CASE OF DIKME v. TURKEY
Preliminary objections rejected (non exhaustion of domestic remedies, six month period);No violation of Art. 5-2;Violation of Art. 5-3;Violation of Art. 3 in respect of ill-treatment;Violation of Art. 3 in respect of ineffective investigation;No violation of Art. 6-1 and 6-3-c;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Elisabeth Palm
10. The applicants, Mr Metin Dikme and his mother, Mrs Emine Dikme, were born in 1969 and 1933 respectively. The first applicant is currently held in Istanbul Prison. His mother lives in Vienna. 11. The circumstances in which the first applicant was arrested, taken into police custody and detained pending trial, as set out by him in a letter dated 24 June 1992, may be summarised as follows. 12. At 7.30 a.m. on 10 February 1992 three police officers stopped and questioned the first applicant and his female companion Y.O. in the Levent district of Istanbul. Both were in possession of false identity papers. They were immediately arrested and, after a wait of several hours at the local police station, were taken to the anti-terrorist branch of the Levent police headquarters in Istanbul (“the branch”). They were taken into custody in separate parts of the building. On arrival, the first applicant was blindfolded and a group of police officers who said they were members of the “anti-Dev-Sol” squad began punching and kicking him, threatening to kill him if he did not reveal his true identity. He was then led to a ground-floor room where he was stripped, had his hands tied together behind his back and was suspended by his arms, a method known as “Palestinian hanging”. For several hours the police officers beat him repeatedly while he was in this position and administered electric shocks through electrodes attached to his feet and genitals. 13. At about 7 p.m. Mr Dikme was carried to another room and made to lie on the floor with his hands still tied behind his back. A man who said he was a member of the secret service told him: “You belong to Devrimci Sol, and if you don't give us the information we need, you'll be leaving here feet first!” The police officers then started to beat him, aiming some of their blows at his genitals. That lasted until 2 a.m., at which point he was taken to a 2-sq. m. cell, where he had to sleep naked on the floor. 14. At about 8 a.m. the next morning he was taken back to the ground floor, tied up and laid on the ground. He suffered a further beating and electric shocks were administered to his feet, the area behind his ears and his tongue. By the time the torturers went to lunch, he had already fainted twice. An hour later he was again subjected to “Palestinian hanging” and given electric shocks while having cold water poured over him. He was then left lying on the concrete, naked and blindfolded. That evening he was taken back upstairs, where the secret-service agent dragged him by the hair and twice banged his head against the wall. He was then dressed and taken to a forest, where somebody pointed a revolver at his head and urged him to say his “last prayer” before firing a blank shot. Immediately after this mock execution, he was escorted back to the branch. There he was again blindfolded and stripped and then placed in a bath of ice-cold water. The next day the police officers continued to ill-treat him. 15. The ill-treatment ended on Mr Dikme's fifth day in custody. However, he continued to be questioned while blindfolded, and was subjected to a barrage of abuse. 16. Mr Dikme had no assistance from a lawyer at any time while he was in police custody; he spent sixteen hours a day in his cell and was not allowed to have any visitors or to read any books or newspapers. The only person he saw after entering the premises of the branch was his companion Y.O., although he was not able to speak to her. In that connection, he produced to the Court a letter from Y.O. containing the following passages: “Metin Dikme and I were arrested on 10 February 1992. ... As soon as we arrived at the first branch they blindfolded us and separated us. Before I was taken to a cell, I saw that they had started to beat him. During the sixteen days I spent in the branch, I only saw Metin when he was on his way to or from interrogation sessions, and sometimes when he was being taken to the toilet. On each occasion he was blindfolded. Just once, I could see bruises on his eyes. However, when they questioned me they were always insulting Metin and telling me how they had tortured him ...” 17. On 25 February 1992 the branch requested the public prosecutor at the Istanbul National Security Court (“the public prosecutor”, “the National Security Court”) to refer the first applicant and Y.O. to the Sultanahmet office of the Institute of Forensic Medicine. The public prosecutor consented and on 26 February 1992 – the sixteenth day of their detention in police custody – they were examined by a forensic medical expert, who allegedly told the first applicant: “You're fighting fit; there's nothing wrong with you.” The medical report, drawn up that same day, stated that no traces of blows or physical force had been found on Y.O.'s body; only “old grazes covered by a scab were observed on [the first applicant's] left elbow”. 18. Later that day the first applicant and Y.O. were interviewed by the public prosecutor and brought before a judge of the National Security Court. They retracted the statements which they had made to the police and said that they had been signed “under torture”; they denied the accusations against them. Y.O. made the following statement: “I am lodging a complaint against the police officers who tortured me and who ... called themselves the Dev-Sol Squad.” The judge ordered them to be detained pending trial, as he found that there was “substantial evidence” of their membership of Dev-Sol and of their involvement in acts of violence carried out by that organisation. The following comment, signed by Metin Dikme, appeared at the bottom of the order: “I do not wish to inform anybody that I am being held in detention.” 19. After being transferred to Istanbul Prison, the first applicant was examined by the prison doctor, without a lawyer being present. In his “preliminary” report, dated 28 February 1992, the doctor noted the presence of a series of marks on the first applicant's body. These findings were subsequently reiterated and confirmed in the final report of 4 March 1992, drawn up by the Eyüp office of the Institute of Forensic Medicine following a further examination of the first applicant by a forensic medical expert from that office: “With reference to report no. 55 of 28 February 1992, signed by the prison doctor and drawn up in respect of Metin Dikme ... and further to an examination of the latter, the following findings were recorded: [Observed] a scab 0.5 cm in diameter in the left axillary region; a 7 cm by 7 cm erosion on the left elbow, which had formed a scab; two parallel circular lesions, which had partly formed a scab, 4 cm apart on the left wrist; skin erosions on the proximal phalanges of the thumb, index finger and middle finger and a 1.5 cm skin abrasion on the inner side of the distal phalanx of the middle finger of the left hand; a scab on the right elbow; two 0.5 cm scabs on the right outer forearm; a skin lesion on the right wrist; scabs measuring 1 cm on the distal phalanx of the third finger, 0.5 cm on the proximal phalanges of the middle, third and little fingers, 3 cm by 1 cm and 3 cm by 2 cm behind the patella, 10 cm by 1 cm in the region of the right thigh, 0.5 cm by 0.5 cm on the upper part of the right medial malleolus, and 0.5 cm by 0.5 cm on the lateral malleolus; a bruise on which a scab had formed on the fifth toe of the right foot and a 0.5 cm by 0.5 cm scab on the big toe; a 2 cm by 2 cm skin erosion on the upper part of the right foot; and a 2 cm by 2 cm scab on the medial malleolus and a 1 cm by 1 cm scab on the lateral malleolus. There are also signs of abrasions which have partly formed scabs and partly healed over, as well as of yellowish and brownish bruises (whose dimensions were recorded in the preliminary report) now returning to a normal colour on the fingers of both hands, on both wrists, on the elbows, arms and ankles, on the upper parts of the toes of both feet, and on the right thigh and patella.” The forensic medical expert concluded by stating that the above-mentioned sequelae were not life-threatening and prescribing a five-day period of convalescence. 20. On 11 June 1992, the date of the religious festival marking the last day of Ramadan, Mrs Dikme sought to visit the first applicant, but was refused permission by the prison managers. 21. On 18 June 1992 the first applicant signed an authority for a lawyer to act on his behalf, although he did not see the lawyer in person (see paragraph 28 below). 22. In an indictment issued on 7 September 1992 the public prosecutor charged the first applicant and Y.O. with carrying out a series of attacks between 1990 and 1992, the victims of which had included a public prosecutor, a retired general and six police officers, and with involvement in a number of acts of violence committed on behalf of the illegal armed organisation Dev-Sol. He sought the death penalty for the first applicant and Y.O., under Article 146 § 1 of the Criminal Code. 23. On 23 October 1992 the trial began at the National Security Court. The first applicant filed pleadings in which he denied the charges against him and categorically repudiated the content of the records of statements taken by the police while he was in custody, alleging that the statements had been obtained by torture. He accordingly made formal complaints against the officers responsible for him during his time in police custody, and relied on the medical report of 4 March 1992 (see paragraph 19 above and paragraph 29 below). The first applicant submitted, inter alia, that he and Y.O. had had to use false identity papers for fear of police reprisals on account of the criminal record of his sister, who had been killed during a clash with the police in Ankara, and that they had passed themselves off as a married couple simply in order to be able to rent a flat more easily. He consequently pleaded not guilty and applied for release on bail. 24. On 8 January and 8 October 1993 the public prosecutor preferred two further indictments, charging the first applicant with carrying out other acts of violence, likewise between 1990 and 1992, including murder, armed assaults and robberies, bomb attacks and assault and battery. 25. After holding forty-four hearings and hearing evidence from some seventy witnesses, the National Security Court delivered its judgment on 26 June 1998. It held that “in the light of the evidence, the accused's guilt [was] established” in relation to some of the offences, which he had committed on behalf of Dev-Sol with the aim of undermining the constitutional order, and sentenced him to death, having regard to the intensity, quantity and seriousness of the offences and to his failure to show any remorse during the trial. 26. The first applicant's counsel and Principal State Counsel at the Court of Cassation appealed on points of law against the National Security Court's judgment on 29 September and 12 November 1998 respectively. In his appeal counsel for the first applicant did no more than complain that the sentence was “unjust and severe”, while Principal State Counsel submitted that the impugned judgment could not be regarded as having been supported by sufficient grounds, since it did not contain details, where they were needed, of the evidence on which the conviction had been based and the National Security Court's assessment of that evidence. 27. In a judgment of 22 March 1999, delivered on 7 April 1999, the Court of Cassation set aside the judgment of 26 June 1998 on the ground that it was “contrary to Article 141 of the Constitution and Articles 32 and 260 of the Code of Criminal Procedure to deliver a judgment without applying the rule that judgments must be reasoned in such a way as to enable the Court of Cassation to carry out its review, and without referring in the operative provisions to the substantiated evidence in respect of each of the charges and the assessment made of it ...”. The Court of Cassation consequently remitted the case to the National Security Court, where it is still pending. 28. After putting forward their defence at the hearing of 23 October 1992 in the National Security Court (see paragraph 23 above), the first applicant and Y.O. had lodged two separate written complaints against their alleged torturers. On 27 November 1992, in the light of that and, it would seem, on the instructions of a ministerial authority, the public prosecutor decided to contact the relevant authorities in order to ascertain whether the first applicant had had access to a lawyer while in police custody and/or been subjected to ill-treatment after being taken into custody at Istanbul Prison. In a letter dated 30 November the head of the branch replied that “no interview with a lawyer [had taken] place, since throughout Metin Dikme's time in police custody, no lawyer [had] submitted ... a request to that effect”. On 1 December 1992 the governor of Istanbul Prison stated: “Metin Dikme ... was not subjected to ill-treatment during his detention and has never lodged a complaint to that effect with our management. There is no risk of his being subjected to ill-treatment while he is held in our prison. Our files also indicate that he had never conferred with a lawyer.” 29. On 8 December 1992 the President of the National Security Court forwarded the complaints filed on 23 October 1992 to the public prosecutor for action. 30. In an order of 10 December 1992 the public prosecutor ruled that he had no jurisdiction ratione materiae and sent the case to the Istanbul prefecture, pursuant to section 15(3) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 36 below). 31. On 9 July 1993 the Administrative Council of the province of Istanbul decided that there was no case to answer in respect of the criminal complaint lodged by the first applicant and Y.O. That decision was served on the first applicant on 6 August 1993. 32. The Court does not have any other information regarding those proceedings. 33. At the material time section 16 of Law no. 2845 on procedure in the national security courts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within forty-eight hours at the latest or, if the offence was a joint one committed outside the region under emergency rule, within fifteen days, not including the time needed to convey the detainee to the judge. 34. Before questioning an arrested person, police officers must inform him of the offence of which he is suspected and ask whether he wishes to say anything in reply. With regard to legal assistance, Article 144 of the Code of Criminal Procedure (“CCP”) provides, in the version applicable in the instant case, that an accused may confer or correspond with a legal adviser only after being detained pending trial, and the judge may decide that certain items in the file which are considered sensitive will not be disclosed to the accused until criminal proceedings have been instituted. In addition, the accused's legal adviser may not inspect documents in the file until the public prosecutor's office has preferred the indictment (Article 143). 35. Under the Turkish Criminal Code it is an offence for a government employee to subject a person to torture or ill-treatment (Article 243 in relation to torture and Article 245 in relation to ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation where acts or omissions that may constitute such an offence are brought to their attention are governed by Articles 151 to 153 CCP. Offences may be reported not only to public prosecutors' offices or the security forces but also to local administrative authorities. Complaints may be made in writing or orally. If they are made orally, the authority must make a record of them (Article 151). Under Article 235 of the Criminal Code, any government employee who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the performance of his duties is liable to imprisonment. A public prosecutor who is informed by whatever means of a situation that gives rise to the suspicion that an offence has been committed is under a duty to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 CCP). 36. If the suspected offender is a civil servant and the offence was committed in the performance of his duties, the preliminary investigation of the case is governed by the Prosecution of Civil Servants Act 1914, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or the province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against decisions of local administrative councils. If a decision not to prosecute is taken, the case is automatically referred to that court. With regard to accusations against members of the police force and intelligence services engaged in combating terrorism, section 15(3) of Law no. 3713 – which was in force at the material time – was a lex specialis under which preliminary investigations were subject to the same rule on jurisdiction, but only in respect of offences other than homicide. Subsequently, in a judgment of 31 March 1992 published in the Official Gazette on 27 January 1993, the Constitutional Court annulled that provision with effect from 27 July 1993. 37. Under Article 102 of the Criminal Code taken together with Articles 243 and 245 cited earlier, there is a five-year time-limit for prosecuting offences of ill-treatment and torture committed by civil servants. 38. From the principles established by the Turkish courts when applying the criminal law it is clear that the questioning of a suspect is a means of enabling him to defend himself that should work to his advantage and not a measure designed to obtain evidence against him. While statements made during questioning may be taken into consideration by the judge in his assessment of the facts of a case, they must nonetheless be made voluntarily, and statements obtained through the use of pressure or force are not admissible in evidence. By Article 247 CCP, as interpreted by the Court of Cassation, any confessions made to the police or the public prosecutor's office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution. If the confessions are not repeated, the records in question are not allowed to be read out as evidence in court and consequently cannot be relied on to support a conviction. Nevertheless, even a confession repeated in court cannot on its own be regarded as a decisive piece of evidence but must be supported by additional evidence.