CASE OF KAYTAN v. TURKEY
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient
Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. In March 2002, criminal proceedings were initiated against the applicant in absentia for being a member of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation. In the indictment, the public prosecutor relied on, among others, incriminating statements by certain accused persons who, in their statements to the police, had maintained that the applicant had been involved in a number of terrorist activities since 1991. A Red Notice was accordingly issued in respect of the applicant via Interpol. 6. On an unspecified date the applicant was arrested in Syria. After being detained in the Damascus Security Headquarters, allegedly for twenty-three days, the applicant was handed over to the Turkish authorities on 15 August 2003. The medical report issued at the beginning of the applicant’s custody indicated no signs of ill-treatment. 7. On 18 August 2003 the applicant was questioned at the Erzurum Gendarmerie Command, in the absence of a lawyer. According to a form explaining arrested persons’ rights, which the applicant had signed, he had been reminded of the charges against him, his right to a lawyer and his right to remain silent. The applicant refused legal assistance, and gave a detailed statement regarding his activities in the illegal organisation. He admitted that he had been a member of the PKK since 1989, maintained that he had been involved in several armed attacks and gave details about such events. He also stated that he had been acting as the Paris representative of the illegal organisation since 1994 and signed his statement as such. 8. On the same day, the applicant was examined at the hospital; no signs of ill-treatment were noted on his body. Subsequently, he was questioned by the Erzurum Public Prosecutor. The applicant refused legal assistance and confirmed this in his statement given to the gendarmerie. In this connection, he admitted to being a member of the PKK and participating in several terrorist activities between 1990 and 1998 and also being the Paris representative of the illegal organisation since 1999. He further admitted that he had been involved in some of the armed attacks with which he had been charged. These events were indicated by their location, nature and dates, which were between 1990 and 1998. The applicant denied his participation in five terrorist attacks which had happened in 1992. 9. Later on the same day, the applicant was taken to the Erzurum State Security Court. Before the court he expressed the wish to be represented by a lawyer, and stated that he would make further submissions once a lawyer had been appointed. The court remanded the applicant in pre-trial detention and allowed him time for the assignment of a representative until the next hearing to be held on 7 October 2003. 10. On 20 August 2003 the Erzurum Public Prosecutor lodged an additional indictment, charging the applicant under Article 125 of the former Criminal Code with seeking to destroy the constitutional order and unity of the Turkish State and to remove part of the country from the State’s control. 11. On 9 December 2003, at the fifth court hearing, in the presence of his three lawyers, the applicant retracted the statements he had made to the gendarmerie and the public prosecutor, alleging that he had been under psychological pressure during his interrogation. He confessed to being a member of the PKK, but only in charge of the instruction of the members, and claimed that he had never taken part in any armed attack. He further submitted that he had been injured during an armed clash in November 1992 and since then had been unable to use his right hand. In this connection he requested a medical report establishing that he was not able to hold a gun with his right hand. The prosecutor opposed this request by referring to the applicant’s healthy physical appearance. 12. During the hearing the applicant’s representatives contested the testimonies of other accused persons in different criminal proceedings indicating the applicant’s involvement or responsibilities as a team leader, by alleging that such testimonies had been given only in order to benefit from legal provisions allowing reduction of sentences. The crossexamination of these witnesses was not requested at any stage of the proceedings. Again on the same day, the applicant made written submissions to the court and stated that he had signed his statement in custody without reading it. 13. On 27 February 2004 the Forensic Medicine Department of Erzurum Atatürk University issued a report. It found loss of function in the applicant’s right hand and concluded that the applicant would have serious difficulty in using a firearm with one hand. However, it was further reported that if his right hand were supported by other parts of his body he would be able to use a firearm. 14. On 4 May 2004, at the ninth hearing, the applicant objected to the medical report, requesting a new report from the Istanbul Forensic Institute. The trial court refused this request, holding that a new medical report would not have any effect on the merits of the case and therefore was not necessary. In this connection, the court held that the illegal acts admitted by the applicant, which had been committed prior to November 1992, thus before his hand was injured, would suffice for charges to be brought against the applicant under Article 125 of the former Criminal Code. It accordingly held that an additional expert report was not required. 15. At a hearing held on 24 August 2004, the applicant repeated his request for an additional medical report, and stated that during his interrogation by the gendarmes and the prosecutor he had felt fearful and anxious and had given his statements under pressure as a result of the conditions in which he had been detained in Syria. He repeated that the testimonies against him by persons accused of terrorism in different proceedings had been made only for collaborating and benefiting from lenient criminal provisions and could be dismissed once the medical report concerning his incapacity was established. The applicant’s lawyers also based their arguments on the establishment of a new report. 16. In the meantime, State Security Courts were abolished by Law no. 5190 of 16 June 2004. Accordingly, the case was transferred to the Erzurum Assize Court. 17. On 21 September 2004 the Erzurum Assize Court convicted the applicant as charged. In a reasoned judgment, the court found it established that the applicant had been involved in at least 15 armed attacks committed prior to 1992, among the 59 incidents of which he was accused. It enumerated the acts to which the applicant had confessed while being questioned by the gendarmes and subsequently by the prosecutor, such as setting fire to three primary schools, the robbery of several village guards and clashes with security forces. These acts also corresponded chronologically with each other and with the numerous official documents related to these events. The court further held that these acts would suffice to convict the applicant under Article 125 of the former Criminal Code and underlined that only after several hearings had he contested his initial statements, while choosing to accept his involvement in armed attacks in which terrorists had been killed and denying his implication in those in which members of the security forces had been killed. The court pointed out that the applicant’s argument could not be considered credible in view of the chronology of the events. The court further stated that throughout the criminal proceedings the applicant had consistently and proudly stated that he was a member of the illegal organisation to the point of making propaganda for the organisation, and he had shown no remorse which would indicate the likelihood that he would not repeat such crimes. Finally, it indicated that the applicant even refused the possibility of using Law no. 4959 for rehabilitation (certain paragraphs of Article 4 of the cited law foresee sentences varying between 12 and 19 years of imprisonment in replacement of an “aggravated life sentence”, according to the authenticity of information provided about the structure of a terrorist organisation or its activities) and accordingly sentenced him to “aggravated life imprisonment”. 18. On 7 January 2005 the Court of Cassation upheld the conviction.