CEDH · PRESS;GENERAL;ENG — 13 janvier 2005

.s800EAC49 { font-size:12pt } .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 } .sBB9EE52A { font-family:Arial } .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 } .sCFF87D65 { margin-left:27.6pt; padding-left:8.4pt; font-family:serif; font-size:10pt } .s4B4B41EE { font-family:Arial; font-size:12pt } .s8408AAD1 { font-family:Arial; font-size:12pt; font-weight:bold } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   009 13.01.2005   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF CEYHAN DEMIR AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Ceyhan Demir and Others v. Turkey (application no. 34491/97).   The Court held unanimously that:   There had been a violation of Article 2 of the European Convention on Human Rights (right to life) on account of the death of Kadri Demir; There had been a violation of Article 2 on account of the authorities’ failure to carry out an effective investigation into the circumstances in which Kadri Demir had died; There had been a violation of Article 13 of the Convention (right to an effective remedy).   Under Article 41 (just satisfaction), the Court awarded the applicants jointly 50,000 euros (EUR) for pecuniary damage, EUR 38,000 for non-pecuniary damage and EUR 5,000 for costs and expenses, less EUR 838.45 which the Council of Europe had already paid in legal aid. (The judgment is available only in French.)   1.     Principal facts   The applicants are 19 Turkish nationals living in Mardin and close relatives of Kadri Demir, who died in custody while serving a prison sentence: his widow Mecbure Demir and their children Ceyhan, Hamdiye, Şükrü, Feryat, Songül, Semra, Sabire, Narine, Dilber, Nezir and Suzan Demir, and his partner Tenzile Aslan and their children Mevlüde, Mehmet, Şükran, Serhat, Sevda and Vedat Demir.   On 24 September 1996, a confrontation between prisoners and prison warders and security forces in Diyarbakır Prison, where Kadri Demir was serving a twelve-and-a-half year prison sentence for being a member of the PKK, resulted in the deaths of ten prisoners.   Following that incident, 19 prisoners were taken to hospital with injuries, but Kadri Demir was transferred with 13 other inmates to Gaziantep Prison. Their transfer was preceded by a medical examination at about 4.30 p.m. They were found to be in good health and it was recorded that their wounds had been tended to and dressed. Kadri Demir was found dead in the van used to transport the prisoners on its arrival at Gaziantep Prison at around half past midnight on 25 September 1996.   An autopsy was carried out the same day. The pathologist found wounds, bruises and grazes to the body, particularly the head, frontal region, shoulder blades, hands and arms, a cerebral oedema, subcutaneous ecchymosis to the chest and broken ribs.   The public prosecutor’s office took statements from the prison warders and gendarmes who had been involved in the events and from the prisoners who had been transferred with the deceased. A number of the prisoners said that they had not been given a medical examination before their transfer. The prisoner who had shared the deceased’s compartment while they were being taken to Gaziantep stated that they had received a beating and that no one had come to their assistance, despite their pleas for help when Kadri Demir lay dying in the van.   In October 1996 a parliamentary sub-committee responsible for human rights was set up to investigate the incident in Diyarbakır Prison. In their report at the end of that month they found that the beatings had continued during the journey to Gaziantep Prison.   Following the parliamentary investigation, criminal proceedings were instituted against the prison staff and the police officers and gendarmes involved in the events. Both sets of proceedings are still pending in the Turkish courts. In July 2001 the gendarmes who escorted the prisoners to Gaziantep Prison were charged with intentional homicide through the infliction of torture and suffering. Those proceedings are still pending in the domestic courts.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 6 November 1996 and transmitted to the Court on 1 November 1998. It was declared admissible on 22   November 2001.   Judgment was given by a Chamber of 7 judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Riza Türmen (Turkish), Françoise Tulkens (Belgian), Nina Vajić (Croatian), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment   Complaints   The applicants alleged that Mr Demir had died after being assaulted during a confrontation in September 1996 between prisoners and prison guards and security forces at Diyarbakır Prison and while he was being transferred to Gaziantep Prison. They further complained that the investigation was inadequate and that the domestic courts had failed to take diligent, urgent action to establish the circumstances in which he had died. They alleged a violation of Articles 2,   3 (prohibition of torture or inhuman or degrading treatment or punishment), 6 (right to a fair trial) and 13 of the Convention.   Decision of the Court   Article 2   Kadri Demir’s death The Court noted that it was common ground that at the time Mr Demir was injured the State had authority over him and responsibility for him. As prison warders had been attacked and a number of them injured, then, irrespective of what had sparked off the events, the security forces’ response could be justified under Article 2 provided the use of force had become “absolutely necessary”.   In that connection, the Court noted that the members of the security forces who had taken part in the confrontation had received professional training which in principle would have prepared them for incidents of that type. Special instructions had been issued before their intervention on the type and level of force to be used so as to keep it to a minimum. They had been clearly instructed to avoid blows to the head and only to use weapons other than tear gas grenades, rifle butts and batons as a last resort.   However, a number of prisoners, including Mr Demir, had received injuries to the head, as had been noted by the parliamentary committee doctors and the forensic doctor. Furthermore, there was no evidence to show that Kadri Demir had in fact played an active role in the riots that were quelled by the security forces.   In those circumstances, it had not been established that the use of the force to which Kadri Demir was subjected had been “absolutely necessary” or proportionate to the pursued aim of suppressing an uprising and protecting the life of the warders. However, since there was no medical evidence to show that the fatal blows had been inflicted at that juncture, the Court decided that it had to examine all the circumstances that could have played a role in Mr   Demir’s death, including the conditions in which he was transferred.   In that connection, the Court observed that Mr Demir was transferred in handcuffs in a confined space without access to medical assistance on a journey that had taken approximately six hours and thirty minutes. In view of the violence of the confrontation at the prison only a proper medical examination could have determined whether he was fit enough to travel with his injuries. The brief medical examination that was carried out in testing physical conditions could not be considered to have been thorough. Furthermore, though aware that Mr Demir had respiratory problems, the prison authorities had failed to take into account his medical history, thus demonstrating the total inadequacy of the medical examination that had been carried out.   The conditions in which the order for Kadri Demir’s transfer was made were thus unacceptable. The Court further noted that the parliamentary sub-committee had stated in their report that the assault on the prisoners had continued during their transfer.   Since the Turkish Government had been unable to offer an adequate explanation regarding the origin of the “general physical trauma” that had resulted in Mr Demir’s death at a time when the State had responsibility for him, the Court found that Turkey was responsible for his death. Consequently, it held that there had been a violation of Article 2.   Whether the investigation was effective The Court noted that the Turkish authorities had taken steps in an effort to determine whether the use of force had been justified and to identify the persons who may have been responsible for the death. However, they had failed to act with sufficient speed and with a reasonable level of diligence.   The investigation as a whole had been very protracted since, eight years after the incident, the domestic criminal proceedings were still pending at first instance and had yet to yield any concrete results. Likewise, the pathologist’s report into the cause of death had not been placed in the court file until almost four years after the death.   The Court was also struck by the fact it had taken almost five years after the incident for criminal proceedings to be brought against the officers responsible for the prisoners’ transfer, despite repeated requests by the applicants for their prosecution and the statements of the other prisoners who had been transferred.   Those shortcomings taken as a whole sufficed for the Court to conclude that the Turkish authorities’ investigations into the circumstances surrounding Kadir Demir’s death were not effective. Consequently, there had been a violation of Article 2.   Article 13   Having found that the scope of the judicial investigation had not enabled the circumstances of Mr Demir’s death to be established, the Court found that it was not possible to consider that an effective criminal investigation had been conducted in accordance with Article 13. Consequently, there had been a violation of Article 13.   Articles 3 and 6   Since these complaints related to the same matters as those which had been examined under Articles 2 and 13, the Court held that there was no need to examine them separately.   ***   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.