Information Note on the Court’s case-law 25

December 2000

Büyükdağ v. Turkey - 28340/95

Judgment 21.12.2000 [Section IV]

Article 3

Inhuman treatment

Ill-treatment during detention on remand: violation

Article 13

Effective remedy

Lack of adequate investigation on allegations of ill-treatment during detention on remand: violation

Facts : The applicant, who was suspected of belonging to an illegal organisa tion, was arrested in possession of false identity papers. At the time of her arrest she was suffering from severe problems with her eyesight. She was held in custody for fifteen days without any contact with the outside world. At the end of her period in police custody she was examined by a doctor who diagnosed a reduction in the mobility of her right arm accompanied by pain. The applicant was then brought before the public prosecutor at the National Security Court, to whom she complained that she had been ill-treated in custody. On the instructions of the public prosecutor she underwent further medical tests. The doctors noted in their report that she had suffered bruising to her right wrist and shoulder. The public prosecutor at the National Security Cour t forwarded the applicant’s statement and the medical reports to the public prosecutor’s office, which started an investigation to determine whether the allegations of ill-treatment were founded. The police officers on duty while she was in custody were qu estioned, but they denied the accusations against them and the investigation was closed on the ground that there was no case to answer. One of the police officers who was questioned referred to the applicant’s problems with her eyesight. The discharge orde r was served at the applicant’s home although she was in detention pending trial at the time. At a later stage the applicant herself lodged a complaint against the police officers who had been on duty while she was in custody. The public prosecutor at the National Security Court made an order stating that there was no case to answer as the complaints were identical to her previous allegations, which had been investigated and had resulted in a discharge order that had been served on her in person. The applic ant challenged that decision arguing in particular that she had not been served as stated as she had been detained on the date in question. The President of the Assize Court who heard her application dismissed it without addressing that argument. The appli cant was tried by the National Security Court, sitting as a bench composed of two civilians and a high ranking military judge, on a charge of being a member of an armed organisation that was seeking to undermine the integrity of the State. She was sentence d to twelve years and six months’ imprisonment. Her appeal to the Court of Cassation was dismissed.

Law : Article 3 – Traces of bruising had been found on be applicant’s body by the doctors who had examined her at the end of her time in police custody. The Government had provided no explanation as to the cause of the bruising. Despite the fact that she was suffering from problems with her eyesight – a fact which, on the evidence, was known to the authorities – the applicant was held for fifteen days without being allowed to see a doctor or a lawyer. The applicant’s statements regarding the treatment inflicted on her were precise and consistent. Conversely, the investigation carried out by the domestic authorities had provided no information on the origin of t he bruising. It was therefore possible to deduce from the evidence on the case file that the applicant had received a number of blows while in police custody thus explaining the injuries noted on examination. The acts concerned were such as to cause physic al and mental suffering and, in view of the applicant’s health, were apt to humiliate her and break down her physical and mental resistance. The treatment was therefore inhuman and degrading.

Conclusion : violation (unanimously).

Article 13 [NB. The Court d ecided to examine the complaint that there had been no effective investigation into the allegations of ill-treatment under this provision] – Since the Court had held that the respondent State had been responsible for the inhuman and degrading treatment suf fered by the applicant, her complaints were “ arguable” for the purposes of Article 13. Consequently, the authorities had been under an obligation to conduct an effective investigation into the conditions in which the applicant had been held in police cust ody. Yet, in carrying out its investigation the public prosecutor’s office had confined itself to taking statements from the police officers who had been on duty while the applicant was in custody. It had not considered it necessary to take evidence from t he applicant or to get her to undergo a medical examination so that the cause of the bruising could be identified. In addition, as the applicant was in prison, the discharge order should have been served on her there and not at her home. Lastly, despite th e fact that she had complained that the discharge order that had prevented her from proceeding had not been lawfully served on her, the investigation into the merits had not been reopened. It was also regrettable that the Assize Court had dismissed her app lication without addressing that argument. In those circumstances, the investigation could not be described as thorough and effective and, therefore, did not satisfy the requirements of Article 13.

Conclusion : violation (unanimously).

Article 6 § 1 – In a previous decision, the Court had noted that certain aspects of the status of military judges sitting on the national security courts cast doubts on their independence and impartiality. It was understandable that, in view of the accusations which s he had to answer, the applicant should have reservations about appearing before a court that included a military judge, since his presence might suggest to her that the National Security Court would allow itself to be guided by considerations that were ali en to the nature of her case. Such concerns as to the court’s independence and impartiality could be considered justified. Since it did not have full jurisdiction, the Court of Cassation had been unable to address those concerns.

Conclusion : violation (una nimously).

Article 41 –  The Court awarded the applicant 100,000 French francs (FRF) for non-pecuniary damage and FRF 15,000 for the costs and expenses incurred.

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

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