CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 10 octobre 2000

.s800EAC49 { font-size:12pt } .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 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .sBB9EE52A { font-family:Arial } .s6B505E72 { margin:0pt; padding-left:0pt } .sDBD222E3 { margin-left:18pt; text-indent:-18pt; text-align:justify; font-family:serif; font-size:11pt; list-style-position:inside } .s714E8F27 { width:6.94pt; font:7pt 'Times New Roman'; display:inline-block } .s7F64397A { width:26.83pt; display:inline-block } .sA7255D62 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; text-align:justify; font-size:11pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sAD8D8B0 { width:29.89pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF743E20D { width:27.44pt; display:inline-block } .s1B561845 { width:23.78pt; display:inline-block } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s5E15F1C8 { width:0.33pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .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 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   701   10.10.2000 Press release issued by the Registrar   JUDGMENT IN THE CASE OF AKKOÇ v. TURKEY   The European Court of Human Rights has notified in writing judgment in the case of Akkoç v. Turkey. The Court held:        unanimously, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights in respect of a disciplinary sanction imposed on the applicant for a statement made to the press;      by six votes to one, that the Turkish Government failed to protect the life of Zübeyir Akkoç, the applicant’s husband, in violation of Article 2 (right to life) of the Convention;      unanimously, that there has been a violation of Article 2 on account of the failure of the Turkish authorities to conduct an effective investigation into the circumstances of   Zübeyir Akkoç’s death;      by six votes to one, that there has been a violation of Article 13 (right to an effective remedy) in respect of his death;      unanimously, that there has been a violation of Article 3 in respect of the torture of the applicant in police custody;      unanimously, that Turkey has failed to comply with its obligations under former Article 25 § 1 of the Convention.   Under Article 41 (just satisfaction), the Court awarded, by six votes to one, 35,000 pounds sterling (GBP) for pecuniary damage and GBP 40,000 for non-pecuniary damage and, unanimously, GBP 13,648.80 for legal costs and expenses.   1.   Principal facts   The case concerns an application brought by a Turkish national, Nebahat Akkoç, who was born in 1953 and is resident in Adana.   On 31 October 1992, the applicant made a statement to the Diyarbakır Söz newspaper, giving an account of a meeting which had taken place on 27 October 1992 involving her, a delegation of Eğit-Sen (the Diyarbakır Branch of the Education and Science Workers Union) and the National Education Director.   The Diyarbakır Provincial Education Disciplinary Committee took a decision on 14   May 1993 blocking the applicant’s promotion as a penalty for the statement made to the newspaper. The decision was confirmed by the Diyarbakır Administrative Court on 4   October 1994. After two appeals by the applicant to the Supreme Administrative Court, the Administrative Court eventually annulled the disciplinary sanction against her on 17 February 1999.   The applicant’s husband, Zübeyir Akkoç, was of Kurdish origin and also a teacher involved in the Eğit-Sen trade union. On 13 January 1993, at about 07.00 hours, he was killed by an unknown gunman or gunmen on his way to work at a primary school. On 27 March 1997, the prosecutor issued an indictment against Seyithan Araz for the killing of Zübeyir Akkoç. On 23 September 1999, he was acquitted.   On 13 February 1994, at about 02.00 hours, the applicant was apprehended at her home by police officers. During her ten-day detention, she was allegedly subjected to torture; she claimed, among other things, that she was blindfolded, stripped, beaten, given electric shocks, doused in ice-cold and hot water, subjected to loud music and bright lights. During her interrogation she was questioned about her application to the European Commission of Human Rights.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 1 November 1993. Having declared the application admissible, the Commission took evidence in July 1996 concerning the allegations of torture, ill-treatment and intimidation. Following delays in obtaining documentary evidence, it adopted a report on 23 April 1999 in which it expressed the unanimous opinion that there had been violationsof Articles 2, 3, 10 and former Article   25 of the Convention, that there had been no violation of Article 1 of Protocol no. 1or f Article 18 and that no separate issue arose under Article   14. By twenty seven votes to two, the Commission concluded that there had been a violation of Article 13. It referred the case to the Court on 13 September 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Elisabeth Palm (Swedish), President , Wilhelmina Thomassen (Dutch), Luigi Ferrari Bravo [1] (Italian), Corneliu Bîrsan (Romanian), Josep Casadevall (Andorran), Rait Maruste (Estonian),   judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Michael O’Boyle, Section Registrar .   3.   Summary of the judgment [2]   Complaints   Mrs Akkoç complained about: the disciplinary proceedings brought against her in respect of a statement made by her and reported in the press (Article 10 of the Convention); the killing of her husband by an unknown perpetrator (Article 2); and, the lack of an effective investigation (Articles 2 and 13). She claimed that she was tortured and ill-treated by the police during her detention (Article 3) and intimidated in relation to her pending application before the Commission (former Article 25 of the Convention).   Decision of the Court   I.   Concerning the disciplinary punishment   a.   The Government’s preliminary objection   As the Government had not raised their claim of failure to exhaust domestic remedies before the Commission declared the application admissible, they were estopped from doing so before the Court.   b.   Article 10 of the Convention   The Court found that the applicant had utilised the available and ordinary means of redress against the disciplinary sanction imposed on her. This had resulted in the quashing of the penalty. The length of time which it had taken to achieve this (five years and nine months), though a significant period, had not been shown in this case to deprive the remedy of efficacy. She had not shown any concrete financial loss or other prejudice. Accordingly, she could no longer claim to be a victim of an interference with her right of freedom of expression   and there had been no violation of Article 10.       II.   Concerning the death of the applicant’s husband Zübeyir Akkoç   a.   The Government’s preliminary objection   As the Government had not made any submissions concerning the applicant’s alleged failure to exhaust domestic remedies before the Commission declared the application admissible, they were estopped from doing so before the Court.   b.   Article 2 of the Convention   i. alleged failure to take protective measures   The Court found that it had not been established beyond reasonable doubt that any State agent or person acting on behalf of the State authorities was involved in the killing of Zübeyir Akkoç. It had to be determined however whether the authorities had failed to comply with any positive obligation to protect him from a known risk to his life. It found that Zübeyir Akkoç, a teacher of Kurdish origin, engaged in trade union activities perceived by the authorities as unlawful and against the State interest, was at particular risk of falling victim to an unlawful attack. The authorities were aware of this risk, in particular as he and the applicant had informed the public prosecutor that they had received telephone calls during which threats to their lives were made. The authorities were also aware, or ought to have been aware, of the possibility that this risk derived from the activities of persons or groups acting with the knowledge or acquiescence of elements in the security forces. The Court therefore had to consider whether the authorities had done all that could be reasonably expected of them to avoid the risk to Zübeyir Akkoç.   While there were large numbers of security force personnel in the south-east and a framework of law in place with the aim of protecting life, the implementation of criminal law in respect of unlawful acts allegedly carried out with the involvement of the security forces disclosed particular characteristics in the south-east region during this period.   Firstly, where offences were committed by State officials in certain circumstances, the public prosecutor’s competence to investigate was removed to administrative councils which took the decision whether to prosecute. The Court had already found in two previous cases that these councils, made up of civil servants under the orders of the Governor, did not provide an independent or effective procedure for investigating deaths implicating the security forces.   Secondly, the cases examined by the Convention organs concerning the region at this time have produced a series of findings of failures by the authorities to investigate allegations of wrongdoing by the security forces, both in the context of the procedural obligations under Article 2 and the requirement for effective remedies imposed by Article 13. A common feature of these cases was a finding that the public prosecutor has failed to pursue complaints by individuals claiming that the security forces were involved in an unlawful act, for example not interviewing or taking statements from members of the security forces concerned and attributing incidents to the Kurdistan Workers’ Party (PKK) on the basis of minimal or no evidence.   Thirdly, the attribution of responsibility for incidents to the PKK had particular significance as regards investigations and judicial procedures, since jurisdiction for terrorist crimes had been given to the State Security Courts, which had been found by the Court not to fulfil the requirement of independence imposed by Article 6 of the Convention, due to the presence of a military judge whose participation gave rise to legitimate fears that the court may be unduly influenced by considerations extraneous to the case.   The Court found that these defects undermined the effectiveness of criminal law protection, permitting or fostering a lack of accountability of members of the security forces for their actions incompatible with the rule of law in a democratic society respecting the fundamental rights and freedoms guaranteed under the Convention. This removed from Zübeyir Akkoç the protection which he should have received by law. Furthermore, the Government had not provided any information concerning steps to investigate the existence of contra-guerrilla groups or the extent to which State officials were implicated in unlawful killings during this period. Nor had any steps been taken by the public prosecutor in response to the applicant’s petitions concerning the threats to their lives. The Court concluded that in the circumstances of this case the authorities failed to take reasonable measures available to them to prevent a real and immediate risk to the life of Zübeyir Akkoç and, accordingly, there had been a violation of Article 2.   ii. Alleged inadequacy of the investigation   The Court noted the investigation into the killing by the gendarmes had effectively ended by 25 January 1993. Only one statement was taken at the scene. Though a suspect, Seyithan Araz, tried for separatist offences as a Hizbollah member, was alleged in an indictment before the Diyarbakır State Security Court to have killed Zübeyir Akkoç there was no direct evidence linking him with that particular crime. There was no explanation either as to why he had not been charged with the killing of the teacher shot with the same gun at the same time as Zübeyir Akkoç. Seyithan Araz was in the event acquitted of the offences. No steps had been taken to investigate the possible source of the threats to the applicant and her husband prior to the shooting. Having regard therefore to the limited scope and short duration of the investigation in this case, the Court found that the authorities failed to carry out an effective investigation into the circumstances surrounding Zübeyir Akkoç. It concluded that there had been, in this respect, a violation of Article 2.   c.   Article 13 of the Convention   As there was an arguable claim of a violation of Article 2 and it was undisputed that Zübeyir Akkoç was a victim of an unlawful killing, the authorities were under an obligation to carry out an effective investigation into the circumstances of the killing. However, no effective criminal investigation could be considered as having been conducted. The applicant was thereby denied an effective remedy in respect of the death of her husband and access to any other available remedies at her disposal, including a claim for compensation.   III.   Concerning the applicant’s detention   a.   The Court’s evaluation of the facts   The Court noted that the Commission had carried out hearings of witnesses in this case. Having regard to the Commission’s report and the submissions of the parties, it found no elements which might require it to exercise its own powers to verify the facts. It accordingly accepts the facts as established by the Commission.   b.   The Government’s preliminary objection   As the Government had not made any submissions concerning the applicant’s alleged failure to exhaust domestic remedies before the Commission declared the application admissible, they were estopped from doing so before the Court.   c.   Article 3 of the Convention   During her detention in police custody from 13 to 22 February 1994, the applicant   had, inter alia , received electric shocks, been doused in hot and cold water and struck on the head. She had also suffered from the psychological pressure inflicted on her by the threats made to ill-treat her children. This had left her with long term symptoms of anxiety and insecurity, diagnosed as post-traumatic stress disorder and requiring treatment by medication. Having regard to the severity of the ill-treatment, the Court found that she had been tortured in breach of Article 3. It commented on the importance of thorough, independent examinations by qualified doctors of persons released from detention. d.   Former Article 25 of the Convention   The applicant had been questioned during her detention from 13 to 22 February 1994 about her application. Having regard in particular to the fact that she was tortured during this time, she must have felt intimidated in respect of her application to the Commission. This constituted undue interference with her petition to the Convention organs. The respondent State had failed therefore to comply with its obligations under former Article 25 of the Convention not to hinder the effective exercise of the right of individual petition.   Article 41 of the Convention   The Court took into account certain payments received by the applicant following the death of her husband, and awarded the sum of GBP 35,000 for pecuniary damage. As regarded non-pecuniary damage, it awarded GBP 15,000 in respect of Zübeyir Akkoç, to be held by the applicant as surviving spouse and GBP 25,000 for the applicant himself. For costs and expenses, it awarded GBP 13,648.80 less the amount awarded for legal aid by the Council of Europe.   Judge Gölcüklü expressed a dissenting opinion and this 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] Elected as the judge in respect of San Marino. [2] This summary by the registry does not bind the Court.