CEDH · PRESS;GENERAL;ENG — 8 janvier 2004

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TURKEY AND ÇOLAK AND FILIZER v. TURKEY     The European Court of Human Rights has today notified in writing two judgments [1] in the cases of Sadık Önder v. Turkey (application no. 28520/95) and Çolak and Filizer v. Turkey (application nos. 32578/96 and 32579/96). (These judgments are available only in English.)   The Court held unanimously: In Sadık Önder v. Turkey , that there had been a violation of Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights, in that there was no effective official investigation into the applicant’s allegations of ill-treatment. In Çolak and Filizer v. Turkey , that there had been a violation of Article 3 of the Convention;   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant Sadık Önder 5,000   euros (EUR) for non-pecuniary damage and EUR 2,500 for costs and expenses and EUR 12,000 each to Abdullah Çolak and Ömer Filizer for non-pecuniary damage and jointly EUR 2,500 for costs and expenses.     1.     Principal facts   Sadık Önder   The applicant, Sadık Önder, is a Turkish national, born in 1969 and living in Istanbul. In July 1994 he was arrested and taken into police custody on suspicion of being a member of the PKK.   He alleged that he was ill-treated and tortured in the police car on the way to the Istanbul Security Directorate and during his detention there. During his interrogation, he claimed that he was: blindfolded and stripped naked, strung up by his arms in the form of torture known as “Palestinian hanging”, electrocuted, threatened and insulted. He further claimed that he was coerced into signing a document stating that he had worked for and had been involved in the terrorist activities of the PKK. He was then, he maintained, kept in custody for a further week, during which time ointment was applied to his wounds to make his scars heal more quickly, thus eliminating the evidence of his ill-treatment.   On 22 July 1994 Mr Önder was examined by a doctor who found no signs of ill-treatment but was latter prohibited from practising as a doctor for six months for concealing signs of torture in medical examinations conducted between 3   February and 7 October 1994.   While still in detention, Mr Önder underwent a medical examination at own his request. The medical report, dated 22 August 1994, recorded no signs of traumatic lesions.   Mr Önder lodged a complaint against the police custody officers, who were later acquitted for lack of evidence.   Çolak and Filizer   The applicants, Abdullah Çolak and Ömer Filizer, are Turkish nationals, born in 1969 and 1964 respectively and living in Şanlı Urfa. They were arrested on suspicion of being members of the PKK and taken into custody on 28 and 29 April 1995. They alleged that they were beaten and insulted by police officers on the way to the Istanbul Security Direcorate building .   Mr Çolak submitted that, while in detention in the anti-terrorist branch of the Istanbul Security Directorate for six days, he was throttled, beaten, kicked, strung up by his arms and threatened by police officers that he might share the fate of others who had disappeared in custody.   Mr Filizer maintained that, while in police custody for seven days, he was blindfolded, punched severely on his head, stomach, abdomen and kidneys and strung up by his arms. His testicles were squeezed and he was given electric shocks through electrodes connected to his sexual organs and toes.   On 2 May 1995 the applicants were allegedly forced to sign police statements about their activities in the PKK and their connections with other PKK members.   On 5 May 1995 the applicants were examined by medical experts who found no signs of beating, force or violence on their bodies. They applicants claimed that they remained in the custody of the police officers concerned for another day following this first medical examination.   On 22 May 1995 Mr Çolak underwent a second medical examination, which found fading bruises on his body and ecchymoses on his left foot. A further report, dated 20 June 1996,   concluded that his injuries would prevent him from working for two days.   On 18 May 1995 Mr Filizer also underwent a second medical examination which found he had abrasions on his penis, pain in his chest and ecchymoses under his left eye. It was also noted that Mr Filizer found chewing painful and that both shoulders hurt.   The applicants lodged a complaint against the police custody officers, who were later acquitted for lack of evidence. 2.     Procedure and composition of the Court   Sadık Önder v. Turkey was lodged with the European Commission of Human Rights on 28 August 1995 and Çolak and Filizer v. Turkey on 28 December 1995. Both cases were transmitted to the Court on 1 November 1998 and declared respectively admissible on 29 June 1999 and 25 May 2000.   Judgment in Sadık Önder was given by a Chamber of seven judges, composed as follows:   Georg Ress (German), President , Ireneu Cabral Barreto (Portuguese), Lucius Caflisch (Swiss), Pranas Kūris (Lithuanian), Boštjan Zupančič (Slovenian), Margarita Tsatsa-Nikolovska (Macedonian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Vincent Berger , Section Registrar .   Judgment in Çolak and Filizer was given by a Chamber of   seven judges, composed as follows:   Georg Ress (German), President , Pranas Kūris (Lithuanian), Boštjan Zupančič (Slovenian), John Hedigan (Irish), Margarita Tsatsa-Nikolovska (Macedonian), Hanne Sophie Greve (Norwegian), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge ,   and also Vincent Berger , Section Registrar .     3.     Summary of the judgment [2]   Complaint   The applicants alleged that, while in police custody, they were subjected to treatment contrary to Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention.   Decision of the Court   Article 3   Sadık Önder   The Court noted that a number of facts raised doubts as to whether Mr Önder suffered treatment prohibited by Article 3. The Court noted that there was no evidence that the applicant had complained about the ill-treatment before the state security court or the public prosecutor prior to 13 September 1994. In addition, he was medically examined on his own request and the medical report (22   August 1994) contained no evidence of any ill-treatment.   As for the findings of the first medical report, the Court considered, in light of the developments concerning the doctor who prepared the report, it could not be taken into consideration as credible evidence concerning the applicant’s health at that time. However, the applicant did not question the reliability of the report before the authorities or ask to be examined by another doctor.   The Court, therefore, considered that there was insufficient evidence for it to conclude that there had been a violation of Article 3 on account of the alleged torture.   Concerning the adequacy of the investigation into the allegations, the Court noted that the public prosecutor started an investigation as soon as the applicant alleged that he was subjected to ill-treatment in police custody. However, it appeared from the case file that the public prosecutor relied only on the medical report of 22 August 1994 to conclude that the applicant was not subjected to ill-treatment in police custody. Given that the applicant was in custody for 15 days and that the medical report was dated nearly one month after he was taken into custody, the public prosecutor could not be considered to have conducted an effective investigation into the applicant’s allegations, ensuring he could participate in the process. The case file did not reveal whether the public prosecutor took the testimony of the applicant, the policemen or any other possible witnesses.   The Court therefore concluded that there had been a violation of Article 3 in that no effective investigation had been undertaken into the applicant’s claim that he was ill-treated in police custody.   Çolak and Filizer The Court noted that the applicants were not medically examined at the beginning of their detention and did not have access to a lawyer or doctor of their choice while in police custody. After their transfer from police custody they underwent three medical examinations which resulted in contradictory reports. Having regard to the applicant’s submissions that they spent one more day in the custody of the police officers following their first medical examination and in the absence of any convincing explanation by the Turkish Government for the discrepancies, the Court attached no particular weight to the first medical report, in which no signs of violence were found on the applicants. The Court noted that no plausible explanation had been provided for the bruises, ecchymoses and abrasions on the applicants’ bodies. Moreover, the Government did not suggest that the signs of violence found on the applicants’ bodies could have predated their arrest.   The Court reiterated that a State had a duty to protect a detainee, who was in a vulnerable situation. Bearing in mind the State authorities’ obligation to account for injuries caused to those within their control in custody, the Court considered that the acquittal of the police officers suspected of ill ‑ treating the applicants could not absolve Turkey of its responsibility under the Convention.   The Court, therefore, concluded that the Turkish Government bore responsibility for the treatment which resulted in the injuries noted in the second medical reports, in violation of Article 3.   ***   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.