CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 31 juillet 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 } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sA88F4219 { margin-top:0pt; margin-left:21pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } EUROPEAN COURT OF HUMAN RIGHTS   539 31.7.2007   Press release issued by the Registrar   CHAMBER JUDGMENT AŞAN AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Aşan and Others v. Turkey (application no. 56003/00).   The Court held unanimously that there had been: a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights in respect of five of the applicants (Zeki Aslan, Übeyt Yacan, Şahbaz Aslan, Süleyman Aslan and Zeki Aşan); no violation of Article 3 in respect of seven of the applicants (Halit Aşan, Abdullah Aşan, Mehmet Sıddık Aslan, Adil Aşan, Bazi Aşkan, Ahmet Aşan and Zübeyir Aşan); a violation of Article 13 (right to an effective remedy) of the Convention in respect of all the applicants; a violation of Article 5 § 3 (right to be brought promptly before a judge) in respect of all the applicants; a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) in respect of all the applicants; and, a violation of Article 5 § 5 (enforceable right to compensation) in respect of all the applicants.   The Court awarded four of the five applicants for whom a violation of Article 3 had been found 12,700   euros   (EUR) each and Zeki Aşan EUR   10,500. The remaining seven applicants were awarded EUR   7,700, with the exception of Zübeyir Aşan (EUR   5,500). The applicants were also awarded EUR   5,000 jointly for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The 12 applicants are all Turkish nationals who live in Şırnak (Turkey); Halit   Aşan, Abdullah Aşan, Mehmet Sıddık Aslan, Zeki Aslan, Adil Aşan, Übeyt Yacan, Şahbaz Aslan, Süleyman Aslan, Bazi Aşkan, Ahmet Aşan, Zeki Aşan and Zübeyir Aşan. They were born in 1955, 1945, 1970, 1963, 1973, 1950, 1950, 1930, 1955, 1955, 1965 and 1958 respectively On 13 September 1999 the first 10 applicants were arrested by gendarmes and taken into custody at the Beytüşşebab Provincial Gendarmerie Headquarters on suspicion of aiding and abetting an illegal terrorist organisation, the PKK (the Kurdistan Workers’ Party). They were medically examined that day and, according to their medical reports, no signs of new scars, marks or bruises were found on any of them.   On 17 September 1999 the applicants’ detention was extended for ten days. Between 15 and 19 September 1999, those applicants were questioned by gendarmes in relation to their alleged involvement in terrorist activities.   On 18 September 1999, the applicants Zeki Aşan and Zübeyir Aşan were arrested on suspicion of aiding and abetting the PKK and possessing drugs and placed in custody at the provincial gendarmerie headquarters. They were medically examined that day and their medical reports recorded no signs of new scars, marks or bruises on either of them.   On 21 September 1999 Zeki Aşan and Zübeyir Aşan were questioned by gendarmes in relation to their alleged involvement in the PKK.   All 12 applicants alleged that they were tortured while in custody. They claimed, in particular: that they were deprived of food and water, kept blindfolded, beaten, hung, stripped naked, given electric shocks and hosed with pressurised water; that they were made to listen to high volume music and screams; that truncheons were inserted in their anuses; and, that they were forced to lie down on a wet floor. They also alleged that they were forced under torture to sign false confessions prepared by the gendarmes.   On 22 September all 12 applicants were again medically examined. The reports found no new signs of physical injuries in relation to seven of the applicants: Halit   Aşan, Abdullah   Aşan, Mehmet Sıddık Aslan, Adil Aşan, Bazi Aşkan, Ahmet Aşan, and Zübeyir Aşan.   However, Zeki Aslan was found to have had a tender ear and left shoulder, difficulty moving his left thumb, a 4cm bruise on his left hand and pain in his back. Übeyt Yacan was reported to have had: red and painful testicles; difficulty urinating; difficulty moving his arms and shoulders, which were tender; extreme tenderness in the lumbar region; and, a bruised and tender left thumb. Şahbaz Aslan had difficulty in standing up and moving his arms and shoulders. His back and calf were tender and his left eye was bloodshot. Süleyman Aslan had redness and tenderness on the nape of his neck. His left shoulder was also tender. Zeki Aşan had tenderness in his left arm, shoulder and on the left side of his lumbar region, redness on his right leg and back and a 3x2 cm bruise on his right arm.   On 22 September 1999 the applicants were brought before the public prosecutor. They claimed that they had been subjected to torture in custody and that the statements taken by the gendarmes were false. They subsequently repeated those claims before Beytüşşebab Magistrates’ Court, which ordered their detention on remand.   On 9 December 1999 the applicants were brought to trial before Diyarbakır State Security Court charged with various terrorist offences. They again complained that they had been tortured while in detention and forced to sign false statements. Their representative asked the court to bring criminal proceedings against those who had tortured his clients.   Following a constitutional amendment in 2004, the state security courts were abolished and the applicants’ case was transferred to Diyarbakır Assize Court, which acquitted the applicants on 10 April 2007.   In June 2006 the Court was provided with two further medical reports. One report diagnosed Zeki Aşan, Bazi Aşkan, Ahmet Aşan, Zübeyir Aşan and Adil Aşan as mainly suffering from post-traumatic stress disorders and, the other, a report from the Forensic Medicine Experts’ Association, considered that the applicants could have been subjected to physical violence as claimed.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 21 December 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgian), President , András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Riza Türmen (Turkish), Mindia Ugrekhelidze (Georgian), Vladimiro Zagrebelsky (Italian), Antonella Mularoni (San Marinese), judges , and also Françoise Elens-Passos , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained that they were tortured while in custody. They also maintained that they were detained and tortured on account of their Kurdish origin. They relied on Articles 3, 5, 13 and 14 (prohibition of discrimination) of the Convention.   Decision of the Court   Article 3   Zeki Aslan, Übeyt Yacan, Şahbaz Aslan, Süleyman Aslan and Zeki Aşan. The Court noted that Zeki Aslan, Übeyt Yacan, Şahbaz Aslan, Süleyman Aslan and Zeki Aşan underwent medical examinations before and after their detention. The Court observed that the findings contained in the medical reports dated 22 September 1999 differed from the earlier reports, referring to signs of violence such as bruises, tenderness and complaints of pain. Accordingly, the Court considered that the findings contained in the medical reports of 22 September 1999 were, at the very least, consistent with the applicants’ allegations of having been beaten. In that connection, it noted that the Government had failed to provide any explanation as to the manner in which the injuries noted in the medical reports were sustained by the applicants. The Court concluded that the five applicants’ injuries were the result of treatment for which the Turkish Government bore responsibility. There had accordingly been a violation of Article 3 in respect of Zeki Aslan, Übeyt Yacan, Şahbaz Aslan, Süleyman Aslan and Zeki Aşan.   Halit Aşan, Abdullah Aşan, Mehmet Sıddık Aslan, Adil Aşan, Bazi Aşkan, Ahmet Aşan and Zübeyir Aşan The Court noted that the medical reports issued in respect of Halit Aşan, Abdullah Aşan, Mehmet Sıddık Aslan, Adil Aşan, Bazi Aşkan, Ahmet Aşan and Zübeyir Aşan before and after their detention in custody all stated that no signs of scars or bruises were observed on their bodies. Although the applicants furnished alternative reports which indicated that some of them suffered from post-traumatic stress disorder, and expressed the view that the findings contained in the medical reports matched their allegations of ill-treatment, those reports were issued in 2006, almost seven years after the alleged events, and did not indicate with sufficient certainty that the applicants were subjected to ill treatment, as alleged, at the material time.   The Court considered that any ill-treatment inflicted in the way alleged by the applicants would have left marks on their bodies which would then have been observed by the doctor who examined them at the end of their detention in custody on 22 September 1999. It saw no reason why the doctor who examined the applicants following their release from custody would not have noted the alleged signs of physical violence, particularly bearing in mind that he had already recorded such signs in respect of the other applicants. The Court therefore considered that the evidence before it did not enable it to find beyond reasonable doubt that those seven applicants were subjected to ill-treatment. It followed that there had been no violation of Article 3 in respect of Halit Aşan, Abdullah Aşan, Mehmet Sıddık Aslan, Adil Aşan, Bazi Aşkan, Ahmet Aşan and Zübeyir Aşan.   Article 13   The Court considered that the applicants had an arguable claim that they had been tortured. The inertia displayed by the authorities in response to their allegations was therefore inconsistent with the notion of an “effective remedy” which entailed a thorough and effective investigation capable of leading to the identification and punishment of those responsible. The Court therefore concluded that all the applicants were denied an effective remedy on account of the failure of the Turkish authorities to investigate their complaints of torture, in violation of Article 13.   Article 5 § 3   The Court has already accepted on a number of occasions that the investigation of terrorist offences undoubtedly presented the authorities with special problems. That did not mean, however, that the authorities had carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the courts, whenever they considered that there had been a terrorist offence.   The Court noted that the applicants Zeki Aşan and Zübeyir Aşan alleged that their detention in custody had lasted more than four days and six hours. In view of the Government’s failure to clarify the total time spent by Zeki Aşan and Zübeyir Aşan in custody, the Court accepted that their detention in custody did indeed exceed four days and six hours. The other applicants were arrested on 13 September 1999 and brought before a judge on 22 September 1999. Their detention in custody had therefore lasted nine days.   Even supposing that the activities of which the applicants stood accused were linked to a terrorist threat, the Court could not accept that it was necessary to detain the applicants for more than four days and six hours.   There had, accordingly, been a violation of Article 5 § 3.   Article 5 § 4   The Court found that the applicants had no remedy in national law to challenge the lawfulness of their detention, in violation of Article 5 § 4.   Article 5 § 5   The Court found that, in the absence of an enforceable right to compensation in the circumstances of the applicants’ case, there had been a violation of Article 5 § 5.   Other Articles   The Court considered the applicants complaints under Article 5 §§ 1 and 2 and Article 14 to be inadmissible.     ***   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) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 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. [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.