CASE OF TEREN AKSAKAL v. TURKEY
Preliminary objection (ratione temporis) allowed (substantive aspect, art. 2 and 3);Preliminary objection (ratione temporis) dismissed (positive obligations, art. 2 and 3);Preliminary objection dismissed (six month period);Violation of Art. 2 and 3 (procedural aspect);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award
Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze
5. The applicant was born in 1940 and lives in Istanbul. She is the widow of Mr Cengiz Aksakal (“C.A.”), who died on 12 November 1980. 6. On 12 September 1980 martial law was declared in Turkey following military intervention by the army. 7. On 18 October 1980 C.A., who was a teacher in the village of Veliköy, in the province of Artvin, surrendered to the police during a military operation and was taken into custody. He was suspected of belonging to the illegal organisation Dev-Yol (Revolutionary Way). He spent the first three days in custody at the headquarters of the gendarmerie in Veliköy and the following five at the headquarters of the gendarmerie of the district of Şavşat. C.A., who was in good health at the time of his detention in both locations, was not questioned. 8. On 26 October 1980 he was transferred to Artvin, where he was interrogated in a sports hall until the following 2 November. On that date, he was imprisoned in the martial law detention facility (sıkıyönetim gözetim evi). 9. After having been taken ill on 3 November 1980, C.A. was admitted to hospital in a pre-comatose state. On 5 November 1980, he was transferred by ambulance to Trabzon Hospital where he died on 12 November. 10. According to the autopsy report drawn up on 13 November 1980, the following marks were found on the body of the deceased: “Abrasions measuring 3 x 3 cm, going from the outside towards the inside of the eighth and ninth ribs, the scabs of which were coming off; on the right wrist and on the inside of the wrist, a purple mark in the form of two parallel bracelets 1.5 cm wide and on the mark, two wounds, the scabs of which were coming off; on the left wrist, the same mark, 1.5 cm wide; on the left side of the penis, a wound without a scab; on the left foot, a wound with a scab measuring 2 x 1 cm, with, underneath, a bruise measuring 3 x 3 cm; four wounds with scabs under the left knee, a wound with a scab measuring 5 x 1 cm inside the left tibia ...; bruising on the top and lateral surface of the right foot.” 11. Since the cause of death could not be established on the basis of this information, a conventional autopsy was performed. An examination of the skull and ribcage revealed “ecchymosis measuring 3 x 4 cm at the back, a large haematoma inside the cervical cavity; an infection of the lungs ...” A post-mortem examination was deemed necessary. 12. In her complaint lodged with the public prosecutor on 28 January 1981, the applicant stated: “Two soldiers, accompanied by the village schoolmaster came to our house on the day before the religious holiday. They took my husband away saying that the lieutenant wanted to talk to him. He was held at the village gendarmerie for approximately four days. During that time, I was able to visit him and he was well. He was then transferred to the gendarmerie in the district of Şavşat; I was no longer able to visit him. I was told that he remained there for six days and was then taken to Artvin .... When they returned his body to me, I noticed abrasions and signs of injuries. His tongue was as big as that of an animal, three of his teeth were broken, ... there were marks of torture all over his body. Before being arrested, he had been in good health.” 13. According to the administrative investigation report (idari tahkikat raporu) of 15 February 1981 signed by three officers, during the course of a military operation on 18 October 1980 C.A. had been arrested after having obeyed an order to surrender. On the same date he had been placed in custody at the Veliköy gendarmerie, where he remained for three days. He spent the following five days at the gendarmerie of the district of Şavşat. During this period no sign of any health problem was recorded. On 26 October 1980 C.A. was transferred to the police headquarters at Artvin where he was questioned. After having been held at the police headquarters for seven days, he was transferred, on 2 November 1980, to the surveillance facility (Gözetim evi) attached to the martial law command. According to the records of that establishment, no sign of illness had been noted upon his arrival. On the following day, at his request, he was transferred to Artvin Hospital. The head physician at that hospital stated that he had asked C.A. if he had been hit on the head or on the body; C.A. allegedly replied that he had not. According to the report drawn up by the hospital, meningitis and pneumonia were diagnosed. Two days later, the patient was transferred to Trabzon Hospital where he died on 12 November. The report concluded that this was a “natural death” (ecel). 14. On 15 June 1981 three police officers, S.A., İ.Ü. and H.Ö., were questioned as suspects by the martial law prosecutor. They were the police officers who had taken C.A.’s statement on 21 October 1980 in a room at the sports hall. The police officers stated that they had not subjected C.A. to any mistreatment and had not found any evidence against him during questioning. H.Ö. stated that on 26 October 1980, when the report was being drawn up in the presence of C.A., the latter was groaning. When the police officer asked what the matter was, the applicant replied that he had caught a chill and that he had pains in his chest. The three police officers stated that they had brought C.A. to the gendarmerie on 26 October 1980, that on the same day he was to have been placed in the military prison at Artvin, but was detained in custody by the gendarmerie until the following 1 November, notwithstanding the orders of the martial law commander. 15. On 11 November 1981, at the request of the Şavşat public prosecutor’s office, the body of C.A. was exhumed in order to examine the deceased’s skull. According to the report dated 21 September 1982 drawn up by the forensic institute, the skull showed no sign of trauma, apart from separation at the right temporo-occipital suture. 16. According to the report of 3 December 1982 issued by the Istanbul forensic institute upon completion of the post-mortem examination of samples of tissue taken from C.A.’s body, the latter had died of pneumonia with spinal haemorrhaging (subaraknoidal kanama) having lasted seven days, and showed no signs of traumatic injury. 17. In an indictment dated 19 April 1983 drawn up by the military prosecutor at the martial law command, the three police officers (see paragraph 14 above) on duty at the material time at Artvin police station were accused of having caused the death of C.A. after torturing him. The prosecutor stated that the accused had interrogated C.A. in a sports hall instead of in the customary location and that they had concealed their names at the foot of his statement, in breach of the relevant regulations. He also referred to the statements of several witnesses who had seen C.A. on the premises of Artvin police station, once attached to the wall, his arms outstretched, and another time in a deplorable condition, paralysed and unable to speak. 18. The applicant joined the criminal proceedings brought before Erzurum Military Court No. 2 attached to the martial law command (“the military court”). 19. On 31 August 1983, a gendarme, F.I., examined as a witness before the Military Court, stated that he had “maybe seen” C.A.’s interrogation but had not participated in it. He stated that he had not noticed any ill treatment during the interrogation, which had been conducted on the top floor of gendarmerie premises or in the sports hall. He stressed that as commander of the gendarmerie centre (jandarma merkez komutanı), his role was limited to appointing the interrogation team guards. 20. The report of 17 February 1984, unanimously adopted by the plenary meeting of the forensic institute, reads: “On 3 November 1980, while in police custody, C.A. was taken to Artvin Hospital in a comatose state. First aid was administered on the basis of the diagnosis of meningitis and pneumonia. On the following 5 November, he was transferred to Trabzon Hospital in a comatose state, with hemiplegia on the left-hand side. He died on 12 November 1980. The ecchymoses noted at the autopsy revealed that violence and assault had been involved and that the party concerned had died of an intracranial haemorrhage. As regards the clinical presentation, a pre-existing underlying condition was noted which prepared the ground for the haemorrhage which was triggered by the trauma. Since a causal link has been established between the cranial trauma and the death, Articles 451 or 452 § 2 of the [Turkish] Criminal Code are applicable in the instant case.” 21. The accused denied the charges against them throughout the proceedings. They declared that they had never had any contact with C.A. save at the start of the interrogation. Certain witnesses who had initially testified against the accused subsequently retracted their statements. 22. In a judgment of 15 May 1984, the accused were each sentenced to three years and four months’ imprisonment under Articles 243 and 452 § 2 of the Criminal Code. 23. The accused, the applicant and the martial law commander appealed on points of law. 24. In a judgment delivered on 28 December 1984, the Military Court of Cassation quashed the first-instance judgment on the ground that the degree of responsibility of the other persons, notably officers and members of the National Intelligence Organisation (Millî İstihbarat Teşkilatı, hereafter “the MİT”) having taken part in the interrogation of C.A., had not been established and that the defence witnesses had not been heard. 25. After having conducted a more thorough investigation and having examined further witnesses, in a new judgment of 4 March 1986 the first-instance court acquitted the three police officers on grounds of insufficient evidence. 26. The applicant again appealed on points of law. 27. By a judgment of 15 October 1986, the Military Court of Cassation again overturned the judgment at first instance. In its judgment it stated that the records of the Veliköy command contained no entry concerning C.A. and that there was therefore no accurate information on the dates of his arrival or transfer or the identity of the officers in charge of his case. It added that, furthermore, the case file contained no details of the place and conditions of the initial interrogation conducted on 21 October 1980, or the actual conditions of the interrogation of 26 October. It pointed out that even though the accused had stated that the deceased was not “a significant suspect” the fact that agents of the MIT had participated in his interrogation suggested the opposite. In the opinion of the court, the treatment subsequently inflicted on the party concerned confirmed this argument. The Court of Cassation concluded that given that C.A. had been interrogated and tortured during his detention on the gendarmerie premises and up until 2 November by the accused and other persons whose functions had not been ascertained, the omissions in the investigation had to be remedied and, in particular, the gendarmes, the members of the MIT and any other persons present at the material time and place should be questioned. 28. On 28 January 1987 Turkey’s recognition of the right of individual petition became effective. 29. The case file was returned to the Military Court, which, after having re-examined it in the light of numerous new witness statements, confirmed its decision of 16 August 1988 acquitting the accused. It concluded that the act of torture had been committed between 26 October and 2 November 1980 by persons other than the accused. It gave notice (ihbar) that a new investigation was to be opened by the Artvin public prosecutor’s office. That decision became final on 21 December 1988. 30. The investigation and correspondence between the military courts and the Artvin public prosecutor’s office continued. However, a gendarme, M.C., examined as a witness on 3 April 1990 before the Akyazı Criminal Court, following a request for judicial assistance, stated that he had taken leave on 12 October 1980 for a period of one year. 31. By an indictment of 21 June 1990, the prosecutor at the Artvin Assize Court (“the Assize Court”) charged two new accused, F.I. and M.C., gendarmes at the Artvin gendarmerie, who had been examined as witnesses before the military courts (see paragraphs 19 and 30 above) with the acts of torture having caused the death of C.A. 32. The applicant sought to intervene in the proceedings before the Assize Court. 33. Monthly hearings were conducted before this court. Ten or so witnesses were questioned, some following a request for judicial assistance. Some hearings were postponed as a result of problems in ensuring the appearance of witnesses who for the most part had been co-detainees of the deceased and present on the premises on which he had been subjected to the torture. All the witnesses stated that they had seen C.A. being tortured and some stated that they had seen the accused at the scene of the crime. 34. At the hearing of 8 October 1990 the applicant stated, inter alia, that her husband had been unrecognisable when she saw him at Trabzon Hospital. She filed a complaint against the first doctor who had examined him in Artvin and who had drawn up a certificate, which, according to her, was untruthful, concealing C.A.’s condition. 35. By a decision of 30 January 1991 the Assize Court sentenced both of the accused to four years and two months’ imprisonment under Articles 243 § 2 and 452 § 2 of the Criminal Code. They were also banned from public office for the same period. 36. On an appeal by the accused, the Court of Cassation overturned that decision in a judgment of 10 July 1991 on grounds of shortcomings in the investigation. An inconsistency between the leave dates of the accused needed to be resolved and verification was required that the dates on which the witnesses and C.A. had been detained actually did coincide. 37. After having remedied the shortcomings highlighted by the Court of Cassation, the Assize Court decided, on 16 September 1992, to acquit both of the accused on grounds of insufficient evidence. 38. The applicant appealed on points of law against that decision. 39. By a judgment of 6 July 1993, the Court of Cassation overturned the decision on the ground that under Article 253 of the [Turkish] Code of Criminal Procedure, the accused, who were officers at the material time, could not be tried without authorisation from the Ministry of Justice. 40. By a decision of 19 January 1994, the Assize Court suspended the proceedings for the same reason. 41. The authorisation in question having been granted by the Ministry of Justice on 24 November 1994, a new indictment was issued on the following 7 December in respect of the same two accused, this time by the Public Prosecutor at the Ardahan Assize Court. 42. During these proceedings, around twenty hearings were held. As they had done previously, the accused denied any responsibility in the death of C.A., stating that they had never taken part in his interrogation. F.I stated that on the day in question he had been involved in operations in the Şavşat and Ardanuç mountains, and M.C. stated that he had been on leave. The same witnesses (see paragraph 33 above) were examined again, some following a request for judicial assistance, and repeated the statements made at the start of the proceedings. 43. On 30 December 1997 the Ardahan Assize Court delivered its judgment, referring in particular to the testimony of the co-detainees who had been present at Artvin police station at the same time as C.A. Four of these witnesses stated that they had seen C.A. naked, attached to the radiator, wet and trembling, with injuries to his hands and wrists. Two of them stated that officer F.I. had threatened them, pointing at C.A. and saying “Look at what has happened to him; if you don’t sign, the same thing will happen to you.” A detainee who had been in the neighbouring cell stated that he had heard C.A. moaning constantly, that in the evenings they would take him away for questioning naked, and that officers M.C. and F.I. and three men in civilian clothing would beat him in the middle of the room as a lesson to the others. Another witness stated that he had seen F.I. and others beat C.A. with truncheons while he was lying on the ground in a pool of water, all the while continuing to spray him with water. He stated that he had heard the sound of a magneto (a magneto-electric machine) and the delirious voice of C.A. uttering the names of his children, unable to walk, his body covered in wounds. These eyewitnesses stated that they had generally had their eyes covered but that sometimes the blindfold had come off, or they had recognized the officers’ voices. Four other detainee witnesses stated that they had seen that the applicant had been tortured, but did not know who had done it. The court considered that the testimony of the co-detainees was only partially credible given their status as detainees and the fact that they would normally have had their eyes covered. In the reasons for the judgment, the court observed that the leave records relating to M.C. kept by the gendarmerie command had been falsified and declared that his statements were not credible. As for F.I., the court pointed out an inconsistency between his statement of 31 August 1983 (see paragraph 19 above) and his subsequent statements. According to the court, the accused were indirectly responsible for the death of C.A. It added that “a team of three civilians” had also taken part in the interrogations, but gave no details of the identity, function or action of these three individuals. It concluded that it had not been definitively established that the accused had themselves tortured the deceased but that they had acted as accomplices to the illegal act by issuing orders (talimat vermek), by procuring the premises (yer tedarik etmek) and by failing to intervene [to prevent the illegal act] (göz yummak). It found that the accused, together with civilians, had participated in the interrogation of C.A. and that the latter had died as a result of his pre-existing condition (önceki hastalığı) and as a result of the torture inflicted by one or more of these civilians whose identity could not be established. The court sentenced M.C. and F.I. to two years and one month’s imprisonment under Articles 243 and 452 § 2 of the Criminal Code. The court accepted two mitigating circumstances to reduce the sentences: the personality of the accused as evidenced by the case file (dosyadaki kişilikleri) and the fact that they were mere accomplices (fer’î fail) rather than the main perpetrators of the crime. 44. The accused officers and the applicant appealed on points of law. 45. By a judgment of 22 December 1998, the Court of Cassation upheld the judgment of the Assize Court. 46. On 28 January 1999 the Court of Cassation rejected an application for “rectification of the judgment” (karar düzeltme) lodged by the convicted officers. 47. On 6 April 1999 the officers applied to the Assize Court for renewal of the judgment (yargılamanın yenilenmesi), an exceptional review procedure. The result of this application, accepted by the Assize Court for consideration on the basis of various written testimonies submitted by civilians and military personnel and a letter from the General Gendarmerie command, was that execution of the sentences was suspended. 48. At the request of the accused, the Assize Court gave a decision on 12 January 2001 referring a matter concerning the discriminatory nature of a provision governing the content of an amnesty law to the Constitutional Court. 49. By a decision of 18 July 2001, the Constitutional Court declared that the provision in question was by no means unconstitutional. 50. By a judgment of 23 October 2002, after having heard new defence witnesses, notably six officers, the Ardahan Assize Court dismissed the application lodged by the two officers on the ground that the new evidence was not such as to create a favourable situation for the convicted officers. It lifted the stay of execution of their sentences. 51. The officers finally referred their case to the Minister of Justice for the latter to lodge an appeal with the Court of Cassation (Yazılı emir ile bozma) against their conviction. Having accepted their application, on 8 January 2003 the Minister of Justice ordered the Principal Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law on the ground that the evidence had not been properly assessed by the Assize Court. 52. By a judgment of 30 January 2003, the Court of Cassation dismissed the officers’ application. 53. The officers continued to serve in the army throughout the proceedings until their retirement. Their sentences have not been executed to date. 54. The relevant parts of the above-mentioned provisions of the Criminal Code in force at the material time read as follows: “... any public servant who tortures an accused or employs cruel, inhuman or degrading treatment to make him confess to a crime shall be liable to a maximum term of five years’ imprisonment plus a permanent or temporary ban on holding public office. ...” ”Should death occur as a result of assault or violence inflicted with no intent to kill, the perpetrator shall, in the cases listed in Article 448 ... be liable to a minimum term of eight years’ imprisonment ... Where death results from circumstances which had existed prior ... to the offence and were unknown to the offender or from chance circumstances that the offender could not foresee, he shall, in the cases listed in Article 448, be liable to a minimum term of five years’ imprisonment ...” 55. Article 152 of the Turkish Constitution provides that where a claim of unconstitutionality is referred to a court by one of the parties to the proceedings, and where that court considers that the question should be referred to the Constitutional Court, that referral shall suspend the proceedings before it for a period of five months. If the Constitutional Court fails to reach a decision within that period, the court shall deliver its judgment under the existing legal provisions. However, if the Constitutional Court gives a ruling before the lower court has given its final decision, the lower court is obliged to comply with it.