CASE OF AYDIN v. TURKEY
Preliminary objection rejected (estoppel);Violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 6-1;No violation of Art. 25-1;Not necessary to examine Art. 28-1-a;Not necessary to examine Art. 53;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland;N. Valticos;R. Pekkanen
13. The applicant, Mrs Şükran Aydın, is a Turkish citizen of Kurdish origin. She was born in 1976. At the time of the events in issue she was 17 years old and living with her parents in the village of Tasit, which is about ten kilometres from the town of Derik where the district gendarmerie headquarters are located. The applicant had never travelled outside her village before the events which led to her application to the Commission. 14. 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. 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. 15. The facts in the case are disputed. 16. According to the applicant, a group of people comprising village guards and a gendarme arrived in her village on 29 June 1993. Although the applicant put the time of their arrival at 5 p.m., the Commission, relying on the recollection of the applicant’s father and sister-in-law, found that it was more likely that this occurred early in the morning of 29 June at around 6 a.m. 17. Four members of the group came to her parents’ home and questioned her family about recent visits to the house by PKK members (see paragraph 14 above). Her family were threatened and subjected to insults. They were then taken to a village square where they were joined by other villagers who had also been forcibly taken from their homes. 18. The applicant, her father, Seydo Aydın, and her sister-in-law, Ferahdiba Aydın, were singled out from the rest of the villagers, blindfolded and driven away to Derik gendarmerie headquarters. 19. The Government have disputed the applicant’s claim that she and two members of her family were detained in the circumstances described above. In his oral evidence to the Commission delegates who heard evidence from witnesses in Ankara from 12 to 14 July 1995 (see paragraph 40 below), Mr Musa Çitil, the commander of Derik gendarmerie headquarters in 1993, stated that no operations had been conducted in or immediately around the village on the day in question and no incidents had been recorded. Furthermore, in support of their challenge to the applicant’s account of the events the Government drew attention to the inconsistencies in the evidence concerning the time of the incident and the number of village guards involved as well as to the fact that the applicant and her family failed to recognise any of the village guards although they all would have come from neighbouring villages. 20. The applicant alleges that, on arrival at the gendarmerie headquarters, she was separated from her father and her sister-in-law. At some stage she was taken upstairs to a room which she later referred to as the “torture room”. There she was stripped of her clothes, put into a car tyre and spun round and round. She was beaten and sprayed with cold water from high-pressure jets. At a later stage she was taken clothed but blindfolded to an interrogation room. With the door of the room locked, an individual in military clothing forcibly removed her clothes, laid her on her back and raped her. By the time he had finished she was in severe pain and covered in blood. She was ordered to get dressed and subsequently taken to another room. According to the applicant, she was later brought back to the room where she had been raped. She was beaten for about an hour by several persons who warned her not to report on what they had done to her. 21. The Government have challenged the credibility of the applicant’s account of the events. They pointed out that there was no indication in the custody register kept at Derik gendarmerie headquarters that anyone had been detained on 29 June 1993. Had the applicant and the members of her family been taken into custody on that date the responsible duty officer would have followed the proper procedure and entered the details in the custody register. The station commander and the custody officer on duty at the time had been heard by the Commission delegates as witnesses and both had confirmed that no one had been taken into custody at that time. Furthermore, interrogation of terrorist suspects never took place at the Derik headquarters but at the provincial headquarters in Mardin. The Government also found it significant that the applicant failed to recognise photographs of the premises when shown to her. Furthermore, the Government highlighted several inconsistencies in the way in which the applicant reported on the details of the alleged rape and assault to the public prosecutor and to the Diyarbakır Human Rights Association (see paragraph 23 below). 22. According to the applicant, she, her father and her sister-in-law were taken away from the gendarmerie headquarters on or about 2 July 1993. They were driven by members of the security forces to the mountains where they were questioned about the location of PKK shelters. They were subsequently released separately. The applicant made her own way back to her village. The Government argued that the applicant’s account of her release also undermined the credibility of her allegations. They contended that it would have been extremely naïve on the part of the security forces to take the applicant and the members of her family to a location within ten minutes of Tasit after three days of detention to ask about the whereabouts of terrorists. 23. On 8 July 1993 the applicant together with her father and her sister-in-law went to the office of the public prosecutor, Mr Bekir Özenir, in Derik to lodge complaints about the treatment which they all alleged they had suffered while in detention. The public prosecutor took statements from each of them. The applicant reported that she had been tortured by being beaten and raped. Her father and sister-in-law both alleged that they had been tortured. According to the applicant, she confirmed her account of what happened to her in a statement given to the Diyarbakır Human Rights Association on 15 July 1993, which was submitted, undated, to the Commission along with her application. 24. All three were sent the same day to Dr Deniz Akkuş at Derik State Hospital. The public prosecutor had requested Dr Akkuş to establish the blows and marks of physical violence, if any, in respect of Seydo and Ferahdiba. In respect of the applicant, he requested that she be examined to establish whether she was a virgin and the presence of any marks of physical violence or injury. In his report on the applicant dated 8 July 1996, Dr Akkuş, who had not previously dealt with any rape cases, stated that the applicant’s hymen was torn and that there was widespread bruising around the insides of her thighs. He could not date when the hymen had been torn since he was not qualified in this field; nor could he express any view on the reason for the bruising. In separate reports he noted that there were wounds on the bodies of the applicant’s father and sister-in-law. 25. On 9 July 1993 the public prosecutor sent the applicant to be examined at Mardin State Hospital with a request to establish whether she had lost her virginity and, if so, since when. She was examined by Dr Ziya Çetin, a gynaecologist. According to the doctor’s report, dated the same day, defloration had occurred more than a week prior to her examination. No swab was taken and neither the applicant’s account of what had happened to her nor whether the results of the examination were consistent with that account were recorded in his report. Dr Çetin did not comment on the bruising on her inner thighs on account of the fact that he was a specialist in obstetrics and gynaecology. He did not frequently deal with rape victims. 26. On 12 August 1993 the public prosecutor took a further statement from the applicant who by that stage was married. On the same day he referred the applicant to Diyarbakır Maternity Hospital requesting that a medical examination be carried out to establish whether the applicant had lost her virginity and, if so, since when. The medical report dated 13 August 1993 confirmed Dr Çetin’s earlier findings (see paragraph 25 above) that the hymen had been torn but that after seven to ten days defloration could not be accurately dated. 27. On 13 July 1993 the public prosecutor wrote to Derik gendarmerie headquarters enquiring as to whether the applicant, her father and her sister-in-law had been held in custody there and, if so, as to the dates and duration of the detention and the names of those who carried out the interrogations. By letter dated 14 July 1993, the commander of the gendarmerie headquarters, Mr Musa Çitil, replied that they had not been taken into custody. On 21 July 1993, he supplied the public prosecutor with a copy of the entries for 1993. There were only six entries for that year. 28. On 22 July 1993 the public prosecutor wrote to Derik gendarmerie headquarters requesting that the custody register for the months JuneJuly 1993 be sent to him for inspection. The register contained no entries for the months in question. 29. The public prosecutor sent the applicant’s file to the Forensic Medicine Institute in Ankara. By letter dated 22 December 1993, the chief coroner requested that the applicant attend for an examination. 30. The public prosecutor wrote to the chief of security in Derik on 18 January and 17 February 1994 requesting that the applicant be brought to the office of the Attorney-General. In a follow-up letter of 18 April 1994 the public prosecutor referred to the fact that he had received no reply to his earlier letters. In a further letter dated 13 May 1994, the public prosecutor informed the chief of security at Derik that the applicant, her father and her sister-in-law should attend at his office. 31. By report dated 13 May 1994 in reply to a request for information of 9 May 1994, the public prosecutor informed the office of the Attorney-General in Mardin that there was no evidence to support the applicant’s claims but that the investigation continued. 32. On 18 May 1994 the public prosecutor in Derik took two further statements from the applicant’s father who confirmed his earlier account of the events of 29 June 1993. Her father also declared that the applicant and her husband had left the district in March 1994 to find work elsewhere and that he did not know of their whereabouts. 33. On 19 May 1994 the public prosecutor, Mr Bekir Özenir, interviewed Mr Harun Aca, a former PKK activist. Mr Aca alleged that the PKK members used the applicant’s home as a shelter and that around April and May 1993 she was having a sexual relationship with two PKK members. 34. On 25 May 1995, after the applicant’s complaint had been declared admissible by the Commission, a public prosecutor, Mr Cahit Canepe, took a statement from Mr Ali Kocaman who commanded Derik gendarmerie headquarters from 1992 to 1994. Mr Kocaman, who admitted to memory loss as a result of a road accident, stated that he had no recollection of any incident of rape or torture at the time in question and denied any involvement. 35. The applicant also alleged that she and her family have been subjected to intimidation and harassment following the communication by the Commission of her application to the Government and particularly following the Commission’s decision to invite her to give oral evidence. Her father was repeatedly asked her address by the public prosecutor and, on occasion, by the police. The applicant and her husband were also repeatedly called to the police station for no apparent reason, their house had been searched (once before 19 October 1995 and again on 1 and 8 November 1995) and they were questioned about her application to the Commission. The applicant was also made to sign a statement of the contents of which she is ignorant. Further, on or about 14 and 18 December 1995, the applicant’s husband was taken into custody. On the first occasion, he was slapped, kicked and severely beaten with truncheons by three police officers, one of his teeth being broken in the process. On the second occasion, he was again severely beaten by the same three officers. 36. Furthermore, the applicant alleged that on 16 January 1996, the applicant, her husband, father and father-in-law were called to Derik police station from where they were sent to the public prosecutor. He showed them the applicant’s husband’s statement of 19 October 1995 and asked questions about it. The applicant’s husband was asked whether the police were intimidating them, to which he replied “Yes”. While they were not ill-treated on this occasion, the applicant’s husband strongly considered that they all felt intimidated by the very fact of being called by the police and that the constant calls by the police to their homes were making their situation very difficult. The applicant also referred to incidents of harassment, including the stoning of her father-in-law’s house which neighbours attributed to the security forces. 37. The Government were requested by the Commission to respond to the above allegations. By letter and comments dated 12 January 1996, the Government referred to the provisions of Turkish criminal procedure whereby it is the duty and unavoidable obligation of public prosecutors to investigate the facts of crimes, which involves finding and questioning witnesses. In this context, police officers function as assistants to the public prosecutors. The public prosecutor who conducted the investigation instigated by the applicant and her father, and the police officers who acted under his authority, contacted the applicant and her father with the sole purpose of investigating the facts of the allegations and assembling the evidence. They submitted that the statements taken by the public prosecutor revealed no element of pressure being exerted and it was in the interests of the applicant for further evidence to be gathered. There was, they contended, no substantiation of the allegations of intimidation and harassment, the statements submitted by the applicant’s representatives having been taken by extra-judicial means and their authenticity disputed. They submitted a letter from the Ministry of the Interior (Gendarmerie Department) stating that no search took place at the applicant’s house and that the purpose of the police officers’ visit to Seydo Aydın was to communicate to the applicant the summons to attend the Commission’s hearing. Since she was not there, he was asked for her address and there was no persecution involved. In an earlier communication of 16 June 1995 in response to the first allegations of harassment of the applicant’s father, the Government had responded that they rejected these allegations categorically and that they formed part of a campaign to influence the course of the proceedings and the holding of hearings to take evidence. 38. At the taking of evidence before delegates of the Commission in Strasbourg on 18 October 1995, the Agent of the Government responded to allegations made orally by the applicant’s representative concerning the repeated questioning of the applicant’s father. He stated that it was the duty of the Turkish Government to facilitate the proceedings of the Commission and that they had to notify the applicant. To avoid any problems of non-attendance or the waste of expenditure of coming to Strasbourg if she did not intend to comply with the summons, it was necessary to obtain her address from her father and that was why he was continually asked for the address. Requesting that information from her father could not, in his view, be regarded as harassment. 39. In the absence of any findings of fact reached by the domestic authorities on the applicant’s complaint, the Commission assessed the evidence and established the facts on the basis of: 40. The Commission’s findings can be summarised as follows: “... the evidence of these officers as regards the facilities for taking persons into custody and the practice regarding taking persons into custody during 1993 has been less than frank. It finds itself left with serious doubts as to whether the gendarmerie custody register is an accurate record of persons taken into custody during 1993. In these circumstances, the Commission considers that the lack of any official confirmation of the applicant’s detention is insufficient evidence to discredit the account of the applicant and her father, which it finds to be credible and on the whole consistent.” (paragraph 172 of the Commission’s report) “... the applicant was blindfolded, beaten, stripped, placed inside a tyre and sprayed with high-pressure water, and raped. It would appear probable that the applicant was subjected to such treatment on the basis of suspicion of collaboration by herself or members of her family with members of the PKK, the purpose being to gain information and/or to deter her family and other villagers from becoming implicated in terrorist activities”. (paragraph 180 of the Commission’s report) “... have been subjected to significant pressure from the authorities in circumstances which threaten to impinge on their continued participation in the proceedings before the Commission and that this has rendered the exercise of the applicant’s right of individual petition more difficult”. (paragraph 217 of the Commission’s report) 41. The Turkish Criminal Code makes it a criminal offence 42. Under Article 153 of the Turkish Code of Criminal Procedure, the public prosecutor must investigate the facts on being informed of the commission of a crime. He must conduct the necessary inquiries to identify the perpetrators, hear witnesses, take statements from suspects, issue search warrants, etc. Article 154 of the Code authorises the public prosecutor to conduct a preliminary investigation into an offence either directly or with the support of the police. According to Article 163 the public prosecutor may institute criminal proceedings if he decides that the evidence justifies the indictment of a suspect. If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, he may close the investigation. However, the public prosecutor may decide not to prosecute if and only if the evidence is clearly insufficient. Under Article 165 a complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 43. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the administration or of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are composed of civil servants. Decisions of the local council may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal. If the offender is a member of the armed forces, he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article 152 of the Military Criminal Code. 44. 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.” 45. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration is liable to indemnify persons who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 46. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the state of emergency, which provides: “... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.” 47. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 and non-pecuniary or moral damages may be awarded under Article 47. 48. Article 13 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 requires that a State party “shall ensure that any individual who alleges that he has been subjected to torture in any territory under its jurisdiction has the right to complain to and have his case promptly and impartially examined by its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of evidence given”. Article 12 of the Convention requires each State party to ensure “that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”. 49. In its public statement on Turkey adopted on 15 December 1992 (CPT/inf (93) 1), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), following three visits to Turkey, found: “In light of all the information at its disposal, the CPT can only conclude that the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey ...” (paragraph 21) It emphasised the words “persons in police custody”, having heard fewer allegations and finding less medical evidence of torture and other forms of premeditated severe ill-treatment by members of the gendarmerie (paragraph 24). It considered that “the phenomenon of torture and other forms of ill-treatment of persons deprived of their liberty in Turkey concerns at the present time essentially the police (and to a lesser extent the gendarmerie). All the indications are that it is a deep-rooted problem” (paragraph 25). 50. In its second public statement issued on 6 December 1996 the CPT noted that some progress had been made in implementing the remedial measures which it had recommended but that “the translation of words into deeds is proving to be a highly protracted process” (paragraph 2). The committee noted in its statement that in the course of visits to Turkey in 1996 its delegations had found clear evidence of the practice of torture and other forms of severe ill-treatment by the Turkish police (paragraph 2). It concluded that the information at its disposal “... demonstrates that resort to torture and other forms of severe ill-treatment remains a common occurrence in police establishments in Turkey. To attempt to characterise this problem as one of isolated acts of the kind which can occur in any country – as some are wont to do – is to fly in the face of the facts”. (paragraph 10) 51. In their written submissions to the Court (see paragraph 6 above) Amnesty International noted that the rape of a female detainee by an agent of the State for purposes such as the extraction of information or confessions or the humiliation, punishment or intimidation of the victim was considered to be an act of torture under current interpretations of international human rights standards. They referred in this respect to the Fernando and Raquel Mejia v. Peru decision of 1 March 1996 (Report no. 5/96, Case 10,970) of the Inter-American Commission on Human Rights taken under Article 5 of the American Convention on Human Rights, to the reports published by the United Nations Special Rapporteur on Torture and to the fact that the International Criminal Tribunal for Former Yugoslavia had approved bills of indictment against individuals for torture based on allegations that they had raped female detainees. Amnesty International also drew attention to current international legal standards on the investigation of allegations of rape made by detainees, in particular Articles 11 and 12 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted in 1984 (see paragraph 48 above).