TEKİN v. TURKEY
Doc ref: 22496/93 • ECHR ID: 001-45868
Document date: April 17, 1997
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22496/93
Salih TEKiN
against
Turkey
REPORT OF THE COMMISSION
(adopted on 17 April 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-40). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-35) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 36-40). . . . . . . . . . . . . . . . . . .4
II. ESTABLISHMENT OF THE FACTS
(paras. 41-168). . . . . . . . . . . . . . . . . . . . .6
A. The particular circumstances of the case
(paras. 42-60). . . . . . . . . . . . . . . . . . .6
B. The evidence before the Commission
(paras. 61-158) . . . . . . . . . . . . . . . . . .8
1) Documentary evidence
(paras. 61-92) . . . . . . . . . . . . . . . .8
2) Oral evidence
(paras. 93-158). . . . . . . . . . . . . . . 14
C. Relevant domestic law
(paras. 159-168). . . . . . . . . . . . . . . . . 24
III. OPINION OF THE COMMISSION
(paras. 169-255) . . . . . . . . . . . . . . . . . . . 27
A. Complaints declared admissible
(para. 169) . . . . . . . . . . . . . . . . . . . 27
B. Points at issue
(para. 170) . . . . . . . . . . . . . . . . . . . 27
C. The evaluation of the evidence
(paras. 171-200). . . . . . . . . . . . . . . . . 27
D. As regards Article 2 of the Convention
(paras. 201-205). . . . . . . . . . . . . . . . . 35
CONCLUSION
(para. 206) . . . . . . . . . . . . . . . . . . . 35
TABLE OF CONTENTS
Page
E. As regards Article 3 of the Convention
(paras. 207-215) . . . . . . . . . . . . . . . . 35
CONCLUSION
(para. 216) . . . . . . . . . . . . . . . . . . . 37
F. As regards Article 5 para. 1 of the Convention
(paras. 217-220). . . . . . . . . . . . . . . . . 37
CONCLUSION
(para. 221) . . . . . . . . . . . . . . . . . . . 38
G. As regards Article 10 of the Convention
(paras. 222-225). . . . . . . . . . . . . . . . . 38
CONCLUSION
(para. 226) . . . . . . . . . . . . . . . . . . . 38
H. As regards Article 6 para. 1 of the Convention
(paras. 227-231). . . . . . . . . . . . . . . . . 39
CONCLUSION
(para. 232) . . . . . . . . . . . . . . . . . . . 39
I. As regards Article 13 of the Convention
(paras. 233-240). . . . . . . . . . . . . . . . . 39
CONCLUSION
(para. 241) . . . . . . . . . . . . . . . . . . . 41
J. As regards Articles 14 and 18 of the Convention
(paras. 242-245). . . . . . . . . . . . . . . . . 41
CONCLUSIONS
(paras. 246-247). . . . . . . . . . . . . . . . . 41
K. Recapitulation
(paras. 248-255). . . . . . . . . . . . . . . . . 42
PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK . . . . . . 43
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 44
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Turkish citizen, born in 1964 and resident in
Diyarbakir. He was represented before the Commission by Mr K. Boyle and
Ms F. Hampson, both teachers at the University of Essex, England.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr A. Gündüz.
4. The applicant alleges that he was ill-treated while he was being
held in detention in Gendarme stations in Derinsu and Derik from 15 to
19 February 1993 and that this event was not adequately investigated
by the State authorities. He invokes Articles 2, 3, 5
para. 1, 6 para. 1, 10, 13, 14 and 18 of the Convention.
B. The proceedings
5. The application was introduced on 14 July 1993 and registered on
16 July 1993.
6. On 11 October 1993 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 22 April 1994
after two extensions of the time-limit fixed for this purpose. The
applicant replied on 12 July 1994 after one extension of the
time-limit.
8. On 20 February 1995 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 8 March 1995. The parties were invited to submit such
further information or observations on the merits as they wished. They
were also invited to indicate the oral evidence they might wish to put
before delegates.
10. On 18 May 1995 the Government submitted further observations
after an extension of the time-limit fixed for this purpose.
11. On 1 July 1995 the Commission decided to take oral evidence in
respect of the applicant's allegations. It appointed three Delegates
for this purpose: Mr H. Danelius, Mr B. Conforti and Mr J. Mucha. It
notified the parties by letter of 19 July 1995, proposing certain
witnesses and requesting the Government to identify the public
prosecutor at Derik to whom the applicant had complained on
19 February 1993, the public prosecutor who had conducted the
investigation and the officers who had been involved in the
interrogation of the applicant. The Government were also requested to
provide the contents of the investigation file which should include,
in particular, the notice dated 19 February 1993, signed by Musa Çitil,
with three reports, and a copy of the decision not to prosecute. The
applicant was requested to provide details of his medical history to
which reference was made in the application. It was subsequently
decided that oral evidence would be taken by the Delegates at a hearing
on 8 November 1995.
12. By letter dated 13 September 1995 the Government provided the
names of two gendarme officers and of three public prosecutors who had
been involved in the investigation of the alleged ill-treatment.
13. On 15 September 1995 the applicant replied to the Government's
further observations and submitted a copy of a judgment of the
Diyarbakir State Security Court of 2 August 1993 in which he was
acquitted of the offence for which he had been arrested in February
1993. He also requested that his father be heard as a witness. His
representatives, moreover, stated that it had not yet been possible to
obtain details concerning the applicant's medical history. By letter
dated 9 October 1995 the applicant submitted further information.
14. On 9 October 1995 the Commission reminded the Government of the
outstanding requests for a number of documents. Furthermore, the
Government were requested to indicate to which of the three public
prosecutors identified by them the applicant had complained.
15. By letter of 24 October 1995 the Commission urgently requested
the Government to provide copies of the still outstanding documents and
to name the public prosecutor to whom the applicant had complained.
16. On 25 October 1995 the Government requested that the hearing be
postponed in view of the fact that following a misunderstanding as to
which cases would be heard they had not had sufficient time to prepare
themselves for the hearing.
17. On 27 October 1995 the Commission granted the applicant legal aid
for the representation of his case.
18. The Commission notified the Government on 30 October 1995 that
the hearing of evidence in the present case would be maintained but
that any witness unable to attend might be heard at a later date.
19. On 30 October 1995 the Government submitted a number of
documents, including the decision not to prosecute.
20. By letter dated 1 November 1995 the applicant's representatives
informed the Commission that they were still not in possession of the
applicant's medical history.
21. Evidence was heard by the Delegates of the Commission in
Diyarbakir on 8 November 1995 from the applicant and his father, Haci
Mehmet Tekin. One of the Delegates, Mr Mucha, was not able to attend
the hearing. Before the Delegates the Government were represented by
Mr A. Gündüz, Agent, assisted by Mr T. Özkarol, Mr A. Solen,
Mr A. Kaya, Mr A. Kurudal, Ms N. Erdim and Mr A. Kaya. The applicant
was represented by Mr K. Boyle, counsel, assisted by Ms A. Reidy,
Mr M. Sakar, Mr O. Baydemir and Ms D. Deniz (interpreter). Further
documentary material was submitted by the applicant and the Government
during the hearing, including a document containing information of the
applicant's medical condition.
22. On 2 December 1995 the Commission considered that the evidence
heard was not conclusive and decided that a further hearing of oral
evidence would take place in Strasbourg on 7 March 1996.
23. On 23 January 1996 the Government submitted documents concerning
the piece of cloth which, according to the applicant, had been used to
blindfold him.
24. By letter of 25 January 1996 the Commission requested the
Government to submit a document which had been referred to as an arrest
report by the Agent of the Government during the hearing on
8 November 1995.
25. On 26 January 1996 the Government informed the Commission that
one of the witnesses summoned to appear at the hearing on 7 March 1996
would not attend. They also proposed that a further three witnesses be
heard.
26. On 13 February 1996 the Government provided the document
requested by the Commission on 25 January 1996.
27. Further evidence was heard by the Delegates of the Commission in
Strasbourg on 7 March 1996 from Harun Altin, Musa Çitil, Sinan Dinç,
Mehmet Dinç and Halit Tutmaz. One of the Delegates, Mr Conforti, was
not able to attend and in his place Mr N. Bratza participated in the
hearing. Before the Delegates the Government were represented by
Mr A. Gündüz, Agent, assisted by Ms A. Emüler, Mr A. Solen, Mr A. Kaya
and Mr A. Kurudal. The applicant was represented by Mr K. Boyle,
counsel, assisted by Ms A. Reidy.
28. On 13 April 1996 the Commission decided to invite the parties to
present their written conclusions on the merits of the case. By letter
dated 26 April 1996 the Commission also reminded the Government of
their undertaking, expressed by the Agent at the hearing on
7 March 1996, to submit a copy of the statement taken by the Turkish
authorities from Mr Musa Çitil, as well as copies of the custody
records of Derinsu Gendarme Station for 1993.
29. On 2 May 1996 the Government submitted the documents which had
been requested by the Commission on 26 April 1996.
30. The applicant submitted his final observations on the merits on
9 June 1996.
31. By letter dated 2 July 1996 the Commission informed the
Government that the time-limit fixed for the purpose of submitting
final observations had expired without any such observations having
been received from the Government or an extension of the time-limit
having been sought.
32. On 10 July 1996 the Government informed the Commission that they
would be able to submit their final observations before the
Commission's October session. In reply, the Commission drew the
Government's attention to the fact that in the circumstances of the
present case it would be for the Commission to decide whether or not
any final observations submitted by the Government would be taken into
consideration.
33. The final observations of the Government were submitted on
26 July 1996.
34. On 8 April 1997 the Commission decided that the Government's
final observations should be taken into consideration.
35. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
36. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
37. The text of this Report was adopted on 17 April 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
38. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
39. The Commission's decision on the admissibility of the application
is annexed hereto.
40. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
41. The facts of the case, in particular those which relate to the
events between 15 and 19 February 1993, are in dispute between the
parties. For this reason, pursuant to Article 28 para. 1 (a) of the
Convention, the Commission has conducted an investigation, with the
assistance of the parties, and has examined written material, as well
as oral testimony, presented before the Delegates. The Commission first
presents a brief outline of the events, as submitted by the parties,
and then a summary of the evidence adduced in this case.
A. The particular circumstances of the case
1. Concerning the events between 15 and 19 February 1993
a. Facts as presented by the applicant
42. The various accounts of events as submitted in written statements
by the applicant are summarised in Section B below. The version
presented in the applicant's final observations on the merits is
summarised here.
43. On the morning of 15 February 1993 the applicant was arrested at
his father's house in the hamlet of Yassitepe by gendarmes under the
command of Harun Altin and taken to Derinsu Gendarme Station. The
applicant was a journalist employed by the Özgür Gündem newspaper in
Diyarbakir. That newspaper had been closed down by the authorities at
the time. The applicant had travelled home to visit his family probably
on 12 February 1993.
44. The applicant was interrogated, assaulted and threatened with
death at the Derinsu Gendarme Station where he was detained until the
morning of 19 February 1993. He was kept in a cell without any
lighting, bed or blankets and in freezing conditions throughout this
time. He was not given any regular meals but only bread and water after
the first day. When he protested about his detention he was assaulted
in his cell by gendarmes including Harun Altin. He was prevented from
freezing to death by the fact that on the night of 18 February 1993 he
was joined in the cell by his three brothers who wrapped him in extra
clothing they had.
45. On the morning of 19 February 1993 the applicant was brought to
the District Gendarmerie Headquarters at Derik. There he was stripped
naked and subjected to torture with the purpose of having him sign a
prepared statement of admission. He was brought before the District
Gendarmerie Commander Musa Çitil who threatened him with death if he
returned to the area.
46. Late in the afternoon the applicant was brought before the public
prosecutor Hasan Altun to whom he complained of his treatment and to
whom he handed a wet blindfold that had been left around his neck. He
was released on 19 February 1993 and having received attention and
medication from his family he returned to Diyarbakir on the morning of
20 February 1993. The applicant did not go to see a doctor after his
release.
47. The applicant has subsequently been the victim of torture at the
hands of other gendarmes on several occasions.
b. Facts as presented by the Government
48. In their final observations on the merits of the application the
Government submit that the applicant, who had served a term of
imprisonment prior to the events at issue for having indulged in
illegal and separatist activities and who had continued these
activities as a journalist working for Özgür Gündem, was arrested in
Yassitepe village on 17 February 1993 and taken to Derinsu Gendarme
Station. He was detained because intelligence information available
suggested that he had threatened village guards in order to make them
lay down their arms. His father and brothers were not arrested, but
they followed the applicant to the Gendarme Station voluntarily. His
brothers were not allowed to enter the security room where the
applicant was kept.
49. The security room at Derinsu Gendarme Station is situated in the
centre of the building, is surrounded by other units and has no
exterior walls, while the outer walls of the building are 50 cm. thick.
Other rooms within the building being heated by coal-burning stoves,
the temperatures in the security room cannot drop below zero. Moreover,
the applicant had not been deprived of food, water or sleep. The
applicant was not questioned while in Derinsu Gendarme Station, nor was
he blindfolded and slapped in the face by Harun Altin.
50. On 19 February 1993 the applicant was taken to Derik District
Gendarmerie Headquarters. He was not exposed to torture or
ill-treatment there.
51. The applicant complained that he had been tortured and ill-
treated at both Derinsu Gendarme Station and Derik District Gendarmerie
Headquarters to the public prosecutor before whom he was brought on
19 February 1993. Although this public prosecutor recorded the
applicant's allegations, he did not act upon them and for this reason
the Supreme Council of Judges and Prosecutors has started an
investigation which will probably lead to disciplinary proceedings
against the public prosecutor.
2. Criminal proceedings against the applicant
52. Finding that the offences of which the applicant was accused fell
within the competence of the State Security Courts, a public prosecutor
at Derik issued a decision of non-jurisdiction and referred the case
to the prosecutor at the Diyarbakir State Security Court.
53. The applicant was subsequently summoned to appear before the
Diyarbakir State Security Court to answer charges under
Articles 188-191 of the Criminal Code (issuing threats). A hearing took
place on 13 May 1993 at which the applicant protested his innocence.
He was acquitted on 2 August 1993. According to the Government's final
observations, the three villagers who gave evidence before the
Delegates (Sinan Dinç, Mehmet Dinç and Halit Tutmaz) had been among the
witnesses who testified in the criminal proceedings that the applicant
had not threatened the village guards.
3. Proceedings before the domestic authorities
54. Following the communication of this application by the Commission
to the respondent Government on 11 October 1993, the Ministry of
Justice (International Law and External Relations General Directorate)
contacted the public prosecutor's office in Derik on 18 December 1993,
informing them of the complaints made by the applicant. A preliminary
investigation was opened.
55. On 20 April 1994 Harun Altin, the commanding officer of Derinsu
Gendarme Station at the time of the alleged incident, was questioned
by a public prosecutor in Daday district at the request of the Derik
public prosecutor Bekir Özenir.
56. A decision of non-prosecution in respect of Harun Altin and Musa
Çitil, the Derik District Gendarmerie Commander at the relevant time,
was issued by the public prosecutor Bekir Özenir on 4 May 1994. It
stated that there was no concrete evidence other than the applicant's
abstract allegations that the defendants Altin and Çitil had committed
the alleged offences of maltreatment and threat.
57. Hereupon, the Ministry of Justice (International Law and External
Relations General Directorate) informed the office of the Mardin public
prosecutor in an undated letter that as the decision of non-prosecution
had not yet been notified to the applicant, the proceedings remained
incomplete, the applicant still having the opportunity to file an
appeal against the decision. Having regard, furthermore, to the
identities of the defendants and the nature of the crime the Ministry
of Justice submitted that the alleged offence might fall within the
scope of the law on the prosecution of civil servants and suggested
that an investigation be carried out to see whether a decision of non-
jurisdiction would be appropriate. This letter was transmitted to the
public prosecutor's office at Derik on 26 April 1995.
58. A decision of non-jurisdiction was issued on 4 May 1995 by the
Derik public prosecutor Hüsnü Hakan Yagiz. The investigation was
referred to the Derik District Administrative Council.
59. On 14 July 1995 a statement was taken from Musa Çitil by a
Gendarme Lieutenant Colonel.
60. The Derik District Administrative Council submitted its summary
investigation report dated 5 September 1995 to the office of the Mardin
Provincial Governor from where, on 12 September 1995, it was referred
to the Mardin Provincial Administrative Board. On 13 September 1995 the
Mardin Provincial Administrative Board decided that due to lack of
evidence Altin and Çitil were exempt from public prosecution.
B. The evidence before the Commission
1. Documentary evidence
61. The parties submitted various documents and newspaper articles
to the Commission. These included reports about Turkey, documents
relating to, inter alia, the applicant's detention in Derinsu and Derik
Gendarme Stations and to the investigation on the domestic level into
the applicant's allegations, and a floor plan of Derinsu Gendarme
Station.
62. The Commission had particular regard to the following documents:
a. Official documents
i. Urological examination report of 15 January 1991
63. The report states that the applicant's right kidney had been
surgically removed in 1986.
ii. Custody note dated 17 February 1993
64. This is a handwritten note, signed by the applicant, a gendarme
officer with number 1989/1007 and a gendarme private by the name of
Abdurrahman Keben. It states that the applicant was taken into custody
on 17 February 1993 around 16.00 hours following information to the
effect that he had threatened and incited the village guards of
Derinsu- Yassitepe hamlet to adhere to the PKK and fight against the
State.
iii. 1993 security room ledger from the Derinsu Gendarme Station
65. The ledger contains an entry to the effect that the applicant was
brought to Derinsu Gendarme Station on 17 February 1993 at 16.30 h.
According to the ledger, the applicant was arrested on suspicion of
making propaganda for the PKK. His arrest had been ordered by the Derik
District Gendarmerie Headquarters. He was transferred to Derik District
Gendarmerie Headquarters on 19 February 1993 at 09.00 h.
66. It appears from the ledger that six people had been detained in
the Derinsu Gendarme Station in 1993; the applicant had been the
second, the first having been arrested on 15 January 1993, the third
on 18 April 1993 and the last person on 5 September 1993. The applicant
was the only detainee to have been held on suspicion of a PKK-related
offence.
iv. Notice of referral of a suspect, dated 19 February 1993,
from Musa Çitil to the public prosecutor's office at Derik
67. In the notice the applicant is referred to as "the suspect". It
states that he is charged with inspiring the village guards of the
Yassitepe hamlet to lay down their weapons, join the PKK and fight
against the State. He is referred to the authority of the public
prosecutor's office. The letter contains the mention that, inter alia,
three witness statements are enclosed. These statements have not been
made available to the Commission (paras. 11, 14, 15).
v. Judgment of the Diyarbakir State Security Court of 2 August
1993
68. The judgment states that the applicant was charged with having
threatened temporary village guards whilst the latter were on duty. The
applicant had denied the charges and the public prosecutor at the State
Security Court had asked for the acquittal of the applicant. The Court
held that it had not been possible to obtain sufficient credible
evidence to the effect that the applicant had committed the alleged
offence and it acquitted the applicant. The applicant was not present
when the judgment was pronounced but he was represented by a lawyer,
Mr Baki Demirhan.
vi. Decision of non-prosecution of 4 May 1994
69. This decision, issued by the Derik public prosecutor Bekir
Özenir, lists as defendants of the offences of maltreatment and threat
Harun Altin and Musa Çitil, and the applicant as the complainant. The
date of the alleged offences is given as "15.2.1993 - 19.2.1993". It
states that the applicant claimed that he had been maltreated whilst
he was being held in detention in Derinsu Gendarme Station on
17 February 1993 on suspicion of aiding and offering shelter to the PKK
terrorist organisation and that his life had been threatened by the
Derik District Gendarmerie Commander, Musa Çitil. As there was no
concrete evidence other than the applicant's abstract allegations that
the defendants had committed the alleged offences, they were freed from
prosecution.
vii. Decision of non-jurisdiction of 4 May 1995
70. This decision was made by the Derik public prosecutor Hüsnü Hakan
Yagiz. It also lists Harun Altin and Musa Çitil as defendants in
respect of the offences of maltreatment and threat, allegedly committed
on "15.2.1993 - 19.2.1993". It goes on to say that the applicant had
been taken into custody on 17 February 1993 for aiding and sheltering
members of the PKK terrorist organisation. The applicant had claimed
that he had been maltreated and that on the same day a threat to his
life had been made by Musa Çitil. In view of the fact that the
defendants were members of the security forces, it was decided that the
investigation was to be referred to the Derik District Administrative
Board pursuant to Decree No. 285.
viii. Decision of non-prosecution of 13 September 1995
71. This decision, issued by the Mardin Provincial Administrative
Board, was taken following the referral of the investigation by the
Derik District prefect to the office of the Mardin Provincial Governor.
Again, it lists Altin and Çitil as defendants of the alleged offences
of maltreatment and threats. The date and place of the offences are
given as 17 February 1993, Derinsu Gendarme Station and Derik District
Gendarmerie Headquarters. It says that the applicant, who is referred
to as the complainant, was detained for having sympathy with the PKK
terrorist organisation, for being a reporter on a like-minded organ of
the press and for having a hostile attitude towards the State and its
soldiers. Although the applicant had alleged to have been subjected to
maltreatment and threats at Derinsu Gendarme Station and Derik District
Gendarmerie Headquarters, he had failed to produce sufficient evidence
to substantiate his allegations. For that reason the Administrative
Board decided unanimously that the defendants Altin and Çitil were to
be exempt from public prosecution.
ix. Expert's examination report of 30 November 1995
72. The report concerns an examination by a tailor, Abdullah Kaya,
of the piece of fabric which the applicant alleges had been used to
blindfold him and which he had given to the Derik public prosecutor on
19 February 1993. It appears from the document that the examination was
requested by the Ministry of Justice (International Law and External
Relations General Directorate) on 23 November 1995.
73. According to the report, the piece of fabric was what is commonly
called a "kefiye", cut in half. A kefiye is used by men in the South
East of Turkey as a head cover and scarf. The piece of fabric had not
been produced in any special way; it had not been turned into a
blindfold nor had it been produced to serve as a blindfold.
b. Statements made by the applicant during his detention
i. Statement dated 19 February 1993
74. Although the document does not indicate where the statement was
taken, it appears to have been drawn up in Derik District Gendarmerie
Headquarters. It is signed by the questioning officer, who is only
identified as "89/1007", a gendarme private called Abdurrahman Keben,
and the applicant.
75. The applicant was asked to respond to the accusation against him,
i.e. that he had threatened the life of the village guards in the
district of Derik if they did not lay down their arms. The applicant
stated that he was a reporter with the Özgür Gündem newspaper. He had
travelled to Yassitepe hamlet three or four days earlier to visit his
family. The applicant denied the charges, saying that he had not
threatened anybody in order to make them lay down their weapons and
that he had not acted on behalf of the PKK.
iii. Statement dated 19 February 1993 taken by the Derik public
prosecutor Hasan Altun
76. The applicant, referred to as the suspect, was informed of the
charges against him and was asked to make a statement. He repeated what
he had told the gendarmes on the same day (para. 75). A number of
unknown people had alleged that he had visited various villages in the
District of Derik where he had incited people to join the PKK and had
threatened the village guards to lay down their arms. The applicant
denied these allegations. He had come to the area to visit his family
in Yassitepe hamlet. He had been taken into custody as a result of the
fact that the gendarmes were prejudiced against him since he worked for
Özgür Gündem. He had been kept in custody in Derinsu and Derik Gendarme
Stations for four days. During his detention he had been forced to
sleep in the cold, he had been submitted to cold water torture and had
been beaten with truncheons. He had been forced to make up statements.
During his interrogation he had been blindfolded. He was told that he
would be shot if he returned to the area.
77. The applicant told the public prosecutor that he wanted to file
a complaint with him against the officers in charge of the Derinsu and
Derik Gendarme Stations for having tortured him whilst he was in their
custody. He also handed the public prosecutor a wet blindfold.
78. Underneath the signatures of the public prosecutor, the clerk who
wrote down the statement and the applicant, the document features a
short second statement signed by the same persons. In this, the
applicant stated that the fabric which he had shown to the public
prosecutor belonged to Derik District Gendarmerie Headquarters and that
it had been used to blindfold him. It had been forgotten and left
around the applicant's neck at Derik District Gendarmerie Headquarters.
c. Statements made by the applicant in support of his
application
i. Statement, undated, handwritten by the applicant
79. On 15 February 1993 the applicant was taken into custody together
with his father and his brothers in the hamlet of Yassitepe by
non-commissioned officers from Derinsu and Dumluca Gendarme Stations.
Throughout the four days of his detention at Derinsu Gendarme Station
he was in a cell where the temperature was -20°C. During this period
his request for a blanket was refused and in order not to freeze, he
had to keep walking and could not go to sleep. He was only given water
and was subjected to abuse. His father and brothers were kept in a
different place; they were not subject to the same procedures.
80. On 19 February 1993 the applicant was taken to Derik District
Gendarmerie Headquarters, his eyes covered as he was taken inside the
building. During the interrogation which took place there he was
stripped naked, sprayed with cold water and beaten with truncheons.
This treatment caused him to faint. When he came to, he was taken up
to see Musa Çitil whom he assumed was the Station Commander. Çitil told
him that he would be killed if he visited the area again.
81. The applicant was released on 19 February 1993 by a Derik Public
Prosecutor before whom he had been brought.
ii. Supplementary statement, undated, taken by Sedat Aslantas
of the Diyarbakir branch of the Human Rights Association
82. On 12 February 1993 the applicant went to Yassitepe hamlet to
visit his family. Although he was on holiday he did carry his press
card in view of the incidents taking place in the area. On his third
day there, i.e. 15 February 1993, his father's house was raided by the
commanders and soldiers of Derinsu and Dumluca Gendarme Stations. The
applicant, his father and three brothers were taken to Derinsu Gendarme
Station. The applicant was detained in the security room and his father
and brothers were put in the canteen.
83. Around midnight, the Station Commander, of whom the applicant
only knew his first name Harun, took them in turn to the interrogation
room. The applicant was asked whether they had threatened village
guards in neighbouring villages in order to make them lay down their
weapons. Throughout the interrogation the applicant suffered verbal
abuse and was beaten. The applicant's father and brothers were released
at about 01.00 hours on the condition that they stay in a house in the
village.
84. The applicant was returned to the security room. In order not to
freeze he was forced to pass two days and two nights without sleep as
he was held for four days in temperatures of -30°C. He was left hungry
and thirsty, and was not given a blanket or any kind of heating despite
the fact that he informed the soldiers that he only had one kidney.
85. On 19 February 1993 the applicant was taken to Derik District
Gendarmerie Headquarters. In the interrogation room pressure was put
on the applicant to admit that he had threatened village guards and had
carried out propaganda for the PKK. He was taken to a different room
where there were three gendarmes who told him to strip naked. They then
proceeded to squirt the applicant with pressurised cold water from a
hose pipe and to beat him on the shoulders and buttocks with a
truncheon. Again, they wanted the applicant to admit to having
threatened village guards and having made propaganda for the PKK as
well as having written newspaper articles directed against them.
However, the applicant did not admit to anything. At some point he lost
consciousness. When he came to, the soldiers were dressing him. He was
taken up to Çitil's room where Çitil told him that he would be killed
if he came to the area again. Having been brought back down again, the
applicant was forced to sign a statement which had been prepared by the
gendarmes before he was taken to a public prosecutor. He told the
prosecutor that the accusations against him were false and, as evidence
of the torture to which he had been submitted, he handed the prosecutor
a wet blindfold that had been left around his neck. The prosecutor
included this in his report and also recorded that the applicant wished
to complain about Musa Çitil.
iii. Supplementary statement dated 27 July 1995, handwritten by
the applicant
86. The applicant had started working as a reporter for Özgür Gündem
when this newspaper first started publishing. He subsequently became
the Özgür Gündem representative in their Cizre and Diyarbakir offices.
The interest of the authorities in the applicant increased as he
started working for the newspaper.
87. The applicant went to visit his family in Derik District on 15
February 1995. When the security officers found out that he worked for
Özgür Gündem, the applicant, along with his father and three brothers,
was taken into custody by Derinsu Gendarme Station. His father and
brothers were released after one day and the applicant was taken to
Derik District Gendarmerie Headquarters. There he experienced five days
of torture: electric shocks, falaka, cold water treatment and crude
beatings.
88. Although he was acquitted of the charges brought against him, he
has subsequently been exposed on numerous other occasions to torture
during detention, as have other reporters of Özgür Gündem.
d. Statements made by other persons
Harun Altin
Statement dated 20 April 1994 taken by public prosecutor at Daday
89. This statement was taken upon the request of the Derik public
prosecutor Bekir Özenir (para. 55).
90. It says that Altin was informed of the allegations and that he
declared that on 15 February 1993 he had been Commander of the Derinsu
Gendarme Station which fell within the jurisdiction of Derik District
Gendarmerie Command. He had held this post for two years. During that
time numerous judicial procedures had been processed and some people
had been kept in custody. It was impossible for him to remember every
person by name and although the applicant may have been detained in
Derinsu, he did not remember him. However, during his term of office
no maltreatment, beating, torture, coercion or any other form of
illegal treatment had taken place in his Station.
Musa Çitil
Statement dated 14 July 1995 taken by a Gendarme Lieutenant
Colonel
91. It appears that this statement was taken within the framework of
the investigation carried out by the Derik Administrative Board
(para. 59).
92. Çitil was informed of the allegations raised by the applicant in
his application to the Commission. In reply, he said that the applicant
had been taken into custody as he was suspected of having exerted
pressure on village guards and of having run a propaganda campaign
amongst them. The applicant had also been charged with aiding and
abetting the PKK terrorist organisation. The applicant had been duly
investigated and referred to the office of the public prosecutor and
the court. The applicant had not been subjected to ill-treatment or
threats, either by Çitil or by others. Had the allegations been true,
the applicant would have informed the legal authority before which he
was brought.
2. Oral evidence
93. Amongst the witnesses summoned to appear before the Commission's
Delegates on 8 November 1995 in Diyarbakir and subsequently on
7 March 1996 in Strasbourg were Hasan Altun (the public prosecutor at
Derik before whom the applicant appeared on 19 February 1993 and to
whom he complained about having been ill-treated in custody), Bekir
Özenir (the Derik public prosecutor who issued a decision of non-
prosecution in respect of Altin and Çitil on 4 May 1994) and Osman
Yetkin (public prosecutor at the Diyarbakir State Security Court). None
of these prosecutors appeared as the Government stated that they had
not had enough time to prepare themselves for the hearing (para. 16).
94. Prior to the hearing in Strasbourg the Government informed the
Commission that as Osman Yetkin, in his capacity of public prosecutor,
had only been involved with the proceedings against the applicant which
led to the judgment of the Diyarbakir State Security Court of
2 August 1993 (paras. 53, 68), and since all documents relating to
these proceedings had been submitted, Mr Yetkin felt he would be unable
to add anything of interest and failed to see the necessity of his
attendance at the hearing. The Commission was further informed that
Hasan Altun was in an analogous situation.
95. At the hearing on 7 March 1996 the Government informed the
Delegates that Bekir Özenir had sent word that he would not attend the
hearing. Mr Özenir had not given reasons for his absence.
96. The evidence of seven witnesses heard by the Delegates may be
summarised as follows:
i. Salih Tekin
97. Salih Tekin stated that he was born in 1964. Prior to becoming
a journalist he had worked in the Revenue Directorate of the Diyarbakir
municipality. However, in 1986 he had been convicted of membership of
the illegal Communist Labour Party and he had served a four and a half
years sentence. After his release he had been unable to return to his
post and he had applied for a job with the Özgür Gündem newspaper after
its launch.
98. He could not remember the exact date when he had gone to the
Yassitepe hamlet to visit his family but it had been in the week prior
to his arrest. At that time Özgür Gündem had temporarily stopped
publishing and only archive work was being carried out. If a story had
developed in the area while he had been there, he would have made a
report about it which he would have sent to the paper for the archives.
99. While he had been with his family, other relatives and friends
had come to see him and he had gone to other villages to visit people.
Some of his relatives and friends were village guards.
100. In the morning of Monday 15 February 1993, when he had had his
breakfast, the Commanders of the Derinsu and Dumluca Gendarme Stations
and a number of their soldiers had arrived in the middle of the village
and had called out for him. He had gone to them and had been told to
get into the taxi with the two Commanders. His father and three
brothers had followed them together with the soldiers. In the taxi the
officers had asked him why he had come to the area, why he was working
for Özgür Gündem, a banned newspaper, and why people had been reluctant
to give a statement about him. He had also been told that he had
threatened the temporary village guards.
101. Having been shown the custody note which states that he had been
arrested on 17 February 1993 (para. 64), he emphasised that his arrest
had taken place on 15 February. He denied ever having read or seen the
note before and said that there was something wrong with the signature.
102. He had been taken to Derinsu Gendarme Station where, upon arrival,
he had been informed that he had been arrested because he was suspected
of having come to the region in order to persuade the temporary village
guards to lay down their arms. He had not seen whether his detention
had been recorded in a register. At the Gendarme Station, he had been
separated from his father and brothers and put in a cell on his own.
The cell was square, with concrete walls and floor, about 1,80 metre
high, and it would have held fifteen people standing up. It had no
window or light and the door was made of iron and had a grid which
could be opened from the outside. There was no chair, no bed and no
blankets. Furthermore, the temperature in the cell was extremely cold
and there was no heating.
103. At around 23.00 hours he had been blindfolded by two soldiers and
taken to the room of the Station Commander whom he had known only as
"Harun". He had been interrogated for about forty-five minutes to one
hour. Harun had asked him why he worked for a banned newspaper and had
told him that he had threatened village guards and that he was an enemy
of the State. He had denied the accusations. At the end of the
interrogation Harun had slapped him three times in the face, saying
that he was a liar and that he should be killed. He had then been taken
back to the cell.
104. When he was asked why he had said in one statement that it had
been -20°C (para. 79) in the cell and in another statement had
mentioned -30°C (para. 84), he explained that it had been impossible
for him to measure the exact temperature.
105. In order to stave off the cold he had been forced to keep moving
in the cell. Following an operation in 1986 he had only one kidney.
Even though he had informed the Station Commander of this fact when he
had been interrogated and had said that for this reason he needed to
drink water and to keep inside a warm environment, he had been refused
both a blanket and food. When he had not been walking, he had been
leaning with one shoulder against the wall or had sat on his feet.
Sometimes he would sleep for twenty minutes like that. Around noon the
following day he had protested against this treatment by yelling loudly
"Stop this arbitrary treatment!". The Station Commander and five or
six privates had come into the cell and, at the order of the Officer,
the latter had struck him with fists and kicked him. He had been told
that they would give him things when they felt like it.
106. That day, around 15.00 hours, he had been given a glass of cold
water. He could not remember exactly but he thought that it had been
on the second or the third day of his detention that he had been given
half a loaf of bread to eat. Once a day the Station Commander would
come to the cell accompanied by a number of privates. They threatened
him and said that he would freeze to death in the cell.
107. On the third night of his detention, around 02.00 or 03.00 hours,
his three brothers had been brought to his cell. He had tried to keep
awake but at that time he had not been able to stand it any longer and
he had collapsed. His brothers had put a coat underneath him and had
also put some of their clothes on him. Although he did not remember
whether his brothers had been wearing the head scarfs typical of the
region he knew that if they had given him such a scarf he would have
put it around his head rather than neck. Then his brothers had sat on
him to warm him up. He did not know why his brothers had been allowed
to join him in the cell. They had told him that they had been made to
wait in the snow and had occasionally been allowed to wait in the
sentry box. At some stage they had quarrelled with the soldiers and had
told them that if they would not be released they should be put in the
same cell as their brother. His brothers had been taken away from him
the next day, 19 February 1993.
108. That morning, i.e. 19 February 1993, he had been blindfolded, put
into a military vehicle and taken to Derik District Gendarmerie
Headquarters. Confronted with his supplementary statement to the Human
Rights Association, where it says that he spent two days and two nights
without sleeping in Derinsu, he said that when he had looked through
the document before signing it he had probably missed the discrepancy
in the number of days.
109. Upon arrival at Derik District Gendarmerie Headquarters a second
blindfold had been put on him. After having been made to sit and wait
with his head on a table for ten minutes he had been taken towards a
corridor to the right of where he had been sitting. He had been made
to enter a room which he assumed must have been a washroom. Despite the
two blindfolds he had been able to see a little of the floor from
underneath the blindfolds. In this manner, he had seen three pairs of
military boots of the type soldiers wear. He had been ordered to strip
naked. One of the soldiers had yelled at him that the interrogation had
begun; the second soldier had then started spraying him with cold water
from a hosepipe while the third soldier had beaten him with a
truncheon. At some stage they had also subjected him to electric shocks
and falaka. They had continued this treatment despite his telling them
that he was ill and showing them his surgical scars.
110. All the time one of the soldiers had put questions to him about
why he worked for Özgür Gündem and why he had come to the region. He
had been told that they had obtained information to the effect that he
had threatened the temporary village guards in his village. He had
denied all allegations and had told the soldiers that the people in the
village were his relatives and acquaintances, including the village
guards. After approximately three hours he had fainted. He did not know
how long he had been unconscious.
111. When he had come to, he had found that he was being dressed by
the soldiers. He had been asked to sign a statement which the soldiers
had prepared but he had refused and had said that he would read it
first. He had then been taken upstairs to a room where he had heard
someone introduce himself as the District Gendarmerie Commander, Musa
Çitil. One of the soldiers accompanying him had told Çitil that a
statement had been prepared and that he had not signed it. Çitil had
repeated the questions that had already been put to him and had then
said to him that he was writing news about the region in a banned
newspaper and that he had threatened the village guards. Finally, Çitil
had told him that he was going to be sent to the public prosecutor but
that if he ever came back to the area two holes would be put in his
head. Çitil had then ordered the soldiers to write in a statement what
he, Tekin, had told them.
112. He had been taken downstairs again and shortly afterwards had
been given a statement to read. His blindfold had not been removed but
while one of the soldiers had held his head over a table, the blindfold
had been slightly raised to enable him to read and sign the statement.
He confirmed that this was the statement of 19 February 1993
(paras. 74-75) and that its contents were correct.
113. He had subsequently been taken to the office of the public
prosecutor which was located in a nearby building. His blindfold had
been removed somewhere near the exit of the Derik District Gendarmerie
Headquarters; however, the second blindfold had slipped down around his
neck and it had been left there. This blindfold had been made from the
head scarf material used in the area.
114. The public prosecutor's office was situated in a building close
to the Gendarme Headquarters and as he had been brought before the
public prosecutor he had told the prosecutor that it must be possible
to hear the screams of the people being tortured in the Gendarme
Headquarters. He had said that during his interrogation he had been
sprayed with cold water and beaten with truncheons. He had removed the
wet blindfold from around his neck and had wrung it out over the
prosecutor's desk. He had denied the accusations which had been
levelled against him and had said that he wanted to file a complaint
against the people who had maltreated him. In reply, the public
prosecutor had said that he was a man of the law, that he had received
complaints of torture before, that he had warned the military on this
matter but that there was nothing he could do about it. However, the
statement which had subsequently been drawn up did include his
allegations of torture, and a separate statement at the bottom of the
second page indicated that he had submitted a piece of fabric which he
claimed had been used as a blindfold.
115. He had further told the public prosecutor that he ought to be
sent to a hospital. However, the prosecutor had told him that he would
be released and that he would be informed of further developments in
his case.
116. Upon his release, he had stayed the night at his father's house.
His mother and his wife had looked at his back and had said that it was
bruised. They had also washed his feet with warm water but he had been
unable to feel anything. The next day he had returned to his house in
Diyarbakir. He had not seen a doctor. Incidents of detention and
torture having become commonplace, he had only seen cause for happiness
at his release and had not thought about going to a doctor or obtaining
a medical certificate which would substantiate his allegations of
having been maltreated. Besides, he had been in a shock. From a
pharmacy in Diyarbakir he had purchased a medicine which cleanses the
kidney, some antibiotics and an ointment for his feet and shoulders.
He had then stayed at home for a week, after which he had gone to the
Diyarbakir branch of the Human Rights Association of which he was a
member. There he had been told that officials working in the region
where a state of emergency had been declared were not subjected to
prosecution and that for that reason he would have to complain to the
Commission.
117. Subsequently he had been summoned to appear before the Diyarbakir
State Security Court on charges of having threatened village guards.
He had told the Court that these charges were fabrications. During the
hearing he had also said that he had been ill-treated during his
detention and he thought that this had been recorded in the minutes of
the hearing. He had not been present when witnesses had been heard by
the Court. He had been acquitted of the charges.
118. About one month before appearing before the Delegates he had
received a decision issued by the Mardin Provincial Administrative
Board from which it appeared that no action would be taken against the
officers Harun and Çitil.
119. Having taken the threats made against him seriously, he had not
been back to Derik since February 1993.
ii. Haci Mehmet Tekin
120. Haci Mehmet Tekin said that he was born in 1923 and that he was
the applicant's father. He said that the applicant had come to visit
him on Monday 15 February 1993 and had been arrested the next day, but
also that the applicant had stayed at the family home for one night
before being arrested on 15 February 1993. His house had been
surrounded by soldiers from two Gendarme Stations and he and his four
sons, including the applicant, had been arrested and taken to Derinsu
Gendarme Station. Upon arrival, the applicant had been separated from
him and his other sons.
121. Asked whether he had been informed of the reason for his arrest,
he said that he had been told that the applicant had been arrested
because he worked for Özgür Gündem. He had also been told to dissuade
the applicant from that kind of thing or else he would not see his son
again.
122. He had been forced to wait outside the Gendarme Station in the
freezing cold with his three sons. They had been made to lie down in
the snow. Once they had been allowed to sit in the canteen for about
three hours but they had not been given anything to eat or drink.
Although he had not been locked up inside a building he maintained that
he had been detained and that there had been a large number of guards
and soldiers. Around 03.00 hours he had been able to leave. He was
unable to explain exactly how his release had come about. He said that
by 03.00 hours they had been so cold that they could stand no more. He
had then given his identity card to the Station Commander Harun and had
escaped, together with his sons, without informing anybody. However,
he also stated that in view of his age a soldier had told him that he
could go but that his sons had stayed behind. He had instructed his
sons to watch over their brother.
123. He had not rested until the applicant had been released, knowing
that if he did nothing his son would be made to disappear. He had
submitted petitions to the office of the public prosecutor, to the
Provincial Governor in Mardin and to the chief public prosecutor in
Mardin. When he had eventually returned to Derinsu, a neighbour had
given him extra clothing for the applicant. He had given the clothes
to his sons and they had taken them to the applicant on the third day
of the latter's detention. They had also tried to give the applicant
a blanket but this had been refused. He was not very clear about how
his sons had obtained permission to enter the cell where the applicant
was held. He thought that his sons had pushed the Station Commander
Harun until the latter said, "You'll die too. Die with Salih."
124. When his sons had entered the applicant's cell, they had found
their brother lying on the floor in a coma. They had given him the
clothes and warmed him up; they had saved the applicant's life.
125. When the applicant had been taken to Derik District Gendarmerie
Headquarters on 19 February 1993 he had followed the armoured vehicle
in a taxi. He had gone there with a large number of relatives and they
had all waited outside. A village guard had told them that the
applicant was being tortured inside the Gendarme Headquarters. Upon the
applicant's release, they had immediately taken him away to a
relative's house in Derik.
126. He had been told that, while in detention, cold water or ice had
been poured over the applicant's naked body. This had occurred at
Derinsu Gendarme Station as well as at Derik District Gendarmerie
Headquarters. There had been bruising caused by beatings with
truncheons on the applicant's body and there had been blood on his neck
and shoulders. The family had treated the applicant's wounds by
applying ointments and bandages.
127. Although he first said that they had been afraid to stay in Derik
and had left after one hour, sending the applicant to Diyarbakir by
taxi, he also said that after the applicant's release the latter had
come by taxi and had stayed for one night. He had two houses.
128. He thought that the applicant had seen a doctor in Diyarbakir
but he did not know when. The applicant had told him that he had gone
to a doctor and had got everything.
129. About one month before appearing before the Delegates, soldiers
and guards had taken him to Üçtepe Gendarme Station where he had been
forced to sign a statement which said that the applicant had put
pressure on the village guards to disarm. Out of fear he had signed
this statement.
iii. Harun Altin
130. Harun Altin stated that he was born in 1966 and that he was a
non-commissioned gendarme officer. From July 1991 until August 1993 he
had been Commander of Derinsu Gendarme Station.
131. He had arrested the applicant in February 1993 at the orders of
the District Gendarmerie Commander, Musa Çitil. The applicant had been
accused of making propaganda against the State. He did not remember the
exact date of the arrest but said that this would have been recorded
in the custody ledger of the Gendarme Station. When shown the custody
note of 17 February 1993 (para. 64), he stated that this indicated that
the applicant had been arrested on 17 February 1993.
132. He had gone to Yassitepe hamlet towards evening in a commercial
taxi as the Gendarme Station did not have a vehicle, accompanied by two
soldiers. In Yassitepe he had asked in which house the applicant was
staying. The applicant had been the last person to come out of the
house he had been directed to. He had invited the applicant to come to
the Gendarme Station and the applicant had not resisted. Although he
did not exactly remember, he thought it unlikely that he would have
spoken to the applicant while they had been travelling to the Gendarme
Station. Once there he would have informed the applicant of the reason
for his arrest.
133. In Derinsu Gendarme Station the applicant had been put into the
security room. This room measured approximately 2,5 by 3,5 metres and
was 3 metres high. It had no window, but the grid in the door served
as such. The security room contained a bed with a mattress, a pillow,
a sheet and, as it was winter, two woollen blankets. Although there was
no heating in the room, it was surrounded by rooms which had coal
stoves in them. Furthermore, the outer walls of the Station were 50 cm.
thick. It was therefore not possible that it had been cold in the
security room. The applicant had not complained to him that it was
freezing cold in the security room.
134. The applicant had received water and three meals a day inside the
security room. Ordinarily a person would have a medical examination
before being detained. However, as no doctor was present at Derinsu
Gendarme Station and the Station did not have a vehicle and District
Gendarmerie Headquarters was far away, the circumstances had not
permitted the applicant being seen by a doctor. But the applicant had
told him that he did not have any medical problems and had not
mentioned the fact that he only had one kidney.
135. He had not arrested the applicant's father or brothers. He had
been told that members of the applicant's family had come to the
Gendarme Station and had requested permission to see the applicant.
However, he had refused permission. He had not seen the family himself
but had his refusal conveyed to them by a guard. Furthermore, he had
not allowed the applicant's brothers to join the applicant in the
security room.
136. The applicant had not been interrogated by anybody whilst at the
Station, nor had he been blindfolded. Derinsu Gendarme Station had no
interrogation team. If suspects had to be interrogated, he would either
inform the District Gendarmerie Commander who would send a team, or he
would send the suspect to Derik District Gendarmerie Headquarters from
where he would subsequently be sent to Mardin Provincial Gendarme
Headquarters.
137. Apart from noting down the name of a detained person in the
custody ledger, a custody note like the one dated 17 February 1993
would also be drawn up when a person was placed in detention. The
custody ledger would be sent to District Gendarmerie Headquarters at
the end of the year, whereas the custody note would be included in the
file concerning the detained person. He had not signed the custody note
of 17 February 1993 as this was the task of the Station's staff
members. The two people who had signed the custody note pertaining to
the applicant had in fact been intelligence personnel from Derik
District Gendarmerie Headquarters who had been assigned to Derinsu.
They had been under the command of Musa Çitil. He did not know why they
had come but their work was to gather intelligence. Musa Çitil had told
him that he would send a car to collect the applicant and the
intelligence personnel. For that reason he had asked these two people
to sign the custody note. He regarded this procedure as normal since
he had taken the applicant into custody on the orders of the District
Gendarmerie Commander and had not himself executed any procedural acts
in connection with the applicant. He was not able to identify the
second person who had signed the note of whom only the registration
number "1989/1007" appeared on the document.
138. The applicant had been kept at Derinsu Gendarme Station for two
days as no car had been available from Derik District Gendarmerie
Headquarters to collect him before then.
139. When he had been asked to comment on the applicant's allegations
by a public prosecutor on 20 April 1994 (paras. 89-90) he had only been
given the applicant's name as a reference and that on its own had not
meant anything to him. When he had received the summons to appear
before the Delegates he had contacted his former colleagues since, out
of curiosity, he had wanted to find out the details of the incident.
He had been told that the applicant had been the journalist who had
been taken into custody. In that context and by association he had
remembered the applicant. However, he had not contacted Musa Çitil in
this respect.
iv. Musa Çitil
140. Musa Çitil said that he was born in 1962. In February 1993 he had
been the Commander of the District Gendarmerie of Derik.
141. He had received complaints that the applicant had been putting
pressure on relatives, who were village guards in the villages of the
district, to disarm. For this reason he had ordered the Commander of
Derinsu Gendarme Station, Harun Altin, to take the applicant into
custody. He had also assigned two intelligence officers who had been
on duty in the area to accompany Altin. He had not ordered the arrest
of the applicant's father or brothers. The applicant was to be kept at
Derinsu Gendarme Station until Derik District Gendarmerie Headquarters
had a car available to collect him. That day the Gendarmerie
Headquarters had only had one car at its disposal which was needed for
other purposes. The other cars had been sent to collect the persons who
had complained about the applicant so that they could make a statement.
142. The applicant had not been taken into custody to be interrogated
but to have his statement taken. Interrogations would usually be
conducted by interrogation specialists from the interrogation unit
attached to the Provincial Gendarmerie. Since he had had the details
of the case he had thought it more advantageous for the applicant's
statement to be taken at Derik District Gendarmerie Headquarters rather
than Derinsu Gendarme Station. He thought that the applicant had stayed
two days at Derinsu Gendarme Station. The arrest records had been
prepared at Derinsu by the intelligence officers who had been on duty
there.
143. The persons who had complained about the applicant had
communicated with him directly; they had been his informants. In cases
such as this he would try to confirm the validity of the information
with the intelligence staff stationed at the Gendarmerie Headquarters.
If the information was correct, a member of his intelligence staff
would take a statement from the accused. The applicant's statement had
been taken by a gendarme soldier who had been assigned to intelligence
duty and by a specialist sergeant. The registration number "89/1007"
belonged to this specialist sergeant; his name was Mustafa Yanalak.
Headquarters in the morning. The intelligence officers had put the
accusations to the applicant and had noted down his response. This had
taken place in the room of the intelligence officers which was situated
on the ground floor, to the right of the entrance of the building. The
applicant had not been taken into the security room of the Gendarmerie
Headquarters, for this reason his name had not been entered into the
custody ledger. He had not taken the applicant into his office to put
questions to him. He had not been aware that the applicant was a
journalist until his statement had been taken. The applicant's arrest
had not been connected to his profession of journalist but only to the
allegations that had been brought against him.
145. After having taken the applicant's statement, the specialist
sergeant had gone up to his room on the first floor and had told him
that the procedures had been completed. He had then gone down to where
the applicant was waiting, near the entrance, and had told him that he
would be sent to the public prosecutor. He had also asked the
applicant, pursuant to customary procedure, whether he had any
complaints. If the applicant had then told him that he had been
subjected to ill-treatment he would immediately have been sent to a
doctor and the time of this referral would be noted. However, as the
applicant had not made any complaints, the referral to the public
prosecutor had only contained the date (para. 67).
146. The case had attracted a lot of publicity. The Minister of the
Interior had telephoned the Governor of the Province who in his turn
had verbally requested that the applicant's case be heard in court as
soon as possible. As to the further proceedings against the applicant,
he only knew that the applicant had not been held in detention during
the trial. He was not aware of the outcome of the proceedings.
147. When shown the statement which the applicant had made to the
public prosecutor (paras. 76-78) he said that the applicant had not
been blindfolded nor ill-treated. The applicant had only been at Derik
District Gendarmerie Headquarters for one hour or so. He had not
threatened the applicant not to come back to the area.
148. He had been asked to make a statement regarding the applicant's
allegations to his commander at his present place of work. This
statement had then been sent to the Derik District Governor.
v. Sinan Dinç
149. Sinan Dinç stated that he was born in 1967. He was a farmer and
lived in Yassitepe hamlet. His house was situated twenty metres from
the house of the applicant's father. He had very good relations with
the applicant's family. He had been a village guard for the past
two years.
150. In February 1993 the applicant had come to Yassitepe. During his
stay in Yassitepe, the applicant had also visited other villages. Five
or six days after his arrival the applicant had been taken to Derinsu
Gendarme Station. He had not witnessed this arrest as he had taken his
animals to graze and upon his return in the evening had been told about
it. The applicant's father and brothers had not been arrested; they had
gone to the Gendarme Station on their tractor to find out what was
happening to the applicant. However, they had told him that they had
been unable to find out anything.
151. After three days the applicant had been released and had returned
to Yassitepe. He had gone to welcome the applicant back and had asked
him what had happened. The applicant had said that his statement had
been taken but that the Station Commander had treated him well. He had
not seen any bruising, swelling or wounds on the applicant's face.
vi. Mehmet Dinç
152. Mehmet Dinç said that he was born in 1969. He lived in the hamlet
of Yassitepe along with his brother, Sinan Dinç, and the applicant's
family. The brothers' houses were about 100 metres apart, but he was
the closest neighbour to the applicant's family. He had become a
village guard at the same time as his brother.
153. In February 1993 the applicant had been arrested. He had
witnessed the Commander of Derinsu Gendarme Station arrive in the
hamlet in a commercial taxi towards evening. The Commander had been
accompanied by a specialist sergeant and a soldier. They had gone to
one of the two houses belonging to the applicant's father and had
called the applicant. When the applicant did not appear, the soldier
had gone to the other house and had brought the applicant to the
Commander.
154. The applicant's father, mother and brothers had followed the
applicant to the Gendarme Station. None of them had been arrested.
Towards evening the parents had returned. The applicant's father had
told him that the Station Commander had refused to let the applicant
go and that the Commander at Derik District Gendarmerie Headquarters
had sent for the applicant.
155. Three days later the applicant had returned. He had seen the
applicant arrive. In the evening he had gone to welcome the applicant
back. On that occasion the applicant had told him that the Station
Commander had even given him a blanket and that he was very pleased
with the way he had been treated. The applicant had not looked tired;
nor did he have wounds on his face. The applicant had not told him that
he had been ill-treated.
vii. Halit Tutmaz
156. Halit Tutmaz stated that he was born in 1963. He was a farmer and
lived in Yassitepe, about 150 metres from the house of the applicant's
father. He had been a village guard for the past ten years. He had
never been asked questions about this matter before.
157. He remembered that the applicant had been arrested in
February 1993 and thought that this had been for political reasons. He
had not been in the hamlet when the arrest had taken place. He had
returned towards evening and had been informed about it. He had also
been told that the applicant's father and his brothers had followed the
applicant to Derinsu Gendarme Station. They had returned the same
evening. The applicant's father had said to him that there was nothing
to worry about and that the applicant would perhaps be released the
next day.
158. A few days later the applicant had returned and he had gone to
visit the applicant. The applicant had not said much and he had not
asked many questions. He remembered that the applicant had given a
statement to a public prosecutor but the applicant had not said to him
that he had told the public prosecutor that he had been ill-treated in
custody.
C. Relevant domestic law and practice
159. The parties have made no separate, detailed submissions with
regard to domestic law and practice applicable in this case. The
Commission has incorporated relevant extracts derived from, inter alia,
its summary of the relevant domestic law and practice as submitted by
the parties in the case of Aksoy v. Turkey (Comm. Rep. 23.10.95,
paras. 117-133, Eur. Court HR, judgment of 18 December 1996, to be
published in Reports 1996).
160. The Government submit that the following provisions are relevant.
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its
own acts and measures."
161. This provision is not subject to any restrictions even in a state
of emergency or war. The latter requirement of the provision does not
necessarily require proof of the existence of any fault on the part of
the Administration, whose liability is of an absolute, objective
nature, based on a 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.
162. The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... actions for compensation in relation to the exercise of the
powers conferred by this law are to be brought against the
Administration before the administrative courts."
163. The Turkish Criminal Code makes it a criminal offence
- to deprive someone unlawfully of his or her liberty (Article 179
generally, Article 181 in respect of civil servants),
- to issue threats (Article 191),
- to subject someone to torture or ill-treatment (Articles 243 and
245)
164. For all these offences complaints may be lodged, pursuant to
Articles 151 and 153 of the Code of Criminal Procedure, with the public
prosecutor or the local administrative authorities. The public
prosecutor and the police have a duty to investigate crimes reported
to them, the former deciding whether a prosecution should be initiated,
pursuant to Article 148 of the Code of Criminal Procedure. A
complainant may appeal against the decision of the public prosecutor
not to institute criminal proceedings.
165. Generally, if the alleged author of a crime is a State official
or civil servant, permission to prosecute must be obtained from local
administrative councils (the Executive Committee of the Provincial
Assembly). The local council decisions may be appealed to the Council
of State; a refusal to prosecute is subject to an automatic appeal of
this kind. If the offender is a member of the armed forces, he would
fall under the jurisdiction of the military courts and would be tried
in accordance with the provisions of Article 152 of the Military
Criminal Code.
166. Any illegal act by civil servants, be it a crime or a tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts. Pursuant to Article 41
of the Civil Code, an injured person may file a claim for compensation
against an alleged perpetrator, who had caused damage in an unlawful
manner whether wilfully, negligently or imprudently. Pecuniary loss may
be compensated by the civil courts pursuant to Article 46 and
non-pecuniary or moral damages awarded under Article 47.
167. Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
168. The applicant points to certain legal provisions which in
themselves weaken the protection of the individual which might
otherwise have been afforded by the above general scheme. Decree 285
modifies the application of Law 3713, the Anti-Terror Law (1981), in
those areas which are subject to the state of emergency, with the
effect that the decision to prosecute members of the security forces
is removed from the public prosecutor and conferred on local
administrative councils.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
169. The Commission has declared admissible the applicant's complaints
that he was ill-treated while he was being held in detention at the
Gendarme stations in Derinsu and Derik from 15 to 19 February 1993 and
that this event was not adequately investigated by the State
authorities, that his right to receive and impart information has been
interfered with, that he has no access to court or no effective remedy
in respect of his complaints, that he has been subject to
discrimination and that his experiences disclosed restrictions on
Convention rights for ulterior purposes.
B. Points at issue
170. The points at issue in the present case are as follows:
- whether there has been a violation of Article 2 (Art. 2) of the
Convention;
- whether there has been a violation of Article 3 (Art. 3) of the
Convention;
- whether there has been a violation of Article 5 para. 1
(Art. 5-1) of the Convention;
- whether there has been a violation of Article 10 (Art. 10) of
the Convention;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- whether there has been a violation of Article 13 (Art. 13) of
the Convention;
- whether there has been a violation of Article 14 (Art. 14) of
the Convention;
- whether there has been a violation of Article 18 (Art. 18) of
the Convention.
C. The evaluation of the evidence
171. Before dealing with the applicant's allegations under specific
Articles of the Convention, the Commission considers it appropriate to
assess the evidence and attempt to establish the facts, pursuant to
Article 28 para. 1 (a) (Art. 28-1-a) of the Convention. The following
general considerations are relevant in this context:
i. It is the Commission's task to establish the facts, and in
doing so the Commission will be dependent on the co-operation of
both parties. Since there have been no findings of fact made by
domestic courts as regards the subject-matter of the applicant's
complaints, the Commission must to a large extent base its
conclusions on statements by witnesses who have direct or
indirect knowledge of the situation which is the basis of the
application. The Commission has no means to force a person to
come forward to give evidence as a witness, but it is clear that
where an important witness fails to appear, this may affect to
a considerable extent the possibilities of the Commission to
establish the facts beyond reasonable doubt (cf. No. 22729/93,
Kaya v. Turkey, Comm. Rep. 24 October 1996, currently pending
before the Court). In this respect, the Commission notes that the
three public prosecutors who had been summoned to give evidence
before the Delegates did not attend the hearings (paras. 93-95).
In the case of Bekir Özenir, no reason for his absence was
provided. As regards Osman Yetkin and Hasan Altun the Delegates
were informed that these prosecutors considered they had nothing
to add to what appeared from the documents. However, public
prosecutors are civil servants, and pursuant to Article 28
(Art. 28) of the Convention it is the Government's duty to
contribute to the investigation of an admissible case. Hence, a
Government is under an obligation to see to it that its own
officials contribute, as far as is required by the Commission,
to the investigation. In the present case no convincing reason
has been put forward which could have justified the absence of
the witnesses concerned. Moreover, the Commission cannot accept
that witnesses whom it or its Delegates wish to hear, make their
own assessment of whether or not their evidence is relevant or
important.
ii. In relation to the oral evidence, the Commission has been
aware of the difficulties attached to assessing evidence obtained
orally through interpreters: it has therefore paid careful and
cautious attention to the meaning and significance which should
be attributed to the statements made by witnesses appearing
before its Delegates; in relation to both the written and oral
evidence, the Commission has been aware that the cultural context
of the applicant and witnesses has rendered inevitable a certain
imprecision with regard to dates and other details (in
particular, numerical matters) and does not consider that this
by itself reflects on the credibility of the testimony.
iii. In the assessment of the evidence as to whether or not the
applicant's allegations are well-founded, the standard of proof
is that of "beyond reasonable doubt" as adopted by the Court in
the Ireland v. the United Kingdom case in relation to Article 3
(Art. 3) (Eur. Court HR, judgment of 18 January 1978, Series A
no. 25, p. 65, para. 161) and applied by the Commission in a
number of cases concerning allegations of Convention violations
in South-East Turkey (cf. No. 23178/94, Aydin v. Turkey, Comm.
Rep. 7.3.96, pp. 28-29, para. 163 sub iii; No. 22275/93, Gündem
v. Turkey, Comm. Rep. 3.9.96, p. 23, para. 152, both cases
currently pending before the Court). Such proof may follow from
the co-existence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact and, in
addition, the conduct of the parties when evidence is being
obtained may be taken into account.
1. Concerning the applicant's detention
172. The applicant alleges that he was arrested on the morning of
15 February 1993 and that he was detained in Derinsu Gendarme Station
until the morning of 19 February 1993. He submits that during his
detention he was kept in a cold, dark cell, with no heating, bed or
blankets, and that he was denied food and liquids. Furthermore, he was
aggressively interrogated while being blindfolded, assaulted and
threatened with death.
173. He further submits that he was taken blindfolded to Derik
District Gendarmerie Headquarters on the morning of 19 February 1993.
Upon arrival a second blindfold was put on him and he was forced to
strip naked. He was then hosed with cold water, beaten with a truncheon
and subjected to electric shock treatment. He was asked to sign a
statement but he refused to do so without having seen the statement.
This treatment continued until he lost consciousness. After having been
threatened with death by the Gendarmerie Commander, Musa Çitil, he
signed a statement which contained his denial of the allegations
brought against him. Towards the end of the working day he was rushed
to the office of the public prosecutor.
174. According to the Government, the applicant was arrested towards
the evening of 17 February 1993 and kept in the security room of
Derinsu Gendarme Station until the morning of 19 February 1993. They
deny the allegations as to the conditions of the applicant's detention
and the treatment he was given at Derinsu. In particular, the
Government submit that it was impossible for the temperature in the
security room at Derinsu to be as low as claimed by the applicant.
Moreover, they maintain that while in Derinsu Gendarme Station the
applicant was not questioned or interrogated.
175. While the Government acknowledge that on the morning of
19 February 1993 the applicant was taken from Derinsu Gendarme Station
to Derik District Gendarmerie Headquarters, they maintain that the
applicant only stayed at the Gendarmerie Headquarters for about one
hour, this being the time needed for the specialist sergeant Mustafa
Yanalak and the gendarme soldier Mustafa Keben to take his statement.
The applicant was neither blindfolded nor ill-treated.
176. The Commission notes in the first place that it is not in dispute
between the parties that the applicant was arrested and detained in
Derinsu Gendarme Station until 19 February 1993. However, it has been
presented with diverging accounts as to the date on which the applicant
was arrested and as to the conditions of his detention.
177. It has not become clear whether the applicant was kept at Derinsu
for two or four days. It is true that the Commission has been provided
with a custody note (para. 64), purportedly bearing the applicant's
signature, and the Derinsu Gendarme Station's custody ledger
(paras. 65-66) from which it appears that the applicant was in fact
detained from 17 February 1993. Furthermore, in the statement which the
applicant made to the Human Rights Association, it is said that he was
forced to pass two days and two nights without sleeping as he was held
for four days in Derinsu Gendarme Station (para. 84). However, the
Commission notes that when confronted with this apparent inconsistency
in his account at the hearing before the Delegates, the applicant
stated that he had never seen the custody note (para. 101) and that he
must have overlooked the matter of the number of days he spent at
Derinsu when he read through the statement made to the Human Rights
Association before signing it (para. 108). In addition, the Commission
observes that the challenged passage from the applicant's statement to
the Human Rights Association could also be interpreted as meaning that
he had not been able to sleep in Derinsu Gendarme Station until the
third day of his detention. This interpretation would in fact tally
with the applicant's testimony that when his brothers joined him in the
security room on the third night they had found him unconscious
(para. 107).
178. If there is an inconsistency in the applicant's evidence in this
respect, the Commission finds that it is of a minor nature in light of
the detailed, precise and on the whole consistent accounts presented
by him. Having regard, further, to the fact that the evidence given by
the applicant's father, which, although at times imprecise and perhaps
somewhat exaggerated, basically supports the applicant's accounts, the
Commission considers that this element is insufficient to question the
applicant's general credibility.
179. In this respect the Commission also attaches relevance to the
fact that the applicant's account contains a number of unusual elements
which it would not expect to find in a fabricated story. The Commission
refers, as an example, to the applicant's statement to the Delegates,
which was confirmed by his father, that his three brothers had
persuaded the gendarmes to let them see the applicant in the security
room in Derinsu and that they warmed him up.
180. It is true that as regards the temperature of the security room,
the applicant has said both that it was -20°C (para. 79) and -30°C
(para. 84). However, unlike the Government, the Commission cannot find
that this is an inconsistency which detracts from the credibility of
the applicant's accounts. The Commission accepts that the applicant
merely tried to express his feeling that it was very cold in the
security room.
181. As to the veracity of this claim, the Commission notes that
according to Harun Altin, the Commander of Derinsu Gendarme Station at
the relevant time, the outside walls of the Station were 50 cm. thick
and that there were coal-burning stoves in rooms surrounding the
security room. He further stated that the security room was equipped
with a bed and, it being winter, with two woollen blankets. However,
the Commission is not convinced that the presence of coal-burning
stoves in spaces and offices in Derinsu Gendarme Station would suffice
to heat a room described by the applicant as having concrete walls, a
concrete floor and an iron door.
182. This leads the Commission to an assessment of the general
credibility of the evidence given by Altin. The Commission notes that
when Altin was first questioned about the allegations brought against
him by the applicant, i.e. by a public prosecutor at Daday on
20 April 1994, he stated that he could not remember the applicant
(para. 90). Yet in his testimony to the Delegates, Altin appeared to
have detailed recollection of the applicant and the latter's arrest and
detention. He explained this by saying that he had contacted his former
colleagues at Derinsu Gendarme Station in order to refresh his memory
when he had received the summons to appear before the Delegates and
that, in his interview with the Daday public prosecutor, he had only
been confronted with the applicant's name which in itself did not mean
anything to him (para. 139).
183. This explanation does not seem convincing to the Commission. In
this respect the Commission notes in the first place that it appears
from Altin's statement to the public prosecutor that he was informed
of the allegations made against him by the applicant (para. 90). Next,
the Commission observes that the custody ledger of Derinsu Gendarme
Station only contains six entries for the whole of 1993 and that the
applicant was the only detainee who was indicated as being charged with
carrying out PKK propaganda (para. 66). Furthermore, according to Musa
Çitil, the case against the applicant had received a lot of publicity
(para. 146). In these circumstances it is not credible that Altin would
have forgotten the applicant altogether when he was interviewed by the
Daday public prosecutor only about one year after the event, and that
he would have remembered so many details about the applicant and his
stay in Derinsu at the hearing before the Delegates at a much later
stage. Moreover, it is difficult to understand why Altin would not have
similarly refreshed his memory before he was heard by the public
prosecutor.
184. In the Commission's view, these factors cast a serious doubt on
Altin's credibility as a witness. The Commission has similar doubts
concerning the evidence presented by the three villagers Sinan Dinç,
Mehmet Dinç and Halit Tutmaz (paras. 149-158). It finds that their
statements appear less than frank. It notes in particular that
according to Sinan Dinç and Mehmet Dinç the applicant told them that
he had been treated well by the Station Commander (para. 151), and that
he was pleased with the way he had been treated by the Station
Commander and had even been given a blanket by him (para. 155). The
Commission finds it in itself unlikely that the applicant should have
said this. However, it considers it incredible that he should have
expressed himself in this way at a time when he had just returned from
the office of the Derik public prosecutor to whom he had complained of
his treatment in, inter alia, Derinsu Gendarme Station.
185. The Commission is furthermore surprised to note that according
to the Government's final observations the three villagers were among
the witnesses whose testimony helped secure the applicant's acquittal
in the criminal proceedings against him before the Diyarbakir State
Security Court (para. 53). When specifically asked, Halit Tutmaz denied
ever having been asked questions about the applicant prior to his
appearance before the Delegates (para. 156). In addition, the
Commission has also given weight to the Delegates' assessment of the
three villagers' appearance before them in Strasbourg which was that
they gave the impression of having been instructed on what to say or,
at the very least, of being anxious to express themselves in a manner
which was agreeable to the Government. For these reasons, the
Commission considers it unsafe to rely on the testimonies of
Sinan Dinç, Mehmet Dinç and Halit Tutmaz.
186. As regards the applicant's detention in Derik District Gendarmerie
Headquarters, the Commission finds the course of events as described
by the applicant not implausible. Information to the effect that he had
threatened village guards had been received by the District Gendarmerie
and he was questioned about these allegations. The piece of fabric
which the applicant said was used to blindfold him and which he gave
to the Derik public prosecutor Hasan Altun provides strong support for
his claim that he was ill-treated during this questioning, the more so
since the applicant's statement to the public prosecutor of 19 February
1993 expressly includes his account in relation to the blindfold
(paras. 76-78). The applicant's testimony that he wrung the wet cloth
out over the public prosecutor's desk is another element which the
Commission would not expect to find in a fabricated story. Moreover,
the Commission was informed that Hasan Altun had decided not to appear
before the Delegates since in his opinion all relevant information was
contained in the documents submitted. The Commission considers that
Altun would have been an important witness, since he was the person who
saw the applicant immediately before his release, who heard his
complaints of torture and ill-treatment and who received the piece of
cloth from him. His reference to the documents as containing all
relevant information must be interpreted, in the Commission's opinion,
as confirming that the cloth which was handed over to him was indeed
wet, as indicated in the recorded statement by the applicant of
19 February 1993.
187. The Commission further notes that in his evidence, the applicant
indicated that after he had signed his statement at Derik District
Gendarmerie Headquarters he was rushed to the office of the public
prosecutor. Although the applicant attributed this haste to the fact
that the end of the working day was looming, the Commission attaches
relevance in this respect to Musa Çitil's testimony that the
applicant's case had received a lot of publicity and Çitil had received
instructions that the case should be heard in court as soon as
possible.
188. The Commission notes that the applicant did not go to a doctor
following his release and that it has thus not been provided with any
medical evidence as to the marks allegedly left on the applicant's
body. However, it is not inconceivable that the applicant was at that
time in such a state of shock that he did not do what would have seemed
reasonable in the circumstances. Furthermore, it appears from the
applicant's testimony that he was able to treat the wounds which he
allegedly sustained by himself and that the medication he needed was
available from a pharmacy (para. 116). It may thus be that he was not
actually in need of any medical treatment to be administered by a
physician and that a visit to a doctor would have served the sole
purpose of obtaining a certificate pertaining to the existence and
possible cause of the wounds. Such a course of action would have
required the applicant to think clearly of any future steps he might
wish to take, and the Commission considers it not unreasonable to
accept that he was not capable of that at the time. The Commission,
moreover, observes that the applicant's father also testified to the
existence of wounds on his son's body (para. 126). Although his father
said that the applicant had told him that he had gone to a doctor, it
may well be that the applicant only told him that he had procured the
necessary medication, which is compatible with Haci Mehmet Tekin's
statement that the applicant "got everything" (para. 128), and that his
father had assumed that therefore the applicant must have seen a
doctor.
189. Accordingly, the Commission does not consider that the
applicant's failure to provide it with a medical certificate impinges
on his general credibility.
190. In its evaluation of whether there is sufficient evidence to
prove the applicant's allegations beyond reasonable doubt, the
Commission cannot exclude the possibility that the applicant's account
may contain certain exaggerations as regards the conditions in which
he was detained and the treatment to which he was exposed. The
Commission has found no reason, however, to question his general
credibility, and it finds essential elements in his allegations
supported by other evidence, in particular the testimony given by his
father and the remarkable fact of the piece of wet cloth that was
handed over to the public prosecutor. On the other hand, the Commission
has found reason to doubt the credibility of some of the other
witnesses heard in the case (Harun Altin, Sinan Dinç, Mehmet Dinç and
Halit Tutmaz), and it must also attach weight to the fact that one of
the essential witnesses, the public prosecutor Hasan Altun, failed to
appear, without any valid excuse, as a witness before the Commission's
Delegates. In these circumstances, and while applying a cautious
evaluation of the evidence, the Commission is satisfied that the
applicant was kept in a cold and dark cell and that he was blindfolded
and treated in a way which left wounds and bruises on his body in
connection with his interrogation. It would appear probable that the
applicant was subjected to this treatment on the basis of a suspicion
that he had threatened village guards to lay down their arms and to
join the PKK.
2. Inquiries and investigations at the domestic level into the
applicant's allegations
191. Noting that the applicant also alleges that the investigations
by the domestic authorities into his allegations of ill-treatment were
inadequate, the Commission will next assess the evidence relating to
these investigations. The Commission has already noted that there have
been no findings of fact by domestic courts (para. 171 sub i). However,
the Commission will evaluate the investigations actually made insofar
as information regarding these investigations have been provided. The
Commission observes in this respect that the Government were requested
to submit the investigation file. The Commission must assume that the
documents which were received constitute the complete material deemed
relevant by the Government in relation to the investigation carried
out.
192. The Commission notes in the first place that the applicant
brought his complaints of maltreatment in Derinsu Gendarme Station and
Derik District Gendarmerie Headquarters to the attention of the Derik
public prosecutor Hasan Altun. The Government do not dispute that Altun
failed to take any action whatsoever to investigate these allegations
(para. 51).
193. It appears that a preliminary investigation was not commenced
until 18 December 1993, following the communication of the application
to the Government and ten months after the alleged events (para. 54).
Upon the request of the Derik public prosecutor Bekir Özenir, who was
in charge of the preliminary investigation, Harun Altin was heard by
a public prosecutor at Daday on 20 April 1994 (para. 55). Altin denied
the allegations, saying that he could not remember the applicant
(para. 90).
194. Bekir Özenir issued a decision of non-prosecution in respect of
the two accused Harun Altin and Musa Çitil on 4 May 1994. Although
according to this decision there was no concrete evidence which
substantiated the applicant's allegations, this conclusion appears to
have been based solely on Altin's testimony to the effect that he did
not remember the applicant. There is no indication that any attempt was
made either to question the second accused person, Musa Çitil, or to
investigate what had happened during the detention at Derinsu Gendarme
Station or Derik District Gendarmerie Headquarters, such as an
examination of the custody records or the hearing of the applicant, his
father and brothers or any person who had been at Derinsu Gendarme
Station or Derik District Gendarmerie Headquarters at the relevant
time.
195. At the instigation of the Ministry of Justice (International Law
and External Relations General Directorate) (para. 57) a decision of
non-jurisdiction was taken on 4 May 1995 and the case was referred to
the Derik District Administrative Council (para. 58). The Commission
notes with some surprise that according to the decision of non-
jurisdiction the applicant had been detained on the suspicion of having
assisted and sheltered PKK members since none of the other documents
submitted contain an accusation of this nature.
196. Musa Çitil only appears to have been questioned about the
applicant's allegations on 14 July 1995 (para. 59), within the
framework of the investigation carried out by the Derik District
Administrative Council. The Administrative Council apparently did not
find it necessary to question Harun Altin again. There is no indication
that the Administrative Council undertook any of the investigative
measures mentioned in paragraph 194.
197. The investigations at the domestic level ended with the decision
of the Mardin Provincial Administrative Board of 13 September 1995, in
which it held that due to lack of evidence Altin and Çitil were exempt
from prosecution (para. 60).
198. On the basis of the foregoing, the Commission considers that the
investigations carried out by the domestic authorities were flawed and
perfunctory. Not only were the allegations which the applicant brought
to the attention of the Derik public prosecutor Hasan Altun not acted
upon immediately, but the investigations eventually undertaken seem
superficial and do not appear to reflect a serious wish to find out
what had really happened in Derinsu Gendarme Station and Derik District
Gendarmerie Headquarters.
199. In order to allow a fuller assessment of the investigatory
measures taken by the authorities, the Delegates had requested the
hearing of, inter alia, Hasan Altun and Bekir Özenir. However, both
these public prosecutors failed to appear before the Delegates for
reasons which the Commission cannot find convincing. The Commission has
already commented on this unsatisfactory state of affairs in para. 171
sub i. In addition, the Commission notes that in their final
observations on the merits of the application the Government contend
that the reason for Hasan Altun's failure to act upon the applicant's
allegations cannot be ascertained since Altun had not appeared before
the Delegates. The Commission does not consider, however, that it
should be precluded from drawing conclusions from Altun's apparent
failure to act for the simple reason that it was not possible to put
questions to him. On the contrary, the Commission finds that Altun's
failure to give evidence before the Delegates or in any other form must
to some extent affect the evaluation of the facts in this case and
hence the examination of the complaints brought by the applicant.
200. On the basis of these findings, the Commission will now proceed
to examine the applicant's complaints under the various Articles of the
Convention.
D. As regards Article 2 (Art. 2) of the Convention
201. Article 2 (Art. 2) of the Convention provides as follows:
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling
a riot or insurrection."
202. The applicant submits that the threats made to his life by the
agents of the State Harun Altin and Musa Çitil while he was held in
custody constitute a violation of the obligation to protect the right
to life.
Government have not commented on this complaint. However, they maintain
that there is no evidence to substantiate the applicant's allegations
against the staff at Derinsu Gendarme Station and Derik District
Gendarmerie Headquarters.
204. The Commission recalls that Article 2 (Art. 2) contains two
separate though interrelated basic elements. The first sentence of
paragraph 1 sets forth the general obligation that the right to life
shall be protected by law. The second sentence of this paragraph
contains a prohibition against intentional deprivation of life,
delimited by the exceptions mentioned in the second sentence itself and
in paragraph 2 (cf. No. 17004/90, Dec. 19.5.92, D.R. 73, p. 155). The
present complaint centres on the first element.
205. However, the applicant was not deprived of his life. Nor can the
Commission find any indication that his right to life was not protected
by law.
CONCLUSION
206. The Commission concludes, unanimously, that there has been no
violation of Article 2 (Art. 2) of the Convention.
E. As regards Article 3 (Art. 3) of the Convention
207. Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
208. The applicant complains that the treatment to which he was
subjected by gendarmes while in their custody between 15 and 19
February 1993 amounted to torture. This torture consisted of
blindfolding, aggressive interrogation, assault, threats to his life,
being stripped naked, being hosed with cold water, being beaten with
a truncheon and being subjected to electric shock treatment and falaka.
Furthermore, the conditions of his detention in Derinsu Gendarme
Station (being held in darkness in sub zero temperatures in a cell with
no bed or blankets, being denied food and liquids and the ignoring of
his medical condition) also constituted torture.
209. The applicant further alleges that the treatment to which he was
subjected whilst in custody is part of a practice of torture in Turkey
which calls into question the commitment of the Government in
respecting the guarantees of Article 3 (Art. 3) and which creates an
aggravated violation of this provision. In this respect reference is
made to findings by the European Committee for the Prevention of
Torture (CPT), the United Nations Committee for the Prevention of
Torture, the United Nations Special Rapporteur and various non-
governmental organisations such as Amnesty International.
210. The Government deny the applicant's claims and submit that they
are illogical, inconsistent and unsubstantiated. In their opinion, the
applicant's allegations of torture are part of the separatist campaign
in which he participates.
211. The Commission does not consider it appropriate to analyse the
individual elements of the applicant's allegations as regards their
characterisation under Article 3 (Art. 3) of the Convention. It will
examine the treatment suffered by the applicant as a whole. Further,
while it notes with grave concern the considerable body of
documentation relating to allegations of other instances of torture on
persons held in custody in Turkey, it will confine itself to an
examination of the allegations in the present case (cf. Aydin
v. Turkey, Comm. Report 7.3.96, para. 185, currently pending before the
Court).
212. The Commission reiterates that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 (Art. 3) of the Convention. The assessment of this minimum
is, in the nature of things, relative. It depends on all the
circumstances of the case, such as the nature and context of the
treatment, its duration and its physical or mental effects (cf. Eur.
Court HR, Soering v. the United Kingdom judgment of 7 July 1989, Series
A no. 161, p. 39, para. 100). The Commission further notes that "the
Convention, with its distinction between 'torture' and 'inhuman or
degrading treatment', should by the first of these terms attach a
special stigma to deliberate inhuman treatment causing very serious and
cruel suffering" (Eur. Court HR, Ireland v. the United Kingdom
judgment, op. cit., p. 66, para. 167; Aksoy v. Turkey judgment, op.
cit., para. 63).
213. The Commission has also had regard to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
adopted on 10 December 1984 by the General Assembly of the United
Nations which provides in Article 1 (Art. 1):
"For the purposes of this Convention, the term "torture" means
any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has
committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity..."
214. The Commission recalls its finding above (para. 190) that, on the
basis of the written and oral evidence before the Commission, it has
been established beyond reasonable doubt that the applicant was kept
in a cold and dark cell, blindfolded and treated in a way which left
wounds and bruises on his body in connection with his interrogation.
Moreover, it is clear that on 19 February 1993 he complained of torture
and ill-treatment before the public prosecutor and that no action was
taken in regard to his complaints.
215. The Commission finds that the conditions of detention and the
treatment to which the applicant was subjected constituted at least
inhuman and degrading treatment within the meaning of Article 3
(Art. 3) of the Convention.
CONCLUSION
216. The Commission concludes, by 31 votes to 1, that there has been
a violation of Article 3 (Art. 3) of the Convention.
F. As regards Article 5 para. 1 (Art. 5-1) of the Convention
217. Article 5 para. 1 (Art. 5-1), insofar as relevant, provides as
follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
..."
218. The applicant argues that the phrase "security of person" in
Article 5 (Art. 5) of the Convention should be interpreted as
encompassing the protection of the integrity of the individual and the
protection from such conditions of detention that violate that
integrity. In his opinion, the conditions of detention themselves are
part of the requirements of conformity of an arrest with Article 5
para. 1 (Art. 5-1). In view of the conditions of the detention
encountered by him, the applicant submits that his detention was
contrary to Article 5 para. 1 (Art. 5-1).
219. The Government maintain that at the time of the applicant's
arrest there existed a reasonable suspicion which was supported by a
certain amount of evidence that he had threatened village guards to lay
down their arms. In their view, it is clear that the applicant was
arrested for the purpose of bringing him before a court.
220. The Commission notes that it is not in dispute between the
parties that the applicant's arrest served the purpose provided for in
Article 5 para. 1(c) (Art. 5-1-c). The Commission considers that it has
already examined the applicant's complaints concerning the conditions
of his detention under Article 3 (Art. 3) of the Convention.
CONCLUSION
221. The Commission concludes, unanimously, that it is unnecessary to
examine the complaint under Article 5 para. 1 (Art. 5-1) of the
Convention.
G. As regards Article 10 (Art. 10) of the Convention
222. Article 10 (Art. 10) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
223. The applicant alleges that his arrest was essentially motivated
by the fact that he is a journalist with Özgür Gündem. He submits that
his right to receive and impart information was interfered with
contrary to Article 10 (Art. 10) through treatment at the hands of the
security forces intended to silence him.
224. The Government maintain that there is no evidence to substantiate
the applicant's allegations against the security forces.
225. The Commission considers that it has not found evidence to
corroborate the application's complaint that his arrest and detention
were due to the fact that he was a journalist with Özgür Gündem. In
these circumstances, the Commission cannot find it established that
there has been an interference with the right protected by Article 10
(Art. 10) of the Convention in respect of the applicant.
CONCLUSION
226. The Commission concludes, unanimously, that there has been no
violation of Article 10 (Art. 10) of the Convention.
H. As regards Article 6 para. 1 (Art. 6-1) of the Convention
227. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ..."
228. The applicant, while not contending that the ability to seek
compensation would offer sufficient redress for torture or inhuman or
degrading treatment, complains of a denial of effective access to court
to seek compensation contrary to Article 6 para. 1 (Art. 6-1) of the
Convention. He submits that the public prosecutor Hasan Altun failed
to carry out a proper, objective and independent investigation into the
applicant's allegations which could have led him to reach a balanced
and informed decision on whether to bring a prosecution. Moreover,
without such a prosecution having been instituted, he would have had
no prospect of success in civil proceedings.
229. The Government argue that the applicant did have access to court
and submit that there is evidence that he would have obtained the
results he desired if he had cooperated with the system of remedies
available under domestic law instead of turning to the Human Rights
Association.
230. The Commission recalls the findings of the Court in the case of
Aksoy v. Turkey (op. cit., paras. 92-94) where it was found that,
although there is no doubt that Article 6 para. 1 (Art. 6-1) applies
to a civil claim for compensation in respect of ill-treatment allegedly
committed by agents of the State, the crux of the complaint concerned
the prosecutor's failure to mount a criminal investigation. The Court
considered that it was more appropriate to examine the complaint in
relation to the more general obligations on States under Article 13
(Art. 13) to provide an effective remedy in respect of violations of
the Convention.
231. The Commission, noting that the nature of the complaint under
Article 6 para. 1 (Art. 6-1) in the present case is comparable to the
complaint in the Aksoy case cited above, finds that there are no
reasons to reach a different conclusion.
CONCLUSION
232. The Commission concludes, unanimously, that it is unnecessary to
examine the complaint under Article 6 para. 1 (Art. 6-1) of the
Convention.
I. As regards Article 13 (Art. 13) of the Convention
233. Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
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."
234. The applicant submits that the lack of an independent
investigation into his allegations represents a denial of an effective
remedy for his complaints contrary to Article 13 (Art. 13) of the
Convention. In his opinion, this denial is part of an administrative
practice of failure to provide and implement effective remedies,
characterised by the attitude of public prosecutors and gendarmes and
the inadequate medical and forensic procedures practised in Turkey. The
applicant refers to other cases brought before the Commission involving
similar allegations of ineffective remedies in South-East Turkey, and
findings made by the CPT and the United Nations Committee for the
Prevention of Torture to the effect that the persistent nature of
allegations of human rights abuses reported from Turkey indicates a
failure to take effective action to address them.
235. The Government have not specifically addressed this issue beyond
stating that the applicant's allegations have not been substantiated.
236. Although the Commission is concerned about the apparent frequency
with which it encounters occasions where no action is taken upon
allegations of serious offences committed by security force personnel
which are brought to the attention of public prosecutors, it considers
that it should limit itself to an examination of the allegations in the
present case.
237. The Commission notes that according to the Court in the above-
mentioned case of Aksoy v. Turkey, "the remedy required by Article 13
(Art. 13) must be 'effective' in practice as well as in law, in
particular in the sense that its exercise must not be unjustifiably
hindered by the acts or omissions of the authorities of the respondent
State" (op. cit., para. 95). The Court further held that in view of the
fundamental importance of the prohibition of torture Article 13
(Art. 13) imposes an obligation on States to carry out a thorough and
effective investigation of incidents of torture (op. cit., para. 98).
238. The Commission observes that it is undisputed that the applicant
complained to the Derik public prosecutor Hasan Altun of having been
tortured during custody in Derinsu Gendarme Station and Derik District
Gendarmerie Headquarters. The Commission notes, moreover, that under
Turkish law the public prosecutor was under a duty to carry out an
investigation (para. 164). However, the Commission has found that no
investigation was instigated by the public prosecutor Hasan Altun
(para. 192).
239. The Commission further considers that it cannot be said that the
investigation subsequently commenced - which was in itself inadequate
- made up for the initial inactivity. The major deficiencies in this
investigation have been outlined in para. 198.
240. It is possible that if the Commission had been able to examine
the public prosecutors Hasan Altun and Bekir Özenir who had been
summoned to give evidence before the Delegates, a fuller assessment of
the investigatory measures taken by the authorities could have been
made, and certain doubts as to the adequacy of the measures might have
been dispelled. However, as has been noted above (para. 93-95), these
public prosecutors failed to appear before the Delegates. In the
absence of their evidence, and on the basis of the available material,
the Commission considers that the investigation into the applicant's
allegations of torture was so inadequate as to amount to a denial of
an effective remedy.
CONCLUSION
241. The Commission concludes, by 31 votes to 1, that there has been
a violation of Article 13 (Art. 13) of the Convention.
J. As regards Articles 14 and 18 (Art. 14, 18) of the Convention
242. Articles 14 and 18 (Art. 14, 18) of the Convention provide as
follows:
Article 14 (Art. 14)
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Article 18 (Art. 18)
"The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed."
243. The applicant submits that because of his Kurdish origin the
various alleged violations of his Convention rights were
discriminatory, in breach of Article 14 (Art. 14) of the Convention.
He also claims that his experiences represented an authorised practice
by the State in breach of Article 18 (Art. 18) of the Convention.
244. The Government have not addressed these allegations beyond
denying the factual basis of the substantive complaints.
245. The Commission has examined the applicant's allegations in the
light of the evidence submitted to it, but considers them
unsubstantiated.
CONCLUSIONS
246. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention.
247. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention.
K. Recapitulation
248. The Commission concludes, unanimously, that there has been no
violation of Article 2 (Art. 2) of the Convention (para. 206).
249. The Commission concludes, by 31 votes to 1, that there has been
a violation of Article 3 (Art. 3) of the Convention (para. 216).
250. The Commission concludes, unanimously, that it is unnecessary to
examine the complaint under Article 5 para. 1 (Art. 5-1) of the
Convention (para. 221).
251. The Commission concludes, unanimously, that there has been no
violation of Article 10 (Art. 10) of the Convention (para. 226).
252. The Commission concludes, unanimously, that it is unnecessary to
examine the complaint under Article 6 para. 1 (Art. 6-1) of the
Convention (para. 232).
253. The Commission concludes, by 31 votes to 1, that there has been
a violation of Article 13 (Art. 13) of the Convention (para. 241).
254. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention (para. 246).
255. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention (para. 247).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. French)
OPINION DISSIDENTE DE M. GÖZÜBÜYÜK
Je ne considère pas, contrairement à la majorité, que dans la
présente requête la violation de l'article 3 a pu être prouvée au delÃ
de tout doute raisonnable.
Premièrement, aucune preuve médicale n'a été soumise de la part
du requérant dont le statut de journaliste permettait de penser qu'il
devait être conscient de la valeur de preuve d'un rapport médical.
Cela était d'autant plus important dans son cas qu'il prétendait
avoir subis de mauvais traitements le jour même de sa libération le
19 février 1993, donc à un moment où les traces de tels actes pouvaient
être facilement décelées.
Deuxièmement, la nature des mauvais traitements que le requérant
prétend avoir subis sont de nature à laisser des traces surtout lorsque
l'examen médical intervient le jour même ou le lendemain. L'eau froide
aurait provoqué une hypothermie locale ou même des engelures étant
donné les basses températures, les coups de bâton des ecchymoses, les
électrochocs des brûlures.
Je tiens à souligner notamment que lors de l'introduction de la
requête devant la Commission, le requérant n'a aucunement fait allusion
à des électrochocs. Je me réfère à cet égard à la décision sur la
recevabilité (p. 45 et 46).
Or, le requérant a formulé ses griefs portant sur les
électrochocs pour la première fois devant les délégués de la Commission
à Diyarbakir. Oublier un tel traitement lors de la préparation de la
requête, si ce traitement a eu vraiment lieu, n'est pas possible. Se
souvenir des électrochocs seulement après la recevabilité, devant les
délégués, fait planer à mes yeux un doute plus que sérieux sur la
crédibilité du requérant. Il faut ajouter que pareil traitement aurait
été le seul dont les traces auraient pu être décelées à la suite d'un
examen médical.
Par ailleurs, j'estime que si l'on tente de remplacer l'élément
de preuve médical par les dépositions des membres de la famille du
requérant, on en prendrait des voies incertaines et dangereuses.
Les conclusions de la Commission ne me paraissent pas
convaincantes et pour ces raisons, particulières à cette requête, je
ne partage pas non plus la conclusion concernant l'article 13 dans la
mesure où l'absence de preuves rend la question du recours effectif
illusoire. La Commission dans la requête 10427/83 (vol. 47, p. 85) a
estimé que des griefs "totalement dépourvus de substance" n'étaient pas
défendables au sens de l'article 13 de la Convention.
Je considère que dans cette requête les conclusions de la
majorité de la Commission, au lieu de se fonder sur des preuves
matérielles tangibles, sont basées sur des déductions qui ne s'appuient
pas sur des éléments de preuves.