Lexploria

Information Note on the Court’s case-law 19

June 2000

Salman v. Turkey [GC] - 21986/93

Judgment 27.6.2000 [GC]

Article 2

Article 2-1

Life

Death in custody and lack of effective investigation: violation

Article 3

Torture

Torture in custody: violation

Article 13

Effective remedy

Absence of effective remedy in respect of death in custody: violation

Article 34

Group of individuals

Hinder the exercise of the right of application

Intimidation of applicant by police: failure to comply with obligations

(Extract from press release)

Facts : The applicant, Behiye Salman, a Turkish citizen, was born in 1942 and lives in Adana, Turkey. On 28 April 1992, shortly after midnight, the applicant’s husband Agit Salman was taken in to detention by police on suspicion of aiding and abetting the Kurdis tan Workers’ Party (PKK). He was held at Adana Security Directorate until about 1.00 a.m. on 29 April 1992, when he was taken to Adana State Hospital. He was declared dead on arrival. The autopsy, which was carried out by a forensic doctor, disclosed marks and bruises, including a bruise on the chest and a broken sternum. He did not determine the cause of death but referred the case to the İstanbul Forensic Institute which concluded, in its report, that Agit Salman had died of cardiac arrest brought about b y pressure of the incident together with a pre-existing heart disease. On 13 November 1992, the applicant appealed against the public prosecutor’s decision not to prosecute police officers for causing the death of her husband by torture. She claimed, among other things, on the basis of photographs taken of the body by the family, that he had been beaten on the soles of the feet (“falaka”). The case was eventually referred to the Adana Aggravated Felony Court, which on 26 December 1994 acquitted ten police o fficers of homicide on the basis that there was inadequate evidence that they had used any force or torture on Agit Salman.

The applicant complains principally that her husband died as a result of torture under interrogation in violation of Articles 2 and 3 of the European Convention on Human Rights and that she did not have any effective remedy, in violation of Article 13, due to the defects in the investigation and judicial procedures. She further invoked former Article 25 of the Convention (now Article 3 4), alleging that she was victim of intimidation by the authorities concerning her application.

Law : Government’s preliminary objections - The Government objected that the applicant had not exhausted domestic remedies as she had failed to appeal to the Cou rt of Cassation against the acquittal of the police officers on charges of torturing her husband and as she had not brought any civil or administrative court proceedings claiming damages.

The Court found that an action in administrative law was based on s trict liability and did not involve an investigation which might lead to the identification and punishment of those responsible for a fatal assault. The applicant was not required therefore to bring administrative proceedings and this aspect of the prelimi nary objection was unfounded. As regarded the criminal proceedings, the Court noted that the applicant alleged that an appeal had had no reasonable prospect of success due to the lack of evidence provided by the investigation and that civil proceedings wer e pointless as the investigation had not identified the perpetrators of the fatal assault. The Court observed that these issues were closely linked to the complaints about the ineffectiveness of the investigation into the death raised by the applicant unde r Articles 2, 3 and 13. It therefore joined this aspect of the preliminary objection to the merits.

Article 2 - The Court observed that, in the light of the importance of the protection afforded by Article 2, the deprivation of life had to be subjected to the most careful scrutiny. In particular, where a person was taken into custody in good health and died, the obligation on the authorities to account for his treatment was particular stringent. The burden of proof was on the authorities to provide a satisf actory and convincing explanation for the death.

In this case Agit Salman was taken into custody in apparent good health, without any pre-existing injuries or active illness. No plausible explanation had been provided by the Government for the injuries to his left ankle, bruising and swelling of the left foot, a bruise to the chest and a broken sternum. The evidence did not support the Government’s contention that Agit Salman had died from a heart attack brought on by the stress of being taken into custody. As the Government had not accounted for his death during his detention and their responsibility for his death was engaged.

Conclusion : violation (16 votes to 1).

The Court also found that the authorities had failed to carry out an effective investigation into the circumstances of Agit Salman’s death as required by Article 2. While a proper autopsy investigation was of critical importance in determining the facts surrounding the death, this procedure was defective. In particular, no proper forensic photogra phs were taken of the body, there was no dissection or histopathological analysis of the injuries and marks on the body and the autopsy report made an unqualified assumption that the broken sternum had been caused by a resuscitation attempt. These defects undermined any attempt to determine police responsibility for the death of Agit Salman. Furthermore, no efforts appeared to have been made to identify those officers who did, or could have ill-treated Agit Salman prior to his death. In those circumstances, the Court found that an appeal to the Court of Cassation against the acquittal of the ten officers on the indictment had no effective prospect of clarifying or improving the evidence available, either for the purposes of securing the conviction of those responsible for the death or for obtaining damages in civil proceedings. The applicant therefore had not failed to comply with the requirement to exhaust domestic remedies and the preliminary objections were dismissed.

Conclusion : violation (unanimous).

Ar ticle 3 - The Court found that the Government had not provided a plausible explanation for the marks and injuries found on Agit Salman after entering custody in good health. The bruising and swelling on his left foot, combined with grazes on the ankle, wer e consistent with the application of “falaka”. The bruise to the chest overlying the broken sternum was also more consistent with a blow to the chest than a fall. These injuries, unaccounted for by the Government, were attributable to a form of ill-treatme nt for which the authorities were responsible. Having regard to the nature and degree of this ill-treatment and to the strong inferences that it occurred during interrogation for suspected PKK activities, the Court found that it involved very serious and c ruel suffering that could be characterised as torture.

Conclusion : violation (unanimous).

Article 13 - The Government had been found responsible under Articles 2 and 3 of the Convention for the death and torture in custody of Agit Salman and accordingly th e authorities had been under an obligation to carry out an effective investigation into the circumstances of his death. Due to the defective autopsy procedure and lack of evidence adverted to above (see under Article 2), no criminal investigation could be considered as having been conducted. The applicant had therefore been denied an effective remedy in respect of the death of her husband and thereby access to any other available remedies at her disposal, including a claim for compensation.

Conclusion : viol ation (16 votes to 1).

Former Article 25 - The Court recalled that in previous cases it had held that the questioning of applicants about their application by the authorities may amount to a form of illicit and unacceptable pressure, hindering the exercise of the right of individual petition in breach of former Article 25 of the Convention. The applicant in this case had been questioned by police officers from the Adana Anti-Terror Department on two occasions concerning her application to the Convention org ans, purportedly about her legal aid application to the Commission. She had been blindfolded at the time. This would have caused her anxiety and distress and constituted oppressive treatment. Nor was there any plausible reason as to why the applicant was q uestioned twice about her declaration of means and why the questioning had been conducted by officers at the Anti-Terror Department, where her husband had been ill-treated and died. She must have felt intimidated by these contacts with the authorities and therefore had been subject to undue interference with her petition to the Convention organs.

Article 41 - The applicant was awarded GBP 39,320.64 for pecuniary damage in respect of the loss of earnings previously provided by her husband. As regarded non- pecuniary damage for the violations found of Articles 2, 3, 13 and 25, the Court awarded GBP 25,000 for the damage suffered by Agit Salman to be held by the applicant as surviving spouse and GBP 10,000 for the damage suffered by the applicant in her person al capacity. The sum of GBP 21,544.58 (less the 11,195 French francs received by way of legal aid) was awarded to the applicant for legal costs and expenses.

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