CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 21 décembre 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 } .sBB9EE52A { font-family:Arial } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     929   21.12.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF BÜYÜKDAĞ v. TURKEY   In a judgment notified in writing [1] on 21 December 2000 in the case of Büyükdağ v. Turkey, the European Court of Human Rights held unanimously that there had been   a violation of Article 3 (prohibition of inhuman or degrading treatment), a violation of Article 13 (lack of effective remedy), and a violation of Article 6 § 1 (right to an independent and impartial tribunal) of the European Convention on Human Rights.   It also held unanimously that it was not necessary to examine the other complaints lodged by the applicant under Article 6 §§ 2 and 3(c) of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 100,000 French francs (FRF) for non-pecuniary damage and FRF15,000 for costs and expenses.   1.     Principal facts   Leyla Büyükdağ, a Turkish national, was born in 1965. At the material time she was detained in Gebze Prison. She is very short-sighted in both eyes and suffers from degenerative retina.   Mrs   Büyükdağ, a suspected member of an illegal armed organisation, Devrimci Sol (the revolutionary left), was arrested on 22 June 1993 by police at the customs office in Kapıkule (Edirne) in possession of forged identity papers and was taken into police custody in the premises of the anti-terrorist section of the Istanbul Criminal Investigation Department. On 5 July 1993, after she had been held in police custody for fifteen days in total isolation, the applicant underwent three medical examinations. The medical reports recorded a loss of movement, pains in her right arm or bruise marks on her wrist and shoulder. The doctors prescribed her two days’ sick leave. On the same day Mrs Büyükdağ was brought before the public prosecutor and the judge of the Istanbul State Security Court who ordered her detention on remand. She alleged that she had been subjected to ill-treatment while in police custody. The public prosecutor began an investigation of his own motion and took statements from the police officers who had been on duty during the applicant’s time in police custody. The police officers denied all the allegations of ill-treatment. The prosecutor then issued an order discontinuing the proceedings which was served at the applicant’s home although she was still detained in Gebze prison.   The applicant subsequently lodged a complaint on 17 July 1995. The proceedings were discontinued on account of the initial order discontinuing the proceedings. Relying on the fact that the original order had not been properly served, Mrs Büyükdağ appealed against the order to the President of the Assize Court. He dismissed her appeal without, however, ruling on the question of defective service.   In a judgment of 21 June 1994 the State Security Court had sentenced the applicant to twelve years and six months’ imprisonment for being a member of the PKK, an offence provided for in Article 168 of the Turkish Penal Code. The applicant appealed to the Court of Cassation, which had upheld the judgment on 21 March 1995.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 9 August 1995. It was transmitted to the Court on 1 November 1998. In a decision of 6 April 2000 a Chamber of the Fourth Section declared application admissible.   Judgment was given by the Chamber composed as follows:   Georg Ress (German), President , Volodymyr Butkevych (Ukrainian), Nina Vajić (Croatian), John Hedigan (Irish), Matti Pellonpää (Finnish) Snejana Botoucharova (Bulgarian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge   and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant complained that she had been ill-treated while in police custody, contrary to Article 3 of the Convention. She also complained, under Article 6 §§ 1, 2 and 3, that she had not been given a fair hearing by an independent and impartial tribunal, that there had been a breach of the principle of presumption of innocence and that she had not been assisted by a lawyer while she was in police custody.   Decision of the Court   Article 3   The Court observed that the Government had not given any explanation as to the cause of the injuries to Mrs Büyükdağ, who had been held for fifteen days without any access to a lawyer, doctor, relative or friend, despite the fact that her eyesight was functionally impaired. Furthermore, it considered that the explanations provided by the applicant before the domestic authorities and in Strasbourg were sufficiently precise and consistent. It went on to observe that the internal inquiry carried out into the allegations made by the applicant did not provide any evidence as to the cause of the injuries to the applicant’s person which had been noted. The Court deduced from all the evidence before it that the injuries to Mrs Büyükdağ had been caused by the treatment suffered while she had been in police custody for fifteen days. As to the seriousness of the allegations, the Court considered that the acts complained of had definitely been such as to cause Mrs Büyükdağ both mental and physical pain or suffering, and having regard particularly to her state of health, to provoke feelings of fear, anxiety and inferiority such as to humiliate and debase her and possibly break down her physical and mental resistance. These were the factors which led the Court to consider that the treatment inflicted on the person of the applicant had been both inhuman and degrading.   The Court went on to note that the applicant, also under Article 3, alleged that the relevant authorities had neither carried out an investigation into the ill-treatment nor participated in the investigation process. However, the Court found it appropriate to examine this complaint under Article 13. Being master of the legal classification of the facts of the case, it did not consider itself bound by the classification adopted by applicants or Governments.   Article 13   The Court recalled that where an individual had an arguable claim that he or she had been subjected to serious ill-treatment by agents of the State, the notion of an “effective remedy” entailed, 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 and including effective access for the complainant to the investigatory procedure.   The Court observed that, after Mrs Büyükdağ had filed her statement, the public prosecutor’s office had begun an investigation of its own motion and had taken evidence from the police officers who had been on duty while she was in police custody. That investigation had resulted in a decision not to continue the proceedings. The order had then been served at the home address given by the applicant even though she had been in detention in Gebze Prison. The Court pointed out that under Article 19 of Law no. 7201 it was primarily for the authorities to serve such a document on a person detained through the administration of the establishment of the prison concerned. Furthermore, the subsequent procedure concerning Mrs Büyükdağ’s complaint, which had been blocked by an order discontinuing the proceedings, did not result in the reopening of the investigation into the merits of her allegations, although the applicant had complained before the President of the Assize Court of the lack of valid service of the initial order discontinuing the proceedings. The Court did not therefore consider that that investigation could properly be described as thorough and effective for the purpose of meeting the requirements of Article 13.   Article 6   The Court concluded that there had been a violation of the applicant’s right to a hearing by an “independent and impartial tribunal” within the meaning of Article 6 § 1, on the ground that the applicant had been tried by a State Security Court which was composed of three members, including a military judge.   In that connection the Court reiterated that in the judgments of Incal v. Turkey of 9 June 1998 and Çıraklar v. Turkey of 28 October 1998, it had noted that, although the status of military judges on State Security Courts provided guarantees of independence and impartiality, certain features of the status of those judges rendered their independence and impartiality unreliable, such as the fact that they were military judges belonging to the army, which in turn was answerable to the Executive, the fact they remained subject to military discipline and that their appointment depended largely on decisions taken by the administrative authorities and the army. Not finding any reason to depart from the conclusion of a violation of Article 6 § 1 which it had reached in those judgments, the Court held that there had also been a violation of that provision in the instant case.   The Court concluded that there it was not necessary to examine the other complaints lodged by the applicant under Article 6 §§ 2 and 3.   Article 41   The Court decided unanimously to award the applicant FRF 100,000 for non-pecuniary damage and FRF 15 000 for costs and expenses.   ***     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.