Mensenrechtenhof veroordeelt Turkije wegens marteling PKK-verdachten door politie (en)

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Günaydın v. Turkey (application no. 27526/95).

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 as regards the treatment to which Vedat Günaydın was subjected; and
• - 

  a violation of Article 6 § 1 (right to a fair trial) of the Convention as regards the lack of impartiality and independence of Diyarbakır State Security Court.

Under Article 41 (just satisfaction), the Court awarded 10,000 euros (EUR) to Vedat Günaydın for non-pecuniary damage and EUR 2,000 to the applicants jointly for costs and expenses. (The judgment is available only in French.)

• 1. 

  Principal facts

The applicants, Vedat Günaydın and Şahin Günaydın, are Turkish nationals who were born in 1965 and 1968 respectively and live in Diyarbakır (Turkey).

On 18 July 1992, at about midnight, police officers interrupted a wedding ceremony in Diyarbakır on the ground that it had degenerated into an illegal demonstration. Urged on by the applicants, the guests had allegedly chanted slogans expressing support for the PKK, a terrorist organisation prohibited under Turkish law, fired shots in the air and displayed signs and placards that cast aspersions on the State and praised the organisation in question. The police officers were then attacked by people carrying sticks and throwing stones. When reinforcements arrived, the security forces arrested ten people, including the applicants.

At about 4.30 a.m. the applicants were examined by a forensic medical expert, who found various injuries on Vedat Günaydın's body. His subsequent medical report noted, among other things, that there were wounds measuring 3 cm by 1 cm on the left part of the occipital bone and the rear part of the parietal bone and 9 cm by 1 cm on the back of the head; bruises on the neck, the right shoulder, the back of the hands and the knees; and oedema on the right shoulder. The expert's report concluded by stating that the injuries might be life-threatening.

The applicants denied the offences of which they were accused. They submitted that, as they had been called in to organise the catering, they did not know the people who had attacked the police officers. Vedat Günaydın added that he had suffered head injuries during the scuffle and had been forcefully pushed about by the police at the time of his arrest.

Criminal proceedings were instituted against the applicants and 26 others under section 8(1) of the Prevention of Terrorism Act (Law no. 3713), governing the offence of disseminating separatist propaganda, and Articles 258 and 516 of the Criminal Code, governing the offences of resisting or threatening public officials and causing material damage to others.

The applicants were released at a hearing on 30 September 1992.

On 21 February 1994 Diyarbakır State Security Court found the applicants guilty as charged and sentenced them to one year and eight months' imprisonment and a fine. That judgment was upheld by the Court of Cassation, and on 12 June 1995 the applicants were imprisoned. Following an amendment to section 8 of Law no. 3713, the Diyarbakır State Security Court reopened the proceedings and reduced the applicants' sentence to ten months' imprisonment, suspended.

The applicants were released on 26 November 1995.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 3 April 1995 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 25 April 2002.

Judgment was given by a Chamber of seven judges, composed as follows:

Christos Rozakis (Greek), President,

Loukis Loucaides (Cypriot),

Françoise Tulkens (Belgian),

Nina Vajić (Croatian),

Snejana Botoucharova (Bulgarian),

Anatoly Kovler (Russian), judges,

Feyyaz Gölcüklü (Turkish), ad hoc judge,

and also Soren Nielsen, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

Relying on Article 3, Vedat Günaydın submitted that he had been beaten at the time of his arrest and ill-treated while in police custody.

The applicants also complained that they had not had a fair trial, in breach of Article 6, on account of the presence of a military judge on the bench of the state security court which had convicted them.

Lastly, they complained under Article 6 §§ 1 and 3 (d) that their right to a fair trial had been infringed in that they had been convicted on the basis of statements given by witnesses at a hearing which they had not been allowed to attend.

Decision of the Court

Article 3

The Court noted, firstly, that in the Turkish courts Vedat Günaydın had complained solely that he had been beaten violently by the police officers at the time of his arrest and not during his time in police custody. He had raised that aspect of the complaint for the first time before the Court, which was therefore unable to take it into consideration, the more so as there was no evidence to show that he had in fact been ill-treated on police premises.

In all probability, the use of force in the present case had been made necessary by the movement of the crowd. The applicant had been injured in the course of an unplanned operation which had given rise to developments to which the police had had to react unprepared. However, even supposing that Vedat Günaydın's conduct might have justified resorting to force during the altercation, the force used at the time of his arrest had not been proportionate.

While it was true that a large number of people had taken part in the scuffle and that more than 28 of them had been prosecuted, the number of police officers on the scene had likewise been considerable, amounting to 53.

Furthermore, even assuming that the applicant had incited the crowd to attack the security forces, the injuries observed on his body nonetheless indicated that the police officers had used excessive force. He had sustained injuries to his head and neck, and the number and severity of these injuries had entailed a risk to his life, such that they could not have resulted from the proportionate use of force.

The Court therefore held that there had been a violation of Article 3 on account of the injuries inflicted on Vedat Günaydın.

Article 6

Referring to its extensive case-law on the subject, the Court held that there had been a violation of Article 6 § 1 as regards the complaint alleging a lack of independence and impartiality on the part of the sate security court.

With regard to the other complaint concerning the unfairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not in any circumstances guarantee a fair trial to the persons subject to its jurisdiction. It accordingly considered that it was unnecessary to examine that complaint.

***

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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.

[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.