right of individual petition, in breach of Article 25 para. 1 of
the Convention (art. 25-1), which states:
"The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person,
non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in this Convention, provided
that the High Contracting Party against which the complaint
has been lodged has declared that it recognises the competence
of the Commission to receive such petitions. Those of the
High Contracting Parties who have made such a declaration
undertake not to hinder in any way the effective exercise of
this right."
102. It is to be recalled that Mr Aksoy was killed on 16 April 1994;
according to his representatives, this was a direct result of his
persisting with his application to the Commission. It was alleged that
he had been threatened with death in order to make him withdraw his
application to the Commission, the last threat being made by telephone
on 14 April 1994 (see paragraph 22 above).
103. The Government, however, denied that there had been any
interference with the right of individual petition. They submitted
that Mr Aksoy had been killed in a settling of scores between
quarrelling PKK factions and told the Court that a suspect had been
charged with his murder (see paragraph 22 above).
104. The Commission was deeply concerned by Mr Aksoy's death and the
allegation that it was connected to his application to Strasbourg.
Nonetheless, it did not have any evidence on which to form a conclusion
as to the truth of this claim or the responsibility for the killing.
105. The Court reiterates that it is of the utmost importance for
the effective operation of the system of individual petition instituted
by Article 25 of the Convention (art. 25) that applicants or potential
applicants are able to communicate freely with the Commission without
being subjected to any form of pressure from the authorities to
withdraw or modify their complaints (see the
Akdivar and Others judgment cited at paragraph 38 above, p. 1219,
para. 105).
106. That being so, in the present case the Commission was unable
to find any evidence to show that Mr Aksoy's death was connected with
his application, or that the State authorities had been responsible for
any interference, in the form of threats or intimidation, with his
rights under Article 25 para. 1 (art. 25-1), and no new evidence in
this connection was presented to the Court.
The Court cannot therefore find that there has been a violation
of Article 25 para. 1 of the Convention (art. 25-1).
E. Alleged administrative practice of violating the Convention
107. The applicant additionally asked the Court to rule that
Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3,
art. 6-1, art. 13, art. 25-1) were violated as a matter of practice in
South-East Turkey, with high-level official tolerance. This entailed
that the Court should find aggravated violations of the Convention.
108. With reference to the reports of the international bodies cited
above (paragraph 46), he argued that torture at the hands of the police
was widespread in Turkey and that this had been the case for many
years. The State authorities were aware of the problem but had chosen
not to implement recommended safeguards.
Furthermore, the victims of torture and of other human rights
abuses were routinely denied access to judicial remedies in breach of
Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and
were harassed, threatened and subjected to violence if they attempted
to bring their complaints before the Strasbourg organs, contrary to
Article 25 para. 1 (art. 25-1).
Finally, since the domestic law permitted suspects to be
detained for long periods in violation of Article 5 para. 3 (art. 5-3),
this was evidence of an administrative practice of breaching that
provision (art. 5-3).
109. The Court is of the view that the evidence established by the
Commission is insufficient to allow it to reach a conclusion concerning
the existence of any administrative practice of the violation of the
above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13,
art. 25-1).
IV. Application of Article 50 of the Convention (art. 50)
110. Under Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
111. In his memorial the applicant claimed compensation for
pecuniary damage caused by his detention and torture, consisting of
medical expenses of 16,635,000 Turkish liras and loss of earnings
amounting to �40 (sterling).
In addition he sought non-pecuniary damages of �25,000, which,
he submitted, should be increased by a further �25,000 in the event
that the Court found an aggravated violation of the Convention on the
grounds of administrative practice.
He also requested payment of his legal fees and expenses which
totalled �20,710.
112. The Government offered no comment either in its memorial or
during the hearing before the Court as regards these claims.
A. Damage
113. In view of the extremely serious violations of the Convention
suffered by Mr Zeki Aksoy and the anxiety and distress that these
undoubtedly caused to his father, who has continued with the
application after his son's death (see paragraph 3 above), the Court
has decided to award the full amounts of compensation sought as regards
pecuniary and non-pecuniary damage. In total this amounts to
4,283,450,000 (four thousand two hundred and eighty-three million,
four hundred and fifty thousand) Turkish liras (based on the rate of
exchange applicable on the date of adoption of the present judgment).
B. Costs and expenses
114. The Court considers that the applicant's claim for costs and
expenses is reasonable and awards it in full, less the amounts received
by way of legal aid from the Council of Europe which have not already
been taken into account in the claim.
C. Default interest
115. With regard to the sum awarded in Turkish liras, default
interest is to be payable at the rate of 30% per annum, which,
according to the information available to the Court, is the statutory
rate of interest applicable in Turkey at the date of adoption of the
present judgment.
As the award in respect of costs and expenses is to be made in
pounds sterling, the Court considers it appropriate that interest
should be payable on this sum at the rate of 8% per annum, which,
according to the information available to it, is the statutory rate
applicable in England and Wales at the date of adoption of the present
judgment.
FOR THESE REASONS, THE COURT
1. Dismisses by eight votes to one the preliminary objection
concerning the exhaustion of domestic remedies;
2. Holds by eight votes to one that there has been a violation of
Article 3 of the Convention (art. 3);
3. Holds by eight votes to one that there has been a violation of
Article 5 para. 3 of the Convention (art. 5-3);
4. Holds by eight votes to one that it is not necessary to
consider the applicant's complaint under Article 6 para. 1 of
the Convention (art. 6-1);
5. Holds by eight votes to one that there has been a violation of
Article 13 of the Convention (art. 13);
6. Holds unanimously that no violation of Article 25 para. 1 of
the Convention (art. 25-1) has been established;
7. Holds by eight votes to one
(a) that the respondent State is to pay the applicant, within
three months, in respect of compensation for pecuniary and
non-pecuniary damage, 4,283,450,000 (four thousand two hundred
and eighty-three million, four hundred and fifty thousand)
Turkish liras;
(b) that the respondent State is to pay the applicant, within
three months, in respect of costs and expenses, �20,710
(twenty thousand seven hundred and ten pounds sterling) less
12,515 (twelve thousand, five hundred and fifteen)
French francs to be converted into pounds sterling at the rate
applicable on the date of delivery of the present judgment;
(c) that simple interest at the following annual rates shall
be payable from the expiry of the above-mentioned three months
until settlement:
(i) 30% in relation to the sum awarded in Turkish liras;
(ii) 8% in relation to the sum awarded in pounds sterling.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 18 December 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert Petzold
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Judge de Meyer;
(b) dissenting opinion of Judge G�lc�kl�.
Initialled: R.R.
Initialled: H.P.
PARTLY DISSENTING OPINION OF JUDGE DE MEYER
(Translation)
Although I agree with the rest of the judgment, I disagree with
the line taken by the majority in respect of Articles 6 para. 1 and 13
(art. 6-1, art. 13).
In the present case the Court had to rule firstly on a
preliminary objection that domestic remedies had not been exhausted.
It is clear from the reasoning on this in paragraphs 51 to 57
of the judgment that in the applicant's case these remedies were purely
theoretical. This suggests a violation of Article 13 (art. 13), as is
later made explicit in different terms in paragraphs 95 to 100 of the
judgment. The present case thus shows up very clearly the link between
Article 13 and Article 26 (art. 13, art. 26) (1).
_______________
1. See paragraph 51 of the judgment.
_______________
The reasoning also, however, implies a fortiori that the
applicant's right of access to a court was not effectively secured (2).
_______________
2. See paragraphs 54 and 56 of the judgment.
_______________
It follows that, in line with the decision we took on the
preliminary objection, we should as a logical consequence have found
that there had been a violation of both Article 6 para. 1 and
Article 13 (art. 6-1, art. 13).
It would have sufficed if we had noted that it was clear from
the considerations set out in paragraphs 51 to 57 of the judgment that
in the circumstances of the case the applicant had no effective
domestic remedies and was unable to exercise his right of access to a
court.
DISSENTING OPINION OF JUDGE G�LC�KL�
(Translation)
1. With regard to the subsidiary nature of the protection system
set up by the European Convention on Human Rights and its
direct corollary, the exhaustion of domestic remedies, I refer to my
dissenting opinion in the case of Akdivar and Others v. Turkey (see the
judgment of 16 September 1996, Reports of Judgments and
Decisions 1996-IV).
2. I would point out that Article 17 of the Turkish Constitution
is a literal translation of Article 3 (art. 3) of the
European Convention on Human Rights and that torture and ill-treatment
attract heavy penalties under the Turkish Criminal Code (Articles 243
and 245) (criminal remedy).
3. As civil wrongs (unlawful acts), torture and ill-treatment open
up the possibility of an action for compensation in respect of
pecuniary or non-pecuniary damage (civil action or administrative
proceedings, depending on the perpetrator's status).
4. Criminal proceedings are instituted by the prosecuting
authorities of their own motion or on the lodging of a complaint, and
must be brought where there is sufficient evidence that an offence has
been committed.
5. In Turkish law, therefore, these three remedies are available
equally, throughout the country, to every person who claims to be the
victim of torture or ill-treatment.
6. With regard to the effectiveness and appropriateness of the
above-mentioned remedies, there is not the shadow of a doubt in my
mind. In this connection I refer to my dissenting opinion in the case
of Akdivar and Others (ibid.). The respondent Government, both in that
case and the present case, submitted to the Commission in the
first place and later to the European Court - both in their memorial
and at the public hearing - dozens of judgments of the
courts of first instance or the supreme courts such as the
Court of Cassation or the Supreme Administrative Court.
7. Most of these judgments concerned cases in south-eastern Turkey
where acts of terrorism are being committed and where the present case
occurred. The following examples give a brief summary of some of these
decisions.
- Second Division of the Supreme Administrative Court -
judgment of 23 March 1994
The Supreme Administrative Court, carrying out its statutory
review of the decision to discontinue proceedings made by the
Malatya Provincial Administrative Council, ruled that
criminal proceedings under Article 245 of the Criminal Code
(ill-treatment, recourse to violence by a public official empowered to
use force in accordance with the law) had to be brought against the
accused, four police officers of the Malatya Security Police who had
allegedly beaten a suspect while he was being questioned.
Another judgment of the Supreme Administrative Court to the
same effect (judgment of 7.10.1993) concerned the Adiyaman province.
These two regions (Malatya and Adiyaman) are in south-eastern Turkey.
- Eighth Criminal Division of the Court of Cassation -
judgment of 16 December 1987
The accused were sentenced to four years, five months and
ten days' imprisonment for causing death by acts of torture
(Articles 452/1 and 243/1-2 of the Criminal Code).
The Court of Cassation upheld these sentences imposed by the
First Division of the Mardin Assize Court (in south-eastern Turkey).
- Eighth Criminal Division of the Court of Cassation -
judgment of 25 September 1991
The Eighth Division of the Ankara Assize Court sentenced the
accused to four years and two months' imprisonment and banned them from
holding public office for two months and fifteen days for inflicting
ill-treatment with a view to extracting confessions.
The Court of Cassation held that, as the file stood, the expert
reports formed a sufficient basis for the lower court's judgment.
However, it quashed it on account of a clerical error, as it stated
that the court had applied the minimum sentence whereas it had based
its calculations on the minimum sentence.
- Eighth Criminal Division of the Court of Cassation -
judgment of 21 February 1990
The accused were sentenced to four years, five months and
ten days' imprisonment for causing a prisoner's death. This conviction
pronounced by the Sixth Division of the Istanbul Assize Court was based
on the charge of fatal wounding (Article 452/1 of the Criminal Code).
The Court of Cassation upheld the conviction but ruled that
Article 243, concerning death subsequent to an act of torture, should
be applied.
8. Despite the existence of the three remedies I have mentioned
above, the applicant did not make use of any of them but only
complained to the Commission via London. He did not even lodge a
complaint with the responsible authorities - the first step any
individual has a duty to take when he claims to be a victim of anything
at all.
9. I simply cannot agree with the opinion the majority reached on
the basis of the applicant's bare allegations (that the Turkish courts
in the region concerned afforded no protection when the acts complained
of had been committed by members of the security forces) namely that
the effectiveness of domestic remedies was open to doubt. I consider
that "where there is doubt", and especially where there is doubt,
domestic remedies must be exhausted as required by the Commission
(decision of 14 March 1985, Garcia v. Switzerland, application
no. 10148/82, Decisions and Reports 42, p. 98). And the applicant did
nothing of the sort.
10. As Judge Gotchev rightly noted in his dissenting opinion in the
above-mentioned Akdivar and Others case, in connection with the
exhaustion-of-domestic-remedies rule, in order to reach such a
conclusion after the respondent Government have demonstrated the
existence of domestic remedies, the burden of proof should fall (once
more) on the applicant, who should be required to prove that the
authorities in that region of the country frustrated his attempts to
set the appropriate proceedings in motion. The applicant has not
adduced any evidence to that effect.
11. Above all, in this case a number of facts were in dispute
between the parties. The applicant alleged that he had reported to the
prosecuting authorities when interviewed that he had been subjected to
ill-treatment while in police custody, whereas the respondent
Government denied this and submitted arguments in support of their
contention. The Court, on the basis of this unclarified question of
fact, namely the alleged failure of the prosecuting authorities to set
criminal proceedings in motion, concluded that the criminal remedy was
ineffective.
12. Apart from the fact that there are procedures in Turkish law
whereby the prosecuting authorities can be obliged to institute
criminal proceedings, who else, if not the national authorities, could
clarify this fact which is decisive for the outcome of the present
case? For that reason alone, the applicant's complaints should first
be brought before the Turkish courts so that it can be established
whether domestic remedies are effective or not.
13. Since, therefore, the requirement in Article 26 of the
Convention (art. 26) has not been satisfied, the Court should have
upheld the respondent Government's preliminary objections concerning
the non-exhaustion of domestic remedies.
14. The foregoing considerations dispense me from considering the
merits of the case.