CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 21 septembre 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s4E9FF9F2 { margin-top:0pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s906CA806 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC90828B6 { font-family:Arial; font-size:11pt; text-decoration:underline } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 678 21.09.2010   Press release issued by the Registrar   Chamber judgment Not final [1]   İsmail Altun v. Turkey (application no. 22932/02)     UNJUSTIFIED USE OF LETHAL FORCE AGAINST THE APPLICANT DURING A PRISON RIOT   Unanimously   Two violations of Article 2 (right to life) of the European Convention on Human Rights     Principal facts   The applicant, İsmail Altun, is a Turkish national, born in 1974, living in Istanbul. At the relevant time he was in detention in Bayrampaşa Prison (Istanbul) awaiting trial for attempted armed attack on the constitutional order. On 19 December 2000 the security forces intervened simultaneously in 20 Turkish prisons where prisoners had been on hunger strike in protest at plans to create F-type prisons with living units for one to three inmates.   The operation in Bayrampaşa Prison was carried out with the aim of putting an end to a hunger strike by 83 prisoners whose health was deteriorating. During the operation 12 prisoners died and around 50 were injured, some, like the applicant, by firearms.   The clashes between the security forces and the prisoners went on from morning to night. Some agreed to be evacuated during the day while others refused to surrender, erecting burning barricades – some even setting themselves alight – firing shots or using flame throwers against the security forces and chanting resistance slogans. The security forces responded with tear gas, warning shots, and then retaliatory shots. After waiting for the last rioters to run out of ammunition, the security forces proceeded to evacuate them at around 8.30 p.m.   On the same day the applicant was admitted to Bayrampaşa Hospital suffering from three bullet injuries to the abdomen and one to the left knee. He underwent an operation for a perforated stomach and a ruptured pancreas. When a pancreatic fistula developed a few days later, he was transferred to Cerrahpaşa University Hospital.   On 22 January 2001 the applicant was transferred to Edirne F-type Prison. The medical report drawn up on his arrival did not refer to any marks from blows or injuries and did not record any allegation by the applicant that he had been ill-treated on his arrival. A report drawn up by an institute of forensic medicine on 23 February 2001 indicated that the wounds sustained by Mr Altun on 19 December had been life-threatening and required 25 days’ rest. Following an application for his release lodged by his lawyer, he was examined on 2 October 2001 by six doctors who concluded that his state of health – he was suffering from Wernicke-Korsakoff syndrome [2] – was incompatible with his further detention. On the basis of that opinion, Mr Altun was released on 12 October 2001.   On two occasions – in 2003 and 2005 – the Governor of Istanbul, following a request by the public prosecutor, refused to authorize proceedings against the security forces who had participated in the operation at Bayrampaşa Prison. On 10 April 2006, in the light of the conclusions of an investigation during which evidence had been heard from 258 gendarmes and detainees, the Governor repeated his refusal. He stated that the operation had been carried out to put an end to the hunger strikes and restore the State’s authority after the prison dormitories had become training centres for illegal organisations, equipped with mobile telephones, firearms and inflammable substances. In his opinion, the use of force had been legitimate and proportionate considering the determination of the rioters. The public prosecutor nonetheless repeated his request for leave to institute criminal proceedings by applying to the Administrative Court, which, on 21 September 2006, set aside the decision of 10 April 2006 on the grounds that, under the Prosecution of Civil Servants Act, it was not necessary to obtain leave from the hierarchal superiors in order to institute criminal proceedings for the offences of torture and ill-treatment. The investigation then began and is still pending.   In the meantime the public prosecutor had instituted criminal proceedings in July 2001 against the prison supervisory staff for abuse of their powers on the ground that they had allowed firearms to be brought into the premises and against the gendarmes involved in the operation for ill-treatment of the detainees. The Criminal Court discontinued the proceedings on the grounds that they had become time-barred.   On 4 January 2001 the Human Rights Investigation Committee of the Turkish National Assembly established a five-member sub-committee to carry out investigations in the prisons that had been the subject of the operation called “Return to Life” and in the F-type prisons to which the prisoners had been transferred. However, it limited its investigations to the conditions of detention in the prisons to which the detainees had been transferred in view of the time that had elapsed since and the fact that the premises concerned by the operation had been destroyed.     Complaints, procedure and composition of the Court   Relying on Article   2 (right to life), the applicant complained of having been wounded by bullet. Under Article   3 (prohibition of inhuman or degrading treatment), he alleged that he had not received appropriate treatment for his injuries and that he had been beaten when transferred to Edirne Prison. Relying further on Article   5 (right to liberty and security) and Article   6 (right to a fair trial), he complained of the length of his pre-trial detention and alleged that his lawyer had not been informed of his state of health and had been unable to visit him.   The application was lodged with the European Court of Human Rights on 18 May 2002.   Judgment was given by a Chamber of seven judges, composed as follows:     Françoise Tulkens ( Belgiu m), President , Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl Karakaş (Turkey), Guido Raimondi (Italy) ,   and also Françoise Elens-Passos , Deputy Section Registrar     Decision of the Court   Article 2   The Court reiterated that where the force used was potentially lethal, as had been the case regarding Mr Altun because the situation had been deemed life-threatening, Article 2 applied even if the victim had not died as a result.   While the reaction of the security forces in the case could be justified as being “absolutely necessary” within the meaning of Article 2, the force used had nonetheless to have been strictly proportionate.   The Court also reiterated that where a person was injured while in the custody of State authorities or agents, the burden of proof fell mainly on the Government concerned. In the applicant’s case the loss of control of Bayrampaşa Prison did not relieve the State of its responsibility because it had happened as a result of a flaw in the public service.   The Court noted that many question marks remained as to exactly how the operation had been conducted and the circumstances in which Mr Altun had been injured. The police report, which both the Istanbul public prosecutor and the prison public prosecutor had refused to sign, was not a reliable document in that respect.   While being aware that the operation in question had been a difficult undertaking, which had met with violent resistance, the Court noted that 12 prisoners had died and around 50 others had been injured as a result. The security forces, who had been aware of the chaotic situation in the prison, had had the necessary time to prepare the operation because it had been preceded by a long phase of negotiation. There was, moreover, no evidence to demonstrate that the security forces had been trained to deal with that sort of situation, and the Court had already identified in other cases against Turkey a manifest lack of strict rules for the protection of detainees.   There was no evidence that Mr Altun had behaved violently during the riot in such a way as to render the use of lethal force against him absolutely necessary. The Turkish Government had been unable to provide an adequate explanation for the cause of his injuries or how the use of force had been legitimate.   The Court therefore held that there had been a violation of Article 2.   Article 2 also required that an effective investigation be carried out in order to determine whether the force used was or was not justified and to punish those responsible. In the applicant’s case the public prosecutor had requested leave to prosecute the security forces around two and a half years after the operation. Moreover, the Governor’s intervention had prevented an effective criminal investigation from being opened for several years. Lastly, three years had elapsed since the case had been transferred to the public prosecutor’s office for investigation. Thus, more than nine years after the events, the investigation was still pending and no criminal proceedings had been instituted, which made it difficult to piece together the evidence and establish the facts.   Regarding the administrative investigation, the Court had already expressed doubts regarding the independence of the administrative bodies from the executive. It regretted, moreover, that the parliamentary sub-committee had not undertaken a full inquiry into the operation carried out in Bayrampaşa Prison despite having been established for that purpose.   The Court also held that there had been a violation of Article 2 as the investigation conducted by the authorities could not be regarded as effective.   Article 3   The Court examined all Mr Altun’s allegations regarding lack of medical care after the events in question and ill-treatment in Edirne Prison under Article 3.   Treatment following the bullet wound   According to the applicant’s file, he was rapidly transferred to hospital on the evening of the events. He subsequently underwent an operation and was transferred a few days later to an appropriate establishment for his pancreatic fistula. It was after that, with the doctor’s agreement, that he was transferred to Edirne Prison. Lastly, medical examinations carried out in October 2001 had resulted in his being released.   Regarding Mr Altun’s allegations that he had been handcuffed and shackled to his hospital bed and his complaints about the conditions of his transfer to Edirne Prison, there was no evidence that his state of health precluded the wearing of handcuffs or his transfer in a prison van, measures which were not disproportionate given the security requirements. This part of the application was therefore dismissed as manifestly ill-founded.   Allegations of ill-treatment in Edirne Prison   The applicant had not produced any conclusive evidence or details in support of his allegations that he had been ill-treated on his admission to prison. At no time during his detention had he disputed the medical report, which did not record any marks of assault, drawn up when he was admitted; nor had he taken any steps to see another doctor. Furthermore, without explaining the delay, he had lodged his criminal complaint five months after the events. This complaint was accordingly dismissed as manifestly ill-founded.   Other complaints   Mr Altun’s complaint about the length of his pre-trial detention (Article 5) was dismissed as being out of time (lodged more than six months after his pre-trial detention had ended).   As the Court did not find any appearance of a violation of the rights and freedoms guaranteed by the Convention, it dismissed as manifestly ill-founded the applicant’s complaint that his lawyer had been deprived of her right to visit him.   Article 41   The Court did not award Mr Altun any sum in respect of just satisfaction as he had not submitted any request to that end. ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Emma Hellyer (telephone: +33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Frédéric Dolt (telephone: + 33 3 90 21 53 39) Nina Salomon (telephone: + 33 3 90 21 49 79)   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 Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution. [2] Encephalopathy involving the loss of certain cerebral functions, resulting from a vitamin B1 (thiamine) deficiency.