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HACI OZEN v. TURKEY - 46286/99 [2007] ECHR 302 (12 April 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/302.html
Cite as:
[2007] ECHR 302
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THIRD
SECTION
CASE OF HACI ÖZEN v. TURKEY
(Application
no. 46286/99)
JUDGMENT
STRASBOURG
12
April 2007
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 Hacı Özen v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr R.
Türmen,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 46286/99) 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 a Turkish national, Mr Hacı Özen
(“the applicant”), on 22 December 1998.
The
applicant, who was granted legal aid, was represented by Mr M. Batı,
a lawyer practising in Diyarbakır. The Turkish Government
(“the Government”) did not designate an Agent for
the purposes of the proceedings before the Court.
On
10 April 2003 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the
alleged ill-treatment of the applicant, his right to be brought
promptly before a judge, his right to a fair hearing by an
independent and impartial tribunal, his right to legal assistance and
his right to an effective remedy to the Government. On 30 June
2005, under the provisions of Article 29 § 3 of the Convention,
it further decided to examine the merits of these complaints at the
same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in Şırnak.
A. The arrest and detention of the applicant in the
custody of the gendarmerie
The
facts surrounding the arrest and detention of the applicant are
disputed between the parties.
1. Facts as presented by the applicant
On
an unspecified date, the applicant was contacted by two persons in
the centre of Şırnak who asked him either to give them
money or to help them. They did not specify what they wished the
applicant to do. The applicant refused their request. On 11 June
1998, one week after this incident, they again contacted the
applicant, asked him to help them and threatened him with death. As
the applicant was scared, he followed their instructions. He went
near to a cemetery outside the city centre where two armed men
appeared. They asked him about the supplies and when the applicant
told them that he did not know about the supplies, they beat him.
Subsequently, four or five other plain-clothes persons carrying
weapons arrived. They tied the applicant's hands and covered his
mouth. One of them had a radio with which he talked to someone whom
he addressed as “my commander”. The applicant was then
blindfolded, put in a vehicle and taken to the Şırnak
provincial gendarmerie command.
7. During
his detention in the custody of the gendarmerie the applicant was
subjected to ill-treatment. In particular he was stripped
naked and beaten. He was also deprived of food and
water and was prevented from going to the toilet. The applicant was
kept in a small and dark cell, threatened with death and insulted.
Furthermore, the gendarmerie officers attempted to rape him.
8. In
the evening of 11 June 1998, the applicant's son, Mehmet Özen,
applied to the Şırnak Security Directorate claiming that
his father left home at around 8 - 8.30 a.m. to go to their farm and
that he was seen by one of their neighbours,
Ömer Katar, at around midday being abducted by an armed group of
six or seven persons. On 12 June 1998 an official report was drawn up
concerning Mehmet Özen's claim.
9. On
13 June 1998 a similar protocol was drawn up containing Ömer Katar's
statement about the applicant's arrest. He stated that he had seen
the applicant being taken away by seven men who were carrying rifles.
Ömer Katar testified that Hacı Özen's hands were tied
and that he was being beaten by these men.
On
15 June 1998 the applicant was brought before a forensic doctor, Mr
Veli Gül. The medical report drafted by the doctor at 1.45 p.m.
on the same day referred to the following marks on the applicant's
body: a bruise on the right shoulder, scratches and bruises on the
front of his right arm, bruises on the right part of his back,
bruises of 2 x 2 cm on his waist, bruises on the front of his left
arm, a bruise on the back of his left shoulder, bruises of 2 x 2 cm
on his left hip and a trauma of 2 x 0,5 cm on his parietal bone. All
the bruises on the applicant's body were described as purple in
colour.
On
23 June 1998 the gendarmerie officers drafted a document allegedly
containing the applicant's statements, according to which the
applicant admitted to have willingly acted as a
courier for the PKK and have fallen and sustained other injuries
while trying to escape from the gendarmerie officers on 15 June 1998,
the day of his arrest. The applicant was forced to apply his
thumbprint to this document.
On
24 June 1998 the applicant was examined by the same doctor who noted
the presence of the traces of old bruises on his shoulders and arms.
On
the same day the applicant was brought before the Şırnak
public prosecutor. He denied the accusations against him. The
statements that he had allegedly made at the gendarmerie command were
read to him. The applicant denied that he had made these statements
and maintained that he had been forced to sign them. He claimed that
he had been threatened with death by two men unless he delivered a
bag to some people whose identity was not known to him.
After
being questioned by the public prosecutor he was brought before the
Şırnak Magistrates' Court (Sulh Ceza Mahkemesi),
where he denied the charges against him. He further pleaded not
guilty and reiterated his statement that he had made before the Chief
Public Prosecutor. The Şırnak Magistrates' Court ordered
the applicant's detention on remand. The court
also took note of the applicant's allegation that he was threatened
with death and decided to refer his complaint to the public
prosecutor's office.
On
30 June 1998 the Şırnak public prosecutor issued a decision
of non-jurisdiction in respect of the investigation against the
applicant holding that the public prosecutor's office at the
Diyarbakır State Security Court had the jurisdiction to conduct
this investigation.
On
17 August 1998 the Şırnak public prosecutor decided to
discontinue the investigation based on Mehmet Özen's
allegation. The public prosecutor found that the
applicant had not been abducted as alleged by Mehmet Özen but
taken into custody on 15 June 1998 on suspicion of aiding the
PKK.
2. Facts as presented by the Government
On
15 June 1998 the applicant was arrested by officers from the Şırnak
provincial gendarmerie command on suspicion of aiding the
PKK. Although on 11 June 1998 the applicant's son lodged a petition
with the security directorate and on 13 June 1998 the applicant's
neighbour stated that he had seen the
applicant being taken away by seven men, there is no statement
indicating that the persons who abducted the applicants had been
gendarmerie officers.
18. According
to the arrest report signed by four gendarmerie officers, on 15 June
1998, at around 8.30 a.m., following information received by the
gendarmerie officers the applicant was captured in a rural area while
carrying a bag containing clothes that he was taking to members of
the PKK. The applicant was told twice to stop by the officers but he
tried to escape. While running, he fell, hit his head
and sustained injuries to various parts of his body.
19. On
the same day, three officers further drafted a scene of the incident
report. According to this report, the applicant was captured at
around 4 a.m. following the receipt of information that the applicant
was taking supplies to members of the PKK. The officers noted that
the applicant had been carrying two bags containing clothes, soap and
a carpet and that he had sustained injuries when he fell from a
height of 8-10 metres. It is to be noted
that neither the arrest report nor the scene of the incident report
bears the signature of the applicant.
20. Following
his arrest, the applicant was examined by a doctor (see paragraph
10 above) and, subsequently, taken to the Şırnak
gendarmerie command where he made statements admitting that he had
aided the members of the PKK. The applicant was kept in custody until
24 June 1998.
B. Criminal proceedings against the applicant
On
9 July 1998 the public prosecutor at the Diyarbakır State
Security Court filed a bill of indictment charging the applicant with
aiding and abetting an illegal organisation under Article 169 of the
Criminal Code.
The
first hearing, held before the Diyarbakır
State Security Court composed of three judges including a
military judge, on 13 July 1998, in the
applicant's absence, was taken up with procedural matters, such as
the measures to be taken for securing the presence of the accused.
23. On
21 December 1998 the applicant's representative stated before the
Diyarbakır State Security Court that the applicant was arrested
on 11 June 1998. He alleged that the protocols prepared by
gendarmerie officers contained false information. He maintained that
the medical report of 15 June 1998 established the ill-treatment
of the applicant received at the hands of gendarmerie officers. He
further complained that the length of the applicant's detention was
excessive. He made an oral complaint against the gendarmerie officers
in relation to the ill-treatment of the applicant before the State
Security Court and requested the court to notify the public
prosecutor's office concerning their complaint. In reply to the
request of the applicant's representative the State Security Court
stated:
“It has been decided that
the representative of the accused be authorised to lodge a complaint
with the public prosecutor's office where the act took place and that
the copy of the hearing minutes be provided if needed.”
On
the same day, the first-instance court decided to request the
Şırnak Assize Court to issue a summons requiring the
gendarmerie officers who had signed the arrest and scene of the
incident reports to give evidence.
At
the beginning of the hearing of 8 February 1999, the Diyarbakır State
Security Court appointed an interpreter to assist the applicant,
noting that he did not have a good command of the Turkish language.
On
the same day, the applicant made statements before the court with the
assistance of the interpreter. He maintained, inter alia, that
he was at his farm on the day of his arrest when two persons arrived
and asked him to give them money. When he refused their request, they
beat him. Subsequently, they tied his hands and covered his mouth and
took him to a place, where there were supplies. They then asked him
to accept that the supplies belonged to him but he refused. The
applicant further denied the accuracy of the arrest and scene of the
incident reports. The first-instance court decided to postpone the
hearing as the statements of the gendarmerie officers had not been
taken. It further ordered the applicant's release pending trial.
On
22 March 1999 the Diyarbakır State Security Court postponed the
hearing as the statements of the gendarmerie officers had not been
taken.
On
10 May 1999 the statements of one of the gendarmerie officers were
read out. The applicant's lawyer maintained before the Court that the
contents of these statements and the arrest and scene of the incident
reports were contradictory. The court once again postponed the
hearing as it had not received the statements of two gendarmerie
officers.
On
an unspecified date, the statements of the two officers were sent to
the Diyarbakır State Security Court.
On
18 June 1999 Turkey's Grand National Assembly amended Article 143
of the Constitution and excluded military members from State Security
Courts. Following similar amendments made on 22 June 1999 to the Law
on the State Security Courts, the military judge sitting on the
Diyarbakır State Security Court hearing the applicant's case was
replaced by a civilian judge.
At
the hearing held on 13 September 1999, the
public prosecutor read out his observations on the merits of
the case. The hearing was postponed for the preparation of the
applicant's final submissions on the merits of the case.
At
the hearing held on 27 September 1999 the first-instance court heard
the applicant's lawyer's final submissions on the merits of the case.
On the same day, the court noticed that the applicant's statements of
8 February 1999 had been taken without the bill of indictment
having been read to him. The court therefore requested the Şırnak
Assize Court to read out the bill of indictment to the applicant and
to take his statements with the assistance of an interpreter.
On
an unspecified date the applicant made statements before the Şırnak
Assize Court with the assistance of an interpreter. These statements
were sent to the Diyarbakır State Security Court.
At
the hearing of 13 December 1999 the public prosecutor and the
applicant's lawyer made their final submissions on the merits of the
case. The applicant's lawyer maintained, inter alia, that the
applicant's arrest and the length of his detention in custody had
been unlawful and that he had been subjected to ill-treatment while
in custody.
On
the same day, the Diyarbakır State Security Court convicted the
applicant of aiding and abetting the members of the PKK and sentenced
him to three years and nine months' imprisonment. In its judgment,
the court relied on the applicant's confession statements made in the
custody of the gendarmerie, the statements of the gendarmerie
officers who had drafted the arrest and scene of the incident
protocols and the content of the bag that the applicant was allegedly
carrying when he was arrested.
The
military judge sitting on the bench of the Diyarbakır State
Security Court was present at one preliminary hearing and six
hearings on the merits until June 1999. After the replacement of the
military judge with a civilian judge, the first-instance court held
four hearings before rendering its judgment in the case.
On
20 March 2000 the applicant appealed against the judgment of
13 December 1999.
On
18 October 2000 the Court of Cassation dismissed the applicant's
appeal and upheld the judgment of the Diyarbakır State Security
Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice in force at the
material time are outlined in the following judgments: Batı
and Others v. Turkey (nos. 33097/96 and 57834/00, §§
95-100, ECHR 2004-... (extracts)); Özel v. Turkey
(no. 42739/98, §§ 20-21, 7 November 2002); and
Öcalan v. Turkey ([GC], no. 46221/99, §§
52 54, ECHR 2005-...).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Articles 3 of the Convention that he had
been subjected to ill-treatment while in detention in the Şırnak
provincial gendarmerie command. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
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. Submissions of the parties
The
applicant submitted that he had been ill-treated during his arrest on
11 June 1998. He further alleged that he had been blindfolded,
stripped naked, deprived of food and had been prevented from going to
the toilet while in custody. He contended that he had been subjected
to beatings and verbal abuse and that he had been detained
incommunicado in a dark cell. He finally submitted that the
gendarmerie officers had attempted to rape him.
The
Government contended that the applicant had been taken into custody
on 15 June 1998 and that on the same day, subsequent to his arrest,
he had been examined by a doctor, who noted marks on his body. They
submitted, in this connection, that the marks had existed prior to
the applicant's arrest. The Government maintained that the
applicant's medical examination at the end of his custody period
revealed no trace of ill treatment on his body. The Government
therefore concluded that the applicant's allegations of ill-treatment
were unsubstantiated.
2. The Court's assessment
a. 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 (extracts)). Where
allegations are made under Article 3 of the Convention, the Court
must conduct a 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.
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,
judgment of 18 December 1996, Reports of Judgments and
Decisions 1996-VI, p. 2278, § 61; and Ribitsch v.
Austria, judgment of 4 December 1995, Series A no. 336, p. 26, §
34).
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).
b. The establishment of the facts
Since
the facts surrounding the arrest and detention of the applicant are
in dispute between the parties, the Court considers it appropriate to
establish the facts by making its own assessment in the light of all
the material before it, before examining the merits of the
applicant's allegations of ill-treatment.
In this connection, the Court observes that the Government claimed
that the applicant had been taken into custody on 15 June 1998 and
that therefore the marks noted in the medical report of 15 June 1998
had existed prior to his arrest. The applicant alleged that he had
been arrested on 11 June 1998 and that he had been ill-treated
during his arrest and his detention period.
The
Court notes, at the outset, that the Şırnak public
prosecutor initiated an investigation into the abduction of the
applicant and, subsequently, issued a decision of non-prosecution,
holding that the applicant had not been kidnapped, but arrested by
the gendarmerie on 15 June 1998 (see paragraph 16 above). In
this regard, the Court finds it peculiar that the public prosecutor
did not attempt to conduct further enquiries concerning the
applicant's whereabouts between 11 and 15 June 1998.
Moreover, he based his decision on the arrest report drawn up by the
gendarmerie officers without having questioned its accuracy although
there were other elements in the investigation file which cast doubt
on its credibility.
In
this connection, the Court observes that the applicant's son,
Mehmet Özen, applied to the Şırnak Security
Directorate and informed the latter that his father had been seen by
one of their neighbours while being abducted by a group of armed men
on 11 June 1998 (see paragraph 8 above).
Furthermore,
on 13 June 1998 the applicant's neighbour who had allegedly witnessed
the applicant's arrest stated before the police that the applicant
had been taken by an armed
group of six or seven persons (see paragraph 9 above).
Moreover,
the arrest and the scene of the incident reports are also
contradictory. While the time of the arrest was mentioned as 8.30
a.m. in the arrest report, the scene of the incident report referred
to the time of arrest as 4 a.m. Besides, the findings of the
medical report of 15 June 1998 do not appear to be wholly consistent
with the content of the arrest report drafted by the gendarmerie.
According to the latter, the applicant had sustained injuries to his
head whereas the medical report does not refer to any mark on the
applicant's head. In this connection, the Court emphasises that the
arrest and scene of the incident reports did not bear the signature
of the applicant.
The
Court recalls its earlier findings and those of the Commission
concerning the inadequacy and unreliability of the custody records of
the gendarmerie in south-east Turkey in the nineties (see Çakıcı
v. Turkey [GC], no. 23657/94, § 105, ECHR 1999 IV;
Timurtaş v. Turkey, no. 23531/94, § 105, ECHR
2000-VI; Çiçek v. Turkey, no. 25704/94, §§
137-142, 27 February 2001; Orhan, cited above,
§§ 371 372; Tepe v. Turkey, no. 27244/95,
§ 148, 9 May 2003; and Ahmet Özkanet and Others v.
Turkey, no. 21689/93, § 206, 6 April 2004). The Court found
in all these judgments that such records cannot in general be relied
upon to prove that a person was not taken into custody.
Having
regard to the Court's findings in these judgments and to the material
before the Court, the Court considers that the facts that the public
prosecutor decided to discontinue the investigation into the
applicant's alleged abduction and that the official reports
concerning the applicant's arrest are dated 15 June 1998 do not prove
that the applicant was not taken into custody before this date. On
the contrary, in the light of the aforementioned elements (see
paragraphs 50-53), the Court finds it established that the applicant
was arrested on 11 June 1998 by officers from the Şırnak
gendarmerie command and kept in custody until 15 June 1998 without
his detention being officially recorded. The Court thus accepts that
the applicant sustained the injuries noted in the medical report of
15 June 1998 between 11 and 15 June 1998 while in the State
authorities' control.
c. Application of the general principles
in the circumstances of the present case
The
Court observes that the applicant was not examined medically at the
beginning of his detention on 11 June 1998 and did not have access to
a lawyer or doctor of his choice while in custody. On 15 and 24 June
1998 he underwent two medical examinations which resulted in two
medical reports. Both reports referred to bruises and lesions on
various parts of the applicant's body (see paragraphs 10 and 12
above) which were consistent with the applicant's allegations of
ill-treatment. In this connection, the Court observes that the
Government have not provided a plausible explanation for the marks
and injuries identified on the applicant's body.
In
the light of the above and in the absence of a plausible explanation
by the Government, the Court concludes that the injuries noted in the
medical reports were the result of inhuman treatment for which the
Government bore responsibility.
It
follows that there has been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant alleged that he was denied an effective domestic remedy in
respect of his complaint of ill-treatment, in violation of Article 13
of the Convention which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
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. Submissions of the parties
The
applicant contended that he had raised his allegation of
ill treatment before the public prosecutor and the Magistrates'
Court on 24 June 1998 as well as the Diyarbakır State
Security Court. He submitted that he had taken all reasonable steps
to ensure that his allegation could be properly and thoroughly
investigated by the State. However, the response of the authorities
was totally inadequate.
The Government contended that the applicant's lawyer
raised the allegation of ill-treatment only before the Diyarbakır
State Security Court and as late as 21 December 1998. That court
advised the applicant to lodge his complaint with the competent
public prosecutor given that the public prosecutor attached to the
State Security Court, like the trial judge, was not competent to
investigate such allegations. Neither the applicant nor his lawyer
applied to the public prosecutor's office.
2. The Court's assessment
The Court reiterates that the nature of the right
safeguarded under Article 3 has implications for Article 13. Where an
individual has an arguable claim that she or he has been subjected to
ill-treatment by agents of the State, the notion of an “effective
remedy” entails, in addition to the payment of compensation
where appropriate, a thorough and effective investigation capable of
leading to the identification and punishment of those responsible and
including effective access for the complainant to the investigatory
procedure (see Çelik and İmret v. Turkey, no.
44093/98, § 54, 26 October 2004).
A
requirement of promptness and reasonable expedition is implicit in
this context (see Yaşa v. Turkey, judgment of 2 September
1998, Reports 1998-VI, pp. 2439-40, §§ 102-04;
Çakıcı, cited above, §§ 80,
87 and 106; and Çelik and İmret, cited above, §
55). It must be accepted that there may be obstacles or difficulties
which prevent progress in an investigation in a particular situation.
However, a prompt response by the authorities in investigating
ill-treatment may generally be regarded as essential in maintaining
public confidence in their adherence to the rule of law and in
preventing any appearance of collusion in or tolerance of unlawful
acts.
On the basis of the evidence adduced in the present
case, the Court has found that the respondent State is responsible
under Article 3 of the Convention for the ill-treatment suffered by
the applicant in the custody of the gendarmerie. The applicant's
complaint in this regard is therefore “arguable” for the
purposes of Article 13 in connection with Article 3 of the Convention
(see McGlinchey and Others v. the United Kingdom,
no. 50390/99, § 64, ECHR 2003 V, Çelik and
İmret, cited above, § 56).
The Court notes that the applicant complained before
the Şırnak public prosecutor, the Şırnak
Magistrates' Court and the Diyarbakır State Security Court that
he was beaten during his arrest and was under duress during his
custody period. The Court is struck by the fact that although
the applicant's medical examinations of 15 and 24 June 1998 revealed
that the applicant had sustained injuries to various parts of his
body and, despite his serious allegations before several judicial
authorities, no attempts were made to investigate his allegations.
The Court therefore concludes that the applicant was
denied an effective remedy in respect of his ill-treatment, and was
thereby denied access to any other available remedies at his
disposal, including a claim for compensation.
Consequently,
there has been a violation of Article 13 of the Convention.
III. ALLEGED VIOLATION
OF ARTICLE 5 § 3 OF THE CONVENTION
The
applicant alleged under Article 5 § 3 of the Convention that he
had been arrested on 11 June 1998 and kept in the custody of the
gendarmerie until 24 June 1998 without being brought before a judge
or other officer
authorised by law to exercise judicial power. Article 5
§ 3 of the Convention reads as follows:
“ Everyone arrested or detained in accordance
with the provisions of paragraph 1 (c) of this Article
shall be brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
A. Admissibility
The
Government submitted that this complaint should be rejected for
failure to exhaust domestic remedies as required by Article 35 §
1 of the Convention. The Government maintained that the length of the
applicant's detention in police custody was in conformity with the
legislation in force at the material time as the statutory limit for
the period that suspects could be held in custody was ten days
whereas the applicant was detained nine days. Nevertheless, he could
have challenged the lawfulness and length of his detention in custody
pursuant to Article 128 of the Code of Criminal Procedure.
The
Court notes at the outset that it has already examined and rejected
the Government's similar objections in cases where the applicants'
custody periods were in conformity with the domestic legislation,
holding that the remedy which exists in theory provided under Article
128 of the Code of Criminal Procedure was not an effective one in
practice within the meaning of Article 35 of the Convention (see, for
example, Öcalan, cited above, §§ 66-71;
Maçin v. Turkey, no. 52083/99, §§ 30-33, 4 May
2006; and
Bulduş v. Turkey, no. 64741/01, §§ 10-14, 22
December 2005). Therefore, even assuming that the applicant's custody
period was in conformity with the domestic law, the remedy in
question was not a remedy that he was required to exhaust.
Nonetheless,
the Court has already established that the applicant was deprived of
his liberty on 11 June 1998 and kept in custody until 15 June 1998
without his detention being registered (see paragraph 55 above).
The
Court observes in this connection that the applicant maintained
before the judicial authorities that he had been arbitrarily deprived
of his liberty for four days. However, not only was his allegation
not investigated, but also the Şırnak public prosecutor
issued a decision not to prosecute in respect of the allegations of
abduction (see paragraph 17 above).
In
these circumstances, the Court is not convinced that where the
unacknowledged detention of a person by the security forces is
allowed, that person has a real possibility to challenge the
lawfulness or the length of the detention in question.
The
Court therefore rejects the Government's objection.
The
Government further maintained, in relation to the complaint under
Article 5, that the applicant's custody period had ended on
24 June 1998, whereas he had submitted his application form
to the Court on 23 January 1999, thus, failing to comply with the
six-month's rule.
The
applicant submitted, in reply, that he had sent his first letter
to the Court on 22 December 1998 and had, therefore,
complied with the six-month's rule.
The Court recalls that the running of the six-month
period is interrupted by the first letter from an applicant summarily
setting out the object of the application, unless the letter is
followed by a long delay before the application is completed (see
Buscarini and Others v. San Marino [GC], no. 24645/94, §
23, ECHR 1999-I, and Çelik v. Turkey (dec.), no.
41993/98, 6 May 2003). The Court observes that the first letter
setting out the substance of the applicant's complaints was dated 22
December 1998 and was sent to the Court by fax on the same day. The
Registry of the Court was informed in that letter that the formal
application would be submitted shortly. The application form was
subsequently submitted on 11 February 1999, i.e. one month
and twenty days after the first letter. The Court therefore finds
that the application was introduced on 22 December 1998, and
therefore in time.
Consequently,
this part of the application cannot be rejected for non-exhaustion
of domestic remedies or for non-compliance with the six-month rule.
The
Court notes that this part of the application 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
The applicant complained under Article 5 § 3 of
the Convention that he had been kept in police custody for thirteen
days without being brought before a judge or other officer
authorised by law to exercise judicial power.
The
Government submitted that the applicant's custody period was in
absolute conformity with the domestic legislation in force at the
time.
The
Court reiterates that Article 5 in general aims to protect the
individual against arbitrary interference by the State with the right
to liberty. Article 5 § 3 is intended to secure the
rule of law by requiring the judicial control of the interference by
the executive (see Sakık and Others v. Turkey,
judgment of 26 November 1997, Reports 1997- VII, p. 2623, §
44).
The Court has already noted that the applicant's
detention in police custody lasted thirteen days. It recalls
that in the case of Brogan and Others v. the United Kingdom,
(judgment of 29 November 1988, Series A no. 145-B) it held that
detention in police custody which had lasted four days and six hours
without judicial control fell outside the strict time constraints
of Article 5 § 3 of the Convention, even though its purpose
was to protect the community as a whole against terrorism (see,
also, Keklik and Others v. Turkey, no. 77388/01, §
41, 3 October 2006).
In
the light of the principles enunciated in the Brogan case, the
Court cannot accept that it was necessary to detain the applicant for
thirteen days without judicial intervention.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 § 1 of the Convention that
he had been denied a fair hearing on account of
the presence of a military judge on the bench of the Diyarbakır
State Security Court, which tried him. He further alleged under
Article 6 §§ 1 and 3 (c) of the Convention that he
had been deprived of his right to legal assistance while in custody
and that the judgment of the Diyarbakır
State Security Court was based on his statements obtained as a result
of ill-treatment. The relevant parts of Article 6
of the Convention provide as follows:
“1. In the determination of ...any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal established by
law.
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
...”
A. Admissibility
The Court notes that this part of the application 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. Independence and impartiality of the Diyarbakır
State Security Court
The
Government maintained that, by Law no. 4388 of 18 June 1999,
amendments were made to remove military judges from the bench of the
State Security Courts with a view to complying with the requirements
of the Convention. In this connection they pointed out that, in the
present case, the military judge sitting on the bench of the
Diyarbakır State Security Court had already been replaced by a
civilian judge before the applicant's lawyer had put forward his
submissions on the merits of the case and that the applicant was
therefore convicted by a State Security Court which was composed of
three civilian judges.
The applicant repeated his initial submissions.
The Court has consistently held that certain aspects
of the status of military judges sitting as members of the State
Security Courts rendered their independence from the executive
questionable (see Incal v. Turkey, judgment of 9 June 1998,
Reports, 1998-IV, § 68, and Çiraklar v. Turkey,
judgment of 28 October 1998, Reports 1998-VII, § 39). The
Court also found in Öcalan v. Turkey (cited above,
§§ 114-115) that, when a military judge participated
in one or more interlocutory decisions that continued to remain in
effect in the criminal proceedings concerned, the military judge's
replacement by a civilian judge in the course of those proceedings
before the verdict was delivered failed to dissipate the applicant's
reasonably held concern about that trial court's independence and
impartiality, unless it was established that the procedure
subsequently followed in the state security court sufficiently
allayed that concern.
In
the instant case, the Court notes that before his replacement in June
1999, the military judge was present at one preliminary hearing and
six hearings on the merits. During these hearings, the first-instance
court heard the applicant, received one of the gendarmerie officers'
statements concerning the applicant's arrest and took a number of
procedural decisions. At one of these hearings, on 21 December 1998,
the applicant's lawyer maintained that the applicant had been
subjected to ill-treatment while in custody and requested the court
to inform the public prosecutor's office of the applicant's
allegation of ill treatment. The first-instance court, however,
neither heard the applicant nor made any decision as to the
admissibility of the applicant's statements taken by the gendarmerie
allegedly obtained as a result of ill-treatment. It simply decided to
authorise the applicant to lodge a complaint with the public
prosecutor's office. After the replacement of the military judge with
a civilian judge, the Diyarbakır State Security Court held four
more hearings on the merits during which the final submissions of
both the public prosecutor and the applicant were read out before the
court, composed of three civilian judges. The first-instance court
also ordered that the applicant be notified of the bill of indictment
and his statements be taken with the assistance of an interpreter. It
did not, however, take any decision as regards the admissibility to
the case-file of the applicant's statements taken by the gendarmerie.
Nor did it renew its decision concerning the applicant's allegations
of ill-treatment. The court further failed to order the gendarmerie
officers to make new statements.
In
these circumstances, the Court cannot accept that the replacement of
the military judge before the end of the proceedings disposed of the
applicant's reasonably held concern about the trial court's
independence and impartiality (see Öcalan, cited above, §
118; a contrario, Ceylan v. Turkey, (dec.), no.
68953/01, 30 August 2005; and Kabasakal and Atar v. Turkey,
no. 70084/01 and 70085/01, § 34, 19 September 2006).
There
has accordingly been a violation of Article 6 § 1 of the
Convention on this point.
2. Fairness of the proceedings
The
Government submitted that the applicant had not been subjected to
ill-treatment while in custody and that, therefore, his statements
could not be considered as having been taken under duress. They
further contended that the trial court had also taken other evidence
into consideration in establishing the applicant's guilt. The
Government finally maintained that the applicant could have requested
to have access to his lawyer after the prolongation of his custody
period by the judge - that is to say after the seventh day of his
detention.
The
applicant repeated his initial submissions.
The
Court notes at the outset that it has already held in previous cases
that a court whose lack of independence and impartiality has been
established cannot in any circumstances guarantee a fair trial to the
persons under its jurisdiction and that, accordingly, it is not
necessary to examine complaints regarding the fairness of the
proceedings before that court (see, among other authorities,
Çiraklar, cited above, §§ 44-45).
Having
regard, nonetheless, to the particular circumstances of the case and,
in particular, to the fact that the main evidence which led the court
to convict the applicant was disputed by the latter, as well as to
the conclusion it has reached under Article 3 of the Convention,
the Court considers in the instant case that it must proceed with its
assessment of the applicant's complaint that his trial was unfair for
reasons unrelated to the question of the status of members of the
state security courts. Only in this way will it be able to examine
the substance of the applicant's main allegation that the charges
against him could not have been found to have been made out if he had
had a fair trial (see Hulki Güneş v. Turkey, no.
28490/95, § 85, ECHR 2003 VII (extracts), and Göçmen
v. Turkey, no. 72000/01, § 68, 17 October 2006).
The
Court reiterates that its duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of fact or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law (see Schenk
v. Switzerland, judgment of 12 July 1988, Series A
no. 140, p. 29, §§ 45-46).
It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question and, where violation of another Convention right is
concerned, the nature of the violation found (see, among others,
Khan v. the United Kingdom, no. 35394/97, § 34, and
Jalloh v. Germany [GC], no. 54810/00, § 95, 11 July
2006).
In
this connection, as regards the nature of the Convention violation
found, the Court recalls that it has already held that the use of
evidence obtained in violation of Article 3 in criminal
proceedings infringed the fairness of such proceedings even if the
admission of such evidence was not decisive in securing the
conviction (see Jalloh, cited above, § 99; Söylemez
v. Turkey, no. 46661/99, § 23, 21 September 2006; and,
mutatis mutandis, Örs and Others v. Turkey, no. 46213/99,
§ 60, 20 June 2006).
In
the present case, the Court notes at the outset that it has
already found that the applicant was subjected to ill-treatment
in breach of Article 3 of the Convention while he was in the custody
of the gendarmerie (see paragraph 58 above). Furthermore, it is not
disputed between the parties that the applicant did not receive any
legal assistance during his custody period and that he had made
statements before the gendarmerie in the absence of his lawyer. The
Court further observes that the applicant denied the accuracy of
those statements, alleging that he had been subjected to
ill-treatment, before the public prosecutor and the Magistrates'
Court on 24 June 1998 as well as throughout the proceedings before
the Diyarbakır State Security Court.
In
this connection, the Court observes that Turkish legislation does not
appear to attach to confessions obtained during questioning but
denied in court any consequences that are decisive for the prospects
of the defence (see Hulki Güneş, cited above, §
91, and Dikme v. Turkey, no. 20869/92, § 111, ECHR
2000-VIII). However, not only did the Diyarbakır State Security
Court not determine the admissibility of the applicant's statements
made in the custody of the gendarmerie before going on to examine the
merits of the case, but also used these statements as the main
evidence in its judgment convicting the applicant, despite his denial
of their accuracy.
In
these circumstances, the Court finds that the use of the applicant's
statements obtained during his custody period in the absence of his
lawyer in the criminal proceedings brought against him rendered his
trial as a whole unfair.
It follows that there has been a violation of Article 6 §§
1 and 3 (c) of the Convention.
V. 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
applicant claimed 50,000 euros (EUR) for pecuniary damage and EUR
100,000 for non-pecuniary damage.
The
Government contested these claims
As
regards the alleged pecuniary damage sustained by the applicant, the
Court notes that this claim has not been
substantiated by any evidence whatsoever. It therefore makes no award
under this head.
The
Court notes that it has found a violation of Articles 3, 5 §
3, 6 §§ 1 and 3 (c) and 13 of the Convention. Having
regard to the circumstances of the present case, and deciding on an
equitable basis, it awards the applicant EUR 15,000.
Nevertheless,
the Court considers that where an individual, as in the instant case,
has been convicted by a court which did not meet the Convention
requirements of independence and impartiality, a retrial or a
reopening of the case, if requested, represents, in principle an
appropriate way of redressing the violation (see Öcalan,
cited above, § 210).
B. Costs and expenses
The
applicant also claimed EUR 1,800 for the costs and expenses incurred
before the Court.
The
Government submitted that the claim was
excessive and unsubstantiated. They argued that no receipt or any
other document had been produced by the applicant to prove his claim.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were 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 claimed in full, less
the sum of EUR 685 received in legal aid from the Council of Europe,
under this head.
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
Declares unanimously the remainder of the
application admissible;
Holds by six votes to one that there has been a
violation of Article 3 of the Convention;
Holds unanimously that there has been a
violation of Article 13 of the Convention;
Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention
in that the applicant was not tried by an independent and impartial
tribunal;
Holds by six votes to one that there has been a
violation of Article 6 §§ 1 and 3 (c) of the Convention in
that the applicant did not have a fair trial;
Holds
(a) by six votes to one that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 15,000 (fifteen thousand euros) in
respect of non-pecuniary damage, plus any tax that may be chargeable,
to be converted into new Turkish liras at the rate applicable at the
date of settlement;
(b) unanimously that the respondent State is to pay the
applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,800 (one thousand eight hundred euros) in
respect of costs and expenses, less EUR 685 (six hundred and
eighty-five euros) granted by way of legal aid, plus any tax that may
be chargeable, to be converted into new Turkish liras at the rate
applicable at the date of settlement;
(c) unanimously that from the expiry of the abovementioned 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the following partly dissenting opinion of
Mr R. Türmen is annexed to this judgment.
B.M.Z.
S.Q.
PARTLY DISSENTING OPINION OF JUDGE TÜRMEN
To
my regret, I am unable to agree with the majority of the Court that
the applicant was arrested on 11 June 1998 by officers from the
Şırnak gendarmerie command and kept in custody until 15
June 1998 without his detention being officially recorded and that he
was subjected to inhuman treatment during this period, in violation
of Article 3 of the Convention.
In
assessing evidence, the Court adopts the standard of proof “beyond
reasonable doubt” (see, for example, Orhan v. Turkey,
no. 25656/94, § 264, 18 June 2002). Such proof may follow from
the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see, for
example, Ülkü Ekinci v. Turkey, no. 27602/95, §
142, 16 July 2002).
It
appears from the facts of the case that on the day of the applicant's
abduction, his son filed a petition with the national authorities,
maintaining that the applicant had been kidnapped by six or seven
persons and that a neighbour, Ö.K., had witnessed the abduction.
Furthermore, on 13 June 1998 Ö.K. testified before the police
that he had seen the applicant being taken away by seven men who were
carrying rifles. He also stated that the applicant's hands had been
tied and that he had been beaten by these men. It also appears that
according to the medical report dated 15 June 1998, the applicant
bore signs of ill-treatment on his body after his release from his
kidnappers.
However,
unlike the majority, I am unable to conclude that the applicant has
laid the basis of a prima facie case that the armed persons who
kidnapped him on 11 June 1998 were State officials or that State
officials were implicated in the abduction. I therefore consider that
the actual circumstances remain a matter for speculation and
assumption. I am of the opinion that there is insufficient evidence
on which to conclude that the applicant was, beyond reasonable doubt,
taken into the custody of the gendarmerie and that the injuries noted
in the medical report of 15 June 1998 were the result of inhuman
treatment for which the Government bore responsibility.
In
the light of the above, I conclude that there has not been a
violation of Article 3 of the Convention.
Having
regard to my conclusion in point 5 and to the Court's finding of a
violation of the applicant's right to a fair hearing by an
independent and impartial tribunal, I am also of the opinion that it
was not necessary to examine the applicant's complaint under Article
6 §§ 1 and 3 (c) of the Convention (see, for example, İncal
v. Turkey, judgment of 9 June 1998, Reports of Judgments and
Decisions 1998-IV, § 74).
Finally,
as I consider that there has not been a violation of Article 3 of the
Convention, I find the sum awarded to the applicant for non-pecuniary
damage excessive.