CASE OF TEKİN v. TURKEY
No violation of Art. 2;Violation of Art. 3;Not necessary to examine Art. 5-1;Not necessary to examine Art. 6-1;No violation of Art. 10;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
C. Russo
7. The applicant, Mr Salih Tekin, a Turkish citizen of Kurdish origin, was born in 1964 and lives in Diyarbakır. Prior to the events in question, he had been employed as a journalist for the newspaper Özgür Gündem. The facts in the case are disputed. 8. It was not disputed that in February 1993, during a visit to his family in the hamlet of Yassıtepe, the applicant was arrested, on suspicion of threatening village guards, by gendarmes under the command of Officer Harun Altın and taken to Derinsu gendarmerie headquarters. The applicant alleged that his arrest took place on the morning of 15 February 1993, whereas the Government claimed that it occurred on 17 February 1993. 9. He was held at Derinsu until 19 February 1993. He alleged that during his time in custody there he was detained in a cell without any lighting, bed or blankets, in sub-zero temperatures, and fed with only bread and water. He claimed to have been assaulted in his cell by gendarmes, including Officer Altın. He stated that he would have died of cold had his three brothers not been permitted to enter his cell on the night of 18 February and wrapped him in extra clothing. The Government denied that Mr Tekin had been ill-treated. They stated that it would have been impossible for the temperature in the security room to have dropped below freezing-point, since it was situated in the centre of the building and surrounded by other units heated by coal-burning stoves. They also denied that his brothers had been allowed to join him there. 10. On the morning of 19 February 1993, the applicant was taken to Derik district gendarmerie headquarters. He was released on the same day. He alleged to have been tortured at Derik, through the application of cold water, electric shocks and beatings, with the purpose of forcing him to sign a confession statement. He claimed that the district gendarmerie commander, Musa Çitil, threatened him with death if he returned to the area. The Government contested that any ill-treatment had taken place. 11. Prior to being released, Mr Tekin was brought before the public prosecutor, Hasan Altun. It was not disputed that he complained to Mr Altun of having been tortured and ill-treated at both Derinsu and Derik. The applicant claimed in addition that he had handed Mr Altun a wet piece of cloth with which he had been blindfolded while being hosed with water. Mr Altun recorded these allegations, but took no further action in relation to them. 12. The Supreme Council of Judges and Prosecutors consequently decided to commence an investigation into the reasons for Mr Altun’s inaction, which led to disciplinary proceedings being launched against him. During the hearing before the Court the Government confirmed that these proceedings had not yet been concluded. 13. Mr Tekin returned to Diyarbakır on 20 February 1993. He did not see a doctor after his release. The following week he lodged a complaint about his treatment with the Human Rights Association, which advised him to make an application to the Commission. 14. Since the offence with which the applicant was charged (see paragraph 8 above) fell within the competence of the National Security Courts (see paragraph 29 below), a Derik public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır National Security Court. Following a hearing on 13 May 1993, the applicant was acquitted on 2 August 1993. 15. Following the Commission’s communication to the Government on 11 October 1993 of Mr Tekin’s application, the Ministry of Justice (International Law and External Relations General Directorate) contacted the public prosecutor’s office in Derik on 18 December 1993, informing it of the applicant’s complaints. A preliminary investigation was opened. 16. Officer Altın was questioned in connection with Mr Tekin’s allegations by a public prosecutor in Daday district on 20 April 1994, at the request of the Derik public prosecutor, Bekir Özenir. 17. Mr Özenir issued a decision of non-prosecution in relation to officers Altın and Çitil on 4 May 1994, on the grounds that there was no evidence that they had ill-treated or threatened Mr Tekin, other than the latter’s unsubstantiated allegations. 18. However, this decision was not made final following the intervention of the Ministry of Justice, which took the view that Mr Tekin should be given the opportunity to file an appeal against it. Furthermore, because of the identities of the defendants and the nature of the allegations against them, the Ministry of Justice considered that the alleged offences might fall within the scope of the Law on the Prosecution of Civil Servants, over which the public prosecutor had no jurisdiction (see paragraph 30 below). 19. A decision of non-jurisdiction was subsequently issued by the Derik public prosecutor’s office on 4 May 1995 and the case was referred to the Derik District Administrative Council. 20. In this connection, on 14 July 1995, a statement was taken from Commander Çitil by a gendarmerie lieutenant-colonel. 21. The Derik District Administrative Council submitted its summary investigation report to the office of the Mardin provincial governor on 5 September 1995. On 12 September 1995, this report was referred to the Mardin Provincial Administrative Council (see paragraph 30 below). The latter decided, on 13 September 1995, that, due to lack of evidence, officers Altın and Çitil were exempt from public prosecution. 22. This decision was subject to an automatic appeal to the Supreme Administrative Court (see paragraph 30 below). The latter confirmed the decision of non-prosecution. 23. The Commission conducted an investigation into the facts, with the assistance of the parties. It accepted written material, including witness statements, reports about Turkey, documents relating to the applicant’s detention at Derinsu and Derik gendarmerie headquarters and to the investigation on the domestic level into the applicant’s allegations, and a floor plan of Derinsu gendarmerie headquarters. In addition, three delegates of the Commission heard the oral evidence of seven witnesses in Diyarbakır on 8 November 1995 and a further hearing took place before the Commission in Strasbourg on 7 March 1996. The witnesses included the applicant, his father, Hacı Mehmet Tekin, officers Harun Altın and Musa Çitil, and three neighbours of the applicant’s father, Sinan Dinç, Mehmet Dinç and Halit Tutmaz, who alleged to have spoken to the applicant shortly after his release. The Commission had requested the attendance of the public prosecutors Hasan Altun, Bekir Özenir and Osman Yetkin (the latter was the public prosecutor at the Diyarbakır National Security Court), but none of them appeared to give evidence. 24. The Commission was unable to determine the date of the applicant’s arrest or the precise details of his treatment in custody. However, cautiously evaluating the evidence, the Commission was satisfied that the applicant had been kept in a cold and dark cell and blindfolded and treated in a way which left wounds and bruises on his body in connection with his interrogation. 25. 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, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 26. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “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 individuals to claim indemnity from the State for damage suffered by them without justification.” 27. The Turkish Criminal Code makes it a criminal offence: (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), (b) to issue threats (Article 191), (c) to subject an individual to torture or ill-treatment (Articles 243 and 245). 28. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 29. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 30. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 26 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecution of Civil Servants. Thus, any public prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court.