resolution DH (99) 26

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 3 OCTOBEr 1997 IN THE CASE OF sur AGAINST turkey

(Adopted by the Committee of Ministers on 18 January 1999

at the 654th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case of Sur against Turkey delivered on 3 October 1997 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 21592/93) against Turkey lodged with the European Commission of Human Rights on 15 March 1993 under Article 25 of the Convention by Mr Abdullah Sur, a Turkish national, and that the Commission declared admissible the complaint relating to ill-treatment that the applicant had allegedly suffered in May 1992, while he was detained in police custody at the headquarters of the Istanbul security police, suspected of having committed an offence under the ordinary criminal law;

Recalling that the case was brought before the Court by the Commission on 28 October 1996;

Whereas in its judgment of 3 October 1997 the Court, after having taken formal note of a friendly settlement reached by the Government of Turkey and the applicant and having found that there were no reason of public policy justifying the continuation of the proceedings, decided unanimously to strike the case out of its list :

Whereas under the above-mentioned friendly settlement it was agreed that :

“1. In case No. 21592/93, examined by the European Commission of Human Rights, which adopted its report relating thereto on 3 September 1996, the Turkish Government undertake to pay the applicant the sum of 100 000 French francs on account of the events which gave rise to the application.

2. The Government also undertake to pay the applicant's legal representative the sum of 15 000 French francs to cover his legal services.

3. The payment of the above sums covers all the costs, expenses and fees incurred by the applicant and his lawyer.

4. Regard being had to the undertaking given in paragraphs 1 and 2, the applicant and the government request the European Court of Human Rights to strike case No. 137/1996/756/955 out of the list under Article 49, paragraph 2, of the Rules of Court, since the agreement reached is of a kind to provide a solution to the matter.

5. In addition, the applicant declares that he considers the case settled and that he will not institute any further proceedings before the national or international authorities in respect of the events which gave rise to the above application.

6. The aforesaid sums shall be paid by the government within three months of the date on which the court shall have given its judgement. The payment shall be made to the bank accounts of the applicant and his lawyer with a Turkish bank, numbers of which they shall communicate to the Government, in Turkish lira at the exchange rate of the French franc which the Turkish Central Bank shall fix on the day when the payment of the sums is finally authorised.

In case the government fails to make the aforesaid payment within three months, it shall pay 3.5% annual default interest on the unpaid sums in French francs.”

Recalling that Rule 49, paragraph 3, of the Rules of the Court provides that the striking out of a case shall be effected by means of a judgment which the President shall forward to the Committee of Ministers in order to allow it to supervise, in accordance with Article 54 of the Convention, the execution of any undertakings which may have been attached to the discontinuance or solution of the matter ;

Recalling that the Committee of Ministers has already examined, in a number of previous cases, similar issues under Article 3 of the Convention and ascertained Turkey’s obligation under the Convention to prevent effectively all practices of torture and inhuman or degrading treatments in police custody (see, inter alia , the Erdagöz case, Resolution DH (96) 17 and the Yağiz case, Resolution DH (99) 20);

Whereas the Committee of Ministers invited the Government of the respondent State to inform it of the measures taken following the judgment of 3 October 1997, having regard to Turkey's obligation under Article 53 of the Convention to abide by it ;

Whereas the Committee of Ministers was informed by the Government of Turkey that, on 19 December 1997, within the time-limit set, it had paid the applicant the sum of 3 848 475 000 Turkish lira as just satisfaction provided for in the friendly settlement,

Whereas the Government of Turkey also indicated that the Court’s judgment of 3 October 1997 had been translated and published in Nos. 5-6/97 of the Bulletin of Judgments of the European Court of Human Rights, a publication of Hacettepe University’s Foreign Policy Institute and distributed to the authorities concerned;

Whereas the Government of Turkey recalled that, after the facts of the present case, a number of measures had been taken in execution of the Committee of Ministers’ decisions in the above-mentioned  Erdagöz case against Turkey in order to prevent new violations of Article 3 during police custody;

Whereas the government also indicated that, besides the measures adopted following the above-mentioned Erdagöz case, a number of further measures, a summary of which appears in the appendix to the present resolution, have been adopted and are planned, the implementation of which is preventing more efficiently new violations of the Convention due to torture and ill-treatment of persons held in police custody suspected of having committed, in areas outside the state of emergency, offences not falling within the jurisdiction of the State Security Courts;

Whereas the Government of Turkey has also provided information to the effect that the Turkish authorities are in the process of taking and implementing a number of further measures in order stop all practices of torture and ill-treatment also during the detention in police custody of persons suspected of having committed crimes in the areas under state of emergency and/or falling within jurisdiction of the State Security Courts;

Having noted with satisfaction that Turkey has undertaken an important programme, including in particular both new regulatory and educational initiatives, in order to implement fully, in all circumstances, the constitutional and legal prohibitions on torture and ill-treatment, and considering that the Committee of Ministers continues to supervise attentively, within the framework of its supervision of the execution of other Court judgments and Committee of Ministers’ decisions, that the measures necessary to achieve this aim are effectively adopted by the different Turkish authorities involved,

Declares, in view of the specific measures referred to by the Government of Turkey in the appendix to this resolution, that it has exercised its functions under Article 54 of the Convention in the circumstances of the present case.

Appendix to Resolution DH (99) 26

Information provided by the Government of Turkey

during the examination of the Sur case

by the Committee of Ministers

In addition to the measures adopted in 1992-1995, which were directed at preventing torture and ill treatment during detention in police custody, in particular as regards crimes committed outside the emergency regions and/or falling outside the competence of the State Security Courts (see, in particular, Resolution DH (96) 17 in Erdagöz case), the following measures have been adopted since 1997 in order to render the protection against such treatment more effective:

1. Legislative measures

A new law, No. 4229, passed on 6 March 1997, aims mainly to reduce the maximum length of detention in police custody of persons suspected of having committed offences falling within jurisdiction of the State Security Courts. T he law also provides for certain important procedural safeguards for such persons, such as access to a lawyer, at the latest when detention in police custody is extended beyond four days and the right of the detained person to engage habeas corpus proceedings whereby the lawfulness of the detention is verified by a judge at any time.

The new legislation also further extends the scope of the ordinary criminal law by removing from the competence of the State Security Courts offences committed in respect of means of transport and telecommunications (articles 384 and 385 of the Criminal code). Persons suspected of such crimes, accordingly, now also enjoy the ordinary guarantees during police custody.

As regards offences under ordinary criminal law committed at least by three persons, the law maintains the four-day maximum length of detention in police custody before a person is brought ex officio before a judge in order to verify the lawfulness of the detention. However this period may henceforth only be extended for three days by decision of the judge of first instance, following an application by the prosecutor (previously, detention in police custody could be prolonged for four days).

The government stresses in particular that beyond the new procedural safeguards introduced, the new law has important incidences on the attitudes of members of the security forces regarding respect for fundamental rights during detention in police custody. This effect is reinforced in particular by the drawing up and progressive adoption of regulatory and educational measures in order to ensure at all levels of the security forces the effective application of the different norms and regulations relating to detention in police custody.

2. Regulatory measures

Shortly after the adoption of the law No. 4229, a circular of 31 March 1997 (No. 071618) from the Minister of the Interior drew all provincial Governors’ special attention, first to Turkey’s international obligations as a member of the Council of Europe and a Party to the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment and, secondly, to the series of domestic legislative measures adopted to protect and develop human rights, including the law No. 4229 as regards the maximum periods of detention in police custody and the right of access to a lawyer.

The circular stressed the special and personal responsibility of provincial Governors and chiefs of police to monitor police/gendarmerie stations and their detention facilities, in order to respond to all the criticism, at both domestic and international levels, as regards non-respect for Human Rights by the Turkish security forces,

Subsequently, the Prime Minister’s circular No. 1997/73 of 3 December 1997, entitled “Order in relation to police custody, interrogation and statements”, instructed the security forces to respect a number of rules when persons are placed in police custody, irrespective of the offence involved. Among these rules the following may be mentioned:

- persons placed in police custody must be informed of their rights under the law, notably those relating to access to a lawyer; special forms for this purpose must be issued to them, without exception, at the beginning of the period of custody;

- details of persons placed in police custody must imperatively be recorded and a full record kept concerning their detention, transfer and release, in accordance with current procedures;

- a medical report must be made on every person detained in police custody, regardless of the length of detention, both at the start of the period of custody and again before the detainee’s release;

- the necessary work will be done to bring the physical conditions of premises in which persons are held in custody up to international standards; premises that cannot be brought up to this standard must no longer be used;

- the necessary investigations into allegations of ill treatment will begin immediately.

The chief area administrative officers (prefects) and their deputies have the task of permanently supervising the security forces’ application of the circular’s provisions; regular reports on their findings will be sent to the responsible ministries.

On 1 October 1998, the updated version of the Regulation on apprehension [1] , police custody and interrogation came into force with its publication in the Official Journal. This text sums up and clarifies the rules applicable under the existing legislation to the procedures for detention in custody and interrogation.

The regulation recalled the time limits on custody set by Law No. 4229 and prescribed in particular the following guarantees to be respected during apprehension, detention in police custody and interrogation:

Information to be given upon apprehension

Regardless of the offence with which they are charged, persons shall be informed as soon as they are taken into custody of the reasons for their apprehension, their right to remain silent and their right to inform their next of kin.

A report shall be drawn up on any apprehension and a copy of that report shall be forwarded to the person apprehended together with a “Form setting out the rights of the accused”, appended to the said regulation.

Registration of detainees

All detainees shall be registered in the detention register, which shall be checked; entries in this register shall include, in particular, all information concerning the identity of the detainee, the date, time and other details of the detainee's apprehension and custody, the references and summary of the medical report, the name of the next of kin informed, the statement containing a request for a lawyer, details concerning the extension of custody, etc.

Appointment of a lawyer

The apprehended person or, in certain cases, his or her legal representative, may appoint a lawyer; if the person is unable to appoint a lawyer, the Bar shall appoint one at his or her request (the latter provision does not apply to offences coming under the jurisdiction of the State Security Courts).

Contact with a lawyer

The apprehended person may meet his or her lawyer at any time in a place where their discussions may not be heard by anyone else (this provision applies with certain restrictions to cases under the jurisdiction of the State Security Courts); correspondence of the apprehended person with his or her lawyer may not be subject to any control.

Informing next of kin

During apprehension, the person will be given the opportunity to inform relatives (in the case of foreigners, their Embassy or Consulate) to the extent that this will not harm the investigation; special rules apply in cases falling within jurisdiction of State Security Courts.

Access to a doctor

When persons are taken into custody or apprehended by force, their state of health shall be checked by a doctor; when they are transferred to a new place of detention, released or brought before the courts, or when the period of custody is extended, their state of health shall be established anew.

Persons whose health is affected in any way shall immediately be brought before a doctor; all medical checks and care shall be afforded free of charge by police surgeons, court medical officers or official health service doctors.

The doctor who is in charge of the medical legal report shall examine the person apprehended in private, except when this is not possible because of restrictions due to the investigation or to reasons of security.

Medical reports shall be drawn up in quadruplicate: the first copy shall be kept at the detention centre, the second shall be delivered to the detainee, the third added to the case-file and the fourth kept by the health service.

Physical condition

A place of detention shall be at least 7 m², 2.5 m high and 2 m between two walls; sufficient natural light and air circulation shall be ensured.

Statements and examinations

The apprehended person shall be entitled to the presence of his or her lawyer or a lawyer appointed by the Bar, without powers of representation, when making a statement.

Statements by suspects must be based on their free will; statements obtained by prohibited means, even with the consent of the suspect, may not be used as evidence.

Apprehended persons may not be subjected to physical or psychological treatment preventing the expression of their free will, such as torture or ill-treatment with the use of force or violence.

Judicial proceedings

Regardless of the offence with which the apprehended person is charged, he or she may appeal to the courts against the decision issued by the Public Prosecutor regarding his or her apprehension or the extension of custody, and ask to be released.

Police forces legally authorised to carry out to apprehensions, detention in custody and interrogation are responsible for implementing the said regulation.

3. Educational measures

In 1996 and 1997, the Gendarmerie General Command introduced educational programmes, including workshops and other arrangements for human rights education and training. These programmes will be further developed. In the context of this development, the Central Command published in May 1998 a “Human Rights Brochure” ( İnsan Hakları Broşürü ) with the aim of promoting the awareness and the sense of responsibility of all the staff in this area. The brochure has been disseminated to all gendarmerie units.

More recently, within the framework of the Council of Europe’s pan-European programme “Police and Human Rights 1997-2000” and in close co-operation with the police authorities, the possibility of a major reorganisation of basic education and management training is being studied. The results of the feasibility study undertaken will be available in March 1999. As soon as possible afterwards, the necessary funds and means will be allocated in order to implement the reforms found to be necessary.

The main aim of these and other initiatives under way is in particular to ensure that all police and gendarmerie personnel receive, from the beginning of their service, adequate training in the observance of human rights and fundamental freedoms. For the higher echelons, the aim is also to provide adequate management training in order to allow them to ensure effective respect for human rights in daily practice.

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In the government’s opinion, the measures summed up above reinforce those previously taken by Turkey in execution of the Committee of Ministers’ decisions in the Erdagöz case (Resolution DH (96) 17). The government considers that their full implementation will effectively prevent torture and ill-treatment of persons, in particular those detained in connection with offences committed outside the areas under the state of emergency and not falling within the competence of the State Security Courts. The government underlines that today the European Commission of Human Rights is already reporting virtually no new complaints against Turkey in respect of ill treatment in these circumstances.

In the light of the foregoing, the Government considers that Turkey is complying with its obligations, under Article 53 of the Convention, to prevent new violations of the Convention in situations similar to those at issue in the present case.

The government is, however, conscious that the problem of torture and ill-treatment is not yet solved in all its aspects, and notably not in the areas subjected to emergency rule or with respect to detentions on suspicion of crimes falling under the competence of the State Security Courts. Accordingly, the Turkish authorities are planning a number of further important measures in order to ensure that Turkey fully complies with the requirements of the European Convention on Human Rights, in particular as clarified in a number of judgments from the European Court of Human Rights presently pending before the Committee of Ministers for control of execution.

[1] According to the Turkish law, only a judge can order the “arrest” of an accused person (Article 106, paragraph 1, of the Code of Criminal Procedure, as amended by the Law No. 3842 of 18 November 1992). The term “apprehension” (“ interpellation ” in French) is accordingly used to designate an action of the security forces when arresting the person in the common sense of this word.