TEKİN v. TURKEY
Doc ref: 22496/93 • ECHR ID: 001-2055
Document date: February 20, 1995
- Inbound citations: 0
- •
- Cited paragraphs: 0
- •
- Outbound citations: 3
AS TO THE ADMISSIBILITY OF
Application No. 22496/93
by Salih TEKiN
against Turkey
The European Commission of Human Rights sitting in private on
20 February 1995, the following members being present:
MM. C. A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYUK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 July 1993 by
Salih TEKiN against Turkey and registered on 20 August 1993 under file
No. 22496/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
22 April 1994 and the observations in reply submitted by the
applicant on 12 July 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1964 and lives at Diyarbakir. He is represented before the Commission
by Professor Kevin Boyle and Ms. Françoise Hampson, both university
teachers at the University of Essex.
The facts as submitted by the parties may be summarised as
follows.
A. The particular circumstances of the case
The applicant states that the following occurred:
The applicant is a journalist. Since 30 May 1992 he has worked
for the newspaper Özgür Gündem.
On 12 February 1993 he travelled to Yassitepe hamlet at Derinsu
village in the Derik district for a holiday and to visit his family who
lives there. He was not there to write or to investigate stories, but
he carried his press card with him.
On 15 February 1993 the Gendarme Commanders of Derinsu and
Dumluca villages, accompanied by soldiers, raided his father's house
where he was staying and arrested him. His father Haci Mehmet and his
three brothers Arif, Fethi and Abdulkadir were also arrested. They were
brought to the Derinsu Gendarme Station. The applicant was taken to a
detention cell and the others left with the soldiers in a canteen.
At about midnight all were taken in turn, blindfolded to an
interrogation room. This was organised by the station commander whose
first name was Harun. The applicant was questioned about alleged
threats he and the others had made to village protectors locally. The
applicant denied all such allegations but was threatened continually
during the interrogation including with death. He was also physically
assaulted a number of times. The other members of the family were not
ill-treated during questioning and were released at 1.00 on
16 February 1993, on condition that they stayed in the village.
The applicant was held for four days in a cell, where the
temperature was far below zero. He was not given any blankets, which
he requested. Nor was he given any food during these days. He was
subject to constant abuse from his interrogators over this period. In
order not to freeze to death he had to keep himself awake throughout
this time. He informed the police that he had only one functioning
kidney but they ignored it. This experience is expressed in the
applicant's own words as follows:
"In order not to freeze I was forced to pass 2 days and 2
nights without sleeping as I was held for 4 days in weather
of -30 degrees, starved and left thirsty without being
given a blanket or heating equipment of any shape or form.
I should also state that although one of my kidneys does
not function and I told them this, they gave me nothing at
all to warm myself up."
On 19 February 1993 he was taken from Derinsu Gendarme station
to the Derik Gendarme station. He was again blindfolded and he remained
blindfolded throughout his interrogation. He told his interrogators
that he was a journalist, but was nevertheless subject to a brutal
questioning. He was again accused of threatening village protectors and
of having written propaganda for the PKK. His interrogators wanted him
to admit these accusations. He refused since they were untrue. He was
also accused of having written critical reports about the security
forces and the protectors in this region for his newspaper.
He was stripped naked and hosed with cold water at sub-zero
temperatures. Throughout this procedure he was truncheoned on the back,
buttocks and ankles until he passed out. He recalls regaining
consciousness and finding soldiers trying to dress him and revive him.
He was later taken up two floors, where he was required to stand in the
room of the Gendarme Commander, whom he could recognise as Commander
Musa Çitil. The Commander said: "you write reports about Derik and
Metina near Derik (an area where there are many protectors) and disturb
us. And you threaten village protectors. If you come to this area again
I shall open two bullet holes in your head."
He recalls that he was brought back again to the lower floor,
where despite his denials he was forced to sign a statement that the
police had prepared. At some point he was brought before the public
prosecutor of Derik. He informed the prosecutor that the accusations
were false and that he had been forced to sign the statement. He
pointed to the blindfold still around his neck which his interrogators
had overlooked to remove which was still wet, as proof of the hosing
torture he had been subjected to. The prosecutor wrote down what the
applicant said including his allegations of torture and his complaint
against the Commander of the police, Musa Çitil. He was soon after
released by the authority of the prosecutor. The applicant is not aware
of any further action taken by the prosecutor over his complaints and
he himself has not been arraigned on the basis of his statement to the
Derik gendarme. At no point during his detention did he have access to
a doctor or a lawyer.
On 26 October 1993, the newspaper Özgür Gündem reported that the
applicant's family had been threatened by the security forces to the
effect that they should leave their village or their houses would be
demolished and they would be killed.
On 19 August 1993, the applicant was arrested by the security
forces and remanded in custody on charges of separatism under the Anti-
Terrorism Law. He was detained for a period of 22 days and interrogated
over 15 days. During this time, the applicant was kept naked and
subjected to torture. When brought before the public prosecutor in
Cirnak, he denied the allegations and claimed that he was being
tortured because of his reporting for his newspaper. On
18 November 1993, the applicant was released on bail. Following four
hearings, the applicant was acquitted of the charges against him on
23 June 1994.
While released on bail pending trial, the applicant was arrested
on 28 January 1994 at the office of Özgür Gündem in Diyarbakir.
Following torture by the gendarmes, the applicant was forced to sign
a statement of admission. On 28 June 1994, the applicant was arrested
for membership of the PKK and remanded in custody pending his trial.
The respondent Government state as follows.
The applicant was detained by Derik Gendarme Commander Units upon
intelligence reports that he was visiting village protectors and
threatening that they should join the PKK or they would be killed. On
19 February 1993, he was taken by the Gendarme Commander before the
Derik public prosecutor to whom were submitted three written
intelligence reports and the applicant's testimony signed by him on
that date in which he denied the allegations of making threats. The
applicant appeared before the public prosecutor on a second occasion
on the same day when he again denied the allegations and this time
complained that he had been severely ill-treated. The Government state
that no reliable evidence of ill-treatment was given. The applicant was
then taken before a justice of the peace. After questioning, the
applicant was released on the ground of inadequate evidence.
The Derik public prosecutor ceded jurisdiction in the matter to
the prosecutor attached to the Diyarbakir State Security Court where
the applicant was indicted but later acquitted on 2 August 1993 of
having made threats (Articles 188-191 of the Criminal Code).
B. Relevant domestic law and practice
Criminal procedures
The Turkish Criminal Code makes it a criminal offence to subject
some-one to torture or ill-treatment (Article 243 in respect of torture
and Article 245 in respect of ill-treatment, inflicted by civil
servants). As regards unlawful killings, there are provisions dealing
with unintentional homicide (Articles 452, 459), intentional homicide
(Article 448) and murder (Article 450).
For criminal 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 within fifteen days of being
notified (Article 165 of the Code of Criminal Procedure).
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 local council decisions may be appealed
to the State Council; a refusal to prosecute is subject to an automatic
appeal of this kind.
Civil action for damages
Pursuant to Article 41 of the Civil Code, an injured person may
file a claim for compensation against the alleged perpetrator:
"Every person who causes damage to another in an unlawful manner,
be it wilfully or be it negligently or imprudently, is liable for
compensation."
Pursuant to Article 46, any victim of an assault may claim
material damages:
"The person who has been injured is entitled to compensation for
the expenses as well as for the losses resulting from total or
partial disability to work due regard being had to the detriment
inflicted on the economic future of the injured party."
Moral damages may also be claimed under Article 47:
"...the court may, taking into consideration the particular
circumstances, award adequate general damages to the injured..."
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 5, 6, 10,
13, 14 and 18 of the Convention. He states that there is an
administrative practice of violation of each of these provisions of the
Convention at the highest levels of the security forces.
As to Article 2 he claims that the threats to his life by agents
of the State constitute violations of that Article.
As to Article 3 he refers to the treatment to which he was
exposed, which in his opinion constituted torture.
As to Article 5 he states that he was never informed of the legal
basis for his arrest, contrary to paragraph 2 of that Article. He
considers that the fact that Turkey has made a derogation under Article
15 of the Convention with regard to Article 5 does not remove the
Commission's competence to scrutinise the facts of the applicant's
arrest and detention, in particular in view of the absence of
safeguards against abuses such as torture. His own experiences during
his detention were such as to render that detention a violation of
Article 5 notwithstanding any claim as to the derogation under
Article 15.
As to Article 6 he refers to the fact that there seems to have
been no effort to pursue his complaints which were recorded by a
prosecutor prior to his release. The failure to act to vindicate his
rights represents, in his opinion, a denial of justice and of access
to court contrary to Article 6.
As to Article 10 the applicant states that the treatment to which
he was subjected was because of his profession as a journalist.
Consequently, his right and duty to seek, receive and impart
information was repudiated.
As to Article 13 he alleges that he has been denied the
possibility of remedies against the arbitrary use of power by the
security forces. His detention and torture demonstrate the absence of
effective legal safeguards or constraints in that part of Turkey, an
absence of the rule of law which extends beyond the police and military
to paralyse the prosecution and judicial authorities.
As to Article 14 the applicant complains of a systematic denial
of the protection of the rule of law in south-eastern Turkey against
persons of Kurdish identity and origin. He considers that he has been
a victim of a violation of Article 14 in conjunction with each
substantive right he alleges to have been violated and that the ground
of discrimination has been that of his ethnic origin.
As to Article 18 he claims that the Turkish Government have as
a matter of policy restricted his rights for purposes which are
incompatible with the guarantees of the Convention. In fact the
Government and their law enforcement agencies are combating the violent
actions of the PKK in a manner which ignores the State's obligations
under the Convention.
The applicant submits that adequate and effective remedies are
unavailable to him. The prosecutor present in Derik Gendarme station,
who recorded his statement of complaint, has failed to act to vindicate
his rights, and he is not in a position under Turkish law to pursue a
civil claim until the prosecutor has commenced criminal proceedings.
The Emergency Laws prevent any accountability of the security forces,
and the reality of officially sanctioned violations of his rights at
the level of senior command in the security forces renders inoperable
any conceivable domestic remedies.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 July 1993 and registered on
20 August 1993.
On 11 October 1993, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 22 April 1994
after two extensions in the time-limit. The applicant submitted
further information on 16 December 1993 and observations in reply on
12 July 1994 after one extension in the time-limit.
THE LAW
The applicant makes complaints in respect of his arrest and
detention, alleging, inter alia, that he was tortured. He invokes
Article 2 (Art. 2) (right to life), Article 3 (Art. 3) (prohibition on
inhuman and degrading treatment), Article 5 (Art. 5) (right to
liberty), Article 6 (Art. 6) (right of access to court), Article 10
(Art. 10) (right to receive and impart information), Article 13
(Art. 13) (right to effective national remedies for Convention
breaches), Article 14 (Art. 14) (prohibition on discrimination) and
Article 18 (Art. 18) (prohibition on using authorised Convention
restrictions for ulterior purposes).
The Government argue that the application is inadmissible for the
following reasons:
i. the applicant failed to exhaust domestic remedies;
ii. the application is an abuse of the right of petition.
Exhaustion of domestic remedies
The Government argue that the application is inadmissible since
the applicant has failed to exhaust domestic remedies as required by
Article 26 (Art. 26) of the Convention before lodging an application
with the Commission. They contend that the applicant had a number of
remedies at his disposal which he did not try.
The Government note that the applicant failed to take any steps
to secure a medical examination to certify the alleged ill-treatment,
by for example requesting the public prosecutor to refer him to a
forensic medical centre. They also point out that there is an ongoing
investigation by the Derik public prosecutor into the allegations.
Since the investigation has yet to be completed, the Government submit
that internal domestic remedies have not been exhausted in this regard.
Further, the Government submit that the applicant has the
possibility of introducing an action in the civil courts if the
perpetrators of the alleged ill-treatment are found.
The applicant maintains that there is no requirement that he
pursue domestic remedies. Any purported remedy is illusory, inadequate
and ineffective since, inter alia, the operation in question in this
case was officially organised, planned and executed by agents of the
State. He refers to an administrative practice of unlawful killings and
of not respecting the requirement under the Convention of the provision
of effective domestic remedies.
Further, the applicant submits that, whether or not there is an
administrative practice, domestic remedies are ineffective in this case
having regard, inter alia, to the situation in South-East Turkey which
is such that potential applicants have a well-founded fear of the
consequences; the lack of genuine investigations by public prosecutors
and other competent authorities; positive discouragement of those
attempting to pursue remedies; an official attitude of legal
unaccountability towards the security forces; and the lack of any
prosecutions against members of the security forces for alleged extra-
judicial killings or torture.
In respect of the investigation by the public prosecutor of
Derik, the applicant submits that he had already made complaint of
torture to that official on 19 February 1993 but that no step such as
providing for medical examination was taken. He calls in question the
efficacy of entrusting the investigation to the prosecutor who had
already failed to take any action on his complaints.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute remedies, do not in reality offer any chance of redressing
the alleged breach. It is furthermore established that the burden of
proving the existence of available and sufficient domestic remedies
lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong,
Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77,
p. 18, para. 36, and Nos. 14116/88 and 14117/88, Sargin and Yagci v.
Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).
The Commission does not deem it necessary to determine whether
there exists an administrative practice on the part of Turkish
authorities tolerating abuses of human rights of the kind alleged by
the applicant, because it agrees with the applicant that it has not
been established that he had at his disposal adequate remedies to deal
effectively with his complaints.
The Commission first notes that the Government accept that the
applicant complained of torture when he appeared before the public
prosecutor on 19 February 1993 and that no steps were taken in response
to this complaint.
Furthermore, while the Government refer to the inquiry now
pending before the same public prosecutor, the Commission notes that
about two years have elapsed since the actual event and the Commission
has not been informed of any significant progress having been made in
the investigation. In view of the delays involved and the serious
nature of the applicant's allegations, the Commission is not satisfied
that this inquiry can be considered as furnishing an effective remedy
for the purposes of Article 26 (Art. 26) of the Convention.
The Commission further considers that in the circumstances of
this case the applicant is not required to pursue any other legal
remedy in addition to the public prosecutor's inquiry (see eg.
No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75). The Commission
concludes that the applicant should be considered to have complied with
the domestic remedies rule laid down in Article 26 (Art. 26) of the
Convention. Consequently, the application cannot be rejected for non-
exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)
of the Convention.
Abuse of the right of petition
The Government maintain that the application, being devoid of any
sound judicial basis, has been lodged for purposes of political
propaganda against the Turkish Government. Accordingly the application
constitutes an abuse of the right of petition which discredits the
legal nature of the Convention control mechanism.
The applicant rejects the Government's submission, contending
that his complaints relate to alleged violations of the Convention,
which have not formally been brought before the local instances for
fear of reprisals.
The Commission considers that the Government's argument could
only be accepted if it were clear that the application was based on
untrue facts. However, this is far from clear at the present stage of
the proceedings, and it is therefore impossible to reject the
application on this ground.
As regards the merits
The Government refer to the intense campaign of terrorism which
has been conducted in Turkey and which threatens the integrity and
indivisibility of the State. They consider that the applicant's
statements are inconsistent since he refers to being obliged to sign
a statement after torture whereas in the written statement of the
applicant dated 19 February 1993 denies the allegations that he had
made threats or operated on behalf of the PKK. They point out that the
ill-treatment alleged would have left visible signs but that he did not
attempt to obtain medical examination of his physical condition. They
submit that the applicant's acquittal on the charges of making threats
six months after his arrest indicates that the judicial system is
functioning effectively.
The applicant maintains his account of events. He refers to
having drawn the public prosecutor's attention to the soaking blindfold
round his neck but that the prosecutor took no steps to have him
medically examined. As regards the statement referred to by the
Government, he points out that a copy has not been provided and that
it is likely that in addition to the admission which he recalls being
required to sign there is a further statement which truthfully records
his testimony to the questioning.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and fact under
the Convention, the determination of which should depend on an
examination of the merits of the application as a whole. The Commission
concludes, therefore, that the application is not manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)