CASE OF AKSOY v. TURKEY
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 13;Not necessary to examine Art. 6-1;No violation of Art. 25-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award
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). 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. 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. 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. 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. 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. 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). 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. 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. 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. 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, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, 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."