CASE OF SATIK AND OTHERS v. TURKEY
Violation of Art. 3;Not necessary to examine Art. 2;Preliminary objection rejected (non-exhaustion);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson
8. The facts as submitted by the parties may be summarised as follows. 1. The facts as presented by the applicants 9. On 20 July 1995 the ten applicants, along with twelve other prisoners, were taken from their cells to an area of Buca Prison in order to be brought before the İzmir State Security Court for trial. 10. While the applicants together with the other prisoners were waiting to be collected, prison officials tried to search them including their shoes. They objected to the search, stating that it was an arbitrary act and that they would refuse to be taken to court if the prison administration insisted on carrying out the search. 11. In view of the applicants’ resistance, the prison administration enlisted the help of gendarmes who were waiting outside the prison to accompany the prisoners to court. 12. Approximately fifty gendarmes and thirty prison warders and prison administrators subsequently attacked the applicants and other prisoners with truncheons and wooden planks. 13. As a consequence, one of the ribs of the applicant, Terzan Adıbelli, was broken and the liver of the applicant, Yaşar Avcı, was damaged. The other applicants sustained injuries to their bodies. 2. The facts as presented by the Government 14. The Government dispute the applicants’ version of the incident. With reference to the investigation carried out by the public prosecutor (see paragraphs 19 et seq. below), they maintain that more that twenty prisoners refused to be searched before being taken to court. They linked themselves together and proceeded towards the prison exit. When they were descending the staircase, still linked, they fell on top of one and another. They hit the wall and the handrail. Four prison warders were also injured in the crush. 15. The same day the applicants, after having waited for some time, were taken to the State Security Court in İzmir in prison vehicles. 3. The applicants’ complaints to the authorities 16. At the hearing before the İzmir State Security Court, the applicants’ representatives made complaints against the persons responsible for the assault. The representatives stated that the applicants had been beaten before being taken to court and requested the court to examine and take note of their injuries and to investigate the incident. 17. The court noted the applicants’ condition and decided to postpone the proceedings on the grounds that it was impossible to hold a hearing in such circumstances. In its decision, the court ordered that the applicants be examined by a doctor with a view to determining whether they had been assaulted as alleged. The court also ordered that the medical findings together with the minutes of the hearing be sent to the Office of the İzmir Public Prosecutor with a view to the opening of an investigation. A letter to that effect was sent the same day to the public prosecutor. 18. Also on 20 July 1995 the father of one of the applicants, Abdulkadir Eraslan, lodged a complaint about the incident with the Office of the Public Prosecutor in İzmir. On the same day the public prosecutor wrote to the public prosecutor at Buca Prison requesting him to take a statement from Abdulkadir Eraslan and to have him medically examined if he complained about being tortured. The statement and any medical report drawn up were to be sent to him. 4. The investigation of the İzmir public prosecutor 19. The İzmir public prosecutor went to the prison on 20 July 1995 to take statements from several of the victims. On the same day the prison doctor examined all the detainees. Those whose injuries were found to be serious were taken to hospital. Since two of the applicants (Mehmet Ermiş and Terzan Adıbelli) had to be taken to hospital, their statements could only be taken by the public prosecutor on 14 August 1995. (a) the applicants’ statements to the İzmir public prosecutor 20. On 20 July 1995 statements were taken from the victims, including eight of the ten applicants: Kadir Satık, Murat Satık, Ali Haydar Özdemir, Songül Diribaş, Saime Sefer, Yaşar Yağcı, Fesih Yılmaz and Abdülkadir Eraslan. The statements of the two other applicants, Mehmet Ermiş, and Terzan Adıbelli, were taken on 14 August 1995, after their discharge from hospital (see paragraph 19 above and paragraph 23 below). 21. The applicants were consistent in their statements that they had been taken from their cells and assembled in front of the prison door. They were ordered by the prison administrators and the warders to take off their shoes. According to the applicants, this was the first occasion on which such an order had ever been given. The applicants refused to comply and stated that a search could be carried out on them using metal detectors. The prison administrators then admitted the gendarmes who were outside the prison and they, together with the prison warders, began to hit them. 22. In their statements to the public prosecutor some of the applicants gave the names of the warders involved while others gave their ranks. Some applicants also stated that they could identify those responsible for the assault. 23. On 25 July 1995 a second statement was taken from Abdülkadir Eraslan. He told the public prosecutor that on the day of the incident he and other prisoners had protested about being subjected to inhuman treatment. He stated that a number of warders and gendarmes then hit the protestors with batons and wooden sticks. The beatings continued until they had reached the exit gate. 24. On 14 August 1995 four remaining victims including the applicants Mehmet Ermiş and Terzan Adıbelli gave statements to the public prosecutor. These statements were consistent with the statements given by the other applicants. (b) the statements of the prison staff to the İzmir public prosecutor 25. On 20 July 1995 three prison officials were questioned by the İzmir public prosecutor. They were all consistent in stating that the prisoners had been repeatedly warned by their superiors that they had to submit to a search procedure. The prisoners objected and refused to be taken to court. The gendarmes then tried to lead them by the arms down the stairs of the prison. However, the prisoners formed a chain and this created a crush on the stairs. Some of the prisoners had to jump to safety while others fell. They injured themselves when they hit the walls, the stairs, and the iron railings. Several warders were also injured. (c) the medical reports on the applicants 26. In the presence of the public prosecutor who arrived at Buca Prison at 6.00 p.m. on 20 July 1995, 18 of the prisoners (including 8 of the 10 applicants: Kadir Satık, Murat Satık, Ali Haydar Özdemir, Songül Diribaş, Fesih Yılmaz, Saime Sefer, Yaşar Yağcı, and Abdulkadir Eraslan) were medically examined by a forensic doctor (adli tabip) at 8.30 p.m. The reports indicated that they all had been hit on the head and/or other parts of the body. While the injuries were described in detail, no explanation was given for their cause. The applicants Terzan Adıbelli and Mehmet Ermiş were sent to hospital for medical examinations. 27. On 21 July 1995 the Buca prison administration sent four more applicants for a medical examination. Fesih Yılmaz was sent to the İzmir Dental Hospital, Kadir Satık, Murat Satık and Ali Haydar Özdemir were sent to the İzmir State Hospital. The hospital discharge report for Terzan Adıbelli (date illegible) indicated that he suffered “general body trauma as a result of battery” (darp). 28. On 9 October 1995 a forensic doctor from the İzmir State Hospital went to the Buca Prison to examine Terzan Adıbelli, Murat Satık and Yaşar Avcı. He reported that Terzan Adıbelli and Yaşar Avcı had been hospitalised between 20 and 25 July 1995 and Murat Satık between 20 and 28 July 1995. He noted that a final medical report would be drafted later. 29. On 18 August 1995 a doctor from the Forensic Medicine Institute examined, inter alia, Mehmet Ermiş and reported in detail to the Office of the Public Prosecutor that that applicant had wide-spread bruising to his body and face (şişlik, ekimoz). The report noted that the injuries were not life threatening and that he would recover within 20 days. 30. On 17 November 1995 a physicist from the Forensic Medicine Institution reported that Terzan Adıbelli and Yaşar Avcı who had been re-examined on 9 October 1995 had suffered from “general body trauma as a result of battery”. Terzan Adıbelli had not been able to do any prison work for 15 days and Yaşar Avcı for 10 days. The report stated that they would recover. 5. The criminal proceedings 31. The public prosecutor decided on 9 April 1996 not to prosecute the Director of Buca Prison and his staff for alleged ill-treatment of the prisoners. Two of the prisoners’ lawyers challenged this decision but their challenge was rejected on 25 June 1996 by the President of the Karşıyaka Assize Court. 32. An investigation was opened against the gendarmes at Buca Prison. However the Office of the İzmir Public Prosecutor took the view that it had no jurisdiction to pursue this investigation since the incident arose out of the exercise by the gendarmes of their administrative duties. The investigation file was accordingly transferred on 11 April 1996 to the Administrative Council of İzmir. The Government informed the Court that the case file subsequently went astray after it was sent to the Divisional Gendarme Command at Buca Prison. On 7 April 2000 the Ministry of the Interior appointed an inspector to clarify this matter. Permission has been given to take proceedings against three gendarme officers in connection with the missing case file, pursuant to the provisions of the Law no. 4483 governing the prosecution of civil servants (see paragraph 37 below). On 1 May 2000 the İzmir Administrative Council decided that no investigation should be opened against the gendarme officers responsible for transferring the applicants from Buca Prison to the İzmir State Security Court on 20 July 1995. 33. On 29 July 1997, following a request for information on the incident, the İzmir Public Prosecutor wrote to the Ministry of Justice. He informed the Ministry that the incident arose out of the refusal of prisoners at Buca Prison to submit to a search. The prisoners objected to being taken to court and they bunched together while descending the stairs leading to the main gate. Some of them fell injuring themselves. Some members of the prison staff were also hurt. 34. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 of the Code of Criminal Procedure – “CCP”). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient. 35. Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP). 36. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case was governed at the time of the events giving rise to the instant application by the Law of 1914 on the prosecution of civil servants, which restricted the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it was for the relevant local administrative council (for the district or 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 was for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lay against a decision of the Council. If a decision not to prosecute was taken, the case was automatically referred to that court. 37. A new law was adopted on 2 December 1999 repealing the provisions of the Law of 1914. The new law - Law no. 4483 - determines the authorities which are empowered to give permission for a state employee or public servant to be prosecuted for an offence committed when exercising official duties and regulates the procedure to be followed. According to Article 3 of Law no. 4483, the power to grant permission to prosecute is now vested in the highest administrative authority in the area where the state employee is working. A decision granting or refusing permission to prosecute must be taken by the relevant authority within thirty days of being seized by the public prosecutor. Before referring the file to the authority the public prosecutor can only collect such evidence which, because of its nature, might be lost, altered or destroyed. The authority initiates an investigation or appoints senior civil servants to investigate on its behalf. According to Article 9 the local administrative courts and the Council of State have jurisdiction to hear appeals against the decisions reached by the authority. An appeal must be lodged within ten days of the authority’s decision. 38. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows: “All acts of decisions of the administration are subject to judicial review… … The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 39. This provision is not subject to any restriction even in a state of emergency or war. the second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people 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. 40. Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tortious act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court of the issue of the defendant’s guilt (Article 53).