CEDH · PRESS;GENERAL;ENG — 13 novembre 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 } .s7ED160F0 { text-decoration:none } .s48F8B750 { font-size:8pt; display:none } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; 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 } .s23A41E03 { width:36pt; display:inline-block }   EUROPEAN COURT OF HUMAN RIGHTS [Note1]     565   13.11.2003   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF ELÇI AND OTHERS v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Elçi and Others v. Turkey (application nos. 23145/93 and 25091/94). The Court held:   ● by 6 votes to 1, that there had been a violation of Article 3 (prohibition of torture) of the European Convention on Human Rights, on account of the treatment inflicted on Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Hüsniye Ölmez   ; ● by 6 votes to 1, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, on account of the treatment inflicted on Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut   Beştaş and Vedat Erten ; ● by 6 votes to 1, that there had been a violation of Article 3 of the Convention, on account of the failure to investigate the allegations of torture and ill-treatment; ● unanimously, that there had been a violation of Article 5 § 1 (right to liberty and security) in respect of each of the applicants; ● unanimously, that there had been a violation of Article 8 (right to respect for private and family life) as regards Tahir Elçi, Şinasi Tur, Sabahattin Acar, Niyazi Çem and Mehmet   Selim Kurbanoğlu; ● unanimously, that no separate examination of the complaint under Article 1 of Protocol No. 1 (protection of property) was necessary; ● unanimously, that there had been no violation of former Article 25 (hindrance of the right of individual petition), which has now become Article 34 of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants sums ranging from 1,210 euros (EUR) to EUR 1,750 for pecuniary damage and from EUR 2,100 to EUR 36,000 for non-pecuniary damage.   (The judgment is available only in English.)   1.     Principal facts   The applicants are 16 Turkish nationals: Tahir Elçi, Nevzat Kaya, Şinasi Tur, Sabahattin Acar, Niyazi Çem, Mehmet   Selim Kurbanoğlu, Meral Daniş Beştaş, Mesut Beştaş, Vedat Erten, Baki Demırhan, Arif Altinkalem, Gazanfer Abbasioğlu, Fuat Hayri Demır, Hüsniye Ölmez, İmam Şahin and Arzu Şahin. They were born between 1958 and 1971.   They are all lawyers by profession and were arrested and detained by the security forces after a confession had been extracted from a member of the PKK (the Kurdish Workers’ Party), Abdülhakim Güven, in which he accused them of giving assistance to the PKK. According to his statements, with the exception of Mr Altinkalem all the applicants had acted as messengers between clients of theirs who were in custody and members of the PKK. The applicants said that the real reason for their detention was that they had represented clients in the State Security Court and had been human-rights activists.   Between 15 November and 7 December 1993 the applicants were arrested by members of the police or gendarmerie and taken into custody. Some of them alleged that the security forces had searched their homes and offices and seized documents, including the files of applicants to the European Commission of Human Rights.   The applicants were taken to the Diyarbakır provincial gendarmerie command, where they were detained for periods ranging from 7 to 25 days. While in custody, they were subjected to questioning, the aim of their interrogators being to get them to admit that they acted for the PKK and had links with that organisation. Some of them alleged that the police officers interrogating them had made death threats and insulted them; that they had been stripped and hosed down with freezing-cold water, humiliated, slapped and terrified into signing any document put before them. They were held in cold, damp cells and corridors and forced to sleep on the floor, sometimes blindfolded. They said that they were only allowed to go to the toilet twice a day and that the only food they received was a slice of bread a day.   The applicants were released between 10 and 21 December 1993.     2.     Procedure and composition of the Court   The application [Note2] s were lodged with the European Commission of Human Rights on 21   December 1993 and 28 April 1994. They were joined on 9 September 1997. A hearing was held on 2 December 1996, following which the applications were declared partly admissible. From 7 to 11 December 1998, a delegation from the Commission carried out a fact-finding mission in Ankara.   Judgment was given by a Chamber of 7 judges, composed as follows: [Note3]   Nicolas Bratza (British), President , Viera Strážnická (Slovakian), Marc Fischbach (Luxemburger), Rait Maruste (Estonian), Stanislav Pavlovschi (Moldovan), Lech Garlicki (Polish), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Michael O’Boyle , Section Registrar .   3.     Summary of the judgment [2]   Complaints   All the applicants alleged a violation of Article 5 of the Convention. Moreover Tahir Elçi, Niyazi Çem, Hüsniye Ölmez, Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut   Beştaş, Vedat Erten and Meral Daniş Beştaş said that they had been subjected to torture and to treatment contrary to Article 3 while in custody. Tahir Elçi, Şinasi Tur, Niyazi Çem, Sabahattin Acar and Mehmet Selim Kurbanoğlu complained under Article 8 and Article 1 of Protocol No. 1, of the search and seizure operations performed on their arrest. Lastly, Tahir Elçi, İmam Şahin, Sabahattin Acar, Baki Demırhan and Arzu Şahin complained of a violation of former Article 25 of the Convention.   Decision of the Court   Article 3 of the Convention   In assessing the applicants’ allegations of torture and ill-treatment, the Court had particular regard to the oral evidence presented by witnesses before the Delegates of the Commission.   It was not possible to establish the veracity of Mr Elçi’s allegations of ill-treatment by the Cizre police on his initial detention. However, the allegations of ill-treatment at the Diyarbakır provincial gendarmerie command made by the applicants Tahir Elçi, Niyazi Çem, Hüsniye Ölmez and Meral Daniş Beştaş were credible as a whole. Their allegations that they had been insulted, assaulted, stripped naked and hosed down with freezing cold water were consistent. They had stood by those allegations before the Public Prosecutor, the Investigating Judge and the Commission Delegates.   The Court found to be credible and consistent the applicants’ testimony about their dire conditions of detention – cold, dark and damp, with inadequate bedding, food and sanitary facilities – as well as the allegations made by Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş and Vedat Erten that they were insulted, humiliated, slapped and terrified into signing any document that was put before them. Furthermore, the Court accepted that, at least at crucial moments, such as during interrogations and the confrontations with Mr Güven, the applicants were blindfolded.   The collective medical examination which the applicants underwent prior to being brought before the Public Prosecutor was superficial and cursory and the Court did not attach great weight to it. In contrast, subsequent medical examinations lent credence to the applicants’ claims. The Court also noted that there were inconsistencies in the evidence of the Government witnesses and that the applicants’ complaints were not taken seriously or investigated by the authorities.   In the light of the circumstances of the case, the Court found that Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Hüsniye Ölmez had suffered physical and mental violence at the hands of the gendarmerie during their detention. That ill-treatment had caused them severe pain and suffering and had been particularly serious and cruel, and had to be regarded as constituting torture within the meaning of Article 3 of the Convention.   The Court further found that Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş and Vedat Erten had also been subjected during their detention to ill-treatment that was sufficently serious to render it inhuman and degrading, in violation of Article 3.   In view of the judicial authorities’ total failure to investigate the applicants’ complaints of ill-treatment, the Court found that there had also been a violation of Article 3 of the Convention in its procedural aspect.   Article 5 § 1 of the Convention   The Court emphasised the central role of the legal profession in the administration of justice and the maintenance of the rule of law. The freedom of lawyers to practise their profession without undue hindrance was an essential component of a democratic society and a necessary prerequisite for the effective enforcement of the provisions of the Convention. Persecution or harassment of members of the legal profession thus struck at the very heart of the Convention system.   As regards the lawfulness of the applicants’ detention, the Court observed that the evidence revealed a certain confusion and inconsistency between the various witnesses as to the requirements of domestic law governing the apprehension and detention of persons suspected of committing a criminal offence. It was established that, in order to be lawful, the detention of a suspect required the authority of a prosecutor. Such authority could be given orally and, exceptionally, after the event, but would thereafter be recorded in writing.   In the case before the Court, the authorities did not appear to have obtained prior authorisation for the applicants’ detention or, assuming that there was no prior authorisation, ratification of the decision to detain after the event. Especially striking was the complete absence of any documentation recording either the request for authorisation of the applicants’ detention or the authority or instructions given to detain the applicants. The Court therefore found that it had not been sufficiently shown that the applicants’ arrest and detention had been duly authorised by a prosecutor in accordance with the requirements of domestic law or “a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention.   Article 8 of the Convention   The Court found that the searches of the homes and offices of Tahir Elçi, Şinasi Tur, Sabahattin Acar, Niyazi Çem and Mehmet Selim Kurbanoğlu constituted an interference with their right to respect for their homes and correspondence. No search warrants had been issued by a prosecutor or judge and no official document or note of verbal instructions describing the purpose and scope of the searches had been drawn up by any judicial authority before or after the searches.   The search and seizures were extensive and privileged professional materials had been taken without specific authorisation. The Court was again struck by the lack of accountability or any acceptance of responsibility by the officials involved. It found that the search and seizure measures had been implemented without any, or any proper, authorisation or safeguards, in breach of Article 8.   Article 1 of Protocol No. 1 to the Convention   Having regard to its conclusion that there had been a violation of Article 8, the Court found it unnecessary to examine separately the applicants’ complaints under Article 1 of Protocol No.   1.   Article 25 of the Convention   The Court did not find it established that there had been a significant hindrance in the applicants’ right of individual petition.   Judge Bratza expressed a partly concurring opinion and Judge Gölcüklü a dissenting opinion, which are 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 Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (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 by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site.   [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. [Note1]   Press release for individual judgments . To be saved in PowerDocs as follows: (1) Document Name: case name [+   date] + language (e.g. Sliven 31012003E or C.T. v. Finland 31012003E ), (2)   Document type: PR, (3) Group: PRESS, (4)   Subject: JCH or JGC . When you have completed your document, run the “CleanUpMyDocumentToBePublished” macro to remove all comments or remove them manually. [Note2]   For transitional-period cases before the former Court on 1 November 1998. [Note3]   For Mr Caflisch, add the following footnote: “Elected as the judge in respect of Liechtenstein.”