Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23178/94

Sükran Aydin

against

Turkey

REPORT OF THE COMMISSION

(adopted on 7 March 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-43). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-38) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 39-43). . . . . . . . . . . . . . . . . . .5

II. ESTABLISHMENT OF THE FACTS

(paras. 44-160). . . . . . . . . . . . . . . . . . . . .6

A. The particular circumstances of the case

(paras. 45-58). . . . . . . . . . . . . . . . . . .6

B. The evidence before the Commission

(paras. 59-148) . . . . . . . . . . . . . . . . . .8

1) Documentary evidence

(paras. 59-100). . . . . . . . . . . . . . . . .8

2) Oral evidence

(paras. 101-148). . . . . . . . . . . . . . . 16

C. Relevant domestic law and practice

(paras. 149-158). . . . . . . . . . . . . . . . . 24

D. Relevant international material

(paras. 159-160). . . . . . . . . . . . . . . . . 26

III. OPINION OF THE COMMISSION

(paras. 161-222) . . . . . . . . . . . . . . . . . . . 28

A. Complaints declared admissible

(para. 161) . . . . . . . . . . . . . . . . . . . 28

B. Points at issue

(para. 162) . . . . . . . . . . . . . . . . . . . 28

C. The evaluation of the evidence

(paras. 163-181). . . . . . . . . . . . . . . . . 28

D. As regards Article 3 of the Convention

(paras 182-189) . . . . . . . . . . . . . . . . . 34

CONCLUSION

(para. 190) . . . . . . . . . . . . . . . . . . . 35

TABLE OF CONTENTS

Page

E. As regards Articles 6 para. 1 and 13 of the Convention

(paras. 191-204). . . . . . . . . . . . . . . . . 36

CONCLUSIONS

(paras. 205-206). . . . . . . . . . . . . . . . . 39

F. As regards Article 25 of the Convention

(paras. 207-217). . . . . . . . . . . . . . . . . 39

CONCLUSION

(para. 218) . . . . . . . . . . . . . . . . . . . 43

G. Recapitulation

(paras. 219-222). . . . . . . . . . . . . . . . . 43

DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK. . . . . . . . . . 44

PARTLY DISSENTING OPINION OF MRS. G.H. THUNE. . . . . . . . 45

PARTLY DISSENTING OPINION OF MR. N. BRATZA, JOINED BY

MM. S. TRECHSEL, J.-C. SOYER, H.G. SCHERMERS AND B. MARXER. 46

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. 47I.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 resident in Derik and born in

1976. She is represented before the Commission by Professor K. Boyle

and Ms. F. Hampson, both teachers at the University of Essex.

3. The application is directed against Turkey. The respondent

Government were represented by their Agent, Mr. B. Çaglar.

4. The applicant complains that she was tortured while held in

custody by the State security forces, being subject, inter alia, to

rape. She invokes Articles 3, 6 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 21 December 1993 and registered

on 7 January 1994.

6. On 5 April 1994, 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 before 5

July 1994. At the Government's request, this time-limit was

subsequently extended until 5 August 1994.

7. By letter of 29 July 1994 the Government asked for a further

extension of the time-limit until 12 September 1994. The Commission's

Secretary answered, by letter of 4 August 1994, that the President of

the Commission had not granted a further extension of the period

concerned.

8. By letter of 6 September 1994 the Commission's Secretary pointed

out to the Government that the period for the submission of the

Government's observations had expired long ago. It was added that the

application was being considered for inclusion in the list of cases for

examination by the Commission at its October or November session.

9. On 28 November 1994, the Commission declared the application

admissible, no observations having been submitted by the Government.

10. The text of the Commission's decision on admissibility was sent

to the parties on 5 December 1994 and they 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.

11. On 27 January 1995, the Government submitted observations on the

admissibility and merits. By letter dated 15 February 1995, the

Government proposed the names of persons to be called as witnesses.

12. On 8 April 1995, the Commission decided to take oral evidence in

respect of the applicants' allegations. It appointed three delegates

for this purpose: Mrs. G.H. Thune, Mrs. J. Liddy and Mr. N. Bratza. It

notified the parties by letter of 10 April 1995, proposing certain

witnesses.

13. By letter dated 21 April 1995, the applicant's representatives

made proposals as regards witnesses.

14. On 28 April 1995, the Commission's Secretariat requested the

Government to provide the names of certain witnesses and to submit the

copies of documents relating to the subject-matter of the application.

15. On 15 May 1995, the Government provided the requested documents

and on 6 June 1995, the names of the witnesses. By letter dated 26 May

1995, the Commission's delegates requested the opportunity to inspect

in Ankara the original custody record for Derik gendarme headquarters.

16. By letter dated 9 June 1995, the applicant's representatives

submitted complaints of intimidation of the applicant's father by the

security forces. By letter dated 26 June 1995, the Government responded

to the allegations.

17. Evidence was heard by the delegation of the Commission in Ankara

from 12 to 14 July 1995. Before the Delegates the Government were

represented by Mr. B. Çaglar, Agent, assisted by Mr. T. Özkarol,

Mr. A. Someren, Ms. B. Pekgöz, Mr. A. Kurudal, Ms. S. Eminagaoglu,

M. M. Kilic, M. T. Toros and Mr. A. Kaya. The applicant, who did not

appear herself, was represented by Professor K. Boyle and

Ms. F. Hampson, counsel, assisted by Ms. A. Reidy and Ms. D. Deniz

(interpreter). Further documentary material was submitted by the

Government and the applicant's representatives during the hearings. At

the conclusion of the hearings, and later confirmed by letter of 25

July 1995, the Delegates requested the Government to provide certain

documents and information concerning matters arising out of the

hearings.

18. On 7 August 1995, the applicant's representatives informed the

Commission that the applicant wished to continue with her application

and agreed to attend a hearing in Strasbourg.

19. On 28 August 1995, the Government provided a videotape of a

television programme and on 30 August copies of some of the requested

documents. On 6 September 1995, they provided a video film and plans

of the Derik gendarme headquarters.

20. On 9 September 1995, the Commission decided to take further

evidence in the case in Strasbourg, to which the applicant would be

invited to attend with other witnesses. The date was fixed at

18 October 1995.

21. By letter dated 14 September 1995, the Commission's Secretariat

reminded the Government that it had not supplied certain information

which had been requested by the Delegates nor documents and information

which had been offered by the Government at the hearing in July.

22. By letter dated 14 September 1995, the applicant's

representatives complained to the Commission that the applicant's

father had been subject to unwarranted contact by the security forces.

23. By letters dated 26 September and 11 October 1995, the Government

submitted comments on the procedure adopted by the Commission in the

case. By letter dated 9 October 1995, the Government submitted copies

of domestic court judgments (decisions on rape allegations by the

Military Court of Cassation and Mardin Assize Court) by

12 October 1995, part of the information referred to in the

Commission's letter of 14 September 1995. By letter dated

13 October 1995, the Government informed the Commission that the

witness, Ali Kocaman, was not fit to travel and would not appear.

24. On 18 October 1995, the Commission's Delegates heard oral

submissions from the representatives of the parties regarding the

absence of the applicant and other matters. Before the Delegates the

Government were represented by Mr. B. Çaglar, Agent, assisted by

Mr. T. Özkarol, Mr. A. Kurudal and Mr. A. Kaya. The applicant was

represented by Ms. F. Hampson, counsel, assisted by Ms. A. Reidy and

Mr. Yildiz. The Delegates adjourned the hearing. On 19 October 1995,

the Delegates heard evidence from the applicant. The parties submitted

various documents on 18 and 19 October 1995. These included an undated

statement from Ali Kocaman presented by the Government, accompanied by

a medical report, relating to his absence from the hearing.

25. On 27 October 1995, the Commission decided to invite the parties

to present their written conclusions on the merits of the case and to

request the Government to submit information on certain points.

26. On 9 November 1995, the applicant's husband contacted the

Secretariat which was in Diyarbakir with the Commission's Delegates in

respect of taking evidence in other applications.

27. On 15 November 1995, the applicant's representatives complained

to the Commission of harassment of the applicant and her family from

the security forces and requested the application of Rule 36 of the

Commission's Rules of Procedure in relation to directing the Government

to stop all contact by state officials with the applicant and her

family concerning her application. The allegations were transmitted by

the Commission to the Turkish Government for urgent response. The

Government requested an extension in the time-limit for response until

15 December 1995.

28. By letters dated 27 and 28 November and 4 December 1995, the

applicant's representatives made further submissions regarding alleged

intimidation, which were brought to the attention of the Government.

29. On 8 December 1995, the Commission decided not to apply Rule 36

of its Rules of Procedure. It decided to draw to the attention of the

Government the serious consequences which might arise from intimidation

and harassment of an applicant and members of his/her family in

connection with an application before the Commission. It invited the

Government to respond to the applicant's allegations by its next

session.

30. By letter dated 22 December 1995, the applicant's representatives

made further complaints relating to the intimidation and harassment of

members of the applicant's family. These were sent to the Government

who were reminded of their lack of response to the earlier complaints

drawn to their attention.

31. On 10 January 1996, the applicant submitted her observations on

the merits.

32. On 12 January 1996, the Government made submissions relating to

the allegations of interference with the right of individual petition

under Article 25 of the Convention.

33. On 19 January 1996, the Commission noted the Government's

response to the allegations of interference with the right of

individual petition under Article 25 of the Convention and decided to

proceed immediately to the adoption of a report on the merits.

34. By letter dated 15 February 1996, the Government enclosed a

magazine article including an interview with the applicant, which it

alleged was in breach of the confidentiality of the proceedings.

35. By letter dated 20 February 1996, the Government furnished some

further details relating to the plan of Derik gendarme headquarters.

36. By letter received by the Commission on 4 March 1996, the

Government submitted observations in Turkish, without accompanying

translation into an official language and without the supporting

documentation referred to therein.

37. On 7 March 1996, the Commission decided that no action was

required in respect of the magazine article submitted by the

Government. Having regard to the lateness of the submission of the

Government's observations, which were in Turkish and without supporting

documentation, the Commission decided not to take them into account.

38. 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

39. 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:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

40. The text of this Report was adopted on 7 March 1996 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.

41. 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.

42. The Commission's decision on the admissibility of the application

is attached hereto as an Appendix.

43. 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

44. The facts of the case, particularly concerning events in or about

29 June 1993, are disputed by 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

accepted written material, as well as oral testimony, which has been

submitted. The Commission first presents a brief outline of the events,

as claimed by the parties, and then a summary of the evidence submitted

to it.

A. The particular circumstances of the case

1. Facts as presented by the applicant

45. The various accounts of events as submitted in written and oral

statements by the applicant and other members of her family are

summarised in Section B: "Evidence before the Commission". The version

as presented in the applicant's final observations on the merits is

summarised here.

46. In the early hours of 29 June 1993, the applicant, her father,

Seydo Aydin and her sister-in-law Ferahdiba Aydin were taken from their

village Tasit, in Derik district, by village guards and gendarme

officers. They were taken to Derik gendarme headquarters. During her

detention, the applicant was blindfolded. She was taken to a "torture

room" where she was beaten, stripped naked, placed in a tyre and hosed

with pressurised water. In another separate room, she was stripped and

raped by a member of the security forces. She and the other members of

her family were released after three days on or about 2 July 1993.

2. Facts as presented by the Government

47. The Government have not presented any final written submissions

on the merits regarding the assessment of the oral evidence and other

material before the Commission.

48. In their observations following the admissibility of the

application, they submitted that the custody record for the Derik

gendarme headquarters indicated that the applicant and the other

members of her family were not held in detention as alleged and that

intelligence reports and other evidence revealed that the applicant had

been engaged in intimate relations with two members of the PKK.

49. During the taking of evidence in Ankara on 12-14 July 1995 and

in Strasbourg on 19 October 1995, the Government Agent pointed to

alleged discrepancies and inconsistencies in the applicant's evidence,

including a failure to recognise the photographs of Derik gendarme

headquarters, her description of the texture of the military uniform

of her assailant which did not appear to accord with the fact that the

Turkish security forces wear summer uniform in July and that her father

did not support her version that her clothes had been torn.

3. Proceedings before the domestic authorities

50. On 8 July 1993, the applicant, her father Seydo Aydin and her

sister-in-law Ferahdiba Aydin went to the Derik public prosecutor's

office to complain about their treatment in custody. The public

prosecutor took statements from each of them. He sent them for a

medical examination on the same day to the doctor in Derik State

hospital, Dr. Deniz Akkus.He requested the doctor to establish the

blows and physical violation marks if any, in respect of Seydo and

Ferahdiba. In respect of the applicant, he requested that she be

examined to establish whether she was a virgin and the presence of any

marks of physical violation or injury. A report was given by Dr. Deniz

Akkus on 8 July 1993 in respect of each person.

51. On 9 July 1993, the public prosecutor sent the applicant to be

examined at the Mardin state hospital with a request to establish

whether she had lost her virginity and if so, the time lapse. A report

of that date was produced by Dr. Ziya Çetin.

52. On 17 August 1993, a further report was issued by Diyarbakir

Maternity hospital following the referral of the applicant by the

public prosecutor on 12 August 1993 with a request to establish whether

she had lost her virginity and if so, the time lapse.

53. On 13 July 1993, the public prosecutor wrote to Derik gendarme

headquarters inquiring as to whether the applicant, her father and

sister-in-law had been held in custody there and if so, to give details

of the dates and duration of the detention and the names of those

interrogating. By letter dated 14 July 1993, the commander of the

headquarters, Musa Çitil, replied that they had not been taken into

detention. He supplied a copy of the entries for 1993 on 21 July 1993.

54. On 22 July 1993, the public prosecutor wrote to Derik gendarme

headquarters requesting them to send for inspection the custody ledger

for the months June-July 1993.

55. The public prosecutor sent the files (relating to the applicant)

to the second specialist committee in Ankara. By letter dated

22 December 1993, the Chief Coroner requested that the applicant attend

for an examination by the committee.

56. The public prosecutor wrote to the Chief of Security in Derik

on 18 January 1994 and 17 February 1994 requesting that the applicant

be brought to the office of the Attorney General. A letter of

18 April 1994 referred to receiving no reply. By letter dated

13 May 1994, the public prosecutor informed the Chief of Security at

Derik that the applicant, her father and sister-in-law should attend

at his office.

57. By report dated 13 May 1994 in response to a request for

information of 9 May 1994, the public prosecutor reported to the office

of the Attorney General in Mardin that there was no evidence to support

the applicant's unsubstantiated claims but that the investigation

continued.

58. On 18 May 1994, the applicant's father made a statement to the

public prosecutor at Derik.

B. The evidence before the Commission

1) Documentary evidence

59. The parties submitted various documents, photographs and plans

to the Commission. The documents included reports about Turkey

(including extracts on Turkey from the Report of the United Nations

Special Rapporteur on Torture (E/CN.4/1995/34) and the Amnesty

International report "Turkey: The Health Professionals in the Emergency

Zone, Southeast Turkey, Eur/44/146/94"), medical reports and statements

from the applicant and witnesses concerning their version of the events

in issue in this case. The Government also provided case-law from

domestic courts and two video-cassettes, one recording a television

programme about another allegation of rape in South-East Turkey

(wherein a woman showed distress because apparently she had been

wrongly named as the complainant) and one showing the Derik gendarme

headquarters.

60. The Commission had particular regard to the following documents:

a) Statements by the applicant

Statement of 8 July 1993 taken by Derik public prosecutor

61. On 29 June 1993, at about 06.00 hours, a non-commissioned

officer, accompanied by some village guards, arrived at the applicant's

village (Tasit) and took the applicant, her father and her sister-in-

law to Derik gendarme headquarters where they were detained for three

days. They were kept in separate places. She was blindfolded. She was

tortured to make her give information about the hiding places of

terrorists. She was hit by fists, kicked in the eyes, arms and legs.

They took off her clothes and on separate occasions she was raped three

times. When she saw that she was bleeding, she realised that she had

lost her virginity. Because she was blindfolded, she did not know who

or how many raped her. Later, they were taken to the mountain and put

under pressure to show where the terrorists were, shots being fired

into the air to frighten them. They were released separately.

Statement of 12 August 1993 taken by Derik public prosecutor

62. The applicant stated that she had been married to her cousin

Abidin Aydin for the last fifteen days.

Statement undated taken by the Human Rights Association,

Diyarbakir submitted with application of 21 December 1993

63. The applicant's representatives state that this statement was

made on the same date, 15 July 1993, that the applicant thumbprinted

a letter of authority in their favour. The statement states as follows.

64. At about 17.00 hours on the evening of 29 June 1993, a group of

village guards and special teams came to the applicant's village. In

the morning, before the sun had risen, four people came into the

applicant's house and asked them to identify those who came to their

house at night (PKK terrorists). After insults and threats, the

applicant and members of her family were taken to the village square

where the villagers were assembled. The applicant, her father and

sister-in-law were blindfolded and taken to Derik gendarme

headquarters. They were separated from each other and held in different

places. The applicant was taken to a torture chamber. They were

stripped naked and forced into two car wheels, which were spun

round.They were also beaten and sprayed with pressurised cold water.

At about midday, the applicant and her sister-in-law were taken out of

the torture chamber and returned to the room she had been kept in. She

was taken back to the interrogation room. The door was locked. An

individual in military clothing ripped off her dress and stripped her.

He held her mouth to stop her shouting. He laid her on her back and

raped her. Her sister-in-law had been brought to the door and was

being kept waiting, naked. When the man raping her had finished, he

told her to get dressed. The applicant was covered in blood and in

severe pain. In the evening she was taken to the interrogation room and

was beaten, slapped and kicked badly for about an hour by a man with

a beard in plainclothes with other people in the room joining in and

warning her that she should not tell anyone what had been done to her.

65. On the third day, the applicant, her father and sister-in-law

were released. She was released alone in the mountains near her village

and was threatened that she should not tell anyone that she had been

raped or other things would happen to her.

Statement of 1 April 1994 taken by the Human Rights Association

(HRA), Diyarbakir

66. The applicant stated that while she was being detained she had

been threatened that if she made her experiences public, particularly

in Europe they would take her and her family into custody and kill

them. After they were released, they left their village and went to

live in Derik. The matter was published in a newspaper and she had

complained to Europe. She was constantly afraid, remembering the

threats that had been made. Because of the effect of rape on young

girls in society, she has no relations with people and cannot talk even

to members of her family or to her husband. She became pregnant after

her marriage to her cousin, which took place after the rape, and some

people thought that the child was not her husband's. Because of this,

she and her husband went to a gynaecologist in Diyarbakir who was able

to establish that her husband was the father of her child. The incident

will affect her psychologically for the rest of her life.

b) Statements by other persons

Seydo Aydin

Statement of 8 July 1993 taken by Derik public prosecutor

67. On 29 June 1993, at about 06.00 hours, a non-commissioned officer

accompanied by some village guards, arrived at his village and took

him, his daughter Sükran and his daughter-in-law to the Derik central

gendarme headquarters, where they were held for three days. They were

blindfolded and kept in separate places. He was tortured, officials

hitting him on the face and legs with fists and sticks, trying to make

him confess that he had sheltered terrorists in his house. He could not

see who was torturing him, but they were speaking Kurdish. Later, they

took him, his daughter and daughter-in-law into the mountains, and

threatened to kill them to make them show where the terrorists were

sheltered, shooting in the air to frighten them. They were released in

separate locations. Later he talked to his daughter and daughter-in-law

who said that they had been tortured. His daughter told him that she

had been raped. He wanted the people who tortured them and raped his

daughter to be punished.

Statement of 8 July 1993 taken by Derik public prosecutor

68. On 23 or 29 (number almost illegible) June 1993, at about 06.00

hours, a non-commissioned officer accompanied by some village guards,

arrived at his village and took him, his daughter Sükran and his

daughter-in-law to the Derik central gendarme headquarters. On the way,

the village guards were talking in Kurdish and he understood that they

had been on an operation and in order not to return empty-handed, they

intended to threaten and force them to confess that they sheltered

terrorists in their house. During the three days in the headquarters,

they were subjected to all kinds of rough treatment, physical and

psychological torture. His daughter was raped and his daughter-in-law

was tortured after being undressed. They were threatened that they

should not reveal the incident to anyone or make any complaint.

Statement of 18 May 1994 taken by Derik public prosecutor

69. He stated that the applicant and her husband had left the

district two months before to find work and his daughter-in-law and her

husband had also left. He did not know their addresses but would inform

the prosecutor if he found out.

Additional statement of 18 May 1994 taken by Derik public

prosecutor

70. On 29 June 1993, at about 06.00 hours, a non-commissioned

officer, accompanied by about 10-15 village guards, arrived at his

village and took him, his daughter Sükran and his daughter-in-law to

the Derik central gendarme headquarters, claiming that two terrorists

came to their house. They were blindfolded as soon as they were taken

but at the gendarme headquarters the station commander sergeant took

off his blindfold and interrogated him. He was blindfolded again

afterwards.

71. His daughter and daughter-in-law had left the district in March.

He did not know their addresses but would inform the public prosecutor

if he learned of their whereabouts.

Statement of 16 November 1995 taken by the Human Rights

Association (HRA) in Diyarbakir

72. He stated that on 22 August he had informed Mahmut Sakar (a

lawyer at the Human Rights Association) that he had been called to

Derik security directorate in the previous month time after time and

told to give the applicant's address or to bring her to Derik. He was

threatened on these occasions. He confirmed the truth of the statement

which he had given to Mahmut Sakar to be transmitted to the Commission

(communicated to the Secretariat by the applicant's representatives by

a letter dated 9 June 1995 with enclosure to the effect that on or

about 28-29 May 1995 the security forces had visited the applicant's

father, asked where the applicant was and told him that he should be

careful, that he was becoming too involved).

73. On 14 November 1995, he and his daughter-in-law Ferahdiba Aksin

(Aydin) were called to Derik Security Directorate to give a statement.

On 15 November 1995, when they went to the directorate they were told

to go to the public prosecutor to give a statement which they did. At

the Derik public prosecutor's office, Ferahdiba was asked questions

about what had happened when she was taken into custody and she made

a statement in which she confirmed her previous account.

Ferahdiba Aydin

Statement dated 8 July 1993 taken by Derik public prosecutor

74. Ferahdiba Aydin, aged 25-30 years, stated that on 29 June 1993,

at about 06.00 hours, a non-commissioned officer accompanied by village

guards, arrived at her village and took her, her father-in-law and her

sister-in-law, Sükran to the Derik central gendarme headquarters. They

were blindfolded and held in separate rooms for three days. Officers

tortured her, claiming that they had sheltered terrorists. She was

slapped on the face and hit on the arms. They stripped her clothes off,

sat her on top of a car wheel and ill-treated her. She was not raped.

She was tortured in this way five times. Later they were taken,

blindfolded to the mountains and threatened to make them reveal the

terrorists' hideout. She was told that her father-in-law and sister-in-

law were killed and they threatened to kill her if she did not talk.

They were released separately and threats were made that they would be

killed if they told anyone. She stated that she lodged a complaint

against the persons who tortured her. Guns were fired in the air to

frighten them.

Ali Kocaman

Statement of 24 May 1995 taken by public prosecutor Cahit Cantepe

75. From 1992 to 1994, Ali Kocaman, born in 1964, served under Derik

gendarmerie district command. For one year, he was in the command of

Derik Central Gendarmerie Station. He remembered the name, Sükran

Aydin, but not the incident of Sükran and Ferahdiba Aydin being raped

and Seydo Aydin being beaten since thousands of incidents occurred

every day at the station. Officers whom he had assigned to patrol

duties could have brought these people into custody on patrol but this

could be checked in the custody record and the duty register would

indicate the identities of the officers on patrol that day. He did not

rape Sükran Aydin or Ferahdiba Aydin nor beat Seydo Aydin. The incident

occurred a long time ago. He had received head injuries in a road

accident and did not fully or clearly remember the incident.

Undated statement presented by Government on 18 October 1995

76. Ali Kocaman stated that following his accident he continued to

have problems with his health, including loss of memory, problems with

balance, headaches and fatigue. He accordingly stated that he was not

in a fit state to travel to Strasbourg or to testify properly. The

accompanying medical certificate referred to a medical examination

carried out on 27 September 1995, which revealed that his general

condition was good, that he complained of occasional forgetfulness and

there was a restriction of peripheral vision in his left eye.

Harun Aca

Statement of 26 May 1994 taken by public prosecutor, Bekir Özenir

77. Harun Aca, born in 1966, joined the PKK in 1992. From

February 1993, he operated in the Derik region. On 4 April 1994, he

surrendered to the security forces, applying to take advantage of the

Amnesty Act for surrendered terrorists. During his time in the Derik

region, they used Seydo Aydin's house, he and other members visiting

it frequently. A terrorist told him that, in about April and May 1993,

the applicant was having sexual relationships with two other

terrorists.

Abit Aydin

Statement of 19 October 1995

78. Abit Aydin stated that he was the husband of Sükran Aydin. After

his wife began her case at the European Commission of Human Rights,

they were harassed constantly by the state security forces where they

lived in Derik. Because of this, they left Derik 7-8 months ago without

telling anyone and went to live in Canicula and then in Bursa. They had

difficulty finding work and getting enough to eat. In September 1995,

they returned to Derik having received an invitation to go to

Strasbourg to the Commission. His wife signed a statement that she

would go and some time later they returned to complete the paperwork

(passports etc).

79. On their return to Derik about the middle of September 1995,

three plainclothes policemen came to their house in Derik and took them

to the Derik Security Directorate. They had to stand in a room for

three or four hours. Later, someone came and questioned them, asking

where they had been for the last 8-9 months, who had initiated their

application to Europe against Turkey and who had shown them how to do

that. The police were aggressive and told him to return the next day

or he would be brought back again.

80. Later the same day, the police returned to the house and took his

wife a second time to the Security Directorate with her husband's

cousin. She told him that she was given a paper to sign and that when

she said she could not write, they made the cousin sign. She did not

know what the paper said.

81. The next day, the police took Seydo Aydin from his house and went

to his house, where, on his return, he found them conducting a search

and asking to be told where the guns were hidden. He, his wife and

Seydo Aydin were taken to the Security Directorate. After being kept

standing for two-three hours, they were released. Three-four days

later, the police took them to see the public prosecutor. The

prosecutor said that they were lying about the case, that no such

incident occurred and that they were repeating a scenario written for

them by Ferahdiba. He was taken from the room, leaving his wife with

the prosecutor. She told him that the prosecutor repeated these things

and made her sign a paper the contents of which she did not know.

82. From the time of their return to Derik, they have been harassed

almost every night, by having stones thrown at the house or the door

being struck by something solid. The neighbours have said that it is

security forces doing this. Prior to their return to Derik, while they

were in Canicula, his father was threatened by two armed people outside

the house, who said that they would kill him like a dog. He stated that

they lived in great fear and have no guarantee of safety. His wife also

stated that she was sick of persecution and terrified.

Statement of 8 November 1995

83. On 1 November 1995, at about 20.40 hours, 10-15 police officers

from Derik Security in civilian clothes, carrying radios and weapons

carried out a search on their house. Nothing was found. The police

officers asked why they had gone abroad. They replied that they were

defending their civil rights. The police asked what the result was, to

which they replied that they did not know.

c) Medical evidence

Concerning the applicant

Medical report dated 8 July 1993 of Dr. Deniz Akkus, Derik state

hospital

84. This report stated that the applicant was not a virgin. There

were tearmarks of the hymen at 6 and 11 o'clock. It was not possible

to establish if the loss of virginity was recent or not. There was

widespread bruising (ecchymosis) around the insides of the thigh.

Medical report dated 9 July 1993 of Dr. Ziya Çetin, Mardin state

hospital

85. The report noted old defloration marks on the hymen 6th and 7th

level. There was no hyperaemia. Defloration was older than a week.

Medical report dated 13 August 1993 from the Diyarbakir maternity

hospital

86. The report stated that the applicant was subject to a virginity

test. It noted an old defloration tear mark on the hymen 6-7 level.

Hymen perforations recover between 7-10 days. Older perforations could

not be accurately dated. It would be more accurate to take into

consideration the datings referred to in previous medical reports.

Report of 7 July 1995 by Dr. Milroy, Department of Forensic

Pathology, University of Sheffield (United Kingdom)

87. This report was submitted by the applicant's representatives in

light of the three medical reports above. It notes that there was no

record of any vaginal swabs or specimens being taken. It expresses the

view that the findings indicated that vaginal penetration had occurred

within the week before Dr. Çetin's examination (in the applicant's

observations on the merits, it is noted that this is based on a faulty

translation of Dr. Çetin's report). The finding of bruising on the

inner thighs by Dr. Akkus is a classic finding in rape cases, the

thighs being forced apart by the assailant's hands.

Report dated 13 October 1995 by a team of professors from the

faculty of medicine at the University of Hacettepe (Turkey)

88. This report was submitted by the Government and has regard to the

three medical reports above and the report of Dr. Milroy.

89. It comments that the lack of indication of coloration of the

bruising in Dr. Akkus' report makes it impossible to date the incident,

though the fact that no bruising remained when the applicant was

examined at Diyarbakir maternity hospital 17 days later indicates that

the incident causing the bruising must have been old. The existence of

the bruising does not prove rape. It considered that the absence of

hyperaemia and the existence of cicatrisation show that medically the

incident occurred at least 15-20 days earlier.

90. The report disagrees with the opinion of Dr. Milroy, commenting

that he has not taken into account the findings of Dr. Çetin as to the

absence of hyperaemia and the existence of cicatrisation. Further, if

the bruising had been caused by a rapist, the marks on the applicant's

legs would have been in the shape of fingers and not widespread,

whereas widespread ecchymoses are normal for those who regularly ride

on horses or donkeys. The marks could also have been caused

deliberately by the person herself. It concluded that the defloration

must have occurred at least 15 days before the report of 8 July 1993

and it was not possible medically to determine whether the loss of

virginity was caused with the use of force.

Concerning the applicant's father, Seydo Aydin

Medical report dated 8 July 1993 of Dr. Deniz Akkus, Derik state

hospital

91. The copy of the handwritten note was largely illegible and the

contents clarified when read by Dr. Akkus before the Delegates.

92. Seydo Aydin had a loose front tooth in the upper jaw which he

stated was the result of a blow. There was a swelling on the front of

the left ankle. Recovery might occur in four days.

Concerning the applicant's sister-in-law, Ferahdiba Aydin

Medical report dated 8 July 1993 of Dr. Deniz Akkus, Derik state

hospital

93. Ferahdiba Aydin had a swelling on the left cheek bone and marks

on her right arm. Recovery would occur in four days.

d) Custody records

94. The Commission has been provided with a copy of the 1993 entries

in the custody register for Derik gendarme headquarters. The Delegates

were given the opportunity in Ankara to inspect the original register.

95. The entries for 1993 indicated that 6 persons were held in

custody at various times during the year on grounds, inter alia, of

suspicion of harbouring the PKK (in two cases) and of being a deserter.

One person is recorded as being held from 23 April to 26 April and

another from 20 to 27 August 1993. They do not include the names of the

applicant or other members of her family. No entries were made in the

month of June or July.

96. The entries for previous and subsequent years are as follows:

1988 - 200 persons;

1989 - 123 persons;

1990 - 68 persons;

1991 - 57 persons;

1992 - 59 persons;

1994 - 7 persons

1995 (until 27 June) - 15 persons

The entries for 1995 record that 11 persons were detained from 27 March

to 10 April 1995 on suspicion of terrorist offences.

97. Copies of the custody register for Mardin departmental gendarme

headquarters indicate for the period from 26 June to 2 July 1993 12

persons detained on suspicion of involvement with the PKK. The register

for 1993 at the Derik-Üçyol gendarme station records 15 persons

detained in that year.

e) Derik gendarme headquarters: plans and video-cassette

98. The plans originally provided by the Government on

6 September 1995 indicated that the headquarters consisted of a

principal building with a number of smaller annexes and structures

nearby (eg. storerooms, garage, barber, canteen, tailor etc). The plans

for the principal building included two storeys. On the ground and

first floors, there were various offices and other facilities. There

was no indication of any custody room on either floor. At a later date,

during the taking of evidence in Strasbourg on 18-19 October 1995, a

further copy of the building plans was submitted which included a

basement. The basement plan showed three rooms or areas, two of which

are labelled "security" and the third as the non-commissioned officer's

room. The Government subsequently informed the Commission that this

plan was drawn up on 25 August 1995.

99. The video film, provided by the Government on 6 September 1995,

dated 20 August 1995, shows the principal building and its outhouses.

The principal building was the largest, the ground floor being raised

off the ground above the basement. The basement was shown as being

entered down an exterior staircase, a plaque over the entrance door

indicating that it was the "security room". When the film was taken,

it was empty of furniture and men were in the process of whitewashing

the walls. The soundtrack of the film announced that the security room

was being renovated to bring it up to the standards required by human

rights associations.

100. By letter dated 20 February 1996, the Government have stated that

between 29 June and 3 July 1993 one of the three rooms in the basement

was used as a place of detention and the other two rooms served as

storerooms. Following recommendations made by the Committee for the

Prevention of Torture (CPT), the basement was renovated to provide two

custody rooms and an operational office, as well as toilet facilities.

2) Oral evidence

101. The evidence of the eight witnesses heard by the Commission's

Delegates may be summarised as follows:

(1) Sükran Aydin

102. Sükran Aydin stated that she did not know her date of birth and

referred to her passport (which recorded the year 1976). Before the

events in question in the present application, she had never travelled

outside her village (Tasit).

103. She stated that at about 05.00 hours on 29 June 1993 village

guards came to the village with two special squads. They walked around

the village for a while and then seemed to have gone. They had visited

her house in the evening when her father was absent and had asked her,

her mother and sister-in-law who had come to the house, swearing at

them and hitting them. The next morning before dawn, four men came to

her house and asked who had visited the house during the night. Despite

their denials, the men swore at them and insisted. The men took her,

her father and sister-in-law to the village square where they also

gathered the other villagers. They separated the applicant and her

family from the others, blindfolded the three of them and took them

away in a car.

104. She was kept at Derik gendarmerie for four days and was

blindfolded throughout. She knew it was Derik however since when they

were taken out of the gendarmerie to be released they were able to open

their eyes. On arrival, after a half hour journey, she was separated

from the others. The village guards had left and the soldiers kept

asking the same questions about who had been to the house. She recalled

being taken down to a basement downstairs. She was kept in a room there

without any furniture. On the day on which she arrived, she was taken

upstairs (the second floor) to a room where she was stripped and

beaten. She was placed inside a tyre and hosed with high pressure water

jets. She was aware that they were beating and ill-treating her father

and sister-in-law since when they finished with one person they called

another by name who was brought into the room for the same treatment.

When she was in the room, there was only one person asking her

questions. He spoke Kurdish to her. While she was in the same room, a

man did "dirty things" to her when she had no clothes on. She shouted

and was crying and he hit her but did not say anything to her. She

could feel that he was wearing rough fabric, not soft material. When

she was taken out of the room after all these things had happened, she

opened her blindfold slightly and saw a military uniform. After the

"dirty things", she found that she was covered in blood. Her clothes

had been torn off her and her father would have seen that they were

torn when she was released. She seemed to refer at one point to ill-

treatment of the same kind taking place on a second occasion the

following day.

105. When she was released, she was put blindfolded into a car with

her father and sister-in-law and taken to the mountains. There they

were threatened with guns. They released her father first, then herself

and then her sister-in-law.

106. She recalled going to see a doctor three to four days after she

was released. About a week after her release, she went to the public

prosecutor to make a statement. She married her cousin four or five

days afterwards.

107. She stated that she was unable to recognise photographs shown to

her by the Government Agent which he said were of Derik gendarmerie.

(2) Seydo Aydin

108. Seydo Aydin stated that he was born in 1939 and was now living

in Derik, Mardin district. On 29 June 1993 at around 7.00-8.00 hours

while he was at home tending his animals and his daughter and daughter-

in-law were also at home, the village was surrounded and five to six

village guards and one non-commissioned officer came into their house

to take them. They were told that they had been sheltering terrorists

in their house. He did not know the village guards. They were

blindfolded at the house and taken away in a military vehicle. Another

villager, a young man, was also taken away with them. The villagers

saw them being taken away.

109. They were brought to the gendarmerie building in Derik. He knew

it was the gendarmerie building because his blindfold was removed when

they arrived there. They were separated at that point and taken to

different places. Inside the gendarmerie building he saw a commander

and was asked his name and his father's name but did not know if this

was written down. He was blindfolded again and thrown in the coal

cellar.

110. The night after his arrival, he was taken to a torture chamber

and beaten. He was hit all over his body by some-one's hands. He was

asked in Kurdish "who comes to your house, who do you look after". He

was not ill-treated in any other way.

111. He did not see his daughter or daughter-in-law again until three

days and three nights later when all three of them were taken out of

the building and put into a military vehicle. When he was taken to the

torture chamber, he recognised his daughter's voice when she was being

tortured but did not know whether she was in the same room or not,

since he was blindfolded constantly after his arrival.

112. When after three days they were placed in a military vehicle,

they were taken to a mountain near the village and at about a 10 minute

distance from the village he was released. Before he was released, he

was warned that he should not speak of what had happened. He walked

home and his daughter and daughter-in-law, who had been released

separately, arrived after brief intervals.

113. When he met his daughter in the vehicle, she did not tell him

anything. He did not notice that her clothing was ripped. After they

came home, his daughter told her mother what had happened and his wife

had then told him. She said that she had been tortured and raped and

that she had been blindfolded. He had not questioned his daughter

himself since he was embarrassed. They went to the public prosecutor

and presented a petition and the prosecutor sent them into Derik and

then Mardin. The public prosecutor took their statements. The public

prosecutor had asked whether the villagers had seen them being taken

away by the security forces. He had not gone to the public prosecutor

earlier since he was was afraid that they would come back and he was

packing up to move. He had heard that the prosecutor had called for

questioning the muhtar of the village and two other villagers, Ali

Aydin and Celal Aydin.

114. The security forces had been to the village on previous occasions

to search. He had never seen any PKK terrorists in the village. He had

never been charged with any terrorist-related offence. He denied any

knowledge of code-named members of the PKK or that his son, Deniz

Aydin, was involved with the PKK. His son had been held in custody for

15-17 days but had been released.

115. About four months after the incident, his daughter married by

exchange, her husband's sister marrying her brother at the same time.

She has had a child which is in its second year.

116. He recalled that about a month before he had been called to the

public prosecutor's office and asked for his daughter's address. He did

not recall being warned by any official that he was too involved in the

case and should be careful.

(3) Musa Çitil

117. Musa Çitil stated that he was born in 1962. He had been commander

at Derik district gendarmerie headquarters from June 1992 to

August 1994. His main functions and duties were to secure law and

order, to alleviate difficulties of the villages and to relieve the

pressure on the citizens from the terrorists and to safeguard their

lives and property. He had approximately 450 gendarmes under his

command in the whole Derik area with an additional number of 670-680

village guards under his authority. There were Kurdish speaking

gendarmes under his command.

118. He knew Tasit village. The PKK was particularly active in that

area which was mountainous and provided shelter. Their impression was

that the villagers were supporting the terrorists. The gendarmes sought

to persuade them that involvement with the terrorists would not be

good for them but the villagers did not apply to the gendarmes very

often. In 1993 the PKK had tried to reinforce their activities in the

area and clashes between the PKK and the security forces were frequent,

25 during his period of service as well as other types of PKK activity.

From 1994, there was a significant drop in the number of terrorists and

militia (term applied to individuals who aided and abetted the

terrorists): from 250 in late 1993/early 1994 to 4-5 active terrorists.

He considered that following the clashes with the security forces the

terrorists had a hard time continuing their activities and there was

a reduction in the amount of material and information and other help

which they received from the population. They lost their power to

influence the citizens. The gendarmes during that period put pressure

on the militia, who lost their effectiveness.

119. There was no operation or incident in the village on

29 June 1993. The gendarmes were about that time concentrating their

operations in a triangular area 20 kilometres further east, which was

where they had determined the location of the PKK.

120. There was a duty to record operations. Any operations by station

personnel within the jurisdiction of the gendarmes stations would be

recorded in the duty ledgers. Failure to maintain the custody register

accurately was an offence.

121. He described the Derik headquarters as consisting of two floors.

The custody/detention room was on the ground(first floor) and contained

bunks and chairs. It could be occupied by three persons at most.

122. The district gendarmerie headquarters did not have interrogation

units, which were located in the provincial gendarmerie headquarters

where there were expert interrogation personnel. They had no

professional interrogation experts in their headquarters and they

usually did not carry out interrogations, sending suspects to Mardin

provincial headquarters, which was 45-50 minutes away by road. While

terrorist activity had increased in the area from the end of 1992-

beginning of 1993, the level of reported ordinary crime had dropped,

since the terrorists discourage citizens from utilising state apparatus

and would hold their own courts and carry out their own type of law

enforcement. Accordingly, the records would show a decrease in the

ordinary crime rate. As regarded terrorist-related crimes, they

continued to send the suspects captured during terrorist activities to

Mardin for interrogation. He was not surprised that the Derik custody

register for 1993 indicated that only 6 persons had been taken into

custody. He could not account for the fact that 11 terrorist suspects

had been detained for a fortnight in March-April 1995 but said that in

1995, after he had left, the headquarters had been subject to repair

and the custody room might have been expanded.

123. There was a custody room in the 7 local gendarme stations

attached to Derik. They would inform the district commander of anyone

who was going to be detained and he would seek instructions, oral or

written, from the public prosecutor. He checked the custody registers

when he inspected local stations. He stated that they never took

terrorist suspects into custody save where they received instructions

from the public prosecutor's office to arrest and to take a statement

from a person. Such a statement would be taken in the station

commander's office in the station commander's presence. Persons

suspected of ordinary offences would not be recorded in the custody

record : their statement would be taken and they would be sent before

the public prosecutor with their statement. They had no interrogation

room in Derik headquarters.

124. Where a person is taken into custody on instruction of the public

prosecutor, the gendarmes take him to the public health centre or

hospital to have his medical condition noted and the fact that he has

been taken into custody is noted in the custody register. Before

leaving detention, he is examined again at the health centre. This

procedure applied to everyone whether suspected of terrorist or

ordinary crimes. If a terrorist or collaborator was to be arrested,

they informed the provincial gendarmerie command and notified the

public prosecutor orally by telephone or radio. They would receive

written or oral instructions, prepare the documents and send the person

to the interrogation department of the provincial headquarters or a

mobile team would come form Mardin to fetch them. Such a person would

not be entered in the custody register of Derik even if they entered

the station since they would be entered in the provincial custody

register. Persons might be held, though this was rare, if the

provincial headquarters was short of staff or space or if the arrest

took place late in the day but they would contact the public

prosecutor. If the public prosecutor instructed them to keep them in

detention and enter them in the custody record and bring them the next

day to the public prosecutor's office, they would detain the person,

take him to the health centre, transferring the person to Mardin the

next day at the latest.

125. He first heard of the allegations of Sükran Aydin when they

appeared in the newspaper Özgur Gündem or Özgür Ülke and he thought

this was about the end of June beginning of July. He learned later,

around the same time, that the public prosecutor had begun an

investigation. In response to the newspaper report he mentioned it to

those who had been involved in the last operation carried out there in

May 1993. It was a very serious allegation and he had his own personnel

investigate all the documents and information. He had noted that on

these dates there was no operation and the story did not seem

convincing. No-one could be arrested or taken into custody without his

knowledge. He was in the headquarters in July and he would have seen

anyone who was brought in. He did not consider it necessary to

interview his subordinates to determine whether or not anyone had been

brought in without procedures being properly followed. He had never

been asked to make a statement concerning the allegations made in this

case. None of his subordinates had ever been referred to the public

prosecutor for failure to comply with the rules.

126. To become a village guard, a person had to volunteer by applying

to the security forces or the district governor. His background is

checked for a criminal record. Village guards have to be over 18 and

to have completed their military service. The gendarmerie may make

suggestions but the decision to appoint is taken by the governor and

governor general who can refuse a proposed candidate. Each gendarmerie

station had an area of responsibility and the village guards from that

area would report to the local station. If the local station commander

could not solve a problem then he would refer it to the district

headquarters. If they felt it necessary, a village guard could come and

talk to him. They also held regular weekly, sometime monthly meetings

with the village guards. They would meet in the office of the district

gendarmerie commander.

127. He stated that blindfolds had not been used at Derik

headquarters. Village guards played no role in arresting or

transferring suspects. Their role was to protect their villages and

fields and to pass information to the security forces. They would only

be involved in operations in their own areas. They would be used in

operational activities in a village under the local station

responsibility which did not itself have village guards. Generally, the

gendarmes would carry out arrests or take persons into detention. At

most the village guards would be used, if there was a shortage of

military personnel, to provide area security without implementing the

arrest itself or entering the house, save if it was necessary for an

identification to be made. Village guards were always supervised by the

gendarmes, a non-commmissioned officer (NCO) or an officer.

(4) Mustafa Yanalak

128. Mustafa Yanalak stated that he was born in 1968. Between 1991 and

1994, he was operations and intelligence operative at Derik district

gendarmerie headquarters, with in 1993 the additional responsibility

for security and custody. As custody officer, when a person was to be

taken into custody, he was entered into the custody room register under

his personal supervision. This entry would be made after the person had

received a medical check at the health centre and the doctor had

reported whether he was fit to be detained. The person would be

searched, entered into the register and placed in the custody room. No-

one was blindfolded, either during arrest or detention. There was one

custody room, with three beds which could hold three persons. No woman

had ever been taken into custody by him.

129. The Derik gendarme headquarters had two storeys. The custody room

was on the ground floor, opposite the hallway and before the canteen

and kitchen area. He was on duty from 08.00 to 17.30 hours each day.

When he went off duty, he recalled that Ali Kocaman (the senior non-

commissioned officer at the station) was the duty non-commissioned

officer. However the non-commissioned officers took it in turns to be

the duty officer which entailed all night duty until next morning.

There was a prepared monthly rota of persons who were on duty which was

kept in the records.

130. No-one was taken into custody on 29 June 1993. The applicant was

not taken into custody. He would have known if she had been. He heard

of the applicant's allegations following correspondence from the public

prosecutor with the gendarmerie. He was not asked anything orally about

the allegations nor asked to make a statement in writing.

131. No interrogation of terrorist suspects took place in Derik

headquarters, such persons being sent directly, without being taken

into custody, to Mardin provincial gendarmerie headquarters, which had

an interrogation centre and persons who could speak Kurdish. Generally

those that they took into custody were concerned with ordinary

offences. They would only take into custody terrorist suspects under

instructions from the provincial headquarters, holding them for a day

before sending them off. If they were held at Derik, they would be

entered into the custody register. He recalled 6 persons were taken

into custody in 1993 and he stated that this was an annual average. The

drop in statistics from earlier years was explained by the increase of

terrorist activity which led to a decrease in ordinary offences. He

could not account for the fact that according to the custody register

11 terrorist suspects had been detained for a fortnight in March-April

1995, but said that, since he had left, the building had undergone

renovation. When they took a Kurdish-speaking person into custody they

had to call the provincial headquarters who had personnel who could

speak Kurdish.

(5) Bekir Özenir

132. Bekir Özenir stated that he was born in 1968 and was prosecutor

in Derik for fifteen months from 14 February 1993 to 16 June 1994. For

a period there were two public prosecutors in the office but for 4

months ending April 1994 he worked alone. There are about 20,000

people in his district. Tasit was 10 kilometres from Derik.

133. As regarded the applicant's allegations, when she and the other

members of her family complained to him on 8 July 1993, he began the

judicial investigations. He referred the complainants for medical

reports. He inquired from the gendarmerie and inspected the custody

record. According to the Criminal Code, the public prosecutor's office

must be informed when a person is taken into custody and it must be

reported in the custody record. He did not question any other villagers

since the complainants had not named any witnesses and their statements

gave the impression that they had been taken away early in the morning

without anyone being aware. He would have asked them if they had any

witnesses. He did not consider it necessary to go to the village since

it was not there that the incident (offence) took place.

134. When he left the area, the investigation had reached the stage

where it would have been necessary, according to the decisions of the

Court of Cassation (Supreme Court), to send the female victim, together

with the file, to the Forensic Medicine Board for psychosomatic

examination. They had been searching for the applicant but had been

unable to find her.

135. This was the only complaint of rape that had been made at Derik

during his time there. There had been no complaint of any kind of ill-

treatment by the gendarmerie during that period. He had never dealt

with a rape case before. He recalled that he sent the applicant for a

second medical examination because the first doctor had been unable to

state when the hymen was torn. He sent her for a third examination

since there were inconsistencies between the first and second reports.

He had requested a defloration examination rather than an examination

as to whether sexual intercourse had occurred since, according to his

forensic knowledge, sperm could only survive in the vagina for three

days whereas loss of virginity could be determined within 7 days. The

bruising on the applicant's thighs could have been caused by riding on

horseback or by working in rough terrain. He seemed to recall that the

file had later been sent to the Forensic Medicine Board for a

physiological examination as was the required practice.

136. There was only one gendarme station in Derik though there were

rural stations also. The Derik headquarters was a 3-4 storey building.

When referred to the custody record he was not struck by the small

number of persons detained in 1993. He had not interviewed the

commander or the non-commissioned officers at the headquarters. A

serious crime was being alleged and even interviewing a person on such

an accusation could end their career. It was out of the question to

summon somebody for interview as a suspect regarding the offences of

rape and torture without first obtaining sufficient positive evidence.

Such evidence did not exist in this case. It was unthinkable to do

such a thing. No enquiry was made to follow up whether for any reason

they had not been put in the ledger. He had also checked to see if

persons had been sent to the public prosecutor for terrorist crimes,

in which case there would have been a file and there was no need to

check if they had been in custody.

137. Interrogation of terrorist suspects took place in Mardin where

there were proper facilities and trained people.

(6) Dr. Deniz Akkus

138. Dr. Akkus stated that he was 27 years old. At the time of the

taking of evidence, he was performing his military service. He

qualified in 1992 and was working as a general practitioner in Derik

State Hospital for fourteen months until November 1993. He did not

have any independent recollection of having examined the applicant but

acknowledged that he had written and signed the report. He had not

dealt with any rape cases before. Derik State hospital was unable to

cope with gynaecological cases and forensic medicine was a specialised

field in Turkey. Having been referred to his report, he had no view on

what could have caused the widespread bruising, which he had noted but

thought it would have been caused by physical trauma rather than any

disease. He had not had much experience of bruising. When he referred

to the "inner sides of the thigh" in his report, he must have meant the

thighs in the plural rather than the singular.

139. As regarded the reports he had made for Seydo Aydin and Ferahdiba

Aydin, he considered that the injuries recorded could not have been

serious since he had noted that they would heal in four days. Four days

would not be enough to recover from a serious beating. He agreed

Seydo's injury might have been caused by a blow but that there might

be other explanations.

140. It was the task of the judicial authorities to consider whether

injuries resulted from torture, a fight or a fall. The motive for a

patient seeing a doctor did not affect things and he did not pay much

attention to it. He would only write in a report what a person told

him.

(7) Dr. Ziya Çetin

141. Dr. Çetin stated that he was born in 1962. He had worked at the

State Hospital in Mardin from mid-1992 to mid-1993. He was a

specialist in gynaecology and obstetrics. He confirmed that the medical

report of 9 July 1993 was in his handwriting and had been signed by

him. He clarified the text of his report and supplemented its missing

word with that of "scar tissue".

142. He did not remember the applicant. He did not frequently deal

with rape cases. However requests for virginity examinations were quite

common, to the extent of some ten cases per year. Not all of these

would be rape cases.

143. He explained from his report that the virginity of the patient

had been examined. The membrane at the entrance of the vagina had been

seen. When a hymen is broken the tear is diagnosed at an angle

corresponding to the hours of a clock. When defloration takes place

the hymen is torn and there is redness (hyperaemia). After a week this

redness disappears and scar tissue is formed. This scar tissue will

remain for life provided no other tears occur, as with labour. In his

view an examination a month after the defloration would serve no

purpose. To be able to diagnose whether there is a recent tear or

defloration, the person has to come for an examination within a week.

After that, it is impossible to estimate the time of defloration,

there being no difference between two weeks or two years. Ninety-five

percent of tears occur on the 5/6/7 level towards the rear. He had

never seen a tear on the clockwise scale of 11/12. He was not concerned

with bruising which was outside his area of expertise. Even in a rape

case, he would not be concerned with other areas of damage and would

only examine the genital organs.

144. The procedure would be that the patient would be asked what had

happened to her before the examination. However it is not the practice

to describe this in the report or to state whether the medical evidence

is consistent with the patient's story. He would only record the

results of the medical examination. A vaginal smear or the taking of

swabs for forensic examination would depend on the request that had

been transmitted to the doctor. If only a hymen examination is

requested that is all that is performed. If an order had been given

to evaluate whether sexual intercourse had taken place, then a swab

would be taken. These examinations are not made on the doctor's

initiative. He did not think that after his report a further report

would have been necessary.

145. The bruising and signs of defloration might be consistent with

involuntary sexual intercourse or some other form of trauma such as a

fall. He could not derive any conclusions in the specific case. There

was not a practice in Turkey of alleged victims of rape being examined

by women gynaecologists.

(8) Harun Aca

146. Harun Aca stated that he was born in 1966. He had been a member

of the PKK terrorist organisation but had surrendered to the Turkish

authorities and was acquitted. He had been leader of one of the PKK

units in the region near Derik.

147. He had known the applicant and her family. She had two brothers

who were members of his militia. The militia consisted of people who

conveyed messages, provided logistic support etc. Deniz Aydin had, for

example, introduced him to the terrain of the area.

148. He met the applicant in February 1993 and several times

afterwards. He last saw her in May 1993. He had made almost daily use

of the house of her father, Seydo Aydin for meetings of the PKK. He

stated that he was told by a terrorist, codename Mervan, that two other

members of the group were sexually involved with the applicant.

C. Relevant domestic law and practice

149. 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 (No. 21987/93 Comm. Rep.

23.10.95 pending before the Court). The applicant in this case adopts

the same submissions on remedies for the purposes of this application.

150. 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."

151. 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.

152. 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."

153. 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 some-one to torture or ill-treatment (Articles 243 and

245)

- to commit rape (Article 416 concerning persons over 15).

154. 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.

155. 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.

156. 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.

157. Proceedings against the Administration may be brought before the

administrative courts, whose proceedings are in writing.

158. 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. These councils are made up of civil servants

and have been criticised for their lack of legal knowledge, as well as

for being easily influenced by the Regional Governor or Provincial

Governors, who also head the security forces.

D. Relevant international material

159. In its Public Statement on Turkey adopted on 15 December 1992

(CPT/inf (93)1), the European Committee for the Prevention of Torture

(CPT), following three visits to Turkey, found:

"In light of all the information at its disposal, the CPT can

only conclude that the practice of torture and other forms of

severe ill-treatment of persons in police custody remains

widespread in Turkey..." (para. 21).

It emphasised the words "persons in police custody", having heard fewer

allegations and finding less medical evidence of torture and other

forms of premeditated severe ill-treatment by members of the

gendarmerie (para. 24). It considered that "the phenomenon of torture

and other forms of ill-treatment of persons deprived of their liberty

in Turkey concerns at the present time essentially the police (and to

a lesser extent the gendarmerie). All the indications are that it is

a deep-rooted problem" (para. 25).

160. The CPT recommended action to be taken in a number of areas. It

stated:

"Furthermore, public prosecutors must react expeditiously and

effectively when confronted with complaints of torture and ill-

treatment...In order to facilitate effective action by public

prosecutors, the medical examinations of persons in police and

gendarmerie custody carried out by the Forensic Institutes whould

be broadened in scope (medical certificates should contain a

statement of allegations, a clinical description and the

corresponding conclusions). Further, appropriate steps should be

taken to guarantee the independence of both Forensic Institute

doctors and other doctors who perform forensic tasks, as well as

to provide such doctors with specialised training..." (para. 26).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

161. The Commission has declared admissible the applicant's complaints

that on or about 29 June 1993 she was taken into custody by State

security forces and during her detention was subjected to ill-treatment

and raped and that she had no access to court or effective remedy in

respect of these matters.

B. Points at issue

162. The points at issue in the present case are as follows:

- whether there has been a violation of Article 3 (Art. 3) 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 Turkey has failed to comply with its obligations under

Article 25 para. 1 (Art. 25-1) of the Convention.

C. The evaluation of the evidence

163. Before dealing with the applicant's allegations under specific

Articles of the Convention, the Commission considers it appropriate

first to assess the evidence and attempt to establish the facts,

pursuant to Article 28 para. 1 (a) (Art. 28-1-a) of the Convention. It

would make a number of preliminary observations in this respect:

i. there have been no findings of fact reached by domestic

authorities as regards the applicant's complaints: the Commission

has accordingly based its findings on the evidence given orally

before its Delegates or submitted in writing in the course of the

proceedings;

ii. in relation to the oral evidence, the Commission has been

aware of the difficulties attached to assessing evidence obtained

orally through interpreters (in some cases via Kurdish and

Turkish into English): 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

there has been a violation of Article 3 (Art. 3) of the

Convention, the standard of proof is that of "beyond reasonable

doubt"; such proof may follow from the coexistence 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 (Eur. Court H.R., Ireland v. the United

Kingdom judgment of 18 January 1978, Series A no. 25 p. 65 para.

161).

Concerning the alleged events of 29 June-2/3 July 1993

a. concerning the alleged taking into custody of the applicant

164. The Commission notes that the written statements of the

applicant, Ferahdiba Aydin and Seydo Aydin dated 8 July 1993 taken by

the Derik public prosecutor, as well as Seydo Aydin's further statement

of 18 May 1993, assert that they were taken into custody at their

village in the morning of 29 June 1993 by a non-commissioned officer

accompanied by village guards, who took them to Derik gendarme

headquarters where they were held for three days. The undated written

statement of the applicant to the Human Rights Association also

confirms this account but describes the village guards arriving on the

evening of 29 June 1993 and taking them from their house on the

following morning. The applicant's oral testimony also differs from

these previous written accounts, stating that the village guards

arrived on the morning of 29 June 1993, called at their house in the

evening and then took them from the house the next morning. Seydo

Aydin's oral testimony was consistent with his previous written

statements. Both Seydo Aydin and the applicant recalled before the

Delegates that they had been taken downstairs to a basement("a coal

cellar" in Seydo Aydin's words). Seydo Aydin was clear that he

recognised Derik when his blindfold was removed on their arrival. The

basis of the applicant's identification of the building is less clear.

She recalled seeing the building when they were brought out to be taken

away in a military vehicle. She was unable to recognise photographs of

the building which were produced by the Government.

165. The Commission finds the inconsistencies in the evidence as

regards the date and the timing of the arrival of the village guards

to be of a minor nature. Given the passage of time since the events

which occurred, it considers that the difference in the applicant's

recollection as regards this element does not impinge on her

credibility since on the essential sequence of events her accounts are

basically consistent and are supported by the evidence of her father.

As regards the applicant's failure to recognise the photographs, the

Commission notes that the applicant stated that she had never travelled

out of the village before these events. It would therefore appear

unlikely that she had any previous knowledge of Derik gendarme

headquarters and when she stated in her oral testimony that they had

recognised the building when they left, it is likely that she was

relying on her father's identification of the building.

166. More significantly, as pointed out by the Derik public

prosecutor who investigated her complaints and by the Government, there

is no other evidence to support her claim that she was taken into

custody at Derik gendarme headquarters. In particular, an inspection

of the original custody record for 1993 does not show any indication

that the applicant and the other members of her family were taken into

custody.

167. Before the Delegates, the two gendarmes officers questioned were

firm in asserting that no-one could have been taken into custody

without their knowledge, Musa Çitil being the commander of the station

and Mustafa Yanalak being the non-commissioned officer with daily

responsibility for the custody room.They were clear as to the

requirements of Turkish criminal law as to the duty imposed on

gendarmes to record persons in custody in their custody register.

168. However, the Commission notes that the custody register for 1993

records only six persons being taken into custody in the entire period.

The figures recorded for 1993 and 1994 (7 persons) are in marked

contrast to previous years, involving a drop of almost 90% in

comparison with 1990-1992. According to the two gendarmes who gave

evidence, this was the result of the increase in terrorist activity in

the district, which involved pressure on the villagers to discourage

them from reporting ordinary crimes, in addition to which suspects

implicated in terrorism were not held at Derik gendarme headquarters.

The Commission accepts that the deterrent effect of a terrorist

campaign might account for some drop in the statistics but it does not

find the explanation of the gendarme officers entirely satisfactory.

While they alleged that PKK suspects were sent on directly to Mardin

provincial headquarters where there were interrogation facilities and

trained personnel, nonetheless two of those persons recorded as

detained at Derik in 1993 were held on suspicion of terrorist

involvement. Further while it was stated that it was only

exceptionally that terrorist suspects would be held, and at most for

one night pending transfer to Mardin, the custody register indicates

that one such suspect was held from 20 August to 27 August 1993. In

addition, the custody register records that 11 terrorist suspects were

detained at Derik gendarme headquarters for a fortnight in March-April

1995. While it was suggested by both officers that the headquarters

might have been modified after they had left, there is nothing in the

evidence before the Commission to suggest that there was any material

enlargement of the building. The information supplied by the Government

refers only to renovation of the basement which appears, on the basis

of the video-cassette supplied, to have occurred in or about August

1995.

169. It also appeared from the officers' oral testimony that where it

was expected that a suspect was going to be transferred shortly to

Mardin, it was not regarded as necessary to make an entry in the

custody register for the period of time pending the transfer. The

Commission has had regard to the fact that in another Application No.

22496/93, Tekin v. Turkey, admissibility decision 20.2.95, the

applicant journalist's allegation that he was held in custody and

interrogated by Derik gendarmes in 1993 has not been contested by the

Turkish Government, yet there is no appearance of this applicant's name

in the Derik gendarme custody register.

170. Further, both the gendarme officers before the Delegates

maintained that the custody room was on the ground floor and when asked

to describe the building omitted to mention the existence of a

basement. Only subsequent to the taking of their evidence, did it

appear from a video of the building and, later still, from a plan that

there was a basement used as a security area, with two custody rooms

and an office. The video was taken on 20 August 1995. By letter dated

20 February 1996, the Government has stated that at the relevant time

in 1993 one of the three rooms in the basement was used as a custody

room and the other two rooms used as storerooms.

171. The Commission, finally, recalls that both the applicant and her

father referred to being spoken to in Kurdish during their detention.

The gendarme officers differed in their response to how the Derik

headquarters coped with Kurdish speakers: Musa Çitil stated that there

was personnel at the headquarters who spoke Kurdish whereas Mustafa

Yanalak stated that they had to call to Mardin provincial headquarters

for assistance.

172. The Commission concludes that the evidence of these officers, as

regards the facilities for taking persons into custody and the practice

regarding taking persons into custody during 1993, has been less than

frank. It finds itself left with serious doubts as to whether the

gendarme custody register is an accurate record of persons taken into

custody during 1993. In these circumstances, the Commission considers

that the lack of any official confirmation of the applicant's detention

in custody is insufficient evidence to discredit the account of the

applicant and her father, which it finds to be credible and on the

whole consistent.

b. concerning the treatment of the applicant during her detention

173. The applicant alleges that during her detention she was

blindfolded, stripped naked, hit, placed in a tyre and hosed with high

pressure water and raped.

174. The Commission notes that the applicant's statements to the HRA

and the public prosecutor and before its Delegates are consistent as

regards the first four elements, save that the statement taken by the

public prosecutor on 8 July 1993 makes no reference to the tyre or

high-pressure water. The statement of the applicant's sister-in-law to

the public prosecutor does however make reference to a tyre being used

in ill-treatment. The applicant's father in his statement denied any

tyre being used in his case. The Commission finds no indication of any

element of fabrication in differences between the versions given but

rather receives the impression that the applicant and her father were

giving independent versions of their individual experiences. The lack

of reference to the tyre and hosing of water in the brief statement to

the prosecutor is not an omission, which, in the Commission's view,

casts doubt on the reliability of her oral testimony on this point.

While there is no medical evidence of injuries resulting from this ill-

treatment, the Commission notes that any or any longterm physical signs

were unlikely to arise from the hosing or placing in the tyre. Though

it might have been expected that bruising, for example, would have been

apparent on examination by Dr. Akkus on 8 July 1993 (he recorded

physical injuries in respect of Seydo and Ferahdiba Aydin), his brief

report concentrates on the signs of defloration. It is not apparent

from the brevity of the report that he in fact gave his attention to

whether any other injuries were present.

175. The evidence before the Commission regarding the fifth and most

serious allegation - rape - is more problematic. There are a number of

inconsistencies of detail between the various statements taken from the

applicant and her oral testimony to the Delegates. It notes that the

statement to the public prosecutor indicates that on separate occasions

she was raped three times; her statement to the HRA refers to only one

occasion, while before the Delegates she appeared to refer to the ill-

treatment, which included "dirty things", occurring on one or possible

two different days. In her statement to the prosecutor, she is recorded

as saying she did not know how many persons raped her, whereas in her

statement to the HRA and to the Delegates she refers only to one man

as being involved. In the HRA statement she is stated to have said that

the man held her mouth to stop her shouting while orally she said that

she cried and shouted and that the man hit her. In the HRA statement,

she states that the man spoke to her to tell her to get dressed whereas

orally she stated that he did not speak to her. There is also a passage

in the HRA statement highlighted by the Government in their

observations which refers to the applicant's sister-in-law as waiting

outside the door, whereas the applicant had alleged that she was

blindfolded and inside a locked room. Orally, the applicant made no

reference to this element.

176. The Commission has had occasion previously to remark critically

on the accuracy of and approach adopted in statements taken by both the

HRA and the authorities (see Mentes v. Turkey, No. 23186/94 Comm. Rep.

7.3.96), whereupon it gave particular weight to the oral evidence given

before its Delegates. It also notes that its Delegates have remarked

that there is a particular difficulty in obtaining spontaneously and

precisely detailed narrative accounts from villagers from the

unsophisticated rural background of south-east Turkey. Their language

is at times obscure and imprecise with regard to factual and

grammatical points (for example, slipping from singular to plural) and

not distinguishing between what they have seen personally or have been

told by others or what they assume or guess to be the course of events.

In the present case, there are no obvious indicators of inaccuracy as

such in the statements of the public prosecutor or HRA. In assessing

whether the inconsistencies in these versions are derived from the

applicant's lack of reliability or the way in which her statements were

recorded, the Commission has had regard to whether there are any

further substantiating elements to her account of rape.

177. The applicant was subject to three medical examinations by

doctors, following which reports were issued. The Commission's

Delegates heard oral testimony from two of these doctors, neither of

whom had any personal recollection of the applicant. From these

materials, it is only possible to conclude that the applicant was no

longer a virgin and that sexual intercourse had taken place more than

one week before the second examination on 8 July 1993. Dr. Çetin in

particular was emphatic that it was not possible to be more precise as

to timing after more than one week had elapsed since the event. His

view was supported by the written report of the doctor from the

Diyarbakir Maternity Hospital to the effect that defloration

perforations healed between 7 and 10 days and that older perforations

could not be accurately dated. The first examination on 8 July 1993

also noted widespread bruising on the inner thighs. The Commission

finds that this medical evidence is not inconsistent with the

applicant's allegation of rape occurring on 29-30 June 1993 and that

the presence of the bruising is strongly supportive of forcible sexual

intercourse having taken place. It recalls the opinion of the medical

experts from Hacettepe University to the effect that bruising in a rape

case would disclose the shape of fingers but, even assuming this to be

the case, it does not consider that Dr. Akkus' finding of "widespread"

bruising on the inner thighs is contradictory.

178. The Commission has found little direct assistance in the two

expert medical reports submitted by the applicant's representatives and

the Government. Dr. Milroy's conclusion as to timing of any perforation

is based on a mistake as to the dates (acknowledged by the applicant's

representatives) and a similar miscalculation as to dating, as regards

the bruising, is contained in the opinion from Hacettepe University.

The Commission notes that the latter also espouses the view that the

medical indications recorded on examination of the applicant indicate

that defloration must have occurred 15-20 days before examination due

to the absence of hyperaemia and the existence of cicatrisation. The

Commission notes that no explanation is given in this report for the

adoption of a different approach to the recovery time to that adhered

to by both Dr. Çetin and the specialist at the Diyarbakir Maternity

Hospital. The Commission on this point prefers the evidence of the

doctors who examined the applicant. As regards the suggestion that the

bruising on the applicant's thighs could have been caused by, inter

alia, donkey riding or that it might have been self-inflicted, there

are no elements to substantiate these hypotheses or to suggest in the

circumstances of this case that these were more likely to be the cause

than the events complained of by the applicant.

179. The Commission further notes that the applicant's father gave

evidence that on her return from custody the applicant informed her

mother that she had been raped. The three members of the family who

alleged that they had been taken into custody made formal complaint to

the public prosecutor within a week of their release and the medical

examinations of Dr. Akkus revealed signs consistent with their

allegations of having been ill-treated.

180. The Commission has also given weight to the Delegates' assessment

of the applicant's appearance before them in Strasbourg. In rape cases,

the nature of the crime is often such that the credibility of the

complainant is of particular importance. The Commission has not been

persuaded of the existence of any motivation which would induce the

applicant to lie and her family to support a fabricated story of this

kind. On the contrary, both the applicant and her father were credible

and convincing in their answers to questions and impressed as people

who had suffered distressing events. The Commission regards the

expression "dirty things" as a euphemism for sexual acts. It considers

that the applicant's oral testimony regarding "dirty things" while

naked can be considered in its context to support her statement to the

public prosecutor and it would note that the Government do not deny

that she complained of rape to the public prosecutor. The Commission

accordingly finds it established on evaluation of the evidence before

it that, during her custody in the Derik gendarmerie headquarters, the

applicant was blindfolded, beaten, stripped, placed inside a tyre and

sprayed with high pressure water, and raped. It would appear probable

that the applicant was subjected to such treatment on the basis of

suspicion of collaboration by herself or members of her family with

members of the PKK, the purpose being to gain information and/or to

deter her family and other villagers from becoming implicated in

terrorist activities.

181. 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 3 (Art. 3) of the Convention

182. Article 3 (Art. 3) of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

183. The applicant complains that the treatment to which she was

subjected in custody (beatings, being placed in a tyre and sprayed with

pressurised water) was inflicted on her in a deliberate and cruel

manner and that her nakedness increased her vulnerability and

exacerbated the level of humiliation which she suffered. This amounts

to torture within the meaning of Article 3 (Art. 3) of the Convention.

It is further argued that there is a practice of torture in Turkey,

reference being 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 by

various non-governmental organisations such as Amnesty International.

The applicant argues that these materials disclose a consistent pattern

of torture in custody and official tolerance on the part of the

authorities, who disclose incredulity in the face of allegations of

ill-treatment and fail to implement basic safeguards to prevent the

occurrence of torture. The applicant's complaints are part of this

practice, which constitutes an aggravated violation of Article 3

(Art. 3). As regards the rape of the applicant in custody, it is

submitted that this is a most intimate assault on the dignity and

bodily integrity of a person. Rape in custody, by a person clothed in

the authority of the State where the victim is in a position of

isolation and dependency, had a particularly serious stigma attached,

not least as a result of the long term and serious mental and

psychololgical trauma and damage that may be caused by such treatment.

This is aggravated by the social stigma attached to rape in Kurdish

society. The applicant maintains that her rape in custody also

constitutes torture within the meaning of Article 3 (Art. 3) of the

Convention.

184. The Government have made no further submissions on the merits of

the applicant's complaints beyond their comments at the taking of

evidence before the Delegates.

185. 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.

186. According to the established case-law of the Convention organs,

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,

depending on all the circumstances of the case, including the nature

and context of the treatment, its physical and mental effects and

duration, and in some cases, the sex, age and state of health of the

victim (see Eur. Court H.R., Ireland v. the United Kingdom judgment of

18 January 1978, Series A no. 25 p. 65 para. 162). The Court has

further noted that it appears to be the intention that the Convention

with its distinction between "torture" and "inhuman and degrading

treatment" should by the first of these terms attach a special stigma

to deliberate inhuman treatment causing very serious and cruel

suffering (loc. cit. p. 66 para. 167).

187. 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:

"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 is suspected of having

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..."

188. The Commission recalls its findings of fact (para. 180 above)

that the applicant was during her three days in custody blindfolded,

beaten, stripped, placed inside a tyre and sprayed with high pressure

water, and raped.

189. The Commission notes that the applicant was aged approximately

seventeen when she was taken into custody by the security forces. She

was isolated from the other members of her family and blindfolded. She

was in the circumstances in a highly vulnerable situation. The

deliberate ill-treatment inflicted on her by beating and being placed

in a tyre and hosed with pressurised water, combined with the

humiliation of being stripped naked, falls clearly within the scope of

the prohibition contained in Article 3 (Art. 3). Rape committed by an

official or person in authority on a detained person must in addition

be regarded as treatment or punishment of an especially severe kind.

The Court in a previous case has referred to the "essentially debasing

character of rape" and implied its incompatibility with the fundamental

notions of human dignity and human freedom (see eg. Eur. Court H.R.,

C.R. v. United Kingdom judgment of 22 November 1995, Series A no. 335-C

para. 42 and also X. and Y. v. the Netherlands judgment of 26 March

1985 Series A no. 91 p. 13 para. 27). In the Commission's opinion, the

nature of such an act, which strikes at the heart of the victim's

physical and moral integrity, must be characterised as particularly

cruel and involving acute physical and psychological suffering. This

is aggravated when committed by a person in authority over the victim.

Having regard therefore to the extreme vulnerability of the applicant

and the deliberate infliction on her of serious and cruel ill-treatment

in a coercive and punitive context, the Commission finds that such ill-

treatment must be regarded as torture within the meaning of Article 3

(Art. 3) of the Convention.

Conclusion

190. The Commission concludes, by 26 votes to 1, that there has been

a violation of Article 3 (Art. 3) of the Convention.

E. As regards Articles 6 para. 1 and 13 (Art. 6-1, 13) of the

Convention

191. Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention

provide as follows:

Article 6 para. 1 (Art. 6-1)

"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 ... ".

Article 13 (Art. 13)

"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."

192. The applicant complains of a denial of effective access to court

to seek compensation contrary to Article 6 para. 1 (Art. 6-1) of the

Convention. Without criminal proceedings, the applicant has no

prospect of success in civil proceedings. In the present case, the

applicant points to numerous alleged shortcomings in the investigation

carried out by the public prosecutor , namely, his failure to give due

weight to the evidence including the medical reports, his failure to

pursue his inquiries as regarded the gendarmerie or to seek further

witnesses, his attitude that the burden was on the complainants to

adduce evidence and to establish the complaint.

193. She further alleges that she has been denied an effective remedy

for her complaint in that the investigation into her complaint was

inadequate, contrary to Article 13 (Art. 13) of the Convention. She

refers in addition to the points mentioned above to the inadequate

medical procedures and standards (including the cursory reports issued

by doctors without full details of injuries, any medical history or

opinion as to the possible cause of injuries, use of doctors without

adequate training, absence of a set procedure for conducting

examinations of victims of sexual assault or ill-treatment in custody)

and the inexplicable way in which the investigation came to a halt on

the apparent basis of the fact that the applicant had moved address and

could not be located, whereas she had already undergone three medical

examinations and there had been ample opportunity before she moved to

put any necessary questions. In addition, she argues that the denial

of an effective remedy in her case is part of an administrative

practice of failure to provide and implement effective remedies. She

refers to findings of the Commission in the cases of Akdivar v.Turkey

(No. 21983/93 Comm. Rep. 26.10.95 pending before the Court) and Aksoy

v. Turkey (No. 21897/93 Comm. Rep. 23.10.95 pending before the Court)

as well as reports by the CPT (European Committee for the Prevention

of Torture) and the CAT (the United Nations Committee against Torture).

194. The Government contend that there are several effective domestic

remedies at the applicant's disposal. She has the possibility of

applying to the civil or administrative courts for compensation and,

as regards the institution of criminal proceedings, there is a pending

investigation being carried out by the public prosecutor, who was

however unable to proceed due to the failure of the applicant and her

family to co-operate by disclosing her address when she left the

district.

195. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention requires effective access to court for civil claims. This

requirement must be entrenched not only in law but also in practice.

The individual should have a clear, practical and effective opportunity

to challenge an administrative act that is a direct interference with

civil rights, as in the present case (mutatis mutandis, Eur. Court

H.R., de Geouffre de la Pradelle judgment of 16 December 1992, Series

A no. 253-B p. 43, para. 34). The Commission observes that questions

of bodily integrity are indissolubly linked with the private and

personal sphere and must be regarded as concerning "civil rights" for

the purposes of Article 6 para. 1 (Art. 6-1) of the Convention.

196. As it has observed in previous cases (see eg. Nos. 14116/88 and

14117/88 Sargin and Yagci v. Turkey dec. 11.5.89 D.R. 61 p. 250 and

No. 19092/91 Yagiz v. Turkey dec. 11.10.93 D.R.75 p. 207), the

Commission recalls that in respect of allegations of torture there are

three remedies which appear to offer an applicant an opportunity to

obtain redress. An applicant can lodge a complaint and initiate

criminal proceedings against the alleged offenders. Secondly, he may

seek damages from the alleged offenders or the State (by means of civil

or administrative law proceedings). Thirdly, he can apply to join any

criminal proceedings as third party seeking damages.

197. Lodging of a criminal complaint by an applicant has been found

by the Commission to constitute an effective and sufficient remedy in

Turkey in respect of allegations of torture in the context of

Article 26 (Art. 26) of the Convention (see cases cited para. 196).

Further, where an applicant chooses this avenue of redress in Turkey,

the Commission has found that he is generally absolved from pursuing

further remedies in addition. The Commission is of the view that, in

respect of serious allegations of abuse of power by security forces in

the emergency area in south-east Turkey, an applicant may reasonably

and legitimately rely on the state investigatory mechanism provided by

the criminal justice system to establish the facts and thereby enable

the applicant to obtain compensation. A failure by the public

prosecutor to respond adequately or at all to possible instances of

ill-treatment of persons in custody may therefore disclose a violation

of Article 6 para. 1 (Art. 6-1) of the Convention (see No. 21987/93

Aksoy v. Turkey, loc. cit.).

198. In the present case, the applicant made a complaint to the public

prosecutor of Derik who initiated the preliminary investigation under

the applicable criminal law procedure. This investigation is still

pending. In light of the nature of the applicant's complaints, the

circumstances of which rendered her ignorant of those members of the

security forces who were involved in taking her into custody and in

respect of which much of the evidential material likely to be relevant

to the case lay within the sphere of control of the security forces,

it appears to the Commission unrealistic to expect the applicant to

pursue the administrative or civil law remedies referred to by the

Government. The question for examination by the Commission is whether

the investigation by the public prosecutor in this case conformed with

the requirements of Article 6 para. 1 (Art. 6-1) of the Convention as

regards furnishing the applicant with effective access to court.

199. The Commission notes that, after sending the applicant for a

number of medical examinations and inspecting the custody register of

Derik gendarme headquarters, the public prosecutor took no additional

substantive step in investigating her complaints beyond taking a

statement from a former PKK terrorist Harun Aca who surrendered to the

authorities. The Commission finds it remarkable that it was not

considered either necessary or appropriate for further investigation

to be carried out at the village to obtain corroboration or otherwise

of the applicant's account of being taken into custody. The

explanations for this (that the applicant and the members of her family

did not themselves volunteer the names of any eye-witnesses and the

assumption that, since it took place early in the morning, there would

have been no witnesses anyway) are not satisfactory. Equally, the

Commission views with concern the lack of any attempt to question any

members of the gendarmerie regarding the applicant's allegations. While

it must agree with the public prosecutor's view that making an

accusation of rape against an officer has serious implications and is

not to be undertaken lightly, the Commission cannot accept that this

bars a prosecutor from pursuing factual enquiries by means of

interviews with relevant personnel.

200. The Commission further does not accept that the applicant's

failure to furnish the public prosecutor with her address when she left

the district for a period of time was a material factor as regards the

lack of progress in the investigation. It notes that according to an

alleged practice imposed by a decision of the Court of Cassation

(which, notwithstanding the Commission's request, has not been

supplied to the Commission by the Government) it was expected that the

applicant should be sent with the case-file for examination by the

Forensic Medicine Institute in Ankara and that this was not possible

due to the applicant's absence from the district. Whether or not this

was in fact a requirement of domestic law and procedure, the Commission

is not satisfied that the failure of the applicant to submit to a

fourth medical examination justifies the apparent suspension of the

investigation, in particular since the necessity for this examination

is not apparent from the medical evidence before the Commission which

is to the effect that after a period of 7-10 days (15-20 days on the

view of the expert report supplied by the Government) no indication of

dating of defloration is possible.

201. In the context of the forensic aspects of the investigation, the

Commission notes serious shortcomings in the procedure adopted in the

applicant's case. It recalls that the applicant, who had alleged rape,

was sent initially to a doctor who on his own admission to the

Delegates had no expertise in the matter. Though she was seen by two

further doctors with more appropriate experience and qualifications,

the Commission would comment that in rape cases it would seem desirable

for the investigating authorities to limit the number of medical

interventions since such examinations will inevitably risk causing the

alleged victim further distress and embarrassment, whether the

complaint is well-founded or not. It would note that the reports given

by all three doctors are brief, omit any medical history or explanation

of the applicant's account of her experience and provide no expression

of opinion as to causation or consistency with the allegation of rape.

The Commission notes as regards the last point the evidence of the

doctors before the Delegates who explained that it was not the role of

a doctor to consider the cause of injuries or to comment on consistency

of findings with alleged ill-treatment, a task which, according to Dr.

Akkus, should be left to the judicial authorities. In the Commission's

opinion, the medical profession play a crucial role in the provision

of sufficient safeguards against ill-treatment of persons in custody

(see also para. 160 above concerning the CPT Public Statement on

Turkey). The absence of any requirement for, or any procedure

entailing, the detailed recording and analysis of medical findings in

relation to a complainant is a significant obstacle to any effective

investigative process. In the present case, while the reports did cover

essential matters and were, perhaps, due to the timing factor

inevitably inconclusive, the sparsity of detail which might have cast

light on other relevant matters eg. more detail concerning the

bruising, or comment as to the presence or absence of other physical

or psychological indicia is, at the very least, unhelpful.

202. The Commission concludes that the investigation in the

applicant's case was inadequate. It discloses an attitude of restraint

towards pursuing enquiries amongst members of the security forces in

the absence of already existing and conclusive evidence, which risks

giving the security forces a wide margin of unaccountability. This also

appears allied with an approach of laying the practical burden on a

complainant of providing evidence, including identifying witnesses.

203. In the light of these considerations, the Commission is of the

opinion that the applicant was denied effective access to a tribunal

that could have determined her civil right to compensation within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

204. In these circumstances, the Commission does not deem it necessary

to examine the applicant's complaints also under Article 13 (Art. 13)

of the Convention, which is superseded by the stronger protection

afforded by Article 6 (Art. 6) to claims of a civil character, as in

the present case.

Conclusions

205. The Commission concludes, by 19 votes to 8, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

206. The Commission concludes, by 19 votes to 8, that no separate

issue arises under Article 13 (Art. 13) of the Convention.

F. As regards Article 25 (Art. 25) of the Convention

207. Article 25 para. 1 (Art. 25-1) of the Convention provides in its

final sentence:

"The Commission may receive petitions addressed to the Secretary

General of the Council of Europe from any person, non-

governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties

of the rights set forth in this Convention, provided that the

High Contracting Party against which the complaint has been

lodged has declared that it recognises the competence of the

Commission to receive such petitions. Those of the High

Contracting Parties who have made such a declaration undertake

not to hinder in any way the effective exercise of this right."

208. The applicant submits that her right to effective exercise of the

right of individual petition guaranteed by the above provision has been

severely interfered with by means of intimidation and harassment of

herself and her family. She states that, following the communication

of her application to the Government and particularly following the

Commission's decision to invite her to give oral evidence, her father

was repeatedly asked her address by the public prosecutor and, on

occasion, by the police. The applicant and her husband were also

repeatedly called to the police station for no apparent reason, their

house has been searched and raided (once before 19 October 1995 and on

1 and 8 November 1995) and they have been questioned about her

application in Strasbourg. The applicant has also been made to sign a

statement the contents of which she is ignorant. Further, on or about

14 and 18 December 1995, the applicant's husband was taken into

custody. On the first occasion, he was slapped, kicked and severely

beaten with truncheons by three political police officers, one of his

teeth being broken in the process. On the second occasion, he was again

severely beaten by the same three officers.

209. Most recently, the applicant alleges that on 16 January 1996, the

applicant, her husband, father and father-in-law were called to Derik

police station from where they were sent to the public prosecutor. He

showed them the applicant's husband's statement of 19 October 1995 and

asked questions about it. The applicant's husband was asked whether the

police were intimidating them to which he replied "Yes". While they

were not ill-treated on this occasion, the applicant's husband strongly

considered that they all felt intimidated by the very fact of being

called by the police and that the constant calls by the police to their

homes was making their situation very difficult. The applicant also

makes reference to incidents of harassment, including the stoning of

her father-in-law's house which neighbours attribute to the security

forces. She submits that in light of the statements already given by

herself and members of her family the Government cannot seek to justify

any questioning by any alleged investigative requirement to question

them about the case.

210. The Government have been requested by the Commission to respond

to the serious allegations made by the applicant and members of her

family. By letter and comments dated 12 January 1996, the Government

referred to the provisions of Turkish criminal procedure whereby it is

the duty and unavoidable obligation of public prosecutors to

investigate the facts of crimes, which involves finding and questioning

witnesses. In this context, police officers function as assistants to

the public prosecutors. The public prosecutor who conducted the

investigation instigated by the applicant and her father, and the

police officers who acted under his authority, contacted the applicant

and her father with the sole purpose of investigating the facts of the

allegations and assembling the evidence. They submit that the

statements taken by the public prosecutor reveal no element of pressure

being exerted and it is in the interests of the applicant for further

evidence to be gathered. There is, they contend, no substantiation of

the allegations of intimidation and harassment, the statements

submitted by the applicant's representatives having been taken by

extra-judicial means and their authenticity disputed. They have

submitted a letter from the Ministry of Interior Affairs (Department

of Gendarmerie) which states that no search took place at the

applicant's house and that the purpose of the police officers' visit

to Seydo Aydin was to communicate to the applicant the summons to the

Commission's hearing. Since she was not there, he was asked for her

address and there was no persecution involved. In an earlier

communication of 16 June 1995 in response to the first allegations of

harassment of the applicant's father, the Government had responded that

it rejected these allegations categorically and that they formed part

of a campaign to influence the course of the proceedings and the

holding of hearings to take evidence.

211. At the taking of evidence before Delegates in Strasbourg on 18

October 1995, the Government Agent responded to allegations made orally

by the applicant's representative concerning the repeated questioning

of the applicant's father. He stated that it was the duty of the

Turkish Government to facilitate the proceedings of the Commission and

that they had to notify the applicant. To avoid any problems of non-

attendance or the waste of expenditure of coming to Strasbourg if she

did not intend to comply with the summons, it was necessary to obtain

her address from her father and that was why he was continually asked

for the address. Requesting that information from her father could not,

in his view, be regarded as harassment.

212. The Commission recalls that Article 25 para. 1 (Art. 25-1)

imposes an obligation on a Contracting State not to hinder the right

of the individual effectively to present and pursue a complaint with

the Commission. While the obligation imposed is of a procedural nature

distinguishable from the substantive rights set out in the Convention

and Protocols, it flows from the very essence of this procedural right

that it is open to individuals to complain of alleged infringements of

it in Convention proceedings. In this respect, as in others, the

Convention must be interpreted as guaranteeing rights which are

practical and effective as opposed to theoretical and illusory (see

Eur. Court H.R. Cruz Varas and others judgment of 20 March 1991

Series A no. 201 p. 36 para. 99).

213. The Commission would further emphasise that the right of

individual petition guaranteed under Article 25 (Art. 25) of the

Convention is of fundamental importance to the effective protection of

the substantive rights and freedoms provided for in the Convention and

its Protocols. Deliberate or repeated interferences with the free

exercise of that right must be regarded, in the Commission's view,

with the gravest concern. Interference may also result from indirect

pressure on applicants from State authorities. In particular,

approaches by domestic authorities to applicants to question them about

their applications in circumstances which may be construed as attempts

to discourage or penalise the pursuit of complaints may lead to a

finding that a Contracting State has failed to comply with its

obligations under Article 25 para. 1 (Art. 25-1) of the Convention. In

this context, the Commission has had regard to the difficult and

vulnerable situation of applicants, who are making complaints against

officers of the State and the absence of their legal representatives

at official interviews (see Akdivar and others v. Turkey, No. 21893/93

Comm. Rep. 26.10.95 p. 37 paras. 253-254 pending before the Court).

214. In the present case, the Commission notes, as submitted by the

Government, that the complaints of the applicant, as set out in written

observations and statements of members of her family, are unsupported

by other independent evidence. It recalls however that in his oral

evidence before the Delegates on 12 July 1995 the applicant's father

confirmed that he had been summoned to the prosecutor about a month

before and questioned about the whereabouts of his daughter, though he

did not maintain any allegation of threats being made in that

connection. It would also recall that on 9 November 1995 the

applicant's husband contacted the Commission's Secretariat when the

Commission's Delegates were taking evidence in Diyarbakir in other

cases with a view to confirming his statement of 19 October 1995.

215. The Commission is satisfied that the applicant and her family are

genuinely complaining of harassment and intimidation. It notes the

failure of the Government to deal with the factual allegations. It is

not persuaded by the Government's brief comment regarding the

authenticity of these complaints. As regards whether the complaints are

well-founded, the Commission notes that, in respect of the alleged

repeated questioning of the applicant's father before the taking of

evidence in July and October 1995, the Government Agent did not seek

to deny that this took place but submitted that it was justified and

did not constitute harassment. The Commission finds the explanation

given to be unconvincing, even spurious. The summons to the applicant

for her to appear before the Delegates was issued, at her request,

through an identified non-governmental representative in Turkey and no

copy was sent to the Government. The Commission made no request to the

Government for assistance in locating the applicant nor in serving its

summons. The somewhat officious assertion that it was the duty of the

Government to facilitate the Commission proceedings by taking steps to

ensure the applicant's presence discloses a lack of sensitivity towards

the situation of applicants and their families and an inappropriate

interpretation of the role to be played by a respondent Government in

the conduct of proceedings under the Convention.

216. As regards the applicant's complaints of raids on her house, the

taking in for questioning on numerous occasions and the beating of her

husband, the Commission recalls that it invited the Government's

response on a number of occasions and as a matter of urgency. The

Commission has found its response unhelpful and evasive. The

explanation as to the role of the public prosecutor in investigating

complaints of crime did not address the serious concerns of the

Commission as to whether pressure, direct or indirect, was being

imposed on the applicant and members of her family and as to the

existence of any valid justification for any contacts. The Commission

is aware that there may be occasions where it is necessary and

unavoidable for public authorities to contact applicants. While the

Government also stated that no search of the applicant's home had taken

place, this took the form of a short, formal denial, which appears to

be based on a brief note from a Government department, without any

indication as to the nature of the enquiry undertaken. No further

comment on the other factual allegations has been forthcoming.

217. In light of the unsatisfactory response of the Government to the

serious allegations of the applicant, the Commission considers that her

complaints cannot be rejected as ill-founded. It has already found the

intervention with respect to an alleged attempt to assist in securing

the presence of the applicant at the Commission's taking of evidence

to be inappropriate and unjustified. It finds that the applicant and

her family have been subject to significant pressure from the

authorities in circumstances which threaten to impinge on their

continued participation in the proceedings before the Commission and

that this has rendered the exercise of the applicant's right of

individual petition more difficult. Whether or not this pressure is

deliberate, the Commission has not been re-assured that the Government

has effectively accepted its responsibility to ensure compliance with

its obligations under Article 25 para. 1 (Art. 25-1) of the Convention.

Conclusion

218. The Commission concludes, by 25 votes to 2, that Turkey has

failed to comply with its obligations under Article 25 para. 1

(Art. 25-1) of the Convention.

G. Recapitulation

219. The Commission concludes, by 26 votes to 1, that there has been

a violation of Article 3 (Art. 3) of the Convention (para. 190 above).

220. The Commission concludes, by 19 votes to 8, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para.

205 above).

221. The Commission concludes, by 19 votes to 8, that no separate

issue arises under Article 13 (Art. 13) of the Convention (para. 206

above).

222. The Commission concludes, by 25 votes to 2, that Turkey has

failed to comply with its obligations under Article 25 para. 1

(Art. 25-1) ntion (para. 218 above).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

(Or. French)

DISSENTING OPINION OF Mr. A.S. GÖZÜBÜYÜK

On 28 November 1994 the Commission unanimously declared the

present application admissible.

The Government subsequently reiterated their argument that

domestic remedies have not been exhausted in this case.

I feel it important to specify from the outset that two of the

complaints concern the lack of effective remedies and that the

applicant relies on Articles 6 and 13 of the Convention in this

respect.

I note on this point that a number of remedies under Turkish law

are available to applicants alleging that they have been tortured.

First, they can report the offence, thereby instituting criminal

proceedings against the alleged perpetrators. Secondly, they can sue

either the State before the administrative courts or the perpetrators

of the ill-treatment before the ordinary courts. As regards the

effectiveness of an action before the administrative courts, I refer,

inter alia, to my comments set out in my separate opinion in Case No.

21893/93, Akdivar and Others v. Turkey.

The applicant did not take any such steps, however. I stress

that the investigation commenced by the public prosecutor after the

applicant had reported the offence is still pending. Should this

result in a ruling of no case to answer, the applicant can challenge

that ruling before the President of the Assize Court. I should specify

here that irrespective of these proceedings which are currently

pending, the applicant can sue the State before the Administrative

Court.

If the applicant had applied to the administrative courts, they

could have ordered the authorities, on the basis of their objective

liability or on grounds of an administrative error, to compensate the

damage inflicted on the applicant while she was in policy custody.

For these reasons, I do not find that there has been a violation

of Articles 6 and 13 of the Convention.

As regards the complaint under Article 3 of the Convention, I am

of the opinion that in the light of the considerations which I have set

out above, the Commission cannot examine the merits of the application,

as domestic remedies have not been exhausted.

(Or. English)

PARTLY DISSENTING OPINION OF MRS G.H. THUNE

In the present case I have voted in favour of finding a violation

of Article 13 and no violation of Article 6. I find myself in

agreement with Mr. Bratza that the problem raised by the applicant

mainly concerns the lack of any remedy available in Turkey which

effectively could have addressed her allegations of serious

infringements of the Convention.

I agree with the majority that she in fact was deprived of

effective access to court due to the poor quality of the investigation

which in real terms made it impossible to substantiate a claim for

compensation.

However, in my opinion, Article 13 calls for a remedy which

addresses the substance of the applicant's complaints of a violation

of her rights under the Convention and must in this respect be

considered to give a wider scope of protection, beyond the possibility

of making a civil claim for damages, as well as conferring a certain

choice on the part of the Government as to the appropriate methods of

redress. Further, where a functioning court structure exists and

domestic law provides, substantively and procedurally, for claims to

be made, and the failure to provide effective redress derives,

systemically, from a spectrum of official attitudes and practical

inadequacies and obstacles, it would appear that the problem should be

regarded as more wide-ranging and fundamental than a failure to provide

access to court to obtain damages.

I would in this context stress that in my submission the rule

contained in Article 13 is of particular importance as it obliges

states to provide for remedies at national level.

The principles contained in the Convention, supported by the case

law of the Court and the Commission require, first and foremost, that

the rights and freedoms guaranteed be applied and implemented at

national level and for this purpose national remedies providing

effective remedies are indispensable.

The Convention organs do not, in my view, give full force to the

protective mechanism set up under the Convention if they interpret

Article 13 in a restrictive way. For this reason I prefer finding that

there has been a violation of Article 13 and not Article 6 in the

present case although I fully endorse the reasons given for the

majority's finding a breach of Article 6.

(Or. English)

PARTLY DISSENTING OPINION OF MR. N. BRATZA, JOINED BY

MM. S. TRECHSEL, J.-C. SOYER, H.G. SCHERMERS AND B. MARXER

For substantially the reasons given in my separate opinion in

Application No. 21987/93, Aksoy v. Turkey, I see the problem in this

case as concerned not with the right of access to court but rather with

the effectiveness of the remedies available under domestic law in the

particular circumstances of the case.

As in the Aksoy case, while agreeing with the essential reasoning

of the majority of the Commission in paragraphs 191-203 of the Report,

I voted in favour of a violation of Article 13 and not Article 6 of the

Convention.

I would add that I am in full agreement with the remarks made by

Mrs. Thune in her partly dissenting opinion as to the requirements of

Article 13 and as to the particular importance of the role played by

that Article in the present context.

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AYDIN v. TURKEY

AYDIN v. TURKEY