Information Note on the Court’s case-law 19

June 2000

Ä°lhan v. Turkey [GC] - 22277/93

Judgment 27.6.2000 [GC]

Article 2

Article 2-1

Life

Life-threatening assault by security forces: no violation

Article 3

Torture

Life-threatening assault by security forces: violation

Procedural obligations under Article 3: examination under Article 13

Article 13

Effective remedy

Absence of effective remedy in respect of life-threatening assault by security forces: violation

Article 34

Victim

Application lodged on behalf of brother incapacitated by assault by security forces

(Extract from press release)

Facts : The applicant, Nasır İlhan, a Turkish citizen, was born in 1950 and lives in Işılar, Urfa in  Turkey. On 26 December 1992 gendarmes carried out an operation at Aytepe village. Abdüllatif İlhan, the applicant’s brother, and another villager saw the soldie rs approaching the village and ran to hide. A team of gendarmes was sent to apprehend them. The applicant claimed that when the gendarmes found the men hiding in the garden they beat and kicked them. His brother Abdüllatif İlhan was allegedly hit with rifl e butts, at least one blow hitting his head. The gendarmes took Abdüllatif İlhan into custody. As Abdüllatif İlhan was having difficulties in walking and talking, he was placed on a donkey for the journey to the local gendarme station. Later that night, he was taken in a truck to Mardin central provincial gendarme station, where he was placed in the cafeteria. The gendarme captain took a statement from him during the day of 27 December 1992, probably at around 17.00 to 17.30 hours.

At 19.10 hours on 27 Dece mber 1992, some thirty-six hours after his apprehension, Abdüllatif İlhan was admitted for treatment at Mardin State Hospital, where he was found to be suffering from left hemiparesis and to be in a life-threatening condition. He was taken to Diyarbakır St ate Hospital, where his condition was found to be fair, though risk to life remained, with symptoms of concussion and left hemiplegion. CAT scans disclosed, among other things, cerebral oedema and left hemiparesis. On 11 June 1993, a medical report stated that he was suffering from 60% loss of function on his left side.

On 11 February 1993, the public prosecutor issued a decision not to prosecute anyone in respect of Abdüllatif İlhan’s injuries, as they had resulted from an accident for which no-one was at fault, either intentionally or negligently. On the same day, the public prosecutor drew up an indictment charging Abdüllatif İlhan with the offence of resistance to officers contrary to Art. 260 of the Turkish Penal Code (TPC), namely, that during an opera tion Abdüllatif İlhan had run away from the security forces, ignoring their orders to stop.

On 30 March 1993, Abdüllatif İlhan appeared before the Mardin Justice of the Peace Court. which found that he had failed to comply with an order to stop and had th us resisted the officer contrary to Art. 260 of the TPC. He was sentenced to a fine of 35,000 Turkish lira, which was suspended.

The applicant complains principally that his brother was the victim of a life-threatening assault and torture in violation of Articles 2 and 3 of the European Convention on Human Rights and that he did not have any effective remedy, in violation of Article 13, due to the defects in the investigation.

Law : Government’s preliminary objections - The Government submitted that the ap plication should be dismissed as incompatible ratione personae as the applicant, Nasır İlhan, could not himself claim to be a victim under the Convention of the violations alleged.

The Court recalled that the rules of admissibility must be applied with so me degree of flexibility and without excessive formalism and that the Convention generally must be interpreted and applied so as to make its safeguards practical and effective. While in the present case Abdüllatif İlhan was the immediate victim of the alle ged assault and ill-treatment, the application introduced by the applicant made it clear that he was complaining on the behalf of his brother and that his brother due to his health was not in a position to pursue the application himself. The fact that Nası r İlhan placed his own name as that of the applicant rather than that of his brother did not disclose an abuse of the Convention system, as Abdüllatif İlhan consented to and participated in the proceedings. Nor was there any apparent conflict of interest a rising from the applicant’s involvement on behalf of his brother. Having regard therefore to the special circumstances of this case, where Abdüllatif İlhan could claim to have been in a particularly vulnerable position, the Court finds that the applicant may be regarded as having validly introduced the application on his behalf. Accordingly, it dismissed the Government’s preliminary objection in this respect.

The Government also objected that the applicant had not exhausted domestic remedies, as required b y Article 35 of the Convention, by not instituting criminal proceedings, or by bringing claims in the civil or administrative courts. They referred in particular to the fact that neither Abdüllatif İlhan or the applicant complained to the public prosecutor .

The Court observed that an action in administrative law under Article 125 of the Constitution was based on the authorities’ strict liability. As the obligation on the Contracting State under Articles 2 and 13 to conduct an investigation capable of leadi ng to the identification and punishment of those responsible in cases of fatal assault or torture might be rendered illusory if an applicant were to be required to exhaust an administrative-law action leading only to an award of damages, the applicant was not required to bring the administrative proceedings in question and the preliminary objection was in that respect unfounded.

As regarded a civil action for redress for damage sustained through unlawful conduct on the part of State agents, the Court recall ed that, in this case, the public prosecutor took no investigative steps to identify who was present or involved in the incident when Abdüllatif İlhan was apprehended. None of the documents provided by the gendarmes enabled such persons to be identified. F urthermore, the public prosecutor had taken no steps to find any evidence confirming or contradicting the account given by the gendarmes as to the allegedly accidental nature of the injuries. In this situation, it is not apparent that there was any basis o n which Abdüllatif İlhan could have pursued a civil claim with any reasonable prospect of success. With regard to the criminal-law remedies, the Court noted that the public prosecutor had been informed that Abdüllatif İlhan had suffered serious injuries wh en he was apprehended by the gendarmes at his village and had been under the duty, imposed by Art. 153 of the Code of Criminal Procedure, to investigate whether an offence had been committed. The Court is satisfied in these circumstances that the matter wa s sufficiently drawn to the attention of the relevant domestic authority. The public prosecutor chose however not to make any enquiry as to the circumstances in which those injuries were caused. Consequently, the Court also dismissed the Government’s preli minary objections as regards civil and criminal law remedies.

Article 2 - The Court recalled that in the present case the force used against Abdüllatif İlhan was not in the event lethal. Though this did not exclude an examination of the applicant’s complai nts under Article 2, it considered that it was only in exceptional circumstances that physical ill-treatment by State officials which did not result in death would disclose a breach of Article 2. While the criminal responsibility of those concerned in the use of force was not in issue in the proceedings under the Convention, the degree and type of force used and the unequivocal intention or aim behind the use of force was, amongst other factors, relevant in assessing whether in a particular case the State a gents’ actions in inflicting injury short of death was incompatible with the object and purpose of Article 2. In almost all cases where a person was assaulted or maltreated by police or soldiers, their complaints would fall to be examined rather under Arti cle 3. The Court recalled that Abdüllatif İlhan suffered brain damage following at least one blow to the head by a rifle butt inflicted by gendarmes who had been ordered to apprehend him during an operation and who kicked and beat him when they found him h iding. The seriousness of his injury, which caused permanent brain damage, was therefore not in doubt. However, the Court was not persuaded in the circumstances of this case that the use of force applied by the gendarmes when they apprehended Abdüllatif İl han was of such a nature or degree as to breach Article 2. Nor did any separate issue arise in this context concerning the alleged lack of prompt medical treatment for his injuries. It did however examine these aspects further under Article 3 below.

Conclu sion : no violation (12 votes to 5).

Article 3 - The Court found that Abdüllatif İlhan had been kicked and beaten and struck at least once on the head with a G3 rifle. This resulted in severe bruising and two injuries to the head, which caused brain damage and long term impairment of function. Notwithstanding the visible injuries to his head and the evident difficulties which Abdüllatif İlhan had in walking and talking, there was a delay of some 36 hours in bringing him to a hospital. Having regard to the se verity of the ill-treatment suffered by Abdüllatif İlhan and the surrounding circumstances, including the significant lapse in time before he received proper medical attention, the Court found that he was a victim of very serious and cruel suffering that m ay be characterised as torture.

While the applicant also claimed that there was a breach of Article 3 due to the lack of an effective investigation, the Court considered that the requirement under Article 13 of the Convention for a person with an arguable claim of a violation of Article 3 to be provided with an effective remedy would generally provide both redress to the applicant and the necessary procedural safeguards against abuses by state officers. The Court’s case-law established that the notion of ef fective remedy in this context included the duty to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill-treatment and permitting effective access for the complainant to t he investigatory procedure. Whether it was appropriate or necessary to find a procedural breach of Article 3 would depend on the circumstances of the particular case, such as where the lack of investigation had prevented the facts of the case being determi ned under the substantive aspect of Article 3. In the present case, the Court had found that the applicant had suffered torture at the hands of the security forces. His complaints concerning the lack of any effective investigation by the authorities into t he cause of his injuries fell to be dealt with in this case under Article 13.

Conclusion : violation (unnaimous).

Article 13 - The Government had been found responsible under Article 3 for the torture of Abdüllatif İlhan and accordingly the authorities had been under an obligation to carry out an effective investigation into the circumstances of his death. However, although the public prosecutor was aware that Abdüllatif İlhan had suffered serious injuries which had required hospitalisation, the public prose cutor took no independent investigative step, accepting without question the inconsistent and dubiously accurate version of events produced by the gendarmes. He did not seek to hear Abdüllatif İlhan’s or İbrahim Karahan’s version of events nor did he obtai n clarification from the relevant doctors about the extent and nature of the injuries.

Furthermore, the medical report issued on Abdüllatif İlhan’s arrival in the emergency ward was deficient in that it gave no reference to the cause of the injuries as ex plained by the victim and did not refer to the other injuries and marks on his body. This was not satisfactorily explained by the perceived need for urgent referral to specialist care in Diyarbakır and highlighted the importance of adequate follow-up by th e public prosecutor in ascertaining the cause and extent of Abdüllatif İlhan’s injuries. For these reasons, no effective criminal investigation could be considered as having been conducted in accordance with Article 13. Therefore no effective remedy has be en provided in respect of Abdüllatif İlhan’s injuries and thereby access to any other available remedies, including a claim for compensation, had also been denied.

Conclusion : violation (unanimous).

Article 41 - The applicant was awarded, on behalf of his brother Abdüllatif İlhan GBP 80,600 in respect of medical expenses and the loss of earnings resulting from his injuries. As regarded non-pecuniary damage for the violations found of Articles 3 and 13, the Court awarded GBP 25,000 for the damage suffered by Abdüllatif İlhan. It made no award in respect of the applicant himself. The sum of GBP 17,000  (less the 11,300 French francs received by way of legal aid) was awarded to the applicant for legal costs and expenses.

© Council of Europe/European Court of H uman Rights This summary by the Registry does not bind the Court.

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