CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 19 décembre 2006

.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 } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .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   800 19.12.2006   Press release issued by the Registrar   CHAMBER JUDGMENT TÜRKMEN v. TURKEY   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Türkmen v. Turkey (application no. 43124/98).   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 torture to which the applicants had been subjected in police custody; a violation of Article 6 § 1 (right to a fair trial) of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 25,000 euros (EUR) each for pecuniary and non-pecuniary damage and EUR 3,000 jointly for costs and expenses, less the EUR 660 already received from the Council of Europe in legal aid. (The judgment is available only in French.)   1.     Principal facts   The applicants, Can Ali Türkmen and his wife Petek Türkmen, are Turkish nationals who were born in 1969 and 1971 and live in Cologne (Germany).   The applicants were arrested on 6 January 1994 on suspicion of belonging to the illegal armed organisation, the TİKB ( Türkiye İhtilalci Komünistler Birliği – the Turkish Union of Revolutionary Communists), and were taken into police custody in the anti-terrorist wing of the security police headquarters in Istanbul.   On 17 January 1994 the applicants were examined by Dr Apaydın, a forensic medical expert, who found no traces of violence on their bodies.   The applicants were placed in pre-trial detention and, on their arrival in Sağmalcılar Prison on 19 January 1994, were examined by the prison doctor. According to the medical report drawn up on that date, Petek Türkmen had pains in both shoulders, armpits and shoulder blades, numbness to the hands and back pain. Can Ali Türkmen had motor function problems, numbness in the shoulders and arms and bruising, in particular to the buttocks and the soles of the feet. He had a number of scabbed wounds on his right leg.   On 24 January 1994 the applicants were examined by a doctor from the Eyüp Institute of Forensic Medicine. The doctor’s report stated that Petek Türkmen had a yellowish bruise on the left hand; partial lack of movement in the left shoulder, elbow, wrist and fingers; and numbness and a tingling sensation, loss of sensation and pain to both sides of the body, more pronounced on the left side. As for Can Ali Türkmen, the doctor observed bruising around the shoulder blades, the right elbow, the right wrist and the left hand; bruising to the malleolus and the buttocks; and pain, accompanied by a significant degree of incapacity and numbness, to the left shoulder, elbow and wrist.   The applicants lodged a complaint against Dr Apaydın for abuse of power in the exercise of his duties. The proceedings were terminated for lack of evidence in June 1994, but the applicants subsequently learned through the Medical Council that the doctor in question had been barred from practising for having, during the same period, failed to disclose signs of ill ‑ treatment of prisoners.   In February 1994 the applicants lodged a complaint against the police officers who had been on duty during their time in police custody, alleging that they had been tortured. They said that they had been subjected to so-called “Palestinian hanging”, consisting in being hung by the arms, had been sprayed with water at high pressure on sensitive parts of the body such as the mouth, the eyes and the genitalia, and had been subjected to falaka , consisting in blows to the soles of the feet. Mrs Türkmen also said that she had been threatened with rape.   Following the applicants’ complaint an investigation was opened, in the course of which evidence was taken from the accused persons and from Dr Apaydın; the second applicant was examined by a doctor.   On 14 June 1999 the Assize Court acquitted the four police officers for lack of evidence. The applicants lodged an appeal on points of law. On 28 June 2000 the Court of Cassation ruled that the prosecution had become time-barred.   In the meantime, in April 1997, the applicants were found guilty of membership of an illegal organisation and sentenced to 12 years and six months’ imprisonment. The state security court based its decision on evidence such as the statements of the applicants’ co-defendants and the impugned statement by the second applicant. The convictions were upheld by the Court of Cassation.   In December 2000 the applicants were transferred to an F-type prison, which was the scene of a number of riots giving rise to violent clashes between police officers and prisoners. In protest at these events a number of prisoners, including the applicants, went on hunger strike. As a result, the applicants contracted Wernicke-Korsakoff syndrome and were granted temporary release on medical grounds in December 2001 and February 2002. Mrs Türkmen was pardoned by the President of the Republic in October 2002 and her husband in March 2003. The applicants then moved to Germany, where they applied for asylum.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 30 July 1998. It was transmitted to the European Court of Human Rights, which declared it partly admissible on 28 March 2006.   Judgment was given by a Chamber of 7 judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Riza Türmen (Turkish), Elisabet Fura-Sandström (Swedish), Danutė Jočienė (Lithuanian), Dragoljub Popović (Serbian), judges , and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained that they had been tortured by police officers in an attempt to extract confessions from them. They further alleged that they had been convicted following unfair proceedings. They relied on Articles 3 and 6.   Decision of the Court   Article 3 of the Convention   Regarding the treatment to which the applicants were subjected The Court observed that Dr Apaydın had not noted any traces of violence to the applicants’ bodies when he had examined them. Two days later, however, the prison doctor had recorded numerous injuries, and his report had been endorsed by the Institute of Forensic Medicine. As the applicants had not undergone any medical examination when they were first deprived of their liberty, it could not be claimed that their injuries had been sustained prior to their arrest. Moreover, they had remained completely at the mercy of the officers questioning them, since they had been taken into police custody on 6 January 1994 and had not had access to their lawyer until 11 January.   The Court reiterated that, where injuries occurred while an individual was in detention, it was incumbent on the Government concerned to provide a plausible explanation as to how the injuries in question had been caused and to adduce evidence establishing facts that cast doubt on the applicants’ allegations. In the absence of any plausible explanation from the Turkish Government, the Court considered that the medical examination of 17 January 1994 had not been conducted in accordance with the proper procedures and that the injuries noted in the two subsequent reports had resulted from treatment for which Turkey bore responsibility. The Court observed in that connection that the applicants’ injuries were consistent with the ill ‑ treatment they had alleged.   In view of all the evidence before it, the Court could not but find it established that the applicants had been subjected by those questioning them at least to ill-treatment such as Palestinian hanging and falaka , which in the present case could only have been inflicted intentionally in order to extract confessions or information from the applicants.   The Court therefore held that there had been a violation of Article 3 on account of the torture to which the applicants had been subjected.   Regarding the effectiveness of the investigation The Court considered that the proceedings at issue could not be regarded as having been conducted with reasonable expedition; neither had the Turkish authorities taken the positive steps required by the seriousness of the circumstances to ensure that the proceedings were brought to a successful conclusion before the prosecution became time-barred.   The Court therefore held that there had been a violation of Article 3 on account of the circumstances which had resulted in the prosecution of the presumed perpetrators of the torture becoming time-barred.   Article 6 § 1 of the Convention   The Court considered it understandable that the applicants, who had been charged with serious offences, should have feared appearing before a state security court with a military judge on its bench. They had had good grounds to fear that the Istanbul State Security Court would be unduly influenced by considerations unrelated to the nature of the case.   Accordingly, the Court held that there had been a violation of Article 6 § 1 on account of the lack of independence and impartiality of the state security court, and considered that it was not necessary to examine the applicants’ other complaints regarding the unfairness of the proceedings.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   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.   [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.