Mensenrechtenhof veroordeelt Turkije voor behandeling hongerstakers in gevangenissen (en)

The European Court of Human Rights has today notified in writing the following nine Chamber judgments, none of which are final [1]. (They are only available in French.)

Eğilmez v. Turkey (application no. 21798/04)

Gülü v. Turkey (no. 1889/04)

Gürbüz v. Turkey (no. 26050/04)

Hun v. Turkey (no. 5142/04)

Kuruçay v. Turkey (no. 24040/04)

Mürrüvet Küçük v. Turkey (no. 21784/04)

Sinan Eren v. Turkey (no. 8062/04)

Tekin Yıldız v. Turkey (no. 22913/04)

Uyan v. Turkey (no. 7454/04)

In the case of Tekin Yıldız, the Court held unanimously:

• - 

  that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights on account of the applicant's imprisonment from 21 November 2003 to 27 July 2004;
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  that there would be a violation of Article 3 if the applicant was re-imprisoned without there being a marked improvement in his medical fitness to withstand such a measure.

In the cases of Gürbüz, Kuruçay and Uyan, the Court held unanimously:

• - 

  that there would be a violation of Article 3 if the applicants were re-imprisoned without there being a marked improvement in their medical fitness to withstand such a measure.

In the case of Gülü, the Court held unanimously:

• - 

  that there had been a violation of Article 6 § 1 (right to a fair trial) on account of the lack of impartiality and independence of Istanbul State Security Court;
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  that there had been a violation of Article 6 § 1 (right to a fair trial within a reasonable time) on account of the length of the proceedings.

In the case of Sinan Eren the Court held unanimously:

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  that there had been no violation of Article 3.

In the cases of Eğilmez, Hun and Mürrüvet Küçük, the Court decided unanimously:

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  to strike the cases out of its list as the applicants had, by their conduct, hindered the establishment of the facts on which their applications were based.

Under Article 41 of the Convention (just satisfaction) the Court awarded the following sums for non-pecuniary damage: 6,000 euros (EUR) to Mr Gülü, EUR 3,000 each to Ms Kuruçay and Mr Uyan and EUR 10,000 to Mr Tekin Yıldız. For costs and expenses it awarded EUR 500 to Mr Gülü and EUR 1,285 to Ms Kuruçay and to Mr Gürbüz, Mr Tekin Yıldız and Mr Uyan.

• 1. 

  Principal facts

The applicants, all Turkish nationals, were sentenced to prison terms on account of their membership of terrorist organisations. Their prison sentences were suspended on medical grounds, as they were suffering from Wernicke-Korsakoff Syndrome [2] as a result of going on prolonged hunger strike while in prison.

Ms Eğilmez was born in 1967. In 1998 she was sentenced to 12 years and 6 months' imprisonment for membership of a terrorist organisation. In March 2003 she was diagnosed as suffering from Wernicke-Korsakoff Syndrome and her prison sentence was suspended as a result. In November 2003 a medical report concluded that the suspension of her prison sentence was no longer justified on health grounds and a warrant was issued for her arrest. During its fact-finding mission to Turkey in 2004, the Court asked Ms Eğilmez to go for a medical examination at Çapa University Hospital, but she failed to do so.

Mr Gülü was born in 1961 and now lives in Germany. In 1994 he was sentenced to 15 years' imprisonment for membership of the PKK. He was diagnosed as suffering from Wernicke-Korsakoff Syndrome in March 2003 and his prison sentence was suspended the following month. In September 2003 a medical report concluded that the suspension of the prison sentence was no longer justified and a warrant was issued for his arrest.

Mr Gürbüz was born in 1966 and is currently a fugitive from justice. In September 1996, when a remand prisoner, he was diagnosed as suffering from Wernicke-Korsakoff Syndrome. In view of his health problems, he was released in February 1999. In 2001 he was sentenced to 12 years and six months' imprisonment for membership of a terrorist organisation, the Union of Revolutionary Communists of Turkey (TIKB). His prison sentence was suspended. However, in November 2003 a medical report concluded that the suspension of his prison sentence was no longer justified on medical grounds and a warrant was issued for his arrest as a result. At the Court's request, the public prosecutor's office suspended his sentence.

Mr Hun was born in 1965. In 2000 he was sentenced to 12 years and six months' imprisonment for membership of a terrorist organisation. He was diagnosed as suffering from Wernicke-Korsakoff Syndrome in March 2003 and his sentence was suspended as a result. In October 2003 a medical report concluded that the suspension of his prison sentence was no longer justified on medical grounds and a warrant was issued for his arrest. On 11 September 2004, during the fact-finding mission to Turkey, Mr Hun went to Çapa University Hospital at the Court's request where he was examined by the Court-appointed panel of experts. However, he refused to consent to further monitoring which the panel of experts considered necessary.

Ms Kuruçay was born in 1975 and is currently a fugitive from justice. In 1997 he was sentenced to 12 years and six months' imprisonment for membership of a terrorist organisation, the Union of Revolutionary Communists of Turkey (TIKB). In June 2003 he was diagnosed as suffering from Wernicke-Korsakoff Syndrome and his sentence was suspended for successive periods. In December 2003 a medical report concluded that the suspension of his prison sentence was no longer justified on medical grounds and a warrant was issued for his arrest.

Ms Mürrüvet Küçük was born in 1970. In 1997 she was sentenced to 18 years and nine months' imprisonment for membership of a terrorist organisation. In April 2003 she was diagnosed as suffering from Wernicke-Korsakoff Syndrome and her sentence was suspended as a result. In December 2003 a medical report concluded that the suspension of her prison sentence was no longer justified on medical grounds and a warrant was issued for her arrest. During its fact-finding mission to Turkey, the Court asked Ms Mürrüvet Küçük to go for a medical examination at the Çapa University Hospital but she failed to do so.

Mr Sinan Eren was born in 1972 and is currently a fugitive from justice. In 2000 he was sentenced to 15 years and four months' imprisonment for membership of a far-left armed organisation known as THKP/C-DEVSOL. He was diagnosed as suffering from Wernicke-Korsakoff Syndrome in October 2002 and his sentence was suspended as a result. In January 2004 a medical report concluded that the suspension of his prison sentence was no longer justified on medical grounds and a warrant was issued for his arrest. At the Court's request, the public prosecutor's office suspended his sentence and revoked the arrest warrant.

Mr Tekin Yıldız was born in 1970. In 1994 he was sentenced to 12 years and six months' imprisonment for membership of a terrorist organisation known as TKP/ML-TİKKO. He was diagnosed as suffering from Wernicke-Korsakoff Syndrome in March 2003 and his sentence was suspended as a result for successive periods. A warrant was issued for Mr Tekin Yıldız's arrest in October 2003 after he was suspected of having resumed his activities with the terrorist organisation. On 21 November 2003 he was arrested and sent back to prison. Malatya Public Prosecutor ruled on 13 January 2004 that he had no case to answer. However, the Istanbul Public Prosecutor, who was unaware of that finding, only applied for his release in April 2004 and it was not until 27 July 2004 that he was finally released.

Mr Uyan was born in 1965 and is currently a fugitive from justice. In 1998 he was sentenced to life imprisonment for membership of a terrorist organisation, the Union of Revolutionary Communists of Turkey (TIKB), and acts carried out in its name. In June 2003 he was diagnosed as suffering from Wernicke-Korsakoff Syndrome and his sentence was suspended for successive periods. However, in October 2003 the public prosecutor's office refused any further suspension of his prison sentence as it considered that the most recent medical report it had received did not comply with a directive set out in the Ministry of Justice's circular no. 3.3.9/44 requiring the length of any recommended period of suspension to be stated. In February 2004 a warrant was issued for Mr Uyan's arrest, but instructions were subsequently given for it not to be enforced.

• 2. 

  Procedure and composition of the Court

The applications in the cases of Hun, Sinan Eren, Eğilmez, and Mürrüvet Küçük were lodged with the Court on 9 February and 28 February, and 10 and 16 June 2004 respectively. They were declared admissible on 2 September 2004.

The applications in the cases of Gülü, Gürbüz, Kuruçay, Tekin Yıldız and Uyan were lodged with the Court on 2 October 2003, 12 July 2004, 24 June 2004, 7 June 2004 and 1 March 2004. They were declared admissible on the 20 October 2005.

These nine applications are part of a group of 53 similar cases.

From 24 June 2004 onwards, the Court indicated various interim measures to the Turkish Government under Rule 39 of the Rules of Court (interim measures) to ensure the proper conduct of the proceedings. On 23 August 2004, in connection with its fact-finding mission and in accordance with Rule 39, the Court advised the Turkish Government that during the period from 6 to 13 September 2004, when the panel of experts was due to examine the applicants, the authorities should refrain from arresting or re-imprisoning them.

From 6 to 11 September 2004 a delegation of judges from the Court travelled to Turkey on a mission to a visit various institutions, including certain prisons. They were accompanied by a panel of experts whose task was to assess the medical fitness of the 53 applicants to serve their prison sentences.

The judgments were given by a Chamber of seven judges, composed as follows:

Georg Ress (German), President,

Ireneu Cabral Barreto (Portuguese),

Lucius Caflisch (Swiss) [3],

Riza Türmen (Turkish),

Bostjan M. Zupančič (Slovenian),

Margarita Tsatsa-Nikolovska (Macedonian),

Kristaq Traja (Albanian), judges,

and also Vincent Berger, Section Registrar.

• 3. 

  Summary of the judgments [4]

Complaints

The applicants alleged that their re-imprisonment would entail a violation of Article 3 (prohibition of inhuman or degrading treatment). In the case of Gülü v. Turkey, the applicant also alleged that his re-imprisonment would entail a violation of Article 2 (right to life) and complained about the unfairness and length of the proceedings in question, which he considered to be contrary to Article 6 § 1 (right to a fair trial within a reasonable time). In the cases of Sinan Eren v. Turkey, Tekin Yıldız v. Turkey and Uyan v. Turkey, the applicants also alleged that there had been a violation of Article 5 (right to liberty and security).

Decision of the Court

Article 3

Cases of Eğilmez, Hun, Mürrüvet Küçük and Gülü

The Court noted that, despite firm warnings to Ms Eğilmez, Ms Mürrüvet Küçük and Mr Gülü that their applications were liable to be struck out of the Court's list, they had nevertheless failed to go for medical examination by the Court's panel of experts on 11 September 2004 as part of the fact-finding mission.

The Court further noted that although Mr Hun had been asked to comply with a final interim measure, that had been indicated to him so that an additional medical report required by the panel of experts could be obtained, he had failed to do so, allegedly because of administrative difficulties.

The Court considered that the applicants had no right to hinder the establishment of the facts in their own cases in such a way after being warned of the consequences. Consequently, it decided under Article 37 § 1 (c) of the Convention that the continued examination of the applications lodged by Ms Eğilmez, Mr Hun and Ms Mürrüvet Küçük was no longer justified and struck them out of the list. It came to a like conclusion with respect to Mr Gülü's complaints under Articles 2 and 3.

Cases of Gürbüz, Hun, Kuruçay, Sinan Eren, Tekin Yıldız and Uyan

The Court said that while the Convention could not be interpreted as laying down a "general obligation" to release a detainee on health grounds, the prisoner's clinical picture was now one of the factors to be taken into account under Article 3 in the member States of the Council of Europe, including Turkey, in assessing a person's fitness for detention. It had become a factor to be taken into account in determining how a custodial sentence was to be served, particularly as regards its length.

The Court noted, firstly, that the Turkish authorities were empowered under domestic legislation to intervene if a prisoner was suffering from a serious medical condition. Ill health was a ground for ordering temporary release on licence or for suspending sentence and a prisoner could also seek a pardon on medical grounds under the prerogative powers of the President of the Republic. At first sight, those procedures appeared to afford adequate guarantees to ensure the protection of the physical integrity and well-being of prisoners, a consideration which the States were required to reconcile with the legitimate requirements of a custodial sentence.

The Court noted that when confronted with the hunger strikes that had been launched in 1996 and 2004 in order to protest against the use of F-type prisons, Turkey had had to deal with the problem of the continued detention of prisoners suffering from the physical and mental effects of malnutrition, which in certain instances took the form of Wernicke-Korsakoff Syndrome. A number of sick prisoners were, as a result, released on temporary licence on medical grounds, with the authorities undoubtedly considering that their continued detention was no longer justified for the purposes of protecting society.

The Court noted that, in the six cases concerned the initial diagnosis of Wernicke-Korsakoff Syndrome was confirmed by various medical tests and the applicants' condition was judged to be incompatible with detention. There was nothing in the material before the Court to cast doubt on those medical findings. The panel of experts appointed by the Court to examine the applicants found that they presented major cerebellar impairment which could be considered irreversible. The panel was of the view that the impairment made it more difficult to perform everyday tasks, such as walking, and unanimously concluded that it was an obstacle to life in prison.

Further, although the applicants had not expressly complained of a lack of medical care, the Government had not been able to show what treatment the applicants would receive for Wernicke-Korsakoff Syndrome were they to be re-imprisoned and whether such treatment would be adequate. Indeed, it would have been surprising if they had shown that adequate facilities existed in the prisons, as that would have raised doubts about why the prisoners had been released on temporary licence to receive treatment outside.

In those circumstances, the Court found that a decision to return the applicants to prison despite the lack of change in their condition would be sufficiently serious as to come within the scope of Article 3. The situation was solely attributable to the malfunctioning of the protective machinery that had been put in place in Turkey and which, in practice, had proved to be ill-adapted to cope. The Turkish authorities should have taken swift action to remedy the applicants' situation. The fact that the applicants had inflicted harm upon themselves by going on a prolonged hunger strike did not release Turkey from any of its obligations towards them under Article 3.

The Court therefore held that Turkey would violate Article 3 if the Turkish authorities decided to deprive the applicants of their freedom without there being any significant improvement in their medical fitness to withstand such a measure.

In the case of Mr Tekin Yıldız, the Court noted that he had been re-imprisoned for eight months from 21 November 2003 to 27 July 2004. His situation had been compounded by his re-imprisonment and continued detention and had reached a sufficient level of gravity to come within the scope of Article 3. The suffering thereby caused to Mr Yıldız went beyond that inevitably associated with detention and the treatment of conditions such as Wernicke-Korsakoff Syndrome. Consequently, there had been a violation of Article 3.

Article 6

With regard to Mr Gülü's complaints that he had not received a fair trial, the Court held unanimously that there had been a violation of Article 6 § 1 on account of the lack of independence and impartiality of the State Security Court. As to the other complaint of procedural unfairness, it 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 held that it was unnecessary to examine that complaint.

The Court further noted that the proceedings against Mr Gülü had lasted for almost five years and 10 months. Having regard to the circumstances of the case, it considered that period excessive and in breach of the "reasonable-time" requirement. It accordingly held unanimously that there had been a violation of Article 6 § 1.

Article 5

The Court noted that the complaints made by the applicants in the cases of Sinan Eren, Tekin Yıldız and Uyan raised matters that were identical or similar to issues that had already been dealt with under Article 3. Having regard to its conclusion with regard to Article 3, the Court held that no separate examination of the complaint under Article 5 was necessary.

***

These summaries by the Registry do not bind the Court. The full texts of the Court's judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights

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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] Encephalopathy consisting in the loss of certain cerebral functions, resulting from a deficiency of vitamin B1 (thiamine).

[3] Judge elected in respect of Liechtenstein.

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