CEDH · PRESS;GENERAL;ENG — 24 mai 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 } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 273 24.5.2005 Press release issued by the Registrar   CHAMBER JUDGMENT SÜHEYLA AYDIN v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Süheyla Aydın v. Turkey (application no. 25660/94). The Court held, unanimously:   that Turkey had failed to fulfil its obligations under Article 38 (examination of the case) of the European Convention on Human Rights to furnish all necessary facilities to the European Commission of Human Rights and the Court in their task of establishing the facts; that there had been a violation of Article 2 (right to life) of the Convention concerning the death of the applicant’s husband; that there had been a violation of Article 2 given the failure to conduct an effective investigation into the circumstances of his death; that there had been a violation of Article 3 (prohibition of inhuman treatment) concerning the treatment of the applicant’s husband prior to his death; that there had been no violation of Article 3 concerning the treatment of the applicant while in detention; that there had been a violation of Article 13 (right to an effective remedy); that it was unnecessary to determine whether there had been a practice by the authorities of infringing Articles 2 , 3 and 13; and, that it was unnecessary to determine whether there had been a violation of Article 11 (freedom of assembly and association) or Article 14 (prohibition of discrimination).   Under Article 41 (just satisfaction), the Court awarded the applicant 30,000 euros (EUR) for pecuniary damage, EUR 3,500 for non-pecuniary damage and EUR   20,000 for costs and expenses. The Court awarded EUR 21,000 in respect of non-pecuniary damage to be held for the heirs of the applicant’s husband.   (The judgment is available only in English.)     1.     Principal facts   The applicant, Süheyla Aydın, is a Turkish citizen of Kurdish origin, born in 1966 and living in Switzerland, where she has been granted political asylum. She was the wife of Necati Aydın, who was shot dead in 1994. Mr Aydın had been President of the Health Workers’ Trade Union ( Tüm Sağlık Sen ) in Turkey. Prior to his death, the applicant claimed that both she and her husband had suffered harassment from the security forces and the police given their trade union activities.   The facts of the case are disputed by the parties.   According to the applicant, on 18 March 1994 – when she was six months pregnant – she and her husband were at a relative’s home in Diyarbakır. At approximately 8.30   p.m. police arrived at the house and took into detention all the family members present. The detainees were blindfolded and taken to a rapid response force building ( Çevik Kuvvet ) for interrogation.   She alleged that: she was made to sit in a corridor prior to interrogation, where she could hear the screams of her husband as he was being tortured; that she later saw him naked and blindfolded, that his body was wet and he was crouched over, shivering; and, that she was ordered to strip naked in front of her husband who was told she would be harmed if he did not cooperate. She was then detained in a police cell for four nights and released on 22 March 1994, without having been brought before a judge. During her time in detention, she was not given access to a lawyer, prosecutor or judge.   According to the Turkish Government, Mr Aydın was not ill-treated in custody.   On 4 April 1994 Mr Aydın was brought before Diyarbakır State Security Court, following a medical examination which found no marks on his body. The duty judge ordered his release that day. However, Mr Aydın never emerged from the front door of the court building where family members and friends were waiting. On 9 April 1994 his body was found in a shallow grave in a field approximately 100 metres from the main Diyarbakır-Silvan road. His hands were tied behind his back and there was a bullet in the back of his head. A report drawn up by the public prosecutor and a doctor found five areas of bruising on Mr Aydın’s body, measuring from 3x3 cm to 6x6cm, which had been caused by blows.   The applicant maintained that the Turkish authorities were responsible for her husband’s death.   The Turkish Government denied responsibility, submitting that Mr Aydın was released from custody on 4 April 1994 and that the autopsy report of 9 April had found that he had been dead for only about 24 hours. An investigation was opened to identify the PKK terrorists responsible, which is still underway. A further investigation, opened into the applicant’s claims that her husband had been tortured, found no evidence to support her allegations.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 4 October 1994 and declared admissible on 12 January 1998. The Commission appointed three delegates who took evidence in Strasbourg on 17 September 1999 and in Ankara from 22   September to 24 September 1999. The Commission was obliged to cancel a proposed hearing of witnesses in Strasbourg on 28 October 1999, as the Turkish Government had failed to identify the two police officers the Commission wished to interview. The application was transmitted to the Court on 1   November 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Danute Jočienė (Lithuanian), Dragoljub Popović (citizen of Serbia and Montenegro), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Sally Dollé , Section Registrar .     3.     Summary of the judgment [2]   Complaints The applicant alleged, in particular, that she had been subjected to inhuman and degrading treatment while in police custody and her husband to torture. She also claimed that her husband had subsequently been killed by State agents and that the authorities had failed to carry out an effective investigation into the circumstances of his killing. She further maintained that her husband was killed on account of his trade union activities and that he suffered discrimination in view of his Kurdish origins. She relied on Articles 2, 3, 11, 13 and 14 of the Convention.   Decision of the Court   Article 38 § 1 (a)   The Court reiterated that it was of the utmost importance for States which had ratified the Convention to provide the Court with all necessary facilities to make possible a proper and effective examination of applications, especially where the Government alone had access to information capable of corroborating or refuting an applicant’s allegations.   In that context, the Court observed that the existence of a number of important documents concerning the investigation into the killing of the applicant’s husband only came to light during or after the examination of witnesses by the Commission’s delegates in Ankara in September 1999.   Had the documents been made available prior to the taking of evidence from witnesses in Ankara – as requested – the Commission would have been able to identify and summon other relevant witnesses. Key witnesses also failed to appear before the Commission’s delegates to give evidence.   The Court concluded that the Turkish Government had not advanced any, or any convincing, explanation for their delays and omissions in response to the Commission’s requests for relevant documents, information and witnesses. Accordingly, it found that it could draw inferences from the Government’s conduct. The Court therefore found that the Government had not fulfilled their obligations under Article 38 § 1 (a) to furnish all necessary facilities to the Commission and the Court in their task of establishing the facts.       The Court’s evaluation of the facts   Given the non-disclosure by the Government of crucial documents in their exclusive possession until the advanced stages of the examination of the application before the European Court, coupled with their failure to identify the police officers who accompanied Mr Aydın to court on 4 April 1994, as well as other crucial witnesses, all of which put obstacles in the way of the Court’s establishment of the facts, it was for the Turkish Government to argue conclusively why the documents and the witnesses in question could not serve to corroborate the allegation made by the applicant.     The Government had failed to do so.   More crucially, the Court observed that, at the time of the events in question, it was not the practice, at least not at the Diyarbakır Court, to draw up release documents when a detainee was released by order of a prosecutor or judge. Detainees would simply be escorted to the door of the court building or to a safe location outside the court building and released there. A suspect who was detained in police custody on suspicion of having committed an offence falling within the jurisdiction of the state security courts, was prevented from benefiting from a number of essential safeguards. In particular, such detainees did not have access to their lawyers until they were charged. Moreover, they could be detained for up to a period of 30   days before they had to be brought before a judge. Family members or legal representatives would not be informed of the date and time when suspects were brought before a judge. The Court stressed the importance of effective safeguards for detainees. What was at stake was both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection.   In the light of the failure of the Government to identify and summon the two police officers who accompanied Mr Aydın, coupled with the absence of a release document, the Court concluded that the Government had failed to prove that he was indeed released from the Diyarbakır Court building on 4 April 1994. The Court therefore found it established that Mr Aydın remained in custody. It followed that the Government was obliged to explain how Mr Aydın was killed while still in the hands of State agents. Given that no such explanation had been put forward by the Government, the Court concluded that they had failed to account for the killing of Mr Aydın.   Article 2   Loss of life Having established that the Turkish Government had failed to account for Mr Aydın’s death, who was last seen alive in the hands of State agents and subsequently met with a violent death, the Court held, unanimously, that there had been a violation of Article 2 in respect of the killing of Mr Aydın.   Inadequate investigation The Court found it established that the competent judicial authorities had been promptly and adequately informed of Mr Aydın’s disappearance. It followed that, from that moment onwards, they had had a duty to carry out an effective investigation into his disappearance.   No documents had been submitted by the Government indicating that any steps were taken by those authorities in the crucial days following the disappearance. The Court concluded that the prosecutors remained inactive during those crucial days at a time when many people were being killed in the south-east region. Neither was there a meaningful examination of the scene where the body was found or a full autopsy. Finally, although a number of large bruises were observed on Mr Aydın’s body, no details were given and no attempts were made to establish how they had been caused. It appeared that no meaningful preliminary investigation was undertaken before it was concluded that the three men had been killed by terrorists. The attribution of responsibility for incidents to the PKK also had particular significance concerning the investigation and judicial procedures which followed, since jurisdiction for terrorist crimes had been given to the state security courts.   Overall, no meaningful steps were taken either during the first four years after Mr Aydın’s death or in the course of the investigation carried out after 1998, insofar as could be ascertained from the documents submitted.   Concluding that the domestic authorities failed to carry out any meaningful investigation, let alone an adequate and effective one, into the killing of the applicant’s husband, the Court held, unanimously, that there had been a violation of Article   2 concerning the investigation.   Article 3   The Court reiterated that, where an individual was taken into police custody in good health and was found to be injured on release, it was incumbent on the State concerned to provide a plausible explanation of how those injuries were caused.   The Court had already found that the applicant’s husband was in the hands of State agents until his death. It observed that the Turkish Government had not argued that the marks on the body of the applicant’s husband predated his detention. In any event, according to the medical report of 4 April 1994, the applicant’s husband bore no marks of ill-treatment on his body. It followed, therefore, that these injuries must have been inflicted on the applicant’s husband between 4 and 9 April 1994. No explanation, let alone a plausible one, for the marks and injuries found on Mr Aydın’s body had been provided by the Government.   The injuries were extensive and, according to the medical report of 9 April 1994, had been caused by blows. They were unlikely, therefore, to have been caused accidentally. Unaccounted for by the Turkish Government, the injuries had therefore to be considered attributable to a form of ill-treatment for which the authorities were responsible.   Although it could not be excluded that Mr Aydın was tortured in order to extract information from him or to punish him for his trade union activities, the Court considered that there was insufficient evidence to reach that conclusion. However, having regard to the nature and degree of the ill-treatment, the Court found that it amounted to at least inhuman treatment.   The Court therefore held, unanimously, that there had been a violation of Article   3 on account of the treatment to which the applicant’s husband was subjected prior to his death.   Regarding the treatment to which the applicant alleged she was subjected during her detention, the Court observed that, other than her own allegations, there was no evidence to support her complaint. The Court was unable, therefore, to reach to a conclusion in that respect. Article 11   In the light of its conclusions under Article 2, the Court did not consider it necessary to examine separately the applicant’s submission that her husband was killed on account of his trade union activities.   Article 13   The Court reiterated that the authorities had an obligation to carry out an effective investigation into the circumstances of the death of the applicant’s husband and the inhuman treatment inflicted on him. However, no effective criminal investigation could be considered to have been conducted . The Court found, therefore, that the applicant had been denied an effective remedy in respect of the inhuman treatment and death of her husband, and had thereby been denied access to any other available remedies at her disposal, including a claim for compensation. The Court therefore held, unanimously, that there had been a violation of Article 13.   Other complaints   Having regard to its findings under Articles 2, 3 and 13, the Court did not find it necessary to determine whether the failings identified in the case were part of a practice adopted by the authorities. Neither did the Court consider it necessary the applicant’s complaints under Articles 2 and 13 in conjunction with Article 14.     ***   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. [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.