CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 19 juin 2003

.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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s560DCDD3 { margin-left:10.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .sEE1EDB13 { font-family:Arial; font-weight:normal; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     329   19.6.2003   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF HULKI GÜNEŞ v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Hulki Güneş v. Turkey (application no. 28490/95). The Court held unanimously:   that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights; that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention because the Diyarbakır National Security Court was not independent and impartial; and that there had been a violation of Article 6 §§ 1 and 3 (d) of the Convention because the applicant had been unable to examine or have examined witnesses against him.   Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant 25,000 euros (EUR) for pecuniary and non-pecuniary damage and EUR   3,500 for costs and expenses.   (The judgment is in French only.)   1.     Principal facts   The applicant, Hulki Güneş, is a Turkish national who was born in 1964. He is at present imprisoned in Diyarbakır Prison, where he is serving a life sentence.   Being suspected of taking part in an armed attack during which one soldier died and two others were wounded, Mr Güneş was arrested by security forces on 19 June 1992 in the district of Varto, Diyarbakır province. A medical report on the applicant drawn up on the day of his arrest mentioned grazes on his face, chest and back and a number of superficial grazes in the lumbar region.   On an unknown date the applicant was transferred to the Muş provincial gendarmerie post for questioning. The circumstances of that interview have not been established. On 3 July 1992, at the gendarmerie’s request, Mr Güneş was twice examined by a doctor. The report on the medical examination carried out at 2.30 p.m. mentioned that the applicant had a vertical graze on his sternum which had scabbed over and the scabs of superficial grazes on his abdomen and back. According to the medical examination carried out at 8.30 p.m. on the same day, the applicant had a graze on his sternum which had scabbed over, grazes on his abdomen and a number of grazes and bruises on his spine and in the lumbar region. Two subsequent medical examinations confirmed the findings of the last-mentioned report.   On 4 July 1992 Mr Güneş was taken before a judge and then placed in detention pending trial. He denied the charges against him and asserted that he had been ill-treated while detained at the Muş gendarmerie post.   The Varto public prosecutor’s office opened an investigation into the allegations of ill-treatment after Mr Güneş’s application had been communicated to the Turkish Government. Those proceedings were discontinued on 15 October 1998. A further investigation conducted first by the Muş public prosecutor’s office and then by the Varto district commissioner’s office was likewise discontinued on 25 August 1999.   Mr Güneş and a co-defendant, Mr Erdal, were charged with separatism and undermining national security; they were accused of firing at the security forces, causing the death of one soldier and wounding two more. In the public prosecutor’s submissions of 3 September 1993 he called for Mr Güneş’s acquittal for lack of evidence. On 11 March 1994 the National Security Court, composed of three judges, including a military judge, sentenced the applicant to capital punishment commuted to life imprisonment. The National Security Court based its decision in particular on statements made by gendarmes to the police investigators.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 29 May 1995 and transmitted to the Court on 1 November 1998. It was declared admissible on 9   October 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Ireneu Cabral Barreto (Portuguese), President , Pranas Kūris (Lithuanian), Boštjan Zupančič (Slovenian), John Hedigan (Irish), Hanne Sophie Greve (Norwegian), Kristaq Traja (Albanian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Mark Villiger , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 3 of the Convention, the applicant asserted that he had been beaten while in the custody of the Varto gendarmerie. He further complained of ill-treatment to which he had been subjected at the Muş provincial gendarmerie post (“Palestinian hanging”, electric shocks, and blows to various parts of his body, particularly his back). Relying on Article 6, he further complained that the National Security Court had not been independent and impartial, since a military judge had sat as one of its members. In addition, he complained that the proceedings in the National Security Court had been unfair since he had been unable to examine or have examined the witnesses whose statements had formed the basis for his conviction.   Decision of the Court   Article 3   The medical report drawn up on the day of Mr Güneş’s arrest had mentioned certain injuries. According to the Turkish Government, those injuries had been self-inflicted. The Court noted that the reports drawn up after the applicant’s arrest did not mention any resistance on his part   or any injury to his person, and that the witness evidence on that point was contradictory. That being so, the authorities charged with the investigation should have verified whether the force used in inflicting the injuries concerned had been proportionate and absolutely necessary to effect the applicant’s arrest. Even if it had been, the Court considered that the Turkish Government could not be absolved of responsibility for the following reasons.   It was apparent from the second medical report of 3 July 1992 and the subsequent examinations that the grazes and bruises the applicant had on his spine, abdomen and back were significantly different from those noted previously and had not scabbed over, which suggested that they were recent. In addition, the doctor who had made out the medical certificate of 3 July 1992 had declared that the marks on the applicant’s body could have been the result of blows, and Mr Güneş’s account of events had been consistent with the diagnosis made at the Ankara Civil Hospital in 1994 (lumbar ankylosis).   The Court further noted that it was only belatedly that a number of investigations were conducted into the origins of the injuries in question. Those investigations had revealed a number of elements that should have prompted the authorities to conduct more thorough enquiries, particularly into the questioning of the applicant at the Muş provincial gendarmerie post. But they had not established the identity of the persons who had interrogated Mr Güneş and the circumstances in which he had been questioned remained obscure.   In those circumstances the Court considered that it could be taken to have been established that the applicant had been beaten while in police custody. However, as there was no evidence to corroborate his assertions, it had not been proved that Mr Güneş had been subjected to “Palestinian hanging” and/or electric shocks.   As regards the seriousness of the alleged facts, the Court considered that they amounted to inhuman and degrading treatment because they could have aroused in Mr Güneş feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The Court accordingly found a violation of Article 3 of the Convention.   Article 6   As regards the independence and impartiality of the National Security Court Referring to its case-law, the Court reiterated that certain features of military judges’ status cast doubt on their independence and impartiality. They were members of the armed forces who continued to belong to the army, which in turn took its orders from the executive branch.   The Court took the view that where a civilian like the applicant had to stand trial on the charge of committing a terrorist offence in a National Security Court one member of which was a military judge, he had a legitimate reason to fear that the court would lack independence and impartiality. It accordingly found a violation of Article 6 § 1 on that account.   As regards the fairness of the proceedings in the National Security Court In finding the applicant guilty the National Security Court had attached particular weight to statements made by three gendarmes. Those witnesses had identified him at a confrontation after his arrest, although Mr Güneş denied that such a confrontation had taken place, and had again identified him from two photographs before the trial.   The Court regretted that the trial court had not, before looking into the merits of the case, commented on the way the applicant’s confessions had been obtained when he was being questioned. Such a preliminary investigation would have provided an opportunity to condemn the unlawful methods used to obtain evidence for the prosecution. The Court also emphasised that the applicant had not been assisted by a lawyer at the investigation stage, during which the main evidence – such as the report on the confrontation and his confessions – had been obtained. In that connection, it had been of crucial importance that the prosecution witnesses should be examined by the trial court, as only that court had the real possibility of examining their demeanour closely and assessing the credibility of their evidence.   In addition, the Court noted that in his submissions of 3 September 1993 the public prosecutor had called for the applicant’s acquittal on account of the inconsistency between the gendarmes’ statements on the one hand and the reports and the co-defendant’s statements on the other. However, in his submissions of 30 December 1993 the public prosecutor had called for Mr Güneş’s conviction, even though no new evidence had been produced.   Having regard to the circumstances of the case, the Court was in no doubt that the applicant’s conviction had been based on the statements of the gendarmes who had identified him, which had been taken down in writing during the investigation by the police officers charged with interviewing them. Despite the applicant’s requests, no confrontation with those witnesses took place before the trial court.   The Court held that as these witnesses had not appeared at the applicant’s trial the judges had not been able to study their demeanour while giving evidence and thus form a personal opinion as to their credibility. Consequently, the lack of any confrontation in the National Security Court had deprived the applicant, in part, of a fair trial. The Court was not unaware of the undeniable difficulties of combating terrorism and the damage it caused to society, but considered that those factors could not justify circumscribing to such an extent a defendant’s right to due process, whoever he might be. It accordingly held that there had been a violation of Article 6 §§ 1 and 3 (d).   ***   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: +00 33 (0)3 88 41 24 92)   Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (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.