SARAC v. TURKEY
Inadmissible
Georg Ress;Mark Villiger
The applicant, Ms Selal Saraç, is a Turkish national who was born in 1970 and lives in Germany. She is represented before the Court by Mr M. Demir, a lawyer practising in Germany. The facts of the case, as submitted by the parties, are as follows. On 18 September 1995 at about 2 a.m. the applicant’s house in Nusaybin was raided by police officers from the Nusaybin police headquarters in order to arrest the applicant on suspicion of PKK membership and harbouring PKK members. The applicant had been taken into custody several times in the past, namely in the autumn of 1991, on 21 March 1993 and on 15 August 1994. During the arrest she was subjected to a body search in the presence of her children, husband and other family members. The applicant, her husband and three of her relatives were put in a police vehicle and taken to a doctor for a medical examination. The doctor stated that they were in good health and they were subsequently taken to the police headquarters in Nusaybin. At 3 p.m. the same day the applicant was taken to her house by police officers in order to conduct a search. She took the police officers to the cellar of the house and showed them a bomb which had been given to her by a member of the PKK. The bomb was subsequently destroyed by bomb disposal teams. She was then taken back to the Nusaybin police headquarters. During her period of detention at Nusaybin police headquarters, the applicant was stripped naked and blindfolded. She was hosed down with cold water, hung from her arms, beaten with a police truncheon and electric shocks were administrated to her sexual organs. Two days after her arrest, the applicant was transferred to Mardin police headquarters. During her detention at Mardin police headquarters, the applicant was allegedly blindfolded, stripped naked, held under cold water, given electric shocks, beaten, and raped by a village guard and a police commissioner. She was also forced to walk in a room filled with ice. While in Mardin, the applicant was taken to a doctor at the Mardin State Hospital who did not medically examine her but gave her painkillers to relieve her pain. She was then brought back to the Nusaybin police headquarters where she was detained for eleven days during which time she was stripped naked and was interrogated every night at 1 a.m. On 6 October 1995 a statement was taken from the applicant by police officers while she was still in custody. In her statement, the applicant admitted that she had let the PKK members use her cellar as a shelter, and maintained that the bomb which was found there had been put there by another woman. On 12 October 1995 the applicant was brought before the public prosecutor. In her statement, she denied her police statement alleging that it had been taken under duress. She maintained that PKK terrorists had never stayed in her cellar and that the cellar had been designed as a shelter during the Gulf War to protect her family from any possible chemical attack by Iraq. As to the bomb found in the cellar, the applicant stated that it had been given to her by a woman whom she did not know and that she had not been aware that it was a bomb. The same day, the applicant was placed in detention on remand. On 26 October 1995 the prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant together with twelve other accused persons. She was accused of aiding and abetting members of an illegal organisation, an offence defined in Article 169 of the Criminal Code. On 3 April 1996 she was released pending trial. On 6 April 1996, some three days after her release, the applicant’s house was raided by police officers from the Nusaybin police headquarters and the applicant was taken into custody. She was hung from her arms and hit repeatedly on the head with truncheons as a result of which she lost consciousness. While she was unconscious, her feet were burnt by cigarettes. Following this, she was raped with a truncheon on two occasions. She was threatened by the police officers that if she refused to work as an informer for the police, she would be killed. The applicant refused to work as an informer. She was then taken by car to an isolated place and abandoned. On 19 April 1996 the applicant went to the Human Rights Foundation where she was medically examined. Following medical examinations carried out between 22 and 24 June 1996 in two different hospitals and a Nuclear Medical Centre in Istanbul, and gynaecological and neurological tests, x-rays, thorax graphics, scintigraphic imaging and examinations by an ear, nose and throat consultant as well as a psychiatrist, the doctors drafted a report dated 15 August 1996. It was concluded that the applicant’s allegations of ill-treatment, such as post-traumatic stress, depression, marks on her feet caused by cigarette burns and a pelvic complaint, were compatible with the medical findings. On 5 September 1996 the applicant’s two legal representatives filed a complaint with the Istanbul public prosecutor. In their petition they submitted the applicant’s allegations of ill-treatment. They also gave the names of the village guard who had allegedly raped her during her police custody. On 11 December 1996 the Diyarbakır State Security Court found the applicant guilty of aiding and abetting members of an illegal organisation and sentenced her to three years and nine months’ imprisonment. The applicant’s appeal against the judgment was rejected by the Court of Cassation on 17 November 1997. The Government submitted that the applicant was taken into custody on two occasions from 23 September to 18 October 1994 and from 18 September to 12 October 1995 respectively, on suspicion that she was aiding and abetting members of the PKK. However the Government denied that the applicant had been arrested on 6 December 1996. In this respect they submitted that the custody records did not mention her name. Concerning the applicant’s police custody from 18 September until 12 October 1995, the Government maintained that she was held in Nusaybin Police Headquarters from 18 September to 19 September and then she was transferred to Mardin Police Headquarters, where she was held until 1 October 1995. She was subsequently transferred back to Nusaybin Headquarters, where she was held until 12 October 1995. The Government further contended that the applicant was taken for a medical examination on 18 September 1995 and, according to the medical report, there was no sign of injury on her body. It was noted that she had a heart condition. Another medical report was issued on 12 October 1995 by the Nusaybin Health Clinic, which concluded that the applicant had not suffered physical abuse. The Government further maintained that the applicant had lodged a criminal complaint with the Istanbul public prosecutor on 23 August 1996. On 23 September 1996 the public prosecutor requested that the Nusaybin Police Headquarters submit information about the applicant’s alleged police custody, and that all relevant doctor reports and official documents be conveyed to the public prosecutor’s office. Furthermore, on 10 October 1996 the public prosecutor took a statement from F.A., a village guard, who was accused by the applicant of having raped her. F.A. denied the charges against him. On 17 December 1996, the applicant’s lawyer gave a statement to the public prosecutor, and asserted that she would convey the relevant medical reports and other evidence in the shortest possible time. Despite being notified, the applicant refused to come to the public prosecutor’s office to give a statement. Moreover, the documents promised by the applicant’s representative were never conveyed to the public prosecutor. Accordingly, on 3 March 1997 the public prosecutor delivered a decision of non-jurisdiction on account of insufficient evidence. The applicant did not appeal against this decision. The Government further submitted that on 18 September 1995 a search was conducted in the applicant’s house, as a result of which a shelter and a bomb were found. On 6 October 1995 the applicant gave a statement to the police, and described in detail her involvement with the PKK. On 12 October 1995 the applicant was taken before the public prosecutor, and subsequently before the Nusaybin Magistrate’s Court in Criminal Matters. She was remanded in custody. With an indictment dated 27 October 1995 the Diyarbakır public prosecutor instigated criminal proceedings against the applicant and accused her of aiding and abetting an illegal organisation under Article 169 of the Criminal Code. On 3 April 1996 the applicant was released pending trial. On 11 December 1996 the first instance-court found the applicant guilty as charged and sentenced her to three years’ and nine months’ imprisonment. On 17 November 1997, the Court of Cassation rejected the applicant’s request for appeal, finding the first-instance court’s establishment of the facts and evaluation of evidence in line with domestic law and general principles of law. A description of the domestic law may be found in the Nuray Şen v. Turkey decision (no. 41478/98, 30 April 2002).