CEDH · CASELAW;REPORTS;ENG — 23 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 21987/93                             Zeki Aksoy                               against                               Turkey                      REPORT OF THE COMMISSION                    (adopted on 23 October 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-26). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-21) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 22-26). . . . . . . . . . . . . . . . . . .3   II.   ESTABLISHMENT OF THE FACTS      (paras. 27 - 133). . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 27 - 51). . . . . . . . . . . . . . . . . .4        B.    The evidence before the Commission           (paras. 52 - 116) . . . . . . . . . . . . . . . . .6           a) Documentary evidence           (paras. 52 - 72). . . . . . . . . . . . . . . . . .6           b) Oral evidence           (paras. 73 - 116) . . . . . . . . . . . . . . . . .9        C.    Relevant domestic law and practice           (paras. 117 - 133). . . . . . . . . . . . . . . . 15   III. OPINION OF THE COMMISSION      (paras. 134 - 202) . . . . . . . . . . . . . . . . . . 18        A.    Complaints declared admissible           (para. 134) . . . . . . . . . . . . . . . . . . . 18        B.    Points at issue           (para. 135) . . . . . . . . . . . . . . . . . . . 18        C.    As regards Article 3 of the Convention           (paras. 136 - 169). . . . . . . . . . . . . . . . 18           a) General considerations           (paras. 144 - 145). . . . . . . . . . . . . . . . 19           b) The evaluation of the evidence           (paras. 146 - 168). . . . . . . . . . . . . . . . 19             Conclusion           (para. 169) . . . . . . . . . . . . . . . . . . . 23                          TABLE OF CONTENTS                                                             Page        D.    As regards Article 5 para. 3 of the Convention           (paras. 170 - 184). . . . . . . . . . . . . . . . 23             Conclusion           (para. 184) . . . . . . . . . . . . . . . . . . . 25        E.    As regards Articles 6 para. 1 and 13 of the Convention           (paras. 185 - 192). . . . . . . . . . . . . . . . 25             Conclusions           (paras. 191 - 192). . . . . . . . . . . . . . . . 26        F.    As regards Article 25 of the Convention           (paras. 193 - 197). . . . . . . . . . . . . . . . 26             Conclusion           (para. 197) . . . . . . . . . . . . . . . . . . . 27        G.    Recapitulation           (paras. 198 - 202). . . . . . . . . . . . . . . . 27   PARTLY DISSENTING OPINION OF MR. A. S. GÖZÜBÜYÜK. . . . . . 28   PARTLY DISSENTING OPINION OF MR. N. BRATZA. . . . . . . . . 30 JOINED BY MR. H.G. SCHERMERS   APPENDIX:   DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION. . . . . . . . 31   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant was a Turkish citizen, born in 1963. He died on 16 April 1994. He was represented before the Commission by Professor K. Boyle and Ms. F. Hampson, both teachers at the University of Essex.   3.    The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. B. Çaglar.   4.    The application concerns the applicant's treatment and conditions during his detention in police custody in November-December 1992 and the failure to bring him before a judge or to provide him with an effective legal remedy. The applicant invoked Articles 3, 5 para. 3, 6 and 13 of the Convention.   B.    The proceedings   5.    The application was introduced on 20 May 1993 and registered on 7 June 1993.   6.    On 30 August 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on admissibility and merits. The Government's observations were submitted on 21 February 1994, after an extension of the time-limit fixed for that purpose. The applicant replied on 15 April 1994.   7.    On 20 April 1994 the applicant's representatives informed the Commission that the applicant had been shot and killed on 16 April 1994. It was alleged that the killing was a direct result of the application to the Commission. It was further indicated that the applicant's father wished to continue the case before the Commission. This information was transmitted to the Government with a request for comment as to the allegation. The Government failed to respond within the time-limit.   8.    On 27 June 1994 the Commission decided to invite the parties to make oral submissions on the admissibility of the application at a hearing.   For the purposes of the hearing the application was joined to two others: No. 21893/93, Akdivar and Others v. Turkey, and No. 21894/93, Akkum and Others v. Turkey.   The hearing was fixed for 18 October 1994.   Prior to the hearing the parties submitted additional material: for the applicant on 15 August, 20 September and 4 October 1994, and for the Government on 4 and 7 October 1994.   9.    The Government commented on the circumstances of the applicant's death by letter of 20 September 1994, in which the allegations of the applicant's representatives were denied. The Government stated that a member of the PKK terrorist organisation was suspected of having murdered the applicant and had been taken into custody for this and other possible offences.   10.   At the hearing on 18 October 1994, the Government were represented by Mr. B. Çaglar, Agent, Mr. S. Alpaslan, Mr. M. Özmen, Ms. D. Akçay and Mr. H. Golsong, all counsel, and Ms. i. Boivin, Mr. i. Kovar, Mr. A. Kurudal, Mr. F. Erdogan, Mr. Y. Kizilkaya, Mr. C. Duatepe and Ms. S.B. Ersöz, all experts.   The applicant was represented by Professor K. Boyle and Ms. F. Hampson, both counsel, Mr. S. Aslantas, legal adviser from the Diyarbakir Bar, and Mr. M. Yildiz, assistant.   11.   On 19 October 1994 the Commission declared the application admissible.   12.   On 7 December 1994 the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three delegates for this purpose: Mr. H. Danelius, Mr. I. Cabral Barreto and Mr. N. Bratza.   13.   The text of the Commission's decision on admissibility was sent to the parties on 14 December 1994 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they wished to put before the delegates. The Government submitted observations on 9 February 1995, after an extension of the time-limit. In those observations, the Government invited the Commission to declare the application inadmissible pursuant to Article 29 of the Convention.   14.   The parties indicated the names of possible witnesses: the applicant on 1 January and 13 February 1995, the Government on 16, 20 and 21 February, 2 March and 5 April 1995.   15.   Protests about alleged governmental intimidation of witnesses and local lawyers involved in the case, in violation of Article 25 of the Convention, were lodged with the Commission by the applicant's representatives on 1 January 1995.   16.   Evidence was heard by the delegation of the Commission in Diyarbakir on 13-14 March 1995, and in Ankara from 12 to 14 April 1995. Before the delegates the Government were represented by Mr. B. Çaglar, Agent, assisted by Mr. T. Özkarol, Mr. N. Akinci, Mr. A Someren, Ms. B. Pekgöz, Mr. i. Kovar, Mr. A. Kurudal, Mr. F. Erdogan, Mr. Y. Kizilkaya and Mr. A. Kaya. The applicant was represented by Professor K. Boyle and Ms. F. Hampson, counsel, assisted by Ms. A. Reidy and Ms. J. Cunnison.   17.   On 20 May 1995 the Commission decided to invite the parties to present their conclusions on the merits of the case at a hearing to be held in Strasbourg. A pre-hearing memorial on the merits was submitted by the applicant's representatives on 23 June 1995.   18.   The hearing of conclusions was held on 3 July 1995, the case having been disjoined at this stage from those mentioned above (para. 8). The Government were represented by Mr. B. Çaglar, Agent, advised by Ms. D. Akçay, Mr. T. Özkarol, Mr. Y. Kizilkaya and Ms. i. Boivin. The applicant was represented by Professor K. Boyle and Ms. F. Hampson, counsel, assisted by Ms. A. Reidy.   19.   Further documentary evidence was submitted by the applicant's representatives on 14 June 1995 and by the Government on 10 July 1995.   20.   On 23 October 1995 the Commission decided that there was no basis on which to apply Article 29 of the Convention in the present case.   21.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   22.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                C.L. ROZAKIS                A.S. GÖZÜBÜYÜK                J.-C. SOYER                H.G. SCHERMERS           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS   23.   The text of this Report was adopted on 23 October 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   24.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   25.   The Commission's decision on the admissibility of the application is attached hereto as an Appendix.   26.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   27.   The facts of the present case are in dispute.   28.   It is claimed on behalf of the applicant that the following events occurred:   29.   On 24 November 1992, the applicant was at home with his family. At around 23.00 to 24.00 hours, about twenty policemen arrived, some in uniform and some in plain clothes. They searched the house and scattered belongings. They were accompanied by a detainee who had shown them the house. The applicant told the police that he did not know this person. The applicant's father, mother and five brothers were also at home that night.   30.   The applicant was taken, together with one of his brothers, to Kiziltepe Security Headquarters. His brother was released after 11 days after having been beaten up. The applicant's house was raided throughout the week following his incarceration. On the ninth day of his detention, his father was taken into custody at Kiziltepe Security Headquarters for three days and then transferred to Mardin Political Branch Headquarters for four days before being released. He was tortured.   31.   The applicant spent the first night in Kiziltepe Security Headquarters and was then transferred to Mardin Political Branch Headquarters. He was asked whether he knew someone called Metin, to which was added, "If you don't know him, you will know him under torture".   32.   On the second day the applicant was taken to the interrogation room where the blindfold which had been over his eyes was removed. He was shown a person called Metin who had accompanied the police when the applicant was arrested. The applicant did not know him.   33.   The applicant was then stripped naked and his hands were tied behind his back. He was strung up by his arms. This kind of torture is known as "Palestinian hanging". While he was strung up, the police connected electrodes to his genitals. He was kicked, slapped and verbally abused in every imaginable way. As they electrocuted him, the police threw water over him. He was again blindfolded during this torture. As far as he could tell, it continued for about 35 minutes.   34.   During the next two days, he was repeatedly beaten at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive. He lost the movement of his arms and hands as a result. His interrogators ordered him to make movements to restore the control of his hands.   35.   The applicant asked to see a doctor, but was refused. Before people were released they were seen by a prison doctor. When the applicant knew that the doctor was in the building, he unsuccessfully banged on his door to get attention.   36.   The applicant was kept in a cell with two others. The cell measured approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. Two meals a day were provided.   37.   Two days before his release, the police took the applicant to see an official forensic doctor, but the doctor gave him no medicine and wrote no report or prescription. When the doctor asked how the applicant's arms had been injured, the accompanying police officers intervened and said that the applicant had had an accident. The doctor commented, mockingly, that everyone who went there suffered an accident.   38.   On 10 December 1992, the applicant was released, 16 days after his arrest. Prior to his release he had been photographed with other people next to firearms. Apparently the photograph was shown on television.   39.   Before his release the applicant was brought before a public prosecutor in the presence of a special task force team. He was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it. When he told the prosecutor that he could not sign because he could not move his hands, the prosecutor bowed his head and said, "You are free to go". The prosecutor did not ask any questions about the applicant's condition or its causes. Rather his energies were directed at determining whether the applicant should be prosecuted.     40.   As he went out, one of the special force team said to him, "We know you are innocent; we shall come and visit you from time to time." This person told the applicant to return home directly and that there was no need to consult a doctor as the injury would heal itself.   41.   The applicant was released on a Thursday and saw a doctor on the Friday. The following Tuesday, he had completed the hospital paperwork and was admitted to Dicle University Medical Faculty Hospital.   42.   The applicant's account of his treatment in custody is consistent with medical reports from this hospital. The applicant remained in hospital until 31 December 1992.   43.   On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant.   44.   By telefax of 20 April 1994, the applicant's representatives informed the Commission that the applicant had been murdered four days before. It was alleged that he had been killed as a direct result of his application to the Commission. He had been threatened with death in order to make him withdraw his application, the last threat being made by telephone on 14 April 1994. Two days later, on the evening of 16 April 1994, he was shot by two people as he was on his way home.   45.   The person who was charged with the applicant's murder in September 1994 had originally been charged in May 1994 with unlawful possession of weapons.   46.   The Government submit the following different account of events:   47.   On 26 November 1992 at around 8.30 hours, the applicant was arrested at his home and placed in police custody at the Mardin Security Directorate, along with thirteen other people, on suspicion of aiding and abetting the terrorist wing of the PKK, of being a member of the Kiziltepe PKK branch and of distributing PKK tracts.   48.   On 8 December 1992, after questioning, he was brought before the Mardin public prosecutor and was released on 10 December 1992. The applicant did not complain of torture or ill-treatment, which is why no ex officio investigation was made. (If he made any mention of such treatment the prosecutor would have been obliged to open a judicial inquiry under Articles 243 and 245 of the Criminal Code.) He was able voluntarily to sign his statement denying all charges concerning involvement with the PKK. That same day the applicant was examined by a doctor in the medical service of the sub-prefecture. He found no evidence of injury to the applicant.   49.   On 21 December 1992, the principal public prosecutor at the Diyarbakir State Security Court ordered that no proceedings be brought against the applicant and two other people. Proceedings were instituted, however, against eleven other people who had been detained with the applicant.   50.   In the meantime, on 15 December 1992 the applicant was admitted to the Diyarbakir State Hospital as a first examination had diagnosed bilateral radial paralysis. He left the hospital without discharging himself properly on 31 December 1992, taking his medical file with him. He was formally discharged on 8 January 1993.   51.   As regards the circumstances of the applicant's death, the Government stated that a person had been arrested and charged with the applicant's murder, and was remanded in custody awaiting trial. According to the Government, this person was a member of the PKK and was suspected of another murder and bombing. He had been found in possession of a pistol which had used the ammunition found at the scene of the applicant's murder and at that of another murder. The applicant's murder was apparently a settlement of scores between quarrelling PKK factions.   B.    The evidence before the Commission        a) Documentary evidence   52.   The parties submitted various documents to the Commission, including reports about Turkey, its judicial system and certain case- law, statistics concerning, inter alia, prosecutions of officials for allegedly unlawful acts, and affidavits of the applicant and some witnesses concerning their version of the events in the case. Considerable reliance has been placed by the applicant's representatives on the "Public Statement on Turkey" adopted on 15 December 1992 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.   53.   Medical reports as to the applicant's physical condition shortly after his release from detention in December 1992 were also submitted, as well as photographs of the applicant at this time which show him with braces on both his lower arms and hands. The latter were apparently designed to keep his hands at an upward angle and prevent them moving.   54.   The Commission has had particular regard to the following documents:   aa)   Documents relating to the suspicion against the applicant        (1)   Signed and thumbprinted statement of the           applicant dated 8 December 1992 and witnessed by           officers of the Security   Headquarters   55.   The applicant stated that neither he nor any of his relatives were members of the PKK or had aided or harboured any member of that organisation. He further asserted that the statement of a certain Metin Abak concerning their purported discussion about a couple of guns was untrue. He did not know Metin Abak and he did not own a gun. He denied any involvement in a heavy weapon attack on 15 November 1992 on the central police station and the residential area of the Kiziltepe Security Headquarters. In making this statement voluntarily, he had not been subjected to any coercion or violence.        (2)   Signed statement dated 10 December 1992 of the           applicant to the Public Prosecutor   56.   The applicant denied the offence of which he was accused, denied being involved with members of an illegal organisation, denied knowing such a member called Metin Abak and asserted that he was not guilty.        (3)   Decision dated 21 or 31 December 1992 (date           unclear) of Tanju Güvendiren, Public Prosecutor           at the Diyarbakir State Security Court   57.   The prosecutor decided to close the investigation in the applicant's case as there was no adequately convincing evidence against him to justify a prosecution for having assisted the PKK.   bb)   Documents having a bearing on the applicant's complaint of      ill-treatment during detention        (4)   Statement of 10 December 1992 on the occasion of           the applicant's discharge from custody   58.   In one sentence, an unidentified doctor noted that the applicant bore no traces of blows or violence. (The Government were unable to identify correctly or produce as a witness the doctor who had signed this statement, para. 94 below.)        (5)   Thumbprinted statement of the applicant,           witnessed by Sevtap Yolus, while the applicant           was still in hospital (undated but written           sometime between 15 and 31 December 1992)   59.   The statement contains the information summarised in paras. 29-41 above.        (6)   Transcript of questions and answers dated           6 June 1993 between the applicant and Sedat           Aslantas   60.   The applicant said that he had told the public prosecutor that a statement had been taken from him under torture, but the prosecutor had seemed indifferent. He had not filed a formal complaint because he was under threat, but the fact that he had told the prosecutor verbally was sufficient announcement of a crime.   61.   He had been in hospital from 15 to 31 December 1992 and still suffered from the effects of torture by "Palestinian hanging", his right hand being unusable. His shoulders had recovered but his arms were still disabled. His treatment was continuing.   62.   The conditions in his cell, measuring 1 x 2 metres and shared with three others, made it impossible to move. There was no furnishing to lie on. There was an old filthy flea-ridden blanket about 80 cm. in size. He was mocked when he asked if he could massage his tortured hand and see a doctor.        (7)   Report (undated and unsigned but apparently           written upon admission to the hospital on 15           December 1992 and recognised by Dr. Birsel           Korkmaz as having been written by her)   63.   The report states that the applicant complained of weakness in both hands having been taken into custody three weeks before and hung up with his hands tied behind his back. At first he could not move his arms at all, but since then he had recovered movement in his arms from the shoulder, although he could not move them backwards. Bilateral radial paralysis was diagnosed.        (8)   Report (undated, but apparently written between           15 and 23 December 1992) of Dr. Sadrettin Haksol   64.   The report describes the results of an electromyography on the applicant's nerves which found brachial plexus lesions.        (9)   Document, entitled "Epikriz" (undated but           probably written in January 1993), signed by           Dr. Birsel Korkmaz   65.   This document notes that the applicant had been admitted to the hospital on 15 December 1992 with the diagnosis of bilateral radial paralysis and describes the treatment given to him. Both hands had been placed in extension splints and the physiotherapy of the patient, who had been discharged on 7 January 1993, had continued. After the treatment, improvement had been secured almost completely in the left arm and partially in the right arm. The patient had been taught exercises and discharged.        (10) Discharge form (undated but probably written on           or around 8 January 1993), signed by two doctors           at the hospital   66.   On this form it is stated that the applicant had indicated, as his medical history, that he had been ill-treated two months earlier. The diagnosis of bilateral radial paralysis was again indicated.        (11) Certificate (undated) of Dr. Bridget Hughes   67.   This certificate by a British doctor, who had never seen the applicant, was based on an examination of a photograph of the applicant with his arms and hands in splints and on documents from the Turkish hospital. It recalls that an electromyography report from the Dicle University Medical Faculty demonstrates bilateral radial nerve paralysis. A clinical examination had noted bilateral atrophy of the triceps muscle, which is supplied by the radial nerve, and an inability to elicit the triceps reflexes. Examination had also shown that the applicant was unable to extend either wrist actively which is also consistent with radial nerve injury. Dr. Hughes points out that the photograph shows the applicant with both hands in splints, the purpose of which is to keep the wrists in extension and to counteract the wrist drop which results after radial nerve injury. The electromyography report also stated that transmission in both ulnar nerves was slow which indicated injury to the ulnar nerves. There was also a suggestion of ulnar palsy in the photograph, demonstrated by the slight bilateral clawing of the fifth fingers. This type of bilateral injury to the radial and ulnar nerves was wholly consistent with brachial plexus injury which, according to Dr. Hughes, commonly results after so-called "Palestinian hanging".   cc)   Document relating to the applicant's treatment and to the      circumstances of his death        (12) Statement dated 29 April 1994 of the applicant's           father, witnessed by Mahmut Sakar of the           Diyarbakir Human Rights Association   68.   The father stated that his son had been detained on 24 November 1993 and tortured, rendering his arms useless, as confirmed by doctors' reports.   69.   His son had petitioned the Commission. On 14 April 1994 he had spoken over the telephone with Mahmut Sakar about being threatened and being in fear for his life. Calls were then made to his son's workplace telling him to give up the application to the Commission otherwise he would be killed. Unidentified people called at his son's work while he was absent, wanting to know his whereabouts.   70.   On 16 April 1994, his son left work around 16.00 hours. The father thought his son was detained before being shot. The family was notified at 16.30 hours that the applicant had been injured and had been taken to hospital. The father identified his son's lifeless body, with bullets in the chest and head.   71.   The father gave a statement to the police that his son had no enemies and no organisational connections. He did not know who had killed his son.   72.   The family is under constant persecution and fearful. The father did not want his name revealed to the State for fear for his life. He did, however, wish his son's case before the Commission to continue.        b) Oral evidence   73.   The Commission's delegates summoned a considerable number of persons to be heard during the hearings in Diyarbakir and Ankara. It did not prove possible to ensure the appearance of all of them. In particular, one of the police officers who had interrogated the applicant during his detention, Tuncer Avci, did not appear. The Government explained that he was performing his military service and could not obtain leave in order to appear before the delegates. However, eleven witnesses were heard, and their evidence can be summarised as follows:        (1)   Mahmut Sakar   74.   Mahmut Sakar stated that he was born in 1966. He is a barrister and branch Secretary of the Diyarbakir Human Rights Association (HRA). He is in custody awaiting trial for having published reports on the systematic and widespread infringements of human rights in his region. To this has apparently been added an accusation that he is a member of the PKK, and about which he has not been questioned.   75.   He said that he had not been involved in the applicant's case to start with but, when the Commission sought answers to certain questions after the communication of the case, he had spoken to the applicant over the telephone on 14 April 1994. During that conversation, the applicant had said that he was still affected by the torture, with continuing partial paralysis. He had also claimed that his life was in danger and that he was under threat. He said he was being followed. Two days later, on 16 April 1994, he was shot.   76.   Mahmut Sakar had been very upset at this news and had called the family to offer his condolences. He arranged to meet the applicant's father in Diyarbakir. When they met, the father had said that he was afraid himself but, for the sake of his son's memory, wished to maintain the application before the Commission. This meeting was recorded in a memorandum (paras. 68-72 above).   77.   He affirmed that such arrests, torture and deaths are commonplace in the region, although he thought that the applicant's death was related to his application to the Commission. He was sceptical that the person charged with the murder of the applicant was the culprit, as he had denied it categorically and had denied owning the kind of weapon that had killed the applicant.   78.   In Mahmut Sakar's opinion, domestic remedies do not work effectively in the emergency region for cases like the applicant's. People are threatened and persuaded not to prosecute or pursue their claims. Allegations of torture are difficult for the victim to prove. During his imprisonment Mahmut Sakar had been beaten up, as had others, but it was impossible to get a doctor's report or any other document certifying such experiences. The public prosecutor cannot prosecute a civil servant directly, but has to refer the matter to administrative authorities. The procedure is difficult, long and unlikely to result in significant compensation. Lawyers are hindered, if not intimidated, in pursuing such cases. The HRA has been virtually closed down by arrests and intimidation.   79.   As a member of the HRA he acted as an agent for Professor Boyle and Ms. Hampson in assisting the applicant and his father conduct this case before the Commission.        (2)   Dr. Birsel Korkmaz (telephoned testimony)   80.   Dr. Korkmaz is a specialist student in the Physiotherapy Science Branch of the Medical Faculty at Dicle University, where she was working in December 1992. She could not recall the applicant but confirmed that she had written a medical report on him.   81.   On the basis of the documents she had seen, she confirmed the case-history provided by the applicant. He had told her that he had been in custody and strung up with his hands tied behind his back. Afterwards he could not move his arms and there was still a problem. She had diagnosed bilateral radial paralysis. She could not conclude, with her limited experience, that his condition was compatible with his story.   82.   His treatment had consisted of both his lower arms and hands being placed in extension splints (as shown in the photographs submitted to the Commission). She had not had another patient to whom she had applied this treatment. With his limp arm and hand, only the diagnosis of radial paralysis would come to mind. It is created by pressure on the peripheric nerve. There could be various causes of such damage, such as a tumour, stretching, and pressure by tumoral pulling or external trauma. She could not say which had been the cause, her speciality being the patients' rehabilitation by physiotherapy.        (3)   Dr. Sadrettin Haksol   83.   Dr. Haksol is a specialist in neurology and had been working at the Dicle Medical Faculty in December 1992. He did not remember the applicant but confirmed the electromyography report he had made then.   84.   This was a purely technical examination, after the patient had been referred to him, of whether there was any nerve paralysis. Damage was diagnosed in this case on the upper extremity nerve, the causes for which could be numerous, such as injury during delivery at birth, the stretching of the extremity, a collision, a trauma or fall from a height. This kind of damage to the nerves starts from the neck and travels through the limbs.   85.   He confirmed Dr. Korkmaz's report diagnosing bilateral radial paralysis, i.e. nerve lesions to both upper extremities. However, this would not mean that the patient's arms were necessarily paralysed, there being other nerves in the arms. The photographs of the applicant's lower arms and hands in splints did not assist him in reaching any conclusions as to the possible cause of the applicant's condition. He had not seen many cases like this.   86.   He could not comment on the conclusions of Dr. Bridget Hughes, who had read the medical reports and seen the photographs of the applicant, and considered that this type of bilateral injury to the radial and ulnar nerves is wholly consistent with brachial plexus injury commonly resulting from "Palestinian hanging". He could not reach such a conclusion himself, but suggested that Dr. Hughes may have had more clinical experience in such matters.        (4)   Dr. Mahmut Duyan   87.   Dr. Duyan is a specialist in urology and head of the Mardin State County Hospital. He was in this post in December 1992. He did not remember the applicant.   88.   He confirmed the report he had made on the applicant in which hemiplegia had been diagnosed. As his hospital had no specialist in the matter, the patient was referred to the Diyarbakir Medical Faculty. Hemiplegia signifies paralysis on one side of the body, in this case the right side, the right arm. He did not think that a person in such a condition could work.   89.   He had never dealt with a patient complaining of "Palestinian hanging", given his speciality.        (5)   Dr. Sedat Nacitarhan   90.   Dr. Nacitarhan is a specialist in physiotherapy at the Medical Faculty at Dicle University, where he was already a trainee in 1992. He did not recall the applicant as a patient, but confirmed his signature on the admission document.   91.   He noted Dr. Korkmaz's report on the applicant and commented, after looking at the photographs of the applicant with his lower arms and hands in splints, that her diagnosis of bilateral radial paralysis could have been the reason for the braces.   92.   The brachial plexus injury which was diagnosed could have been caused by arthritis or a trauma to both arms and the head, even a post- operative trauma. There was no evidence of arthritis or other systemic disease in the various medical reports in the case.   93.   This was the first time he had seen such a case. He had never heard a patient complain of "Palestinian hanging", as described to him by the applicant's representative. He confirmed that if such hanging were inflicted for a long time and if the patient's pathology lent itself to such injury, bilateral radial paralysis could result.        (6)   Dr. Metin Polat   94.   Dr. Polat is a dentist and was called because he had been identified by the Government as having examined the applicant in prison prior to his discharge by the Public Prosecutor. However, Dr. Polat was not the doctor in question and had never performed work of this kind.        (7)   Metin Abak   95.   Metin Abak was serving a sentence of life imprisonment for having participated in the activities and been a member of the PKK. He recalled being in detention at Mardin at the same time as the applicant, although they were not in the same cell. They were not friends. They had only met once before.     96.   They had seen each other at the Public Prosecutor's office when the applicant apparently had injured arms because he needed security staff to help him go to the toilet. He apparently could not use his arms to hold things. They were paralysed or stiff, hanging limply by his sides.   97.   Metin Abak had been detained in a cell approximately 2 x 2 metres with two or sometimes three other people. There was only one mattress and a soiled blanket to share between them. There was neither light nor heating. He received two meals a day.   98.   He had been blindfolded during his interrogations and tortured by hanging, cold water and electricity. He had been stripped naked. He had suffered pain but no disability. He had told the prosecutor of the torture when rejecting the statement he was supposed to have made. The prison doctor who saw him did not ask any questions. Before seeing the prosecutor he had been threatened by officers of the Rapid Response Squad to accept the PKK charges against him or suffer a miserable life in prison.        (8)   Sedat Aslantas   99.   Sedat Aslantas stated that he was a lawyer by profession and, inter alia, vice-president of the Diyarbakir Human Rights Association (HRA). The task of the HRA is to promote human rights and democracy without violence. He was serving a three year prison sentence (currently under appeal) for his involvement in this work. His imprisonment prevented him refreshing his memory concerning the circumstances of the case.   100. He confirmed that he had met the applicant and consigned their conversation to a document dated 6 June 1993 in which the applicant claimed to have been arrested in Mardin and tortured (paras. 60-62 above). The HRA assessed the case and applied to the Commission.   101. He could not recall the applicant's physical state when he saw him. He did, however, recall very well that the applicant had said that he had verbally told the prosecutor that he had been tortured.   102. He considered domestic remedies, as regards unlawful acts by State officials in an emergency area, to be ineffective. Many such acts are immune from challenge and others would take too long with little prospects of success in such areas, unlike in Ankara. Human rights violations are an "administrative practice" in those regions.        (9)   Bekir Selçuk   103. Bekir Selçuk stressed that he had not been an eye witness to the events of this case. His role had been that of a Chief Public Prosecutor at the Diyarbakir State Security Court, responsible for investigations in eleven counties of crimes against the unity of the State, and offences involving arms, ammunition, drugs and the like. Ten of the counties within his jurisdiction are emergency areas. Human rights should be seen in a different context in such areas.   104. The investigation into the murder of the applicant was carried out by the Mardin Public Prosecutor and then transferred to his Office. A person who revealed the whereabouts of the murder weapon had been charged.        (10)   Mustafa Yazgan   105. Mustafa Yazgan is a policeman who was working at the Mardin Security Directorship in December 1992.   106. He could not recall the applicant's person, but on the basis of documents he confirmed having interrogated the applicant with two colleagues, Tuncer Avci and a duty officer, although he could not remember completely as it was long ago during a busy period with many arrests. He had taken notes of the interrogation and written the report.   107. The interrogation took place in a calm, comfortable atmosphere, with no pressure having been put on the applicant, such a thing being absolutely impossible. The applicant's statement was made voluntarily.   108. As regards the applicant's allegation of ill-treatment and damage to his arms, the witness said that after release, "contributors to terrorist activities under provocation of some separatist elements do make such allegations in their applications", their purpose being to humiliate Turkey before Europe. He denied any inhuman treatment of the applicant. No one could have ill-treated the applicant, who was under the supervision of the duty officer. Such a thing was also absolutely impossible.   109. He could not comment on the subsequent hospital reports about the applicant's condition. When the applicant was transferred to the legal authorities, the doctor's report at the time indicated that no ill- treatment had been inflicted. He also had no comment on the applicant's release without charge. Others had been charged, including Metin Abak with whose testimony the applicant had been confronted.   110. Ten days elapsed between the applicant's interrogation and release while many others were being questioned in connection with the same matter. The applicant could not have been released earlier as he was suspected of a serious offence concerning the supply of a weapon to the PKK.   111. Mustafa Yazgan affirmed that there was definitely no room in the Mardin Security Headquarters called the "hanging room". Nor was there any room with ropes or machinery for administering electric shocks. He denied the fact reported by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, at para. 19 of its Public Statement on Turkey, of cases consistent with allegations of "Palestinian hanging". There was definitely no such thing. Police are trained that no one may be ill-treated during interrogations. The police do not have such thoughts; none of his colleagues would treat suspects or criminals badly. It just does not happen. In his four years at Mardin he had never seen any of his colleagues ill-treating criminals.