Information Note on the Court’s case-law 58

November 2003

Elci and Others v. Turkey - 23145/93 and 25091/94

Judgment 13.11.2003 [Section IV]

Article 3

Inhuman treatment

Ill-treatment in custody of lawyers active in the human rights field: violation

Facts : The sixteen applicants were practising defence lawyers before the State Security Court, who were involved in the protection of individuals and had denounced hu man rights abuses in Turkey. They were taken into detention in November and December 1993, purportedly on suspicion of being involved with the PKK terrorist organisation, on the basis of incriminating statements made against them by G., a “confessor” who w as on trial for membership of the PKK. Following a preliminary investigation, the public prosecutor at the State Security Court drew up an indictment against twenty-three people, including the applicants, on charges of being members of and acting for the P KK. The applicants claim that whilst they were in gendarme custody they were tortured and ill-treated (blindfolded, subjected to continuous loud music, death threats, slapping or being stripped naked and doused with cold water), as well as subjected to und ue pressure and unlawful interrogation, with a view to the signing of confessions. The applicants' offices and/or homes were searched and documents and materials were seized. Most of the search reports drawn up by the law enforcement authorities were dispu ted by the applicants. At the end of their detention, the prosecutor at the State Security Court took statements from the applicants in which they all rejected the charges against them as well as the allegations of G. and the records of confrontations with him. Those who had signed statements admitting that they had worked as PKK couriers said that they had been forced to do so. In February 2001, the State Security Court suspended the proceedings for five years, to be taken up again should any of the applic ants commit an offence of the same or a more serious kind during that time; otherwise the proceedings would be definitively closed. Delegates of the European Commission of Human Rights heard witnesses in Turkey.

Law: Government's preliminary objection (non -exhaustion): The applicants had put their complaints clearly to the prosecution and the State Security Court and none of these authorities had investigated their allegations. In these circumstances, the applicants were not required to embark on other atte mpts to obtain redress, for example compensation claims under administrative or civil law: objection dismissed.

Article 3 – The applicants' testimony about their conditions of detention - cold, dark and damp, with inadequate bedding, food and sanitary faci lities - as well as the allegations of some of the applicants that they were insulted, humiliated, slapped and terrified into signing confessions, were credible and consistent. The Court also accepted that at crucial moments they were blindfolded. The coll ective medical examination which they were given was superficial and cursory, whereas the medical evidence of the subsequent pneumonia contracted by one of the applicants and the small bruises on another lent credence to their claims. Given the circumstanc es of the case as a whole, the fact that the applicants' complaints were not taken seriously or investigated by the authorities and that the Government had not presented any evidence to undermine their accounts, it was established that four of the applican ts had suffered physical and mental violence of a particularly serious and cruel nature at the hands of the gendarmerie, amounting to torture, and that four others had also been subjected to ill-treatment of somewhat less severity, amounting to inhuman tre atment. In view of the total inactivity of the judicial authorities in investigating the applicants' allegations of ill-treatment, there had also been a breach of Article 3 in its procedural aspect.

Conclusion : violation (6 votes to 1).

Article 5 – Basing “reasonable suspicion” on the statements of a PKK confessor who was himself accused of a terrorist crime, as the authorities did, involved particular risks. However, in view of the conclusion reached by the Court concerning the lawfulness of the detention , the Court did not find it necessary to decide whether there existed reasonable suspicion against the applicants. On the question of lawfulness of the detention, adverse inferences were drawn from the Government's failure to provide material information a nd evidence as to having conducted the applicants' arrest and detention in accordance with “a procedure prescribed by law”. Although it was clear and established that in order to be lawful the detention of a suspect required the authority of a prosecutor, none of the witnesses who appeared before the Commission delegates accepted direct personal responsibility for the decision to detain the applicants and no clear picture emerged as to the steps taken to obtain prior authorisation for (or subsequent comfirm ation of) their detention. Moreover, there was a complete absence of any documentary evidence showing that a request had been made to the prosecutor, or that there were instructions from him, to proceed with the detention. As a result, it had not been suff iciently shown that the applicants' apprehension and detention were duly authorised by a prosecutor “in accordance with a procedure prescribed by law”. The Government could not rely on its derogation under Article 15 with regard to the rights guaranteed by Article 5, since they had failed to show that the applicants' detention without adequate authorisation could have been strictly required by the “exigencies of the situation”.

Conclusion : violation (unanimously).

Article 8 – The search of the applicants' offices and/or homes, and in certain cases, seizure of personal documents, constituted an interference with their right to respect for their “homes” and “correspondence”. Search warrants were not issued by a prosecutor or judge, and although the Regional G overnment had powers to order searches and seizures under the State of Emergency Law, there was no record of any instructions by the Governor for these particular searches. In these circumstances, the interference with the applicants' rights was not shown to be “in accordance with the law”.

Conclusion : violation (unanimously).

Article 34 (former Article 25) – On balance, there was not a significant hindrance in the applicants right of individual petition.

Conclusion : no violation (unanimously).

Article 41 – The Court made awards in respect of pecuniary and non-pecuniary damage to each of the applicants separately. It also made an award in respect of costs and expenses.

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

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