CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 octobre 2000

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height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     FIRST SECTION             CASE OF AKKOÇ v. TURKEY   (Applications nos. 22947/93 and 22948/93)                     JUDGMENT     STRASBOURG   10 October 2000     This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court. In the case of Akkoç v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mrs   E. P alm , President ,   Mrs   W. T homassen ,   Mr   L. F errari bravo ,   Mr   C. B îrsan ,   Mr   J. Casadevall ,   Mr   R. M aruste , judges ,   Mr   F. G ölcüklü , ad hoc judge , and Mr M. O'Boyle , Section Registrar , Having deliberated in private on 20 June and 19 September 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 22947/93 and 22948/93) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mrs Nebahat Akkoç (“the applicant”), on 1 and 22 November 1993 respectively. 2.     The applicant had been granted legal aid. 3.     The applicant alleged principally that she had been subjected to a disciplinary sanction in respect of an article published in a newspaper, that her husband had been killed in circumstances for which the authorities were responsible, that she had been deprived of an effective remedy and access to court in respect of her husband's death, that she had been tortured by the police in custody and that she had been intimidated in respect of her application to the Commission. She relied on Articles 2, 3, 10, 13 and former Article 25 of the Convention, as well as Articles 14 and 18 of the Convention and Article 1 of Protocol No. 1, complaints which she later dropped in the proceedings before the Court. 4.     The applications, having been joined, were declared admissible by the Commission on 11 October 1994. In its report of 23 April 1999 (former Article 31 of the Convention) [ Note by the Registry . The report is obtainable form the Registry.], it expressed the opinion that there had been a violation of Article 10 of the Convention (unanimously), that there had been a violation of Article 2 of the Convention (unanimously), that there had been a violation of Article 13 of the Convention (twenty-seven votes to two), that no separate issue arose under Article 14 of the Convention (unanimously), that there had been no violation of Article 1 of Protocol No. 1 (unanimously), that there had been a violation of Article 3 of the Convention (unanimously), that there had been no violation of Article 18 of the Convention (unanimously) and that Turkey had failed to comply with its obligations under former Article 25 of the Convention. 5.     In accordance with Article 5 § 4 of Protocol No. 11 to the Convention, the case was assigned to the First Section. The Chamber constituted within that Section included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 26 §   1 (a) of the Rules of Court), and Mrs E. Palm President of the Section (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mrs W. Thomassen, Mr L. Ferrari Bravo, Mr   C. Bîrsan, Mr J. Casadevall and Mr R. Maruste. 6.     Subsequently Mr Türmen withdrew from sitting in the Chamber (Rule 28). The Turkish Government (“the Government”) accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 7.     The applicant and the Government each filed observations on the merits. 8.     On 29 February 2000 the Chamber decided to hold a hearing. 9.     The hearing took place in public in the Human Rights Building, Strasbourg, on 20 June 2000 (Rule 59 § 2).   There appeared before the Court: (a)   for the Government Mrs   D. A kçay ,   Co-Agent , Ms   A. E müler , Ms   G. A kyüz , Mr   K. V arol ,   Advisers ; (b)   for the applicant Ms   A. R eidy ,   Counsel , Mr   S. T anrıkulu , Mr   S. A slantaş , Mr   M. M uller ,   Advisers .   The Court heard addresses by Ms Reidy and Mrs Akçay.   THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Concerning the disciplinary proceedings 10.     The applicant is a former teacher and former head of the Diyarbakır branch of the Education and Science Workers Union, Eğit-Sen. On 31   October 1992 the applicant made a statement to the Diyarbakır Söz newspaper, giving an account of a meeting which had taken place on 27 October 1992 between the applicant and a delegation of Eğit-Sen and the National Education Director. The applicant stated that the teachers were verbally abused, harassed and in some cases assaulted by the police. This account was published in an article titled “Eleven teachers detained in Diyarbakır”. 11.     On 14 May 1993 the Diyarbakır Provincial Education Disciplinary Committee decided, as a penalty for the statement made to the newspaper without permission, to suspend the promotion of the applicant to a higher grade of teacher for one year, pursuant to section 125/D-g of Law no. 657, which prohibited civil servants from giving information or giving statements to the press, news agencies, radio or television without authorisation. 12.     The decision was confirmed by the Diyarbakır Administrative Court on 4 October 1994. The court noted that section 15 of Law no. 657 prohibited public officials from making announcements or statements relating to their public-sector work to the press and that only the officials authorised by the minister could do so. While all citizens had the right to express their thoughts and opinions within the framework of the rights under the Constitution, not all citizens had the same opportunity to exercise this right to the same degree. As stated in a decision of 14 December 1993 (1993/4214) of the Eighth Division of the Supreme Administrative Court, State officials were required to exercise their freedom of expression in a more measured manner and with more care in their statements relating to their superiors and public officials. In this case, when the applicant expressed her thoughts and the negative aspects observed by her in the continuing arguments between teachers and police officers, she was criticising and accusing the administration. Accordingly, there was no contravention of the legislation in the decision to impose a disciplinary sanction on the applicant for the actions which were contrary to the special requirements of her service. Her application to annul the decision was unanimously rejected. 13.     The applicant appealed to the Supreme Administrative Court, which on 5 December 1995 sent the case back to the Administrative Court to revise only the severity of the penalty. It agreed that civil servants had to exercise their freedom of expression with greater care and sensitivity when making announcements about their superiors and public duties. Since the applicant had criticised the administration, which was in breach of the Code of Conduct, it was appropriate to impose a disciplinary sanction but, in order to achieve a fair balance between the offence and the sentence, a lighter sentence should have been imposed. 14.     On 3 April 1996 the Administrative Court maintained its decision and the penalty. The applicant appealed again to the Supreme Administrative Court. 15.     On 16 October 1998 the Supreme Administrative Court observed that the prohibition in section 15 of Law no. 657 related to State officials not being allowed to give statements to the press relating to their own powers, duties and responsibilities. The applicant had expounded her personal opinion on current issues not relating to her duty, exercising her right of expression and communication to others, within the framework of the freedom of thought and opinion guaranteed by the Constitution. Since this did not fall within the scope of the aforementioned section, there was no question of any disciplinary sanction being imposed. Accordingly, the procedure by which the applicant had been punished by the suspension of one year's promotion in application of section 125/D-g of Law no. 657 was unlawful and the decision of the Administrative Court was not correct. The Administrative Court's decision was consequently annulled. 16.     On 17 February 1999 the Administrative Court adopted the reasoning of the Supreme Administrative Court and annulled the disciplinary sanction imposed on the applicant. B.     Concerning the death of the applicant's husband 17.     The applicant's husband, Zübeyir Akkoç, was of Kurdish origin and also a teacher involved in the Eğit-Sen trade union. On 13 January 1993, at about 7 a.m., Zübeyir Akkoç was shot dead on his way to work at a primary school. Ramazan Aydın Bilge, who was accompanying him, was also killed. No classic autopsy was carried out. Two gendarmes arrived at the scene of the incident, allegedly having been notified by radio. They made no attempt to discover in which direction the perpetrators had fled. They took only one statement, from Abdullah Elgören, who had helped place Zübeyir Akkoç's body in a taxi to be taken to hospital. This was notwithstanding the crowd that had gathered at the scene according to Abdullah Elgören's statement. 18.     Prior to her husband's killing, and following the incident at the National Education Directorate, the applicant had received several threats over the telephone and had been harassed by the security forces. In the telephone calls, she was told: “It is your turn, we are going to kill you too.” She reported the threats to the public prosecutor but her complaints were ignored. Her husband had been detained by the police on several occasions prior to his death. When she was detained in February 1994, the applicant claimed that members of the security forces told her that they had killed her husband. 19.     The public prosecutor opened a file (no. 1993/339) into the killing, classifying it as an “unknown perpetrator” killing. On 27 March 1997 the prosecutor issued an indictment against Seyithan Araz, a student, for involvement in six murders and a number of assaults. These included the killing of Zübeyir Akkoç, but not that of Ramazan Aydın Bilge. Seyithan Araz was alleged to have carried out activities for Hizbullah. In his statement of 17 March 1997, Seyithan Araz told the public prosecutor that he was not a member of Hizbullah and that the 26-page statement signed by him at the headquarters of the anti-terrorism branch of the Diyarbakır Security Directorate had been obtained through torture and that he refuted its contents. 20.     On 4 June 1997 Seyithan Araz maintained his denials before the Diyarbakır National Security Court no. 4. On 14 August 1997 evidence was received from three of the victims of the assaults listed in the indictment that they did not recognise any of the defendants. On 10 December 1997 the court ordered the release of Seyithan Araz, due to the lack of any evidence justifying his continued detention. 21.     On 23 September 1999 the court acquitted Seyithan Araz for lack of sufficient evidence to prove any of the charges. C.     Concerning the detention of the applicant and questioning by the authorities 22.     The facts of this part of the case, in particular the events during the detention of the applicant, were disputed by the parties. The Commission took oral evidence in respect of the applicant's allegations of torture during police custody from 13 to 22 February 1994 and interference with the right of individual petition arising out of three periods of detention – 13 to 22 February 1994, 26 to 27 September 1995 and 14 October 1995. Commission delegates heard evidence from the applicant, her mother, Ramazan Sücürü (head of the anti-terrorism branch at Diyarbakır), Taner Şenturk and Hasan Pişkin (officers from the anti-terrorism branch who interrogated the applicant during the period 13 to 22   February 1994), Dr Buldağ (the doctor who signed the medical report on the applicant's release from custody) and Enver Atlı (a former headmaster taken into custody with the applicant on 26 September 1995). The public prosecutor who had seen the applicant prior to her release on 22 February 1994 had been called as a witness, but he died before the hearing took place. 1.     The Commission's findings of fact (a)     Concerning the period of detention from 13 to 22 February 1994 23.     On 13 February 1994, shortly after midnight, police officers came to the applicant's home and carried out a search. The officers took the applicant away, with her anorak pulled over her head. After a visit to a doctor, she was taken to the Diyarbakır Security Directorate, where she was held in custody at the headquarters of the anti-terrorism branch until her release on 22 February 1994. 24.     During her ten days in custody, the applicant was subjected to various forms of ill-treatment, including sexual abuse and psychological pressure. She was interrogated by police officers, who accused her of being involved with the PKK (the Workers' Party of Kurdistan) and questioned her about imminent elections and whether she was a candidate. She was also asked about her application to the Commission and told that this was the same as joining the PKK in the mountains. She thought she saw a piece of paper, which was her letter of authority sent to Kevin Boyle – a lawyer practising in the United Kingdom, who has been involved in many cases brought against Turkey – with her application. 25.     Over the period of her detention, the applicant was exposed to the following treatment. She was generally blindfolded when taken out of her cell; she was stripped naked on numerous occasions and, on one occasion, forced to walk a gauntlet, naked, between officers who touched her and abused her verbally; photographs were taken of her naked; on many occasions she was taken to a room where she was doused in hot and cold water, the cold water being hosed on her with such force that she could hardly stand; she was subjected to electric shocks on several occasions, a wire being attached to her toe and once to a nipple; there was an attempt to suspend her by her arms from the ceiling, which ended when a scar on her stomach was noticed; she was struck on the chin by a blow which knocked her to the ground; her cell was floodlit and loud music was played; she was handcuffed to a door for a period of two days and nights and forced to listen to the sounds of other persons being ill-treated; her hair was pulled and she was hit, including a blow to her foot with a stick. She was told that her children had been brought into detention and were being tortured. 26.     On 18 February 1994 the applicant signed a statement drawn up by the police, stating that she was a member of the PKK and implicating her in various propaganda activities conducted by the PKK. The statement included the information that she had made an application to the Commission about her husband's murder. 27.     On 22 February 1994 the applicant and sixteen other detainees were taken by police officers to the emergency ward of the Diyarbakır State Hospital, where Dr Buldağ signed a report stating that they had not suffered any physical blows. She described the examination as involving the doctor asking them collectively in the presence of the police if anyone had any complaints or wanted a medical examination. She stated that she requested a medical examination and showed him the injuries on her head and toe. The applicant was then taken before a public prosecutor. She told him that she had been ill-treated, showing him some of her injuries, and that she had signed a statement under pressure. He ordered her release. 28.     A few days after her release, the applicant sought treatment. She had a terrible pain in her jaw. An ear-nose-throat specialist arranged for an X-ray but refused to sign a report when the applicant told him that she had been in custody. Another X-ray was taken and treatment given at the university clinic. The applicant believed that her jaw had been broken and submitted the X-rays to the Mardin Assize Court during her trial on charges relating to the PKK. These X-rays were later made available to the Commission. It was agreed by the parties that they did not disclose any fracture. 29.     Following this period of detention, the applicant had a number of problems with her health. She provided the Commission with information and prescriptions relating, inter alia , to eczema on her ear, a respiratory infection and pains in her leg. On 30 October 1995 she went to the Ankara Treatment Centre of the Human Rights Foundation, in connection with the psychological problems she had been experiencing since this time. Her symptoms included loss of memory, trembling of the hands, indecision, pain and numbness in parts of her body and insomnia. A psychological examination had disclosed manifest anxiety, pessimism, inability to stand, slight impairment of attention and concentration and lack of self-confidence. Chronic post-traumatic stress disorder was diagnosed and medication (an antidepressant (fluoxetin) and an anxiolitic) was prescribed. The applicant returned for further consultations on 12 December 1995, and 12 January and 14 April 1996. On the last occasion, her complaints had diminished considerably and she was advised to continue the medication for another two months. 30.     In reaching its findings, the Commission accepted the evidence of the applicant, assessing her as a lucid and convincing witness who gave the impression of being honest and credible. Her evidence was supported by that of her mother who gave evidence as to the terrible state the applicant was in on her release from custody and by the report from the Ankara Treatment Centre of the Human Rights Foundation concerning her psychological symptoms. It found the evidence of the police officers to be evasive, inconsistent and unreliable. It also found that the evidence of Dr Buldağ was unreliable, observing that the examinations of detainees in the busy emergency ward appeared to be undertaken with reluctance and were carried out cursorily, without any concern for complaints about ill-treatment. (b)     Concerning the period of detention from 26 to 27 September 1995 31.     On 26 September 1995 the applicant was apprehended by the police along with a friend and colleague, Enver Atlı. They were taken to a doctor and then to the Security Directorate, where she was stripped and searched. She was blindfolded and questioned about the ill-treatment she had been subjected to in 1994. It was mentioned that she had complained at the European level. She was left in a cell where it was extremely cold. Enver Atlı was also blindfolded during questioning by officers when he was asked about his relations with the applicant and whether she was a member of the PKK. They were released at about 6.30 p.m. on 27 September 1995. The release record of that date indicated that they had both been detained for investigation about membership of and activities for the PKK but that the examination established that they were not involved. 32.     The Government alleged that the applicant had been detained because of the forgery of a document. However, the Commission found that there was no evidence to support this assertion. There was insufficient material to support a conclusion that she was taken into custody because of her application to the Commission. It noted, however, the lack of any concrete elements to justify her detention in respect of allegations of PKK involvement, which gave the incident the appearance of a “fishing expedition”. (c)     Detention on 14 October 1995 33.     The applicant was summoned to give a statement to the public prosecutor. Although he did not wish to see her until Monday 16 October 1995, police took her to the Security Directorate early in the morning on Saturday 14 October 1995. She remained sleeping on a sofa until a senior officer allowed her to go home in the afternoon. She returned at 9 a.m. with her mother on 16 October 1995. They were kept waiting in a locked room until the afternoon, when she was questioned by the prosecutor about a publication of the Human Rights Association. (d)     Concerning domestic proceedings 34.     On 3 May 1995 the Diyarbakır public prosecutor issued a decision of non-prosecution against two officers, Mustafa Tarhan Şenturk and Hasan Pişkin, in respect of an allegation that the applicant had been tortured in custody and that her jaw had been broken. The decision referred to the defendants' denial of the charges and to the doctor's report that the applicant bore no signs of blows on her release. Due to the absence of evidence, it was decided not to pursue the investigation. 35.     The Government have since provided further information. On 25 May 1999, in a decision of non-jurisdiction, the Diyarbakır public prosecutor referred to the allegations made by the applicant that she had been tortured during interrogation. As he had no jurisdiction, he transferred the case to the Diyarbakır Provincial Administrative Council. II.     Material before the convention organs A.     Domestic investigation documents 36.     The contents of the investigation file concerning the death of the applicant's husband were provided to the Commission. Further documents concerning the proceedings against Seyithan Araz were provided to the Court. B.     The Susurluk report 37.       The applicant lodged with the Commission a copy of the so-called Susurluk report [1] , produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 38.     The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 39.     The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The report made reference to a certain Mahmut Yıldırım, also known as Ahmet Demir or “Yeşil”, detailing his involvement in unlawful acts in the south-east and his links with MİT (the Turkish intelligence service): “... Whilst the character of Yeşil, and the fact that he along with the group of confessors [ [2] ] he gathered around himself, is the perpetrator of offences such as extortion, seizure by force, assault on homes, rape, robbery, murder, torture, kidnapping, etc., were known, it is more difficult to explain the collaboration of the public authorities with this individual. It is possible that a respected organisation such as MİT may use a lowly individual ... it is not an acceptable practice that MİT should have used Yeşil several times ... Yeşil, who carried out activities in Antalya under the name of Metin Güneş, in Ankara under the name of Metin Atmaca and used the name Ahmet Demir, is an individual whose activities and presence were known both by the police and MİT ... As a result of the State's silence the field is left open to the gangs ... [p. 26]. ... Yeşil was also associated with JİTEM , an organisation within the gendarmerie, which used large numbers of protectors and confessors [p. 27]. In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir [ [3] ] [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk [ [4] ] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter [ [5] ] had also been planned and carried out by A. Demir [p. 37]. All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. They equally applied to Medet Serhat Yos, Metin Can and Vedat Aydın. The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9 [ [6] ] ). Other journalists have also been murdered [p. 74] [ [7] ] .” 40.     The report concludes with numerous recommendations, such as improving coordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security-force personnel implicated in illegal activities; limiting the use of confessors; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. C.     The 1993 report of the Parliamentary Investigation Commission (10/90 no. A.01.1.GEC) 41.     The applicant provided this 1993 report into extra-judicial or “unknown perpetrator” killings by a parliamentary investigation commission of the Turkish Grand National Assembly. The report referred to 908 unsolved killings, of which nine involved journalists. It commented on the public lack of confidence in the authorities in the south-east region and referred to information that Hizbullah had a camp in the Batman region where they received political and military training and assistance from the security forces. It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings. III.     RELEVANT DOMESTIC LAW AND PRACTICE 42.     The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. A.     Criminal prosecutions 43.     Under the Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61-62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article   152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duties is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 44.     In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 45.     If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 46.     By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 45 above) also applies to members of the security forces who come under the governor's authority. 47.     If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 43 above) or with the offender's superior. B.     Civil and administrative liability arising out of criminal offences 48.     Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 49.     Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 50.     Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 49), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 51.     Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles   41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article   50 of the Code of Obligations).   IV.     RELEVANT International reports Investigations by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 52.     The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources, containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. A third periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996 and October 1997. The CPT's reports on these visits, save that of October 1997, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming. The CPT has issued two public statements concerning its visits to Turkey. 1.     The first public statement 53.     In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely, “Palestinian hanging”, electric shocks, beating of the soles of the feet ( falaka ), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. Specifically, it found that officers of the anti-terrorism branch of the Diyarbakır police frequently resorted to torture and/or other forms of severe ill-treatment, both physical and psychological. On its second visit in 1991, it found no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. Torture and other forms of severe ill-treatment continued unabated at the headquarters of the anti-terrorism branch of the Diyarbakır police. On its third visit, from 22 November to 3 December 1992, the CPT delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. On this visit, the CPT had visited Adana, where a prisoner at Adana Prison displayed haematomas on the soles of his feet and a series of vertical purple stripes (10 cm long by 2 cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. At the headquarters of Ankara and Diyarbakır Security Directorates, it found equipment that could be used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”. 2.     The second public statement 54.     In its second public statement, issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by the police. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul. A considerable number of persons examined by the delegation's forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police and, in particular, of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the headquarters of the anti-terrorism branch of Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey. 55.     The CPT underlined the importance of the preventive role of doctors: “Particular reference should be made to the work of doctors appointed by the State to carry out forensic tasks, a matter to which the CPT has given considerable attention in the course of its dialogue with the Turkish authorities. The present system of detained persons being routinely examined by a forensic doctor at the end of their period of police custody is, in principle, a significant safeguard against ill-treatment. However, certain conditions must be met: the forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope. If these conditions are not met – as is frequently the case – the present system can have the perverse effect of rendering it all the more difficult to combat torture and ill-treatment. A series of circulars have been issued by the Ministry of Health on this subject; in particular, a Ministry of Health Circular of 22 December 1993 – subsequently endorsed in the Minister of the Interior's instructions of 16 February 1995 – sets out the required contents of forensic certificates drawn up following the detention of persons detained by law enforcement agencies. Despite this, the great majority of forensic certificates seen by the CPT over the last three years have not met the requirements of that circular. Measures need to be taken to ensure that there is full compliance with all the above-mentioned circulars and, more generally, that doctors called upon to perform forensic tasks can carry out their work free from any interference. Further the necessary resources should be made available in order to allow the training programme for doctors called upon to perform forensic tasks – recently devised by the Ministry of Health – to be implemented throughout Turkey without delay.” 56.     The CPT again stressed the need for public prosecutors to react expeditiously and effectively when confronted by complaints of torture and ill-treatment and the need for the reduction of maximum periods of police custody. 3.     CPT report on its visit to Turkey from 5 to 17 October 1997 57.     The CPT repeated in this report, inter alia , its concerns about the forensic examination of persons in police custody, emphasising that examination of persons in custody by a doctor can be a significant safeguard against ill-treatment, provided the doctors concerned enjoy formal and de facto ind