CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 avril 2007

.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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; 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 } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   225 12.4.2007   Press release issued by the Registrar   CHAMBER JUDGMENT HACI ÖZEN v. TURKEY   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Hacı Özen v. Turkey (application no. 46286/99).   The Court held: by six votes to one, that there had been a violation of Article 3 (prohibition of inhuman treatment) of the European Convention on Human Rights; unanimously, that there had been a violation of Article 13 (right to an effective remedy) of the Convention; unanimously, that there had been a violation of Article 5 § 3 (right to be brought promptly before a judge); unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) in that the applicant was not tried by an independent and impartial tribunal; by six votes to one, that there had been a violation of Article 6 §§ 1 and 3 (c) (right to legal assistance of own choosing) in that the applicant did not have a fair trial.   Under Article 41 (just satisfaction, the Court awarded the applicant, by six votes to one, 15,000 euros (EUR) in respect of non-pecuniary damage, and unanimously, EUR 1,800 for costs and expenses (less EUR 685 granted by way of legal aid from the Council of Europe). (The judgment is available only in English.)   1.     Principal facts   The applicant, Hacı Özen, is a Turkish national who was born in 1943 and lives in Şırnak (south-east Turkey).   The applicant claimed that, on 11 June 1998, he was contacted by two people in Şırnak who threatened to kill him if he refused to help them. They took him to a cemetery outside the city centre where two armed men appeared and asked him about “the supplies”. When he replied that he nothing about those supplies, he was beaten. Subsequently, four or five other people arrived carrying weapons. They tied his hands, covered his mouth and blindfolded him. He was then taken by car and placed in detention at Şırnak provincial gendarmerie command.   While in detention the applicant claimed: that he was stripped naked and beaten, deprived of food and water and prevented from going to the toilet; that he was kept in a small, dark cell, threatened with death and insulted; and, that the gendarmes also tried to rape him.   In the evening of 11 June 1998, the applicant’s son, Mehmet Özen, informed Şırnak Security Directorate that his father was seen by one of their neighbours, Ömer Katar, at around midday being abducted by an armed group of six or seven people. Ömer Katar’s also made a statement, claiming he had seen the applicant being taken away and beaten by seven men carrying rifles.   On 15 June 1998 the applicant was examined by a doctor, who found purple bruises on the applicant’s right shoulder, arms and back, bruises of 2 x 2 cm on his waist, bruises of 2 x 2 cm on his left hip and a trauma of 2 x 0,5 cm on his parietal bone.   On 23 June 1998 the applicant claimed he was forced to apply his thumbprint to a false confession, drafted by the gendarmes, which stated that he was a courier for the PKK and that he had fallen and been injured while trying to escape from the gendarmes on 15 June 1998, the day of his arrest.   The following day the applicant was re-examined by the doctor, who noted traces of old bruises on his shoulders and arms.   Before the Şırnak public prosecutor and Şırnak Magistrates’ Court the applicant denied the accusations against him and maintained that he had been forced to sign the confession. The magistrate’s court ordered his detention on remand and referred his complaint that he had received death threats to the public prosecutor’s office. However, on 17 August 1998, the Şırnak public prosecutor decided to discontinue that investigation, finding that the applicant had not been abducted, but had been taken into custody on 15 June 1998.   According to the Government, the applicant was arrested on 15 June 1998 on suspicion of aiding the PKK and the marks noted in the medical report that day had existed prior to his arrest. The arrest report, signed by four gendarmerie officers, stated that, on 15 June 1998, at around 8.30 a.m., the applicant was captured carrying a bag containing clothes that he was taking to members of the PKK. While trying to escape, he fell, hit his head and sustained various injuries.   On the same day, three officers drafted a scene of the incident report which stated that the applicant was captured at around 4 a.m. carrying a bag thought to contain supplies for the PKK. He had sustained injuries when he fell from a height of 8-10 metres. (Neither report bore the applicant’s signature.) Following his arrest, the applicant was examined by a doctor and, subsequently, taken to the Şırnak gendarmerie command where he made statements admitting that he had helped members of the PKK. He was kept in custody until 24 June 1998.   On 9 July 1998 the public prosecutor at Diyarbakır State Security Court charged the applicant with aiding and abetting an illegal organisation under Article 169 of the Criminal Code. A military judge was involved in seven of the hearings in the case before being replaced with a civilian judge. On 13 December 1999 the court convicted the applicant as charged and sentenced him to three years and nine months’ imprisonment. In its judgment, the court relied on the alleged confession, the statements of the gendarmerie officers who had drafted the arrest and scene of the incident reports and the content of the bag the applicant was allegedly carrying when arrested. The applicant appealed unsuccessfully. 2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 22 December 1998 and declared partly inadmissible on 10 April 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Boštjan M. Zupančič (Slovenian), President , Riza Türmen (Turkish), Corneliu Bîrsan (Romanian), Alvina Gyulumyan (Armenian), Egbert Myjer (Dutch), David Thór Björgvinsson (Icelandic), Isabelle Berro-Lefèvre (Monegasque), judges , and also Santiago Quesada , Section Registrar .   3.     Summary of the judgment [2]   Complaints The applicant alleged that he was ill treated while in detention, that he was not brought promptly before a judge, and that he was denied a fair hearing before an independent and impartial tribunal. He relied on Articles 3, 5 § 3 Article 6 §§ 1 and 3 (c) and 13.   Decision of the Court   Article 3   Establishment of the facts Since the facts surrounding the arrest and detention of the applicant were in dispute between the parties, the Court considered it appropriate to establish the facts by making its own assessment.   The Court found it peculiar that the public prosecutor did not attempt to make further enquiries concerning the applicant’s whereabouts between 11 and 15 June 1998. Moreover, he based his decision on the arrest report drawn up by the gendarmerie officers without having questioned its accuracy, although there were reports from the applicant’s son and neighbour in the investigation file which cast doubt on its credibility   There were also contradictions in the official reports. The time of the arrest was given as 8.30 a.m. in the arrest report and as 4 a.m. in the scene of the incident report. According to the arrest report, the applicant had sustained injuries to his head, whereas the medical report of 15 June 1998 did not refer to any mark on the applicant’s head. Neither did the arrest and scene of the incident reports bear the applicant’s signature.   Recalling its earlier findings and those of the European Commission of Human Rights, the Court reiterated that the custody records of the gendarmerie in south-east Turkey in the nineties could not in general be relied upon to prove that a person was not taken into custody.     The Court therefore found it established that the applicant was arrested on 11 June 1998 by officers from the Şırnak gendarmerie command and kept in custody until 15 June 1998 without his detention being officially recorded. The Court thus accepted that the applicant sustained the injuries noted in the medical report of 15 June 1998 between 11 and 15 June 1998 while in the State authorities’ control.   Alleged ill-treatment The Court observed that the applicant was not medically examined at the beginning of his detention on 11 June 1998 and did not have access to a lawyer or doctor of his choice while in custody. On 15 and 24 June 1998 he underwent two medical examinations which resulted in two medical reports. Both reports referred to bruises and lesions on various parts of the applicant’s body which were consistent with his allegations of ill-treatment. In the absence of a plausible explanation for those marks and injuries by the Government, the Court concluded that they were the result of inhuman treatment for which the Government bore responsibility. There had therefore been a violation of Article 3.   Article 13   The Court was struck by the fact that, although the applicant’s medical examinations revealed that he had sustained injuries to various parts of his body and, despite his serious allegations before several judicial authorities, no attempts were made to investigate his allegations. The Court therefore concluded that the applicant was denied an effective remedy in respect of his ill-treatment, and was thereby denied access to any other available remedies at his disposal, including a claim for compensation. Consequently, there had been a violation of Article 13.   Article 5 § 3   Finding that it could not accept that it was necessary to detain the applicant for 13 days without judicial intervention, the Court held that there had been a violation of Article 5 § 3.   Article 6 § 1   The Court noted that a military judge was present at seven hearings in the applicant’s case. After his replacement with a civilian judge, the state security court did not take any decision regarding the admissibility of the applicant’s “confession”, nor did it renew its decision concerning his allegations of ill-treatment or order the gendarmerie officers to make new statements. In those circumstances, the Court could not accept that the replacement of the military judge before the end of the proceedings disposed of the applicant’s reasonably held concern about the trial court’s independence and impartiality. There had accordingly been a violation of Article 6 § 1.   Article 6 § 3 (c)   The Court reiterated that a court whose lack of independence and impartiality had been established could not in any circumstances guarantee a fair trial to those under its jurisdiction and that, accordingly, it was not necessary to examine complaints regarding the fairness of the proceedings before that court.   The Court further recalled that: the applicant had been subjected to ill-treatment while he was in the custody of the gendarmerie, he had not received any legal assistance while in custody, he had made statements before the gendarmerie in the absence of his lawyer and he had denied the accuracy of those statements in court, alleging that he had been subjected to ill-treatment. In addition, not only did the state security court fail to determine the admissibility of the applicant’s statements made in the custody of the gendarmerie before going on to examine the merits of the case, it had also used those statements as the main evidence in its judgment convicting the applicant, despite his denial of their accuracy. In those circumstances, the Court found that the use of the applicant’s statements obtained during his custody period in the absence of his lawyer in the criminal proceedings brought against him rendered his trial as a whole unfair. It followed that there had been a violation of Article 6 §§ 1 and 3 (c).     Judge Türmen expressed a dissenting opinion, which is annexed to the judgment.   ***   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) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)   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 Convention, 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.