CEDH · PRESS;GENERAL;ENG — 14 février 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s6B505E72 { margin:0pt; padding-left:0pt } .s4060989B { margin-left:10.52pt; text-align:justify; padding-left:7.48pt; font-family:serif } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .s42A0AEC7 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-after:avoid; font-size:12pt } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   EUROPEAN COURT OF HUMAN RIGHTS     082   14.2.2002   Press release issued by the Registrar   JUDGMENT IN THE CASE OF ORAK v. TURKEY   The European Court of Human Rights has today notified in writing its judgment in the case of Orak v. Turkey (no. 31889/96), which is not final [1] . (The judgment is in the French language only).   The Court held: unanimously, that there had been a violation of Article 2 of the European Convention on Human Rights (right to life) on account of the death of the applicant’s son; unanimously, that there had been a violation of Article 2 of the Convention on account of the fact that the authorities had not conducted an appropriate or effective inquiry into the circumstances of the applicant’s son’s death; unanimously, that there had been a violation of Article 3 (prohibition of torture); by six votes to one, that there had been a violation of Article 13 (right to an effective remedy); unanimously, that it was not necessary to consider the applicant’s complaints under Articles 5 (right to liberty and security), 6 § 1 (right to a fair trial), 14 (prohibition of discrimination) or 18 (limitation on use of restrictions of rights).   Under Article 41 of the Convention (just satisfaction), the Court awarded, by six votes to one: 2,660 euros (EUR) (less 4,100 French francs paid by the Council of Europe in legal aid) for the applicant’s costs and expenses and EUR 4,000 in respect of the non-pecuniary damage he had sustained; EUR 46,000 for pecuniary damage and EUR 22,500 for non-pecuniary damage, to be held by the applicant for his son’s heirs; EUR 457 for funeral expenses.   1.     Principal facts   The applicant, Abdurrahman Orak, a Turkish national of Kurdish origin, was born in 1950 and lives in Bitlis. He is the father of Abdulselam Orak, (A.O.), who was born in 1970 and died on 25 June 1993, aged 23. On 10 June 1993, during an operation launched with the aim of arresting a number of persons suspected of being implicated in the activities of the Kurdistan Workers’ Party (“the PKK”), security forces went to the village of Harabengesor in Bitlis province, south-east Turkey (subject to a state of emergency). Early in the morning of 11 June 1993 A.O. and one A.G. were arrested and transferred to the gendarmerie barracks in Bitlis, where they were taken into police custody.   The Government submitted that at 3.30 a.m. on 14 June 1993 A.O. and A.G. had tried to escape while they were under surveillance in the corridors of the gendarmerie barracks. During the attempted escape a violent struggle had broken out. Following the alleged attempt to escape there was no medical examination of A.O. According to the reports signed by the gendarmes, he then began a hunger strike, during which the gendarmes and the military doctor administered serotherapy.   The applicant said that he was prepared to accept that the alleged attempt to escape had taken place, but had doubts about the circumstances in which it had occurred; his son had been handcuffed and placed under the strict supervision of the security forces. His son had been taken into custody in a military barracks under much tighter security than the supervision regime in police stations. It was difficult to envisage an attempt to escape in such circumstances.   On 20 June 1993 A.O. was transferred to Bitlis Hospital and later to Diyarbakır Hospital. He was diagnosed as suffering from “extrarenal uraemia”. The doctors who examined him noted that he was unconscious and had injuries all over his body. On 23 June 1993 he died in hospital without coming out of the coma. According to the autopsy report of 23 June 1993, death was caused by a stroke.   On 6 July 1993 the applicant lodged a complaint against the gendarmes in whose custody his son had been placed. On 1 October 1993 a prosecution was brought against the four gendarmes in question for manslaughter. On 25 November 1997 the Bitlis Assize Court acquitted the defendants on the ground that, notwithstanding the findings of the medical reports that death had been caused by traumatic shock, it was not possible on the basis of the evidence adduced before it to establish that this shock had been caused by the accused.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 5 June 1996 and referred to the Court on 1 November 1998. It was declared admissible on 29 March 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Françoise Tulkens (Belgian), Giovanni Bonello (Maltese), Peer Lorenzen (Danish), Snejana Botoucharova (Bulgarian), Anatoly Kovler (Russian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Erik Fribergh , Section Registrar . 3.     Summary of the judgment [2]   Complaints   The applicant alleged that his son had died from the consequences of acts of torture inflicted on him in the gendarmerie barracks in Bitlis. Criticising the lack of an effective mechanism to establish the circumstances in which his son had lost his life, he complained that the inadequate nature of the inquiry into his death had prevented him from bringing judicial proceedings for compensation. He further asserted that there had been discrimination based on his son’s ethnic origin. He relied on Articles 2, 3, 5, 6, 13, 14 and 18 of the Convention.   Decision of the Court   Article 2   A.O.’s death The Court did not consider it necessary to speculate as to whether A.O. had suffered an injury to the head during the alleged attempted escape, given that, irrespective of the origin of the injury in question, there was a body of “satisfactory and convincing” evidence that the death was imputable to the respondent State.   Firstly, it had not been contested that A.O., aged 23, was arrested on 11 June 1993 when he was in good health and showed no signs of illness or previous injuries. Following his arrest he was first taken to the gendarmerie post in Tatvan and then placed in custody at the Bitlis gendarmerie barracks. Accordingly, all the injuries noted during that period engaged, in principle, the responsibility of the State. There was in the first place a “negative” responsibility, consisting in the requirement not to have recourse to excessive force. But the State also had a positive responsibility to protect the lives of persons deprived of their liberty.   The Court noted that A.O., who had cuts and bruises all over his body and a head injury, had not been taken to hospital until 20 June 1993, that is six days after the alleged escape attempt. By the time he reached hospital on 20 June 1993 A.O. had lost consciousness and slipped into a coma. The Government had not supplied any plausible explanation of the bruises found, among other places, on the victim’s arms and thigh, the soles of his feet and the crown and sides of his head, the scratches on his genitals or the causes of the stroke which had apparently caused his death. Moreover, while he was in police custody the gendarmerie authorities did no more than administer serotherapy to A.O., who had serious injuries and was suffering, among other things, from a bedsore measuring 10 cm by 10 cm over his sacrum due to a long period of lying on his back.   Accordingly, the Court considered that the Government’s responsibility for the applicant’s son’s death was engaged by the fact that they had given no explanation of the reasons for the stroke which caused A.O.’s death and because they had failed to discharge their duty to protect his life when he was subject to State supervision while in police custody. It followed that there had been a violation of Article 2 in that respect. Alleged inadequacy of the inquiry The Court noted that following the applicant’s complaint the public prosecutor did not appear to have doubted the official version of the events when, in the indictment he drew up, he accused the gendarmes of manslaughter resulting from recourse to excessive force during the escape attempt. Moreover, during his preliminary investigation, he did no more than order a medical report and question the gendarmes in whose charge A.O. had been placed, without bothering to summon A.G., who had been with A.O. The Court considered that A.G.’s statements were crucial in that he had been the only witness, other than the gendarmes, who was with the applicant’s son at the time when the alleged fight took place. But no statements were taken from A.G. until 3 March 1994, when he was questioned under a request for evidence on commission. No investigating or trial judge who worked on the case had had the opportunity to question this key witness who had categorically denied that there had been an attempt to escape followed by a violent struggle. The subsequent inquiry conducted by the administrative investigating authorities had done little to remedy the shortcomings recorded above in so far as the gendarmerie lieutenant-colonel instructed to investigate the case did not consider that there was sufficient evidence to prosecute the gendarmes.   The Court further noted that the Bitlis Assize Court, which was eventually able to rule on the case, decided on 25 November 1997 to acquit the gendarmes in whose charge A.O. had been held on the ground that there was no evidence, but without being able to explain A.G.’s statements. That conclusion, which was based solely on the evidence given by the accused and the other gendarmes present in the barracks, could not be accepted, given that no explanation of the radical difference between the two versions of events had been forthcoming and in view of the nature of the injuries found on the various parts of the deceased’s body.   The Court concluded that the authorities had not conducted an effective inquiry into the circumstances surrounding A.O.’s death, which made civil remedies equally incapable of providing redress in the circumstances of the case. It concluded that there had been a violation of Article 2 in this respect.   Article 3 The Court noted that the autopsy report of 23 June 1993 revealed that A.O. had injuries all over his body. That report, and a further report of 16 September 1993 drawn up by a panel of four doctors, confirmed the presence of traumatic lesions of various dimensions and colours on the deceased’s body.   Even supposing that some of the injuries in question could be explained by the use of force during the alleged escape attempt, the Government had not supplied any plausible explanation for the areas of bruising found, among other places, on A.O.’s arms and thigh, the soles of his feet and the crown and sides of his head or of the scratches on his genitals, whereas he had been in good health before he was taken into police custody. In addition, the authorities responsible for investigating A.O.’s death had not deemed it necessary to look into the case in more detail in order to establish what might have caused these injuries.   In the absence of any plausible explanation, the Court considered it to have been established that the lesions found on A.O.’s body were caused by treatment for which the Government bore responsibility.   In the light of the foregoing considerations, and regard being had to all the evidence adduced before it, the Court concluded that the way A.O. had been treated when in police custody constituted treatment prohibited by Article 3. There had accordingly been a violation of Article 3.   Article 13 In view of the fundamental importance of the right to the protection of life, Article 13 required, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the death and including effective access for the complainant to the investigatory procedure. On the basis of the evidence adduced in the present case the Court had held the Government responsible under Articles 2 and 3 for the death of the applicant’s son and the treatment incompatible with Article 3 which he had suffered while in police custody. The complaints made by the applicant in that connection were consequently “arguable” for the purposes of Article 13.   The authorities had therefore been under an obligation to conduct an effective inquiry into the circumstances surrounding the applicant’s son’s death. For the reasons set out above, the Court could not accept that an effective judicial investigation had been conducted, in accordance with Article 13. The Court accordingly considered that the applicant had been denied an effective remedy to complain of his son’s death and thereby access to any other available remedies at his disposal, including a claim for compensation. There had accordingly been a breach of Article 13.   Articles 5, 6, 14 and 18 The Court noted that these complaints concerned the same facts as those considered under Articles 2, 3 and 13. Having regard to its conclusions in respect of those provisions, it considered that it was not necessary to examine them separately.     Judge Gölcüklü expressed a partly dissenting opinion, which is annexed to the judgment.   * * *   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 Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [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.