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SECOND
SECTION
CASE OF ATAŞ AND SEVEN v. TURKEY
(Application
no. 26893/02)
JUDGMENT
STRASBOURG
16 December 2008
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Ataş and Seven
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26893/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Turkish nationals, Ms Mukadder Ataş
and Ms Süheyla Seven (“the applicants”), on
14 March 2002.
- The
applicants were represented by Mrs F. Karakaş Doğan and
Ms Eren Keskin, lawyers practising in Istanbul. The Turkish
Government (“the Government”) were represented by their
Agent.
- The
applicants alleged that they been subjected to ill-treatment in the
form of sexual abuse during their detention in the custody of
security forces and that the national authorities had failed to carry
out an effective investigation into their complaints in violation of
their rights protected by Articles 3, 6, 13 and 14 of the Convention.
- On
11 June 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The arrest and detention of the applicants
- The
applicants were born in 1977 and 1978 respectively and live in
Batman.
- On
15 September 1998 gendarmerie officers arrested the applicants at a
checkpoint in a rural area of Diyarbakır on suspicion of
membership of an illegal organisation, the PKK (the Kurdistan
Workers' Party). Subsequent to their arrest, both applicants were
taken to the Çınar Central Health Clinic in Diyarbakır
where they underwent a medical examination. According to the doctor's
report, there were no signs of ill-treatment on their bodies. The
doctor noted that neither of the applicants had had sexual
intercourse. The applicants were then placed in the custody of the
Çınar Gendarmerie Station in Diyarbakır.
- The
applicants alleged that during their custody at the gendarmerie
station, they had been blindfolded, threatened, insulted, stripped
naked, given electric shocks, beaten, and hung from their arms. The
gendarmerie officers had also raped the applicants by inserting a
truncheon into their anus and vagina.
- On
18 September 1998 the applicants were questioned by gendarmes. They
stated that they had been on their way to join the PKK and gave
detailed information about their connections with the organisation.
- On
19 September 1998 the applicants underwent a new examination by a
forensic doctor, who did not find any trace of ill-treatment on their
bodies. The doctor also reported that the applicants had not had any
sexual intercourse.
- On
21 September 1998 the applicants were once again taken to the Çınar
Central Health Clinic, where they were examined by a forensic doctor.
As regards the first applicant Mukadder Ataş, the doctor found
that there was no sign of ill-treatment on her body or any indication
of sexual intercourse. In his report concerning the second applicant
Süheyla Seven, the doctor stated that following a vaginal and
anal examination, it was established that the second applicant had
not had sexual intercourse and that there were no signs of
ill-treatment on her body.
- Again
on 21 September 1998, the applicants were brought, respectively,
before the Çınar Public Prosecutor and a Çınar
Magistrate's Court judge. Before the Public Prosecutor, the
applicants stated that they had already given detailed information to
the gendarmes concerning their involvement in the PKK. They noted
that the statements they had given to the gendarmes were true and
that they had not been subjected to any ill treatment or duress.
- However,
when questioned by the judge on the same day, both applicants denied
the charges against them and claimed that the gendarmes had tortured
them and forced them to sign some statements which they had not read.
When their statements to the public prosecutor were read to them, the
applicants admitted that they were true. The judge then ordered their
detention on remand.
B. The proceedings against the accused gendarmerie
officers
- On
12 February 1999 the applicants' legal representative,
Ms Eren Keskin, filed a criminal complaint with the Chief
Public Prosecutor's office in Istanbul, for submission to the
Diyarbakır Chief Public Prosecutor's office, alleging that the
applicants had been subjected to various forms of torture during
their detention at the Diyarbakır Çınar Gendarmerie
Station. She alleged that the applicants had been beaten up, given
electric shocks, stripped naked and then raped by truncheons which
had been inserted into their vagina and anus. She asked the judicial
authorities to take statements from the officers and their superiors
who had questioned the applicants and to take oral evidence from the
applicants. She further asked the court to send the applicants first
to the Batman State Hospital for physical examination and then to the
psychological trauma centre of the Çapa Medical Faculty in
Istanbul with a view to determining the psychological effects of the
torture which could help to prove the rape alleged by the applicants.
She lastly requested the Prosecutor's office to initiate a criminal
investigation against the perpetrators of the torture inflicted upon
the applicants.
- Recalling
that the prosecution of State officials and/or civil servants was
governed by the Act on the Procedure for the Prosecution of Civil
Servants, on 25 March 1999 the Diyarbakır Public Prosecutor
declared that he had no jurisdiction and transferred the case file to
the Diyarbakır Provincial Administrative Council to obtain
permission to prosecute the gendarmes who had allegedly tortured the
applicants.
- On
19 August 1999 the Diyarbakır Provincial Administrative Council,
composed of the Deputy Governor and six other civil servants, decided
that there was not enough evidence to initiate criminal proceedings
against the gendarmerie officers and consequently issued a direction
of “no prosecution”. This decision was automatically
referred to the Supreme Administrative Court for review.
- On 21 December 2000 Law no. 4616 on conditional
release was enacted. This law provided for the suspension of
substantive proceedings or of the execution of sentences in respect
of crimes committed before 23 April 1999 and for which the
maximum penalty did not exceed ten years' imprisonment. Section 5 (a)
of Law no. 4616 stipulated that the execution of sentences in respect
of offences proscribed by, inter alia, Article 243 of the
former Criminal Code could not be suspended.
- On
18 October 2001 the Supreme Administrative Court considered that the
acts allegedly committed by the gendarmes fell within the scope of
Article 245 of the Criminal Code. It therefore decided that,
pursuant to Section 1 § 4 of Law no. 4616, the criminal
proceedings against the gendarmes should be suspended and
subsequently discontinued if no offences of the same or of a more
serious kind were committed by the offenders within a five-year
period, in accordance with that law.
C. The criminal proceedings against the applicants
- On
6 October 1998 the Diyarbakır State Security Court Public
Prosecutor indicted the applicants, charging them under Article 168
§ 2 of the Criminal Code with membership of the PKK.
- At
the hearing of 20 May 1999 the applicants both denied the charges
against them and asserted that they had been subjected to torture in
the course of their detention in the custody of the gendarmerie. The
second applicant further alleged that she had been raped by the
gendarmes. When asked about their statements given at the gendarmerie
station and before the public prosecutor, the applicants submitted
that they had accepted all charges against them in order to escape
torture by the gendarmes and that they could not speak freely to the
public prosecutor since the gendarmes had threatened them with
torture in case they denied their statements at the gendarmerie
station. The court ordered the release of the applicants.
- On
9 September 1999 the Diyarbakır State Security Court acquitted
the applicants, finding that they had been arrested before they
joined the PKK and that there was no evidence to prove that they had
been involved in the activities of the organisation. As there was no
appeal, this judgment became final on 22 December 1999.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Criminal Code, in force at the material
time, were as follows.
Article 243 § 1
“Any public servant ... who inflicts
torture or cruel, inhuman or degrading treatment on accused parties
to make them confess to their crimes shall be sentenced to up to five
years' imprisonment and temporarily or permanently barred from public
service.”
Article 245
“Any law-enforcement officer ...
who, in the course of duty ... and in circumstances other than those
prescribed by law ..., ill-treats, injures or strikes a person or
causes them bodily harm shall be sentenced to between three months'
and five years' imprisonment and temporarily barred from public
service. ...”
- Pursuant
to Article 153 of the Code of Criminal Procedure, in force at the
material time, a public prosecutor who was informed by any means
whatsoever of a situation that gave rise to the suspicion that an
offence had been committed was obliged to investigate the facts in
order to decide whether or not there should be a prosecution.
- Pursuant
to the Prosecution of Civil Servants Act, as in force at the material
time, if the alleged perpetrator of an offence was an official of the
State, permission to prosecute had to be obtained from the local
“administrative council”. An appeal against the local
council's decision lay to the Supreme Administrative Court; a refusal
to prosecute was subject to an automatic appeal of this kind.
24. According
to the principles established by the Turkish criminal courts, the
questioning of a suspect is a means of enabling the individual to
defend himself or herself that should work to that person's
advantage, and is not a measure designed to obtain evidence against
that suspect. While statements made during questioning may be taken
into consideration by the judge in the assessment of the facts of a
case, they must nonetheless have been made voluntarily, and
statements obtained through use of pressure or force are not
admissible in evidence (see Dikme
v. Turkey,
no. 20869/2, § 38, ECHR 2000-VIII).
25. Furthermore,
under Article 247 of the Code of Criminal Procedure in force at the
time of the events, as interpreted by the Court of Cassation, any
confessions made to the police or to the public prosecutor's office
must be repeated before the judge if the interview record containing
them is to be admissible as evidence for the prosecution. If the
confessions are not repeated, the records in question are not allowed
to be read out as evidence in court and consequently cannot be relied
on to support a conviction. Nevertheless, even a confession repeated
in court cannot on its own be regarded as a decisive piece of
evidence unless supported by additional evidence (ibid).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicants complained under Articles 3 and 13 of the Convention that
they had been subjected to various forms of torture, including rape,
during their detention in the custody of the gendarmerie and that the
national authorities had failed to carry out an effective
investigation capable of bringing the perpetrators to justice.
- The
Court considers that these complaints should be examined solely from
the standpoint of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government argued that the applicants had failed to exhaust the
domestic remedies available to them within the meaning of Article 35
§ 1 of the Convention. In this connection, they submitted that
the applicants had not availed themselves of the civil and
administrative law remedies which could have provided reparation for
the harm they had allegedly sustained.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objections in similar cases (see, in
particular, Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004). The Court finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned case. It therefore
rejects the Government's preliminary objection.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicants alleged that they had been subjected to various forms of
torture, including rape, by gendarmes at the Çınar
Gendarmerie Station with a view to extracting confessions concerning
their alleged involvement in the PKK. The gendarmes had forced them
to sign confession statements which they had not been allowed to
read. Furthermore, although they had undergone three medical
examinations, all reports stated that they had not had any sexual
intercourse and that there was no sign of ill treatment. These
reports had been written in a suitable manner to preclude any
criminal responsibility on the part of the gendarmes and, very
strangely, none of them had indicated the name of the medical doctor
who had examined them. Lastly, the national authorities had turned a
blind eye to their allegations of torture by failing to carry out an
effective investigation and had allowed the gendarmes to escape
justice.
- The
Government submitted that the applicants' allegations were unfounded.
They noted that the applicants had undergone three medical
examinations and that the medical reports had stated that there were
no signs of ill-treatment or sexual intercourse. Accordingly, it was
understandable that the investigating authorities had terminated the
proceedings against the gendarmes since there was no evidence capable
of substantiating the applicants' allegations. The Government further
claimed that the applicants had failed to adduce any concrete
evidence capable of proving that they had been subjected to torture
in the hands of the security forces.
2. General principles
- The
Court reiterates that Article 3 of the Convention ranks as one of the
most fundamental provisions in the Convention, from which no
derogation is permitted. It also enshrines one of the basic values of
the democratic societies making up the Council of Europe. The object
and purpose of the Convention as an instrument for the protection of
individual human rights requires that these provisions be interpreted
and applied so as to make its safeguards practical and effective (see
Avşar v. Turkey, no. 25657/94, § 390, ECHR
2001-VII).
- The
Court further reiterates that, where an individual is taken into
custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused and to produce evidence
casting doubt on the veracity of the victim's allegations,
particularly if those allegations are backed up by medical reports.
Failing this, a clear issue arises under Article 3 of the Convention
(see Çolak and Filizer v. Turkey, nos. 32578/96 and
32579/96, § 30, 8 January 2004; Selmouni v. France
[GC], no. 25803/94, § 87, ECHR 1999-V; Aksoy v.
Turkey, 18 December 1996, § 61, Reports of Judgments and
Decisions 1996-VI; and Ribitsch v. Austria, 4 December
1995, § 34, Series A no. 336).
- The Court is sensitive to the subsidiary nature of its
role and recognises that it must be cautious in taking on the role of
a first-instance tribunal of fact where this is not rendered
unavoidable by the circumstances of a particular case (see, among
other authorities, McKerr v. the United Kingdom (dec.), no.
28883/95, 4 April 2000). However, where allegations are made under
Article 3 of the Convention, the Court must conduct particularly
thorough scrutiny (see Ülkü Ekinci v. Turkey,
no. 27602/95, § 135, 16 July 2002) and will do so on
the basis of all the material submitted by the parties.
- In
assessing evidence, the Court has adopted the standard of proof
“beyond reasonable doubt” (see Orhan v. Turkey,
no. 25656/94, § 264, 18 June 2002, and Avşar,
cited above, § 282). Such proof may, however, follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Ülkü
Ekinci, cited above, § 142).
- Furthermore,
where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
- Lastly,
the Court reiterates that where an individual raises an arguable
claim of having been seriously ill-treated by the police or other
such agents of the State unlawfully and in breach of Article 3,
that provision, read in conjunction with the State's general duty
under Article 1 of the Convention to “secure to everyone
within their jurisdiction the rights and freedoms defined in ...
[the] Convention”, requires by implication that there should be
an effective official investigation. This investigation should be
capable of leading to the identification and punishment of those
responsible. If this were not the case, the general legal prohibition
of torture and inhuman and degrading treatment and punishment,
despite its fundamental importance, would be ineffective in practice
and it would be possible in some cases for agents of the State to
abuse the rights of those within their control with virtual impunity
(see Assenov and Others v. Bulgaria, 28 October 1998, §
102, Reports 1998 VIII).
3. Application of the above principles to the
circumstances of the present case
a) Alleged ill-treatment suffered by the
applicants
- In
the instant case, the Court notes that the applicants underwent three
medical examinations, two of which were after their release from
police custody – on 15 September 1998, 19 September 1998 and
21 September 1998. The medical reports stated that there were no
signs of ill-treatment on the applicants' bodies and that there was
no indication that they had had sexual intercourse (see paragraphs 6,
9 and 10 above).
- Although
the applicants alleged that these reports had been dictated by the
security forces and that therefore they did not reflect the truth,
they did nothing to challenge the findings contained in those
reports. It is true that the applicants' legal representative Ms Eren
Keskin asked the authorities to send the applicants to hospital for
further medical examination with a view to determining the physical
and psychological effects of the alleged torture, particularly the
rape (see paragraph 13 above). However, in view of the inertia
displayed by the authorities, the applicant's legal representative
could have helped the applicants to obtain an alternative medical
report from a clinic or hospital following their release from custody
(see, as an example, Aksoy, cited above, § 19). Such
a report could even have been obtained and submitted in the course of
the proceedings before the Court, given that rape leaves deep
psychological scars on the victim which do not respond to the passage
of time as quickly as other forms of physical and mental violence
(see Aydın v. Turkey, 25 September 1997, § 83,
Reports 1997 VI). In addition, the applicants or their
representatives did not consider submitting independent witness
evidence in order to substantiate their allegations.
- In
the light of the parties' conflicting submissions as regards the
events in question, and taking into account in particular the lack of
any sign of ill-treatment corresponding to the alleged ill-treatment
suffered by the applicants (see paragraphs 6, 7, 9 and 10 above), the
Court considers that the applicants have failed to adduce sufficient
evidence to substantiate their allegations of ill-treatment. It finds
therefore that the material in the case file does not enable it to
conclude to the required standard of proof that there has been a
substantive violation of Article 3 of the Convention as a result of
the treatment allegedly sustained by the applicants.
b) Alleged failure to conduct an effective
investigation
- The
Court notes that subsequent to the applicants' complaints of torture
and rape in the hands of the security forces, the Diyarbakır
Chief Public Prosecutor's office issued a decision of
non-jurisdiction and transferred the case file to the Diyarbakır
Provincial Administrative Council to obtain permission to prosecute
the gendarmes who had allegedly tortured the applicants (see
paragraph 14 above). The latter body decided that that there was not
enough evidence to initiate criminal proceedings against the
gendarmerie officers and consequently issued a direction of “no
prosecution” (see paragraph 15 above).
- In
this connection, the Court reiterates its previous findings in cases
against Turkey that bodies like the Provincial Administrative
Council, which are in charge of investigations concerning similar
allegations directed against security forces, cannot be regarded as
independent, as they are made up of civil servants hierarchically
dependent on the Governor, an executive officer linked to the very
security forces under investigation (see, among other authorities,
Ipek v. Turkey, no. 25764/94, § 174, 17 February 2004).
It considers that, in the circumstances of the present case, this
body's manifestation of an unacceptable degree of restraint with
regard to the security forces, by not questioning the gendarmes who
had interrogated the applicants at the Çınar Gendarmerie
Station and the conclusion reached by it without conducting a
meaningful investigation, despite the allegations of an egregious
crime committed by the gendarmes, confirm the Court's previous
findings (see paragraph 15 above).
- Furthermore,
subsequent to the automatic referral of the case to the Supreme
Administrative Court for review, this body suspended the criminal
proceedings against the gendarmes by virtue of Law no. 4616 (see
paragraph 17 above). These proceedings will subsequently be
discontinued if no offence of the same or a more serious kind is
committed by the offenders within a five-year period, in accordance
with that law.
- The
Court reiterates that the rights enshrined in the Convention are
practical and effective, and not theoretical and illusory. Therefore,
investigations of the present kind must be able to lead an
establishment of the facts and, where a crime is found to have been
committed, to the identification and punishment of those responsible.
In the instant case, however, the proceedings in question did not
produce any concrete result owing to the classification of the
alleged offence committed by the gendarmes as ill treatment,
within the meaning of Article 245 of the Criminal Code, and the
suspension of the criminal proceedings against them in accordance
with Law no. 4616 (see paragraphs 16 and 17 above). Thus, the
application of the said law to the present case created virtual
impunity for the alleged perpetrators of acts of violence,
irrespective of the evidence against them (see, mutatis mutandis,
Batı and Others v. Turkey, nos. 33097/96 and
57834/00, § 147, ECHR 2004 IV, and Abdülsamet
Yaman, cited above, § 59).
- Consequently,
the Court considers that the criminal-law system, as applied in the
applicants' case, has proved to be far from rigorous and has had no
dissuasive effect capable of ensuring the effective prevention of
unlawful acts such as those complained of by the applicants (see,
mutatis mutandis, Okkalı v. Turkey, no.
52067/99, § 78, ECHR 2006 ...).
- In
the light of the foregoing and given the authorities' failure to
pursue the criminal proceedings against the gendarmes leading to the
determination of their responsibility and possibly to their
punishment in the event of a conviction, the Court does not consider
that the above proceedings can be described as sufficiently thorough
and effective to have met the procedural requirements of Article 3 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly, the applicants complained of violations of
Article 6 and Article 14 of the Convention. In this connection, they
alleged that the authorities who had conducted the investigation into
their complaints were not independent and impartial and that they had
discriminated against them on the basis of their ethnic origin.
- The
Government contested these arguments.
- An
examination by the Court of the material submitted to it does not
disclose any appearance of a violation of these provisions. It
follows that this part of the application is manifestly ill-founded
and must be declared inadmissible pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 5,000 euros (EUR) in respect of pecuniary damage
and EUR 20,000 for non-pecuniary damage.
- The
Government contended that the amount claimed was excessive and that
any award made under this head should not lead to unjust enrichment.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, having regard to the violation found and ruling on an
equitable basis, it awards the applicants EUR 5,000 each in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 5,800 for the costs and expenses incurred
before the Court (EUR 3,800 for legal fees and EUR 2,000 for
translation, postage and stationery costs). In this connection, they
submitted a contract signed with their legal representatives
stipulating a fee of 6,100 new Turkish liras (approximately EUR
3,800) for the presentation of their application before the Court and
photocopies of postage receipts.
56
The Government maintained that the amount claimed was not justified
or actually and necessarily incurred.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 for the
proceedings before it.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
- Holds that there has been a procedural violation
of Article 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) EUR
5,000 (five thousand euros) for each applicant, plus any tax that may
be chargeable, in respect of non pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicants, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 16 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
