EVRM-Hof veroordeelt Turkije wegens marteling verdachte in politiecel (en)

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Orhan Aslan v. Turkey (application no. 48063/99).

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 on account of the treatment inflicted on the applicant during his detention in police custody;
• - 

  that there had been a violation of Article 6  § 1 (right to a fair trial) of the Convention on account of the lack of independence and impartiality of İzmir State Security Court.

Under Article 41 (just satisfaction), the Court awarded the applicant 10,000 euros (EUR) for non-pecuniary damage, and EUR 2,370 for costs and expenses. In addition, it pointed out that, where it found that an applicant had been convicted by a court which was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would, in principle, be to have him or her retried in due course by an independent and impartial court. (The judgment is available only in French.)

• 1. 

  Principal facts

The applicant, Orhan Aslan, is a Turkish national who was born in 1969 and lives in İzmir (Turkey).

The applicant, who was suspected of belonging to the organisation Ekim (October), was arrested and placed in police custody at about 9.30 p.m. on 14 October 1997. Towards 12.40 a.m., he was examined by a doctor, who found no trace of blows or violence on his body. According to a second forensic examination carried out slightly later that night, at 3.30 a.m., the applicant had a 1 cm scab on the right knee.

At the end of his time in police custody, on 20 October 1997, the applicant was examined for a third time by a forensic specialist, who found that Mr Aslan had a bruise under his right eye, with an open cut in its centre and pistachio-green edges, and scab-covered wounds on the left elbow and right knee. In addition, on 22 October 1997 the doctor at Bergama Prison, where the applicant had been placed in pre-trial detention, referred in a report to two scab-covered wounds, 1 cm in length, on the left elbow, a 1 cm scab-covered wound on the outside of the left knee, a scab-covered scratch measuring two centimetres behind the left knee and a bruise measuring 0.5 x 1 cm under the right eye.

On 16 April 1998 İzmir State Security Court convicted him of aiding and abetting an illegal organisation and sentenced him to four years and six months' imprisonment. Taking account of mitigating circumstances, the court reduced his sentence to three years and nine months' imprisonment.

The applicant lodged a complaint against the officers responsible for his police custody; in particular, he alleged that he had been blindfolded for three days, struck, given electric shocks and hosed with cold water. Criminal proceedings were brought against some of the police officers, but in November 2003 they were acquitted by İzmir Assize Court for lack of evidence.

An appeal lodged by the applicant is still pending before the Court of Cassation.

• 2. 

  Procedure and composition of the Court

The application was lodged before the European Court of Human Rights on 26 February 1999. It was declared admissible on 11 March 2004.

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

Bostjan M. Zupančič (Slovenian), President,

John Hedigan (Irish),

Lucius Caflisch (Swiss) [2],

Riza Türmen (Turkish),

Corneliu Bîrsan (Romanian),

Margarita Tsatsa-Nikolovska (Macedonian),

Renate Jaeger (German), judges,

and also Vincent Berger, Section Registrar.

• 3. 

  Summary of the judgment [3]

Complaints

The applicant complained that he had been subjected to treatment incompatible with Article 3 during his time in police custody. Relying on Article 6 §§ 1 and 3 (c), he also alleged that his case had not been heard fairly by an independent and impartial tribunal, on account of the presence of a military judge on the bench of the state security court which had tried and convicted him, and complained that he had not had the assistance of a lawyer during his detention in police custody.

Decision of the Court

Article 3

The Court noted that the applicant had been arrested on 14 October 1997 at about 9.30 p.m. but had not been examined by a doctor until 12.40 a.m. He had then been examined by three doctors in turn, but, although the first medical report found no trace of blows or violence on his body, the third stated that the applicant had two scab-covered wounds and a bruise under the right eye. It had to be recognised that the marks observed on the applicant's body could not date back to a period prior to his arrest. Equally, the Turkish Government had failed to submit any explanation as to the cause of the injuries found on the applicant, who had been held in police custody for six days.

Stressing that the authorities were under an obligation to account for individuals under their control, the Court emphasised that the police officers' acquittal in the criminal proceedings did not discharge Turkey from its responsibilities under the Convention. In that connection, the Court noted that, eight years after the events in question, the criminal proceedings against the police officers concerned were still pending before the Court of Cassation and that the case against the defendants was thus likely to come under the statute of limitation.

In those circumstances, the Court considered that the manner in which the applicant had been treated during his detention in police custody amounted to inhuman treatment and concluded that there had been a violation of Article 3.

Article 6 § 1

Referring to its extensive case-law on this point, the Court concluded that there had been a violation of Article 6 § 1 in respect of the complaint that the state security court had lacked independence and impartiality.

As to the other complaint alleging unfairness of the proceedings, the Court pointed out that a court whose lack of independence and impartiality had been established could not, under any circumstances, guarantee a fair trial to those subject to its jurisdiction; consequently, it considered that it was not necessary 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. 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] Judge elected in respect of Liechtenstein.

[3] This summary by the Registry does not bind the Court.