CEDH · PRESS;GENERAL;ENG — 3 juin 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   279 3.6.2004 Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF BATI AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Batı and Others v. Turkey (applications nos. 33097/96 and 57834/00).   The Court held unanimously that there had been a violation of Article   3 (prohibition of torture) of the European Convention on Human Rights on account of the treatment to which Ulaş Batı, Bülent Gedik, Müştak Erhan İl, Özgür Öktem, Sinan Kaya, İsmail Altun, İzzet Tokur, Okan Kablan, Devrim Öktem, Sevgi Kaya, Arzu Kemanoğlu, Zülcihan Şahin and Ebru Karahancı were subjected; a violation of Article   13 (right to an effective remedy) of the Convention in respect of Ulaş Batı, Bülent Gedik, Müştak Erhan İl, Özgür Öktem, Sinan Kaya, İsmail Altun, İzzet Tokur, Okan Kablan, Devrim Öktem, Sevgi Kaya, Arzu Kemanoğlu, Zülcihan Şahin and Ebru Karahancı; a violation of Article   5 § 3 (right to be brought promptly before a judge) of the Convention on account of the period which the applicants spent in police custody, with the exception of Okan Kablan; a violation of Article   5 § 3 of the Convention on account of the length of the pre-trial detention of Devrim Öktem, Özgür Öktem, Okan Kablan and Müştak Erhan İl.   Under Article 41 (just satisfaction) of the Convention, the Court awarded 20,000   euros   (EUR) to Mr Batı, Mr Gedik, Mr Erhan İl, Mr Kaya, Mr Tokur, Mr Kablan and Ms Kemanoğlu; EUR 22,000   to Mr Öktem; EUR 18,000   to Mr   Altun; EUR 50,000   to Ms   Öktem; EUR 30,000   to Ms Kaya; EUR 23,000   to Ms Şahin; and EUR 24,000 to Ms Karahancı for personal injury and non-pecuniary damage; EUR 2,000   to Ms Sürücü and Mr Bozkurt for non-pecuniary damage; and EUR 20,000   jointly to the applicants for costs and expenses, less the EUR 1,420 already received from the Council of Europe in legal aid.   (The judgment is available only in French.)   1.     Principal facts   The applicants are 15 Turkish nationals who live in Istanbul: Mr Ulaş Batı, born in 1979, Mr Bülent Gedik, born in 1974, Mr Müştak   Erhan   İl, born in 1971, Mr Özgür Öktem, born in 1976, Mr Sinan Kaya, born in 1978, Mr İsmail Altun, born in 1974, Mr İzzet Tokur, born in 1973, Mr Okan Kablan, born in 1980, Mr Cemal Bozkurt, born in 1973, Ms   Devrim Öktem, born in 1975, Ms   Sevgi Kaya, born in 1980, Ms Arzu Kemanoğlu, born in 1972, Ms Zülcihan Şahin, born in 1977, Ms Ebru Karahancı, born in 1978, and Ms Zühal Sürücü, born in 1979.   As part of a police operation against an illegal organisation, the TKEP/L (Turkish Communist Labour Party/Leninist), the applicants were arrested in February and March 1996 and taken into custody at the Istanbul security police headquarters for questioning.   They were subsequently placed in pre-trial detention and prosecuted under Article   146 of the Criminal Code, which makes it an offence to attempt to alter or amend in whole or in part the Constitution of the Republic of Turkey or to attempt a coup d’état against the Grand National Assembly or to prevent it by force from carrying out its functions, and Article 168 §   2 of the Criminal Code, which prohibits membership of an armed gang. They were accused of a number of violent acts, including intentional homicide, attempted homicide, using explosives, taking part in illegal and violent demonstrations, and carrying out a hold-up.   The applicants, apart from Bülent Gedik, were released between November 1996 and October 2001. The case is still pending before the Turkish courts.   Bülent Gedik, Zülcihan Şahin, Sinan Kaya, Sevgi Kaya, Devrim Öktem, Okan Kablan, Arzu Kemanoğlu, Müştak Erhan İl, İzzet Tokur and Ulaş Batı, and subsequently Ebru Karahancı, Özgür Öktem and Ismail Altun, lodged a criminal complaint alleging ill-treatment, in particular on the part of the six officers responsible for them during their time in police custody. In a judgment of 5 February 2003 the Istanbul Assize Court discontinued the proceedings against four of the accused because the limitation period had expired, and against a fifth because he had died. It found another officer, Mustafa Sara, guilty of torture in respect of Mr Gedik and Ms Öktem – who had a miscarriage while in detention – and sentenced him to two years’ imprisonment and prohibited him from holding public office for six months, but acquitted him on the other charges. The case is currently pending before the Court of Cassation.   2.     Procedure and composition of the Court   The applications were lodged respectively with the European Commission of Human Rights on 28 July 1996 and with the Court on 19 May 2000. Application no. 33097/96 was transmitted to the Court on 1 November 1998. In a decision of 7 March 2002 the Court declared the applications partly admissible and decided to join them.   Judgment was given by a Chamber of 7 judges, composed as follows:   Peer Lorenzen (Danish), President , Giovanni Bonello (Maltese), Riza Türmen (Turkish), Françoise Tulkens (Belgian), Nina Vajić (Croatian), Snejana Botoucharova (Bulgarian), Elisabeth Steiner (Austrian), judges ,   and also Søren Nielsen , Section Registrar . 3.     Summary of the judgment [2]   Complaints   The applicants complained of the conditions and length of their detention in police custody and of the length of their pre-trial detention.   Ulaş Batı, Bülent Gedik, Müştak Erhan İl, Özgür Öktem, Sinan Kaya, İsmail Altun, İzzet Tokur, Okan Kablan, Devrim Öktem, Sevgi Kaya, Arzu Kemanoğlu, Zülcihan Şahin and Ebru Karahancı alleged a violation of Article 3 of the Convention on account of the treatment to which they had been subjected while in police custody. All the applicants, with the exception of Okan Kaplan, complained under Article 5 § 3 of the Convention of the length of their time in police custody. Furthermore, Devrim Öktem, Özgür Öktem, Okan Kablan and Müştak Erhan İl complained that they had not been tried within a reasonable time or released pending trial within the meaning of the second sentence of Article 5 § 3 of the Convention.   Decision of the Court   Article 3 of the Convention   Treatment at the hands of the police The applicants’ allegations were borne out by the medical certificates drawn up at the end of the applicants’ time in police custody, which had noted the presence of substantial injuries, and by the evidence they had adduced in the national courts. Accordingly, in view of the evidence before it, the Court accepted that the applicants had suffered various forms of ill-treatment, including: suspension by the arms, in the case of Mr Gedik, Mr Erhan İl, Mr Öktem, Mr Kaya, Mr Altun, Mr Kablan, Ms   Öktem, Ms   Kemanoğlu and Ms Karahancı; being hosed with water, in the case of Mr Altun, Mr Tokur, Ms   Öktem, Ms Kaya, Ms Kemanoğlu, Ms Şahin and Ms Karahancı; being beaten repeatedly, in the case of Mr Batı, Mr Erhan İl, Mr Kaya, Mr Altun, Mr Tokur, Mr Kablan, Ms Öktem, Ms   Şahin and Ms Karahancı; and falaka (a wooden instrument containing holes to which a person’s feet are tied and beaten) in the case of Mr Öktem and Ms Kaya.   The Court also found it established that the applicants had been insulted, deprived of sleep for several days and subjected to assaults likely to cause mental suffering, although such forms of violence were not necessarily likely to leave medically certifiable physical scars.   The Court noted that the Assize Court had classified the treatment of Mr Gedik and Ms   Öktem as torture, having regard to its intensity and to the fact that it had been intentionally meted out to them by agents of the State in the performance of their duties, with the aim of extracting a confession or information about the offences of which they were suspected. The Court saw no reason to depart from that conclusion.   As to the ill-treatment to which the other applicants had been subjected, they had undeniably lived in a permanent state of physical pain and anxiety owing to their uncertainty about their fate and to the intensity of the deliberate violence inflicted on them throughout their time in police custody. That was particularly true in view of the young age of some of the applicants at the material time (Mr Batı and Ms Sürücü had been 17 years old, Mr Kaya and Ms   Karahancı 18 years old and Mr Kablan and Ms Kaya 16 years old), or the vulnerable position of Ms Öktem, who had been pregnant while in custody.   The Court considered that such treatment had been intentionally meted out to the applicants by agents of the State in the performance of their duties, with the aim of extracting a confession or information about the offences of which they were suspected. The violence inflicted on them, taken as a whole and having regard to its purpose and duration, had been particularly serious and cruel and had been capable of causing “severe” pain and suffering. It had therefore amounted to torture within the meaning of Article 3 of the Convention.   Adequacy of the investigation The Court considered that this complaint should be examined under Article 13 of the Convention.   Article 13 of the Convention   Alleged flaws in the investigation The Court noted that two of the police officers concerned, including Mustafa Sara, had not appeared before the Assize Court. It was incomprehensible that Mustafa Sara had been acquitted of torture in respect of Zülcihan Şahin, Sevgi Kaya, Okan Kablan, Arzu Kemanoğlu, Müştak Erhan İl, Ulaş Batı, İzzet Tokur, Ali Kılıç and Sinan Kaya on the ground that he had not been identified, when those applicants had never had the opportunity to see him during the proceedings.   The Court also found it regrettable that although additional medical examinations had been ordered for Mr Gedik, Mr Erhan İl and Ms Kemanoğlu with a view to establishing the causes of the injuries observed on their bodies, the examinations had not been carried out and that shortcoming had not been remedied in the course of the proceedings. As a result, those applicants had been deprived of the fundamental safeguards applicable to detainees; that not only indicated a flaw in the investigation but in certain circumstances could also amount to “inhuman and degrading treatment”.   The Court therefore considered that both those flaws had undermined the effectiveness of the investigation.   Alleged lack of reasonable promptness and diligence and failure to punish the accused The Court noted, firstly, that the investigation as a whole had been very long; the proceedings were still pending before the Court of Cassation eight years after the events. The Assize Court had discontinued the proceedings against four of the accused because the limitation period had expired, and against a fifth because he had died. Moreover, it was likely that the only person convicted in the case would be protected by the limitation period, since he had not been sentenced with final effect within five years of the opening of the trial.   The Court considered that the Turkish authorities could not be said to have acted with sufficient promptness and reasonable diligence; consequently, the main perpetrators of the acts of violence had enjoyed virtual impunity despite the irrefutable evidence against them.   Accordingly, the flaws in the investigation and the failure to conduct it with the necessary promptness and diligence, with the result that the presumed perpetrators of acts of violence had been granted virtual impunity, meant that the criminal remedy used had been ineffective. That rendered recourse to civil remedies equally ineffective as a means for the applicants to obtain redress for the violations alleged.   Article 5 § 3 of the Convention   Length of time spent in police custody The applicants had spent between 11 and 13 days in police custody. Even supposing that the activities of which they were suspected were linked to a terrorist threat, the Court could not accept that it had been necessary to detain them for such a long time without judicial intervention.   It therefore held that there had been a violation of Article 5 § 3 in respect of each of the applicants, with the exception of Mr Kablan, who had not raised this complaint.   Length of pre-trial detention The Court noted that Mr   Kablan had been in pre-trial detention for one year, eight months and 15 days, Ms Öktem for two years, five months and ten days, Mr Erhan İl for three years, two months and two days and Mr Öktem for four years and 17 days. In ordering the applicants’ continued detention, the National Security Court had used stereotyped phrases and on at least two occasions had not given any grounds. Its reasoning had not pointed to any factor capable of showing that the risks relied on actually existed and had failed to establish that the applicants posed such a danger. No account had been taken of the fact that the accusations against the applicants had been based on evidence which, with time, had become weaker rather than stronger.   In view of the circumstances of the case, the applicants had had a strong interest in securing their prompt release pending trial. As there were no compelling reasons for the above-mentioned periods of deprivation of liberty, the Court held that there had been a violation of Article 5 § 3 in respect of Mr Öktem, Ms Öktem, Mr Kablan and Mr Erhan İl.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.