CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 décembre 1996

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TURKEY   (Application no. 21987/93)           JUDGMENT       STRASBOURG   18 December 1996     In the case of Aksoy v. Turkey [1] , The European Court of Human Rights, sitting, in accordance with Article   43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A [2] , as a Chamber composed of the following judges:   MM   R. Ryssdal , President ,     Thór Vilhjálmsson ,     F. Gölcüklü ,     L.-E. Pettiti ,     J. De Meyer ,     J.M. Morenilla ,     A.B. Baka ,     J. Makarczyk ,     U. Lohmus , and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 27 April, 24 October and 26 November 1996, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.    The case was referred to the Court on 4 December 1995 by the Government of Turkey ("the Government") and on 12 December 1995 by the European Commission of Human Rights ("the Commission"), within the three-month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in an application (no. 21987/93) against the Republic of Turkey lodged with the Commission under Article   25 (art. 25) on 20 May 1993 by Mr Zeki Aksoy, a Turkish citizen. The Government’s application referred to Article 48 (art. 48); the Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles   3, 5 para. 3, 6 para. 1 and 13 of the Convention (art. 3, art. 5-3, art.   6-1, art. 13). 2.    On 16 April 1994 the applicant was shot and killed. On 20 April 1994 his representatives informed the Commission that his father wished to continue with the case. 3.    In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant’s father (who shall, henceforward, also be referred to as "the applicant") stated that he wished to take part in the proceedings and designated the lawyers who would represent him. On 26 March 1996 the President granted leave, pursuant to Rule 30 para.   1, to Ms Françoise Hampson, a Reader in Law at the University of Essex, to act as the applicant’s representative. 4.    The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43 of the Convention) (art.   43), and Mr R. Ryssdal, the President of the Court (Rule 21 para.   3   (b)). On 5 December 1995, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr   L. ‑ E. Pettiti, Mr J. De Meyer, Mr J.M. Morenilla, Mr F. Bigi, Mr   A.B.   Baka, Mr   J.   Makarczyk and Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43). Following the death of Mr   Bigi, Mr Thór Vilhjálmsson, the first substitute, became a member of the Chamber. 5.    As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 7 March 1996 and the Government’s memorial on 15 March 1996. 6.    In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 26 April 1996. The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government     Mr B. Çaglar , Ministry of Foreign Affairs,   Agent ,     Ms D. Akçay ,     Mr T. Özkarol ,     Mr A. Kurudal ,     Mr F. Erdogan ,     Mr O. Sever ,     Ms M. Gülsen ,   Counsel ; - for the Commission     Mr H. Danelius ,   Delegate ; - for the applicant     Ms F. Hampson , University of Essex,     Mr K. Boyle , Barrister-at-Law,   Counsel ,     Mr K. Yildiz ,     Mr T. Fisher ,     Ms A. Reidy ,   Advisers . The Court heard addresses by Mr Danelius, Ms Hampson, Mr Çaglar and Ms Akçay. AS TO THE FACTS I.    Circumstances of the case A. The applicant 7.    The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above). B. The situation in the South-East of Turkey 8.    Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. 9.    At the time of the Court’s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule. C. The detention of the applicant 10.    The facts in the case are in dispute. 11.    According to the applicant, he was taken into custody on 24   November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin. 12.    The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts. 13.    The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters. He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day. 14.    He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: "If you don’t know him now, you will know him under torture." According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as "Palestinian hanging". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes. During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive. 15.    He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission. 16.    On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident. 17.    The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody. 18.    On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor. According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured. The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands. D. Events on the applicant’s release 19.    Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back. He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him. 20.    On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged. 21.    No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant. E. The death of the applicant 22.    Mr Aksoy was shot dead on 16 April 1994. According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application. The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions. A suspect, allegedly a member of the PKK, has been charged with the murder. F. The Commission’s findings of fact 23.    Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995. After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts: a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26   November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days. b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged. c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital. d) The Commission noted that the medical evidence indicated that the applicant’s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as "Palestinian hanging". e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police. f) The Government offered no alternative explanation for Mr Aksoy’s injuries. g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant’s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation. II.    Relevant domestic law and practice A. Criminal-law provisions against torture 24.    The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment). 25.    Article 8 of Decree no. 430 of 16 December 1990 provides as follows: "No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification." 26.    Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285). B. Administrative law remedies 27.    Article 125 of the Turkish Constitution provides as follows: "All acts or decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures." By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property. C. Civil proceedings 28.    Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts. D. The law relating to detention in police custody 29.    Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence. The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987). In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983). 30.    Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case. E. The Turkish derogation from Article 5 of the Convention (art. 5) 31.    In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that: "The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15). During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces. The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak] of South East Anatolia and partly also in adjacent provinces. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art.   11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey. The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate. This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights." Attached to this letter was a "descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows: "The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ..." 32.    By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425. 33.    On 5 May 1992 the Permanent Representative wrote to the Secretary General that: "As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only.   The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art.   11, art. 13) is hereby deleted from the said Notice of Derogation." PROCEEDINGS BEFORE THE COMMISSION 34.    In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13). Following Mr Aksoy’s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25). 35.    The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25). The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3] . FINAL SUBMISSIONS TO THE COURT 36.    At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention. 37.    On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art.   6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50). AS TO THE LAW I.    THE COURT’S ASSESSMENT OF THE FACTS 38.    The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78). 39.    In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81). 40.    It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government’s preliminary objection and the applicant’s complaints under the Convention. II.    THE GOVERNMENT’S PRELIMINARY OBJECTION A. The arguments of those appearing before the Court 41.    The Government asked the Court to reject the applicant’s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides: "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken." The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies. 42.    The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above). 43.    With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody. Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no.   285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct. 44.    Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court’s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody. 45.    In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts. 46.    While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice. In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture’s Public Statement on Turkey (15   December 1992); the United Nations Committee against Torture’s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture’s Report of 1995 (E/CN.4/1995/34). 47.    He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common. In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg. 48.    In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph   18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands. The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required. 49.    Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above). 50.    The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant’s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks. In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses. B. The Court’s assessment 51.    The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65). 52.    Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the "generally recognised rules of international law" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67). 53.    The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69). 54.    The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph   53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress. 55.    For the purposes of this examination, the Court reiterates that it has decided to accept the Commission’s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor. 56.    The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above). It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels. 57.    The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant’s claim that there exists an administrative practice of withholding remedies in breach of the Convention. III.    THE MERITS A. Alleged violation of Article 3 of the Convention (art. 3) 58.    The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured. 59.    The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed. For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks. 60.    The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back ("Palestinian hanging"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging. He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him. In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment. 61.    The Court, having decided to accept the Commission’s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34). 62.    Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79). 63.    In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of "torture" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the Uni