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THIRD SECTION
CASE OF
TANLI v. TURKEY
(Application no.
26129/95)
JUDGMENT
This version was
rectified under Article 81 of the Rules of Court on 28 August 2001
STRASBOURG
10 April 2001
FINAL
10/07/2001
In the case of
Tanlı v. Turkey,
The European Court of
Human Rights (Third Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mrs F. Tulkens,
Mr K. Jungwiert,
Sir Nicolas Bratza,
Mr K. Traja, judges,
Mr F. Gölcüklü, ad hoc judge,
and Mrs S. Dollé, Section Registrar,
Having deliberated in
private on 1 February 2000 and 20 March 2001,
Delivers the
following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case
originated in an application (no. 26129/95) against Turkey lodged with the
European Commission of Human Rights (“the Commission”) under former Article 25
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Turkish national, Mustafa Tanlı (“the applicant”), on 22
December 1994.
2. The applicant was
represented by Mr P. Leach, a solicitor working with the Kurdish Human Rights
Project (KHRP) in London. The Turkish Government (“the Government”) were
represented by their Agent, Mr Kaleli, Deputy Permanent Representative at the
Council of Europe.
3. The applicant
alleged that his son Mahmut Tanlı was tortured and killed in police custody. He
invokes Articles 2, 3, 5, 13, 14 and 18 of the Convention.
4. The application
was declared admissible by the Commission on 5 March 1996 and transmitted to the
Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of
Protocol No. 11 to the Convention, the Commission not having completed its
examination of the case by that date.
5. The application
was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case
(Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of
the Rules of Court. Mr Türmen, the judge elected in respect of Turkey, withdrew
from sitting in the case (Rule 28). The Government accordingly appointed Mr
Gölcüklü to sit as an ad hoc judge in his place (Article 27 § 2 of the
Convention and Rule 29 § 1).
6. The applicant and
the Government each filed observations on the merits (Rule 59 § 1). The Chamber
decided, after consulting the parties, that no hearing on the merits was
required (Rule 59 § 2 in fine).
THE FACTS
I. THE CIRCUMSTANCES
OF THE CASE
7. The facts of the
case, in particular concerning what happened to Mahmut Tanlı, the applicant’s
son, during his detention in police custody from 27 to 28 June 1994 are in
dispute between the parties. Having regard however to the length of time which
had elapsed since those events and the nature of the documentary material
submitted by the parties, the Court decided that a fact finding investigation,
involving the hearing of witnesses, would not effectively assist in resolving
the issues. It has proceeded to examine the applicant’s complaints on the basis
of the written submissions and documents provided by the parties.
8. The applicant’s
and Government’s submissions concerning the facts are set out below (Sections A
and B). The documents relating to the events and complaints are also summarised
(Section C).
A. The applicant’s
submissions on the facts
9. The applicant, a
Kurdish farmer born in 1933, lived in the village of Örtülü in the Doğubeyazit
region in south-east Turkey. His son Mahmut was born in 1972.
10. On 27 June 1994,
gendarmes from the Doğubeyazit central gendarme station arrived at the village
to carry out a search. The villagers were gathered outside the mosque. The
applicant’s son conducted some of the gendarmes round the village as they
searched. The gendarme commanders questioned the applicant about his son. The
gendarmes left taking Mahmut Tanlı with them. At that time Mahmut Tanlı was in
good health.
11. On 28 June 1994,
the applicant sought information from the authorities about his son. They
refused to let him see his son and he left.
12. On 29 June 1994,
at about 5.30 a.m., a police car arrived at the applicant’s son’s house and took
the applicant to the police station. There the security director informed him
that his son had died of a heart attack while in custody. The applicant replied
that his son did not suffer from any illness and that he had probably died from
torture. He asked to speak to the public prosecutor, who came into the security
director’s office and told the applicant that the cause of death was heart
failure. The applicant maintained that his son’s death had been caused by
torture.
13. On 28 June 1994,
an autopsy was carried out on the body by two doctors İhsan Özüu and Aydın
Mazlum, one of whom was a paediatrician and the other worked in a health clinic
at the Doğubeyazit Hospital.
14. Mahmut Tanlı’s
body was delivered to Ulusoy police station on 29 June 1994. The body was
covered in bruises. There was also a large incision, which had been stitched,
running down the left breast towards the upper abdomen. The police claimed that
the incision was the result of an operation carried out when Mahmut Tanlı had
had a heart attack. The police asked the applicant to sign a document. As he was
afraid for his safety, the applicant signed without knowing what it was.
15. Mahmut Tanlı had
no criminal record and was not suspected of any criminal activities. He had no
known or suspected heart disease before he was taken into custody or any other
medical condition. The applicant was too afraid of the risk of reprisals to
request or arrange a forensic examination of his son’s body.
16. On 29 June 1994,
the applicant made a statement to the Doğubeyazit branch of the Human Rights
Association, reporting that his son’s body had shown marks and blows of force
and that it was clear that he was killed under torture. The applicant’s brother
made a statement in similar terms.
17. On 29 June 1994,
the applicant lodged a written petition with the Doğubeyazit chief public
prosecutor concerning his son’s death, which he said was suspicious. He also
complained of the inadequacy of the post mortem examination which had not been
carried out by experts. He asked that his son’s body be referred to the Forensic
Medical Institute. He later withdrew this request because he feared for his
life.
18. On 25 July 1994,
the public prosecutor took statements from the muhtar and other villagers in
Örtülü, which confirmed that Mahmut Tanlı had no previous medical problems.
19. On 3 August
1994, proceedings were brought by the Agri Chief Public Prosecutor against the
three police officers, Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar, who had
been interrogating Mahmut Tanlı when he died. There were a series of
adjournments in the proceedings. On 2 February 1995, the court ordered that the
file be sent to the Forensic Medicine Institute for an opinion as to the cause
of death. On 23 May 1995, it was noted that the Institute had ordered the
exhumation of the body. Further adjournments followed awaiting the Institute’s
report. On 14 May 1996, the court found that the cause of Mahmut Tanlı’s death
could not be established and the three defendants were acquitted.
B. The Government’s
submissions of the facts
20. Ahmet Akkuş, a
former member of the PKK, had informed the authorities that Mahmut Tanlı from
Örtülü village was an armed militiaman in the PKK. His name was also mentioned
on a list of militiamen found on a dead PKK member after a clash. Mahmut Tanlı
was therefore suspected of having aided and abetted the PKK.
21. On 27 June 1994,
following a search of Örtülü, the Doğubeyazit gendarmes took Mahmut Tanlı into
custody. They transferred him the same day to the Uluyol police station for
questioning. He arrived at about 9.30 p.m. As the police officers responsible
for questioning were in pursuit of other suspects, his questioning was postponed
to the next day.
22. On 28 June 1994
three police officers, Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar, started
to question Mahmut Tanlı. He at first refused to admit any connection with the
PKK, alleging that it was a slander. When details were put to him of his alleged
connections, including Akkuş’s statement, he became excited and began stammering
and trembling. He went pale, his voice changed and it was clear that he was
developing a kind of shock. The questioning was stopped and a doctor sent for.
The doctor arrived within 5 to 10 minutes. The doctor, Yunus Ağralı, found him
to be having difficulty in breathing and that he was cyanotic. He ordered an
ambulance. Within three minutes, his breathing and heart had stopped. He was
given artificial respiration and cardiac massage for 20 minutes by the doctor,
assisted by the police officers. This was to no avail.
23. The public
prosecutor, informed of the death, arrived soon after. The ambulance took the
body to the Ağri State Hospital where an autopsy was carried out by İhsan Özlü
and Aydın Mazlum, two doctors from the Doğubeyazit State Hospital, in the
presence of the public prosecutor. According to the report, there was no trace
of lesions, traumas or the use of force on the head and no fresh bruises. After
the autopsy the public prosecutor suggested to the applicant that his son’s body
should undergo a comprehensive forensic examination at the İstanbul Forensic
Medicine Institute in order to dispel any doubts. The applicant initially
agreed. After consulting other members of the family, however, he withdrew his
consent. The public prosecutor handed over the body to be buried by the family.
24. The public
prosecutor, Halil Erdem, started an investigation into the allegation of the
applicant that his son died as a result of torture in custody. He interviewed
the three police officers. He also wrote to the Doğubeyazit Military Recruitment
Office to obtain any military medical records. After a comprehensive
investigation, an indictment was drawn up accusing the three police officers of
an offence under Article 243 of the Turkish Penal Code. On 14 May 1996, having
considered all the evidence, the Ağri Criminal Court acquitted the three police
officers on grounds of lack of evidence. The decision of acquittal was upheld by
the Court of Cassation on 11 November 1996. It also rejected the applicant’s
appeal as he had failed to intervene in the proceedings against the police
officers.
C. The documentary
evidence submitted by the parties
1. Documents
submitted by the applicant in his application
Statement of the
applicant undated taken by the Human Rights Association (the “HRA”)
25. The applicant
stated that on 26 June 1994 the Doğubeyazit gendarmes station and central
commanders carried out a search in Örtülü village. They asked about his son
Mahmut who was walking around with the soldiers. His son had never committed an
offence. His son had been killed under torture by teams in the Uluyol district
of Doğubeyazit. He had made an application. He was going to take the body to the
Forensic Medicine place. He did not as he was afraid for his life. He complained
against those who killed his son, whose only offence was to be a Kurd.
Statement of the
applicant dated 29 June 1994 taken by the HRA
26. This was also
signed by the applicant’s uncle, Ahmet Tanlı. The applicant’s son had been taken
into custody by the Doğubeyazit Security Directorate on 27 June 1994. The
applicant stated that the police claimed that his son had died of a heart attack
in custody. When he went there he saw marks of blows and force on his son. His
body was covered in bruises and it was clear that he had been killed under
torture. The uncle said that he had seen the whole of the body covered in
bruises. There was no question of a heart attack.
Photographs taken of
the body of Mahmut Tanlı
27. The applicant
submitted four colour photographs of the body of Mahmut Tanlı taken before the
burial. These showed the chest, face and forearms. The quality was poor. Red
marks and grazes appeared to be visible on the arms, body and hips. A stitched
incision ran from the neck across the chest to the stomach.
2. Materials from
the investigation file
Statement of Ahmet
Akkuş dated 7 February 1994 taken by police officers
28. The suspect was
from Örtülü village. In recounting his contacts and activities for the PKK, he
named Mahmut Tanlı, son of Mustafa, as one of the villagers working for the PKK
in the village.
Scene of incident
report dated 28 June 1994
29. This document
was signed by the public prosecutor and police superintendent Ali Gündoğdu, head
of the Anti-Terror Department of the Doğubeyazit Security Directorate. It stated
that at 10.30 p.m. on 28 June 1994 it had been reported on the telephone that
Mahmut Tanlı, a suspected PKK member, had had an attack while under
interrogation at the Uluyol police station. When he entered the police station,
the public prosecutor found the body stretched out on the bench. There was
nothing worthy of note at the scene. The body was dressed and there were no
signs of blows.
30. Ali Gündoğdu
stated, having been sworn, that Mahmut Tanlı had been handed over to the police
station by the gendarmes at about 9 to 9.30 p.m. on 27 June 1994. He had the
necessary medical examination by the doctor. He looked perfectly well. They did
not interrogate him that day. He and two other officers, Murat Demirpençe and
Ökkeş Aybar, went to the room to interrogate him. He told him that his name had
been mentioned in statements taken from Ahmet Akkuş and other PKK activists.
Mahmut Tanlı denied that he was involved and claimed that it was slander. He
became very agitated and began to tremble. As they realised that he was unwell,
they immediately sent for a doctor at the hospital. By the time the doctor
arrived, he had died from the sudden shock. They tried to revive him without
success. The suspect had not been subject to any blows or violence. He died of
shock.
31. Dr Yunus Ağralı,
from the Doğubeyazit State Hospital, stated that despite artificial respiration
and cardiac massage the suspect had died.
32. The decision was
taken to transport the body to the Doğubeyazit State Hospital for an autopsy to
be performed.
Report of
examination of body and autopsy
33. No traces of
blows or lesions were found on the head. There was a graze about 2 cm below the
right collarbone on which a scab had formed – it looked about two days old. No
traces of blows were found on the back, arms, hands or legs. Grazes about 2x2 cm
were found on the left hip, which were probably about one week old.
34. No traces of
blows or violence were found on opening the thoracic cavity. The ribs and
collarbones were intact, as were the bones of the chest. The heart tissue was
seen to be pale in colour and a bruised area observed near the apex. Blood
clotting was observed inside the blood vessels in the front section and clotted
blood was detected inside heart. Black pigmented specks were found in the lungs.
No abnormalities were found in the abdominal or cranial cavities. The cause of
death was sudden heart failure resulting from an embolus in the blood vessels of
the heart. As no further procedures were required, it was decided to issue the
burial and transport licence.
35. The autopsy had
been carried out by Dr İhsan Özlü, a paediatrician at the Doğubeyazit State
Hospital, and Dr Aydın Mazlum, employed in the Doğubeyazit Health Clinic.
Undated petition by
the applicant to the Doğubeyazit chief public prosecutor
36. This stated that
his son did not have any heart condition. It was suspicious and absurd to claim
that he died of a heart attack. His son had just completed his military service
without the slightest health problem during or before. As far as he gathered, no
traces of violence had been found. However, other forms of torture (electric
shock, medication, injections, cold water treatment) were possible which left no
marks but could affect the heart. He requested that the body be sent to the
Forensic Medicine Institute for a full report so that the responsible persons
could be punished.
Burial and transport
licence dated 28 June 1994
37. It had been
determined that the deceased died of a heart attack and a decision was taken to
issue a licence for the applicant to transport and bury the body.
Note by the
applicant dated 29 June 1994
38. The applicant
withdrew his request for a report by the Forensic Medicine Institute as there
was no point in doing so. The note was taken down by the public prosecutor and
signed by him and the applicant.
Statement of Ali
Gündoğdu dated 30 June 1994 taken by the Doğubeyazit public prosecutor
39. Mahmut Tanlı,
wanted as a suspected member of the PKK militia in Örtülü, was handed over to
them by the gendarmes at about 9.30 p.m. on 27 June 1994. He was not
interrogated then as they had other duties on search operations the next day.
He, Murat Demirpençe and Ökkeş Akbar commenced questioning Mahmut Tanlı in the
interrogation room on 28 June 1994 at about 9 p.m. They told him that his name
had been mentioned in statements made by Ahmet Akkuş and that documents found on
the bodies of PKK members killed in operations showed that he had carried out
activities as a member of the armed militia of Örtülü under the assumed name of
Agır. Mahmut Tanli suddenly became agitated, his voice
began to tremble and, speaking in a quavering voice, he said that he did not
have the assumed name of Agir and that they had been lying. The witness repeated
that his name was mentioned in documents. He suddenly was unable to speak, his
colour changed and he began to shake. He lost consciousness. The witness
immediately informed the relevant authorities and asked them to send a doctor.
They laid Mahmut Tanlı on the floor and uncovered his chest. His breathing was
difficult. Ökkeş Aybar, who had knowledge of first aid and was attending a
training course, began to give him heart massage. There was no change. They
continued for about 10 minutes until the doctor arrived. Dr Yunus Ağrali
immediately checked the patient’s pulse as he lay on the floor and listened to
his heart and said that his condition was very serious. While he gave heart
massage, he told the police officers to give artificial respiration. This went
on for 10 minutes but there was no change in his condition and the doctor said
that he had died. During the interrogation, they had not pushed, kicked or
beaten the detainee in any way. The detainee’s death was not the result of any
action on his part or on the part of his colleagues.
Statement of Ökkeş
Aybar dated 30 June 1994 taken by the Doğubeyazit public prosecutor
40. The witness, a
police officer in the Anti-Terror Branch of the Doğubeyazit Security
Directorate, was with Superintendent Gündoğdu and Murat Demirpençe when they
interrogated Mahmut Tanlı on 28 June 1994. They had not done so earlier due to
other business. He did not carry out interrogations himself. They began to put
questions to the detainee. Superintendent Gündogdu told the detainee that he was
wanted by the Security Police and that they had information and documents about
him. The detainee spoke calmly to begin with, but when Superintendent Gündogdu
told him those things, his voice changed and he quavered and stammered. He
suddenly became unwell and appeared to faint. They immediately laid him out on
the floor and uncovered his chest as he was having difficulty breathing. The
witness knew how to give first aid, having attended a course in first aid.
Superintendent Gündogdu immediately informed the squads and the security
headquarters of the situation and told an officer to take the HQ car and get a
doctor urgently. Dr Yunus Ağrali arrived 10 minutes later and immediately
checked the patient’s pulse and heart beat and said that his condition was
serious. A couple of minutes after his arrival, the doctor said that the patient
had died but that it was necessary to continue with heart massage and artificial
respiration. He told them to give artificial respiration, while he carried out
heart massage. However, it was to no avail and the doctor then said that the
patient had died. While the detainee was in the security headquarters neither
the witness nor his colleagues did anything to him which would have made him
faint or caused his death.
Statement of Murat
Demirpençe dated 30 June 1994 taken by the Doğubeyazit public prosecutor
41. The witness, a
police officer in the Anti-Terror Branch of the Doğubeyazit Security
Directorate, stated that at about 9 p.m. on 28 June 1994, Superintendent Ali
Gündogdu, Ökkeş Aybar and himself went to the Uluyol police station to
interrogate Mahmut Tanlı. They commenced the interrogation in the room reserved
for detainees. They had not done so before as they had had other business. There
were only the three officers in the interrogation room. Superintendent Ali
Gündogdu first asked the detainee if he knew why he had been arrested. When he
said that he did not, the Superintendent told him that he had been mentioned as
a member of the armed militia in Örtülü village in the statements made by Ahmet
Akkuş, and that his name had been found in notebooks found with the bodies of
the 24 terrorists killed in clashes near Uzunkaya village on 9 May1994
identifying him as a member of the PKK armed militia in Örtülü village.
Thereupon the detainee began to stammer and tremble. He went pale and suddenly
collapsed. The Superintendent immediately reported the situation to the squads
by radio and told them to get a doctor urgently. At the same time he told a
police officer outside the room to take the car and fetch the doctor. Meanwhile,
Ökkeş Aybar said that he knew how to give first aid and he laid the detainee out
on the floor, uncovered his chest and gave him heart massage. Within ten
minutes, the police officer returned with Dr Yunus Ağralı, who immediately
checked the patient’s pulse, listened to his heart and said that his condition
was serious. The doctor told police officer Cafer to go and get medicine. The
doctor told them to give artificial respiration while he gave the heart massage.
They continued like that for several minutes. Then the doctor checked his pulse
and listened to his heart again and said that the patient had died, but that it
was necessary to continue with heart massage and artificial respiration. They
continued. Then the doctor said that the patient had died and there was nothing
else to be done. They reported the situation to their security headquarters by
radio. Neither he nor his colleagues did anything to the detainee which would
have caused his death.
Statement of Ahmet
Gerez dated 30 June 1994 taken by the Doğubeyazit public prosecutor
42. The witness, a
lawyer, stated that the applicant and other members of the family came to his
office telling him that the death of Mahmut Tanlı was suspicious and consulting
him as to what could be done legally. He suggested that the body be sent to the
Forensic Medicine Institute before burial. They agreed. He wrote a petition for
them to the public prosecutor, which they presented together. The prosecutor
said that it was possible and he would look into it. A couple of hours later, he
phoned the witness and said that he would send the body and that a special
coffin had to be prepared. He said that there was no budget for this at the
prosecutors’ office but that assistance could be obtained through the District
Governor’s office. The witness told the family that once they had obtained the
zinc-lined coffin the public prosecutor would send the body to the Institute.
The family went away and came back an hour later. They said that they were
afraid that it would be very difficult to transport the body back and forth and
that anything might happen. The witness went with them to the public
prosecutors’ office and the applicant declared verbally to the public prosecutor
that he was waiving any further examination. The public prosecutor said that it
would be of great advantage in elucidating the facts, as well as from a legal
point of view, if the body were sent. The applicant went away with his family
and came back half an hour later. He repeated that they were definitely waiving
sending the body to the Institute and were going to bury it. The public
prosecutor told them that they could. The family took the burial licence,
collected the body from the morgue and took it back to the village.
Statement of Dr
Yunuş Ağralı dated 30 June 1994 taken by the Doğubeyazit public prosecutor
43. While the
witness was on duty at the State Hospital, a police officer came and said that
there was a patient in need of urgent treatment. Taken in a police car to the
Uluyol police station, he found the patient stretched out on a bench. The pulse
was 200/minute, the heartbeat irregular and breathing difficult. The patient’s
situation was serious. He told a police officer to get some adrenaline atropine.
The patient’s general appearance was somnolent. His breathing stopped. He could
not hear any heartbeat. He immediately performed heart massage, telling the
police officers to give artificial respiration at the same time. This went on
for 5 to 10 minutes. There was no trace of any vital functions. The pupils were
fairly dilated and there was no light reflex. He realised the patient was dead
and stopped performing first aid as there was no point. However, since heart
massage and artificial respiration can continue up to half an hour, he told the
police officers to continue both. It was in vain.
Statement of the
applicant dated 1 July 1994 taken by the Doğubeyazit public prosecutor
44. On 27 June 1994,
the gendarmes came to the village, saying that they were looking for his son
Mahmut. They took him away. On 28 June the applicant went to visit his son but
they would not let him speak to him. On 29 June, when he was at his son Hasan’s
house, a police car arrived at about 5.30 a.m. and took him to the office of the
chief of police. The chief of police told him that his son had died. The
applicant replied that his son had not been ill, that it was suspicious and that
he could have been tortured to death. He asked to talk to the public prosecutor.
The public prosecutor came into the office and said that he had carried out the
autopsy procedure which showed no signs of blows or violence and that his son
had died of heart failure. The applicant repeated that he could have been
tortured to death.
45. The applicant
went to see the lawyer Ahmet Gerez who said that the body could be sent to the
Forensic Medicine Institute. He drew up a petition for this and they took it to
the public prosecutor. The prosecutor said that they needed a galvanised sheet
metal coffin and asked them to have it made. Some money for this might be
available from local funds. The applicant, family elders and relatives discussed
the matter and decided to give up the idea as various difficulties could arise
and they would be put under pressure. They told the prosecutor that. He said
that it would be of great advantage to send the body to the Institute and asked
them to reconsider. The family discussed it again and, accompanied by Ahmet
Gerez, told the public prosecutor that they had decided not to send the body.
The public prosecutor issued a burial licence and they buried the body in the
village.
46. The applicant
wanted an investigation concerning the persons who caused his son’s death and
that they should be punished.
Statement of Nihat
Acar dated 1 July 1994 taken by the Doğubeyazit public prosecutor
47. The witness, a
police officer, was sitting in the office of the chief of the Anti-Terror Branch
when the chief, Ali Gündoğdu, as well as Ökkeş Aybar and Murat Demirpençe, went
into the room for detainees. Gündoğdu asked for the statements of Ahmet Akkuş
and took them with him. About 10 to 15 minutes later, he came back and said that
Mahmut Tanlı had been taken ill. He asked the police driver present to get a
doctor quickly. The witness went to the room to see the detainee. Ökkeş Aybar
had uncovered the detainee’s chest and was trying to get him to breathe. Dr
Ağralı arrived a short time later. He said that he needed heart massage and
artificial respiration. He told the police driver to go to the pharmacist to get
a drug but a few minutes later announced that the Mahmut Tanlı had died. The
witness did not see or hear that Mahmut Tanlı had been subjected to blows or
violence. Only a short time passed between his colleagues going into the room
and coming out again.
Statement of Cafer
Yiğit dated 1 July 1994 taken by the public prosecutor
48. The witness, a
police driver at the Anti-Terror Branch of Doğubeyazit Security Directorate, was
on duty that evening. Superintendent Gündoğdu and officers Aybar and Demirpençe
arrived at Uluyol at about 9 p.m. The superintendent was carrying a file in his
hand. They went into the room where Mahmut Tanlı was being held. The witness and
other officers waited in the superintendent’s office. After about 10 minutes,
the superintendant came out, saying that the detainee was ill and telling him to
take a car to get a doctor. He drove to the hospital about 800-1000 metres away
and brought back Dr Ağralı 5 to 10 minutes later. The doctor checked the
detainee’s pulse and heart and said that the man needed heart massage and
artificial respiration. He told the witness to fetch a drug from the chemist on
night call. He was about to get into the car when the doctor said that it was no
longer necessary as the detainee had died. He had not seen anyone at the station
subject the detainee to any blows or violence.
Statement of Ömer
Güzel dated 1 July 1994 taken by the Doğubeyazit public prosecutor
49. The witness, a
police officer in the intelligence unit, arrived at Uluyol police station at
about 9 p.m. He was having tea with others while three colleagues went to take a
statement from Mahmut Tanlı. About 10 minutes later, Superintendent Gündoğdu
came out and told the police driver to get a doctor urgently as the detainee had
been taken ill. The witness did not go in the room. He heard the doctor tell the
driver to get a drug and then not to bother. While he was there no-one subjected
the detainee to blows or violence.
Letter dated 1 July
1994 from the Doğubeyazit district gendarmes to the Doğubeyazit public
prosecutor
50. This stated,
with reference to an incident report of 13 May 1994, that after an armed clash
between the terrorists and security forces, 24 terrorists had been arrested or
killed and a number of documents found. One of these, a list of PKK members,
included Mahmut Tanlı’s name on page 45.
Statements of Ali
Temtek, Musa Sabaş, Mahmut Ardin and Mirsevdin Timur dated 25 July 1994 taken by
Doğubeyazit public prosecutor
51. These statements
from villagers stated that Mahmut Tanlı had no health problems and that they had
never seen or heard of him having any illness.
Letter dated 27 July
1994 from the Doğubeyazit recruitment office to the Doğubeyazit public
prosecutor
52. Having examined
the file of Mahmut Tanlı in response to the query as to whether he had suffered
any health problems or been treated during his military service1,
they could not find any medical reports about his health.
Indictment dated 3
August 1994 drawn up by the Ağri public prosecutor for the Ağri Assize Court
53. This listed the
defendants Ali Gündoğdu, Ökkeş Aybar and Murat Demirpençe as charged with the
offence of causing the death of Mahmut Tanlı by ill-treatment in their capacity
as police officers, contrary to Article 243/2 of the Turkish Penal Code. The
evidence was summarised, including the autopsy conclusion that death had been
caused by heart failure and that there were no signs of blows or violence. It
concluded that it was for the court to assess the fault or negligence of the
defendants in possibly causing death – such as causing the death of the
deceased, allegedly tortured, by frightening him.
Statement of the
applicant dated 6 June 1995 taken by the Doğubeyazit public prosecutor
54. It was stated
that the letter and enclosures from the Ministry of Justice (International Law
and Foreign Relations Directorate) were read out to the applicant.
55. The applicant
stated that he had been informed that his son had died of a heart attack in
police custody. The public prosecutor said that there had been an autopsy and
that this had concluded that there had been a heart attack and that there were
no marks of ill-treatment. The applicant wanted the body to go to the Forensic
Medicine Institute for a more definite conclusion. The prosecutor accepted this
and he left to obtain a coffin. For a couple of hours, he discussed the matter
with the elders in the family and finally decided that it would be very
burdensome to take the corpse there and back. They went to the prosecutor’s
office and told him that they had given up the idea. The prosecutor said that,
although the cause of death had been established, it would still be useful to
send the body for a more thorough examination. They insisted however and took
the body to the village.
56. He confirmed his
petition and signature on the petition and letter of authority. He wanted those
who killed his son found and punished.
3. Proceedings
before the Ağrı Assize Court
Minutes of the Ağri
Assize Court dated 12 August 1994
57. The court
decided to summon the defendants to give evidence, to obtain any records of
their previous convictions and to summon witnesses (the applicant, Dr Ağrali,
Ahmet Gerez, Ali Temtek, Musa Sabaş, Mirsevdin Timur, Mahmut Ardin, Ömer Güzel,
Cafer Yiğit, Nihat Açar and Ahmet Akkuş).
Minutes of the Ağri
Assize Court dated 22 September 1994
58. The court heard
evidence from a number of witnesses and two of the defendants. Murat Demirpençe
did not attend.
59. Ökkeş Aybar said
that they had been questioning the deceased. When Superintendent Gündoğdu told
him that he was wanted as a PKK militia man, the deceased’s speech and voice
changed. His facial expression changed. As he said that he was unwell, they got
him to lie down on a bench. Since he had difficulty breathing, they tried to
help him and called a doctor. A few minutes after the doctor arrived, the doctor
said that he had died. He had not tortured or ill-treated the deceased in any
way.
60. Ali Gündoğdu
said that he told the deceased what the allegations were and the evidence that
he was in the PKK militia. The deceased suddenly became unwell, his voice began
to tremble and he had difficulty breathing. He ended the interrogation and they
tried to ease his breathing. At the same time they contacted the hospital. A
doctor came but after a couple of minutes said that the deceased had died. He
denied the offence.
61. The applicant
said that his son had no health problems whatsoever and did his military service
without problem. The police had not called him after they had killed his son. He
thought that the doctor who carried out the autopsy was under pressure. The
defendants had tortured his son to death. In answer to a question, he said that
he had not allowed his son’s body to be sent to the Forensic Medicine Institute
because he was afraid of reprisals. The public prosecutor had suggested it
should be done but he was afraid that they would kill him on the way there. He
rejected the autopsy report. He had heard that one of the doctor signatories had
not in fact been there. It was impossible that his son had died of a heart
attack.
62. Mirsevdin Timur
from Örtülü village confirmed that Mahmut Tanlı had had no health problems.
63. Nihat Açar, a
police officer, stated that he was outside the interrogation room when the
defendants and deceased were in there. After a few minutes, Ali Gündoğdu came
and said that that the deceased was unwell, sending the driver to fetch a
doctor. When he entered the room, the police officers were trying to ease the
deceased’s breathing. The doctor arrived about 5 minutes later. The deceased had
no marks of blows on him and he did not see him being tortured.
64. Mahmut Ardin, a
villager, stated that Mahmut Tanlı had no health problems. He had been present
when his body was being washed. There were marks of blows on his arms and
bruises on the sides. He had not mentioned that in his previous statement as he
was not asked.
65. Cafer Yiğit, a
police officer, stated that he had been on duty at the police station when the
defendants went in to interrogate the deceased. A short while later, Ali
Gündoğdu came out and said that the deceased was unwell. He went to find a
doctor. That took about 5 to 10 minutes. He did not hear or see the deceased
being tortured. They had been adjacent to the room and would have heard any
sounds coming from there.
66. Ömer Güzel, a
police officer, had been outside the room where the deceased was being
interrogated. He saw the defendants and deceased go in. After 10 minutes, Ali
Gündoğdu came out and said that the deceased was unwell and asked for a doctor
to be called. Cafer brought back a doctor after 5 to 10 minutes. He did not hear
or see the defendants subject the deceased to any blows or violence. They would
have been bound to hear if they had.
67. Ali Temtek, the
muhtar from Örtülü, had not been there and did not attend the funeral.
68. The court
decided inter alia to make a further request for the defendants’ records,
to subpoena Murat Demirpençe, to send letters rogatory concerning Dr Ağralı and
to subpoena Ahmet Gerez, Musa Savaş and Ahmut Akkuş.
Minutes of the Ağri
Assize Court dated 20 October 1994
69. The defendant
Murat Demirpençe attended. He stated that he had taken the deceased into the
room used for interrogation. The deceased sat down on the bench. Superintendent
Gündoğdu asked if he knew why he was there. When he said that he did not know,
the superintendent told him why he had been brought. The deceased began to
tremble. His voice changed, he went pale and began to feel unwell. The
superintendent reported this on the radio. They sent Cafer to fetch a doctor,
who arrived about 10 minutes later. The doctor treated him and sent Cafer for
some medicine. He and his colleagues had definitely not tortured the deceased.
70. The court
adjourned to wait for the reply inter alia to the letters rogatory and
subpoenas for the remaining witnesses.
Minutes of the Ağri
Assize Court dated 17 November 1994
71. It was noted
that Dr Ağralı, by reply to the letter rogatory, had maintained his previous
statement.
72. Ahmut Akkuş
appeared. He denied the statement of 17 February 1994. He had been blindfolded
and did not know what was in it. He did not know if the deceased was in the PKK
or not.
73. Musa Savaş, a
villager, said that Mahmut Tanlı had no health problems and knew nothing else.
74. The court
decided inter alia to await the response to the subpoena for Ahmet Gerez
and to re-issue letters rogatory to Dr Ağralı to put a question about the
autopsy report.
Minutes of the Ağri
Assize Court dated 22 December 1994
75. The court
adjourned pending responses to pending matters.
Minutes of the Ağri
Assize Court dated 12 February 1995
76. The court
decided to dispense with hearing Ahmet Gerez, whose address had not been found,
and to send the entire file to the Forensic Medicine Institute, requesting their
opinion on the cause of death of the deceased and asking whether he had died as
the result of torture, violence or blows.
Minutes of the Ağri
Assize Court dated 16 March and 13 April 1995
77. The court
adjourned pending the reply from the Forensic Medicine Institute.
Minutes of the Ağri
Assize Court dated 23 May 1995
78. Pursuant to the
report of the 1st Specialist Committee of the Institute of Forensic
Medicine, the court decided to order the exhumation of the body of Mahmut Tanlı.
Minutes of the Ağri
Assize Court dated 13 July, 14 September, 24 October and 28 November 1995 and 18
January, 29 February and 26 March 1996
79. The court
adjourned pending the report of the Forensic Medicine Institute. On 18 January
1996, noting the delay, it issued a writ to the prosecution department to
request the opinion to be submitted.
Report dated 13
March 1996 issued by the Ist Specialist Committee of the İstanbul
Forensic Medicine Institute
80. The report
reviewed the evidence in the file. It stated that an autopsy had been performed
on the body exhumed on 9 June 1995 and an autopsy report issued on 12 June 1995.
That report indicated that the body was in an advanced state of putrefaction.
The soft tissue in the head area had entirely disappeared; the radioscopy did
not reveal any particular features in the skeletal system or any foreign metal
objects; no lesions were found on the skull; 3-5 cm lesions were observed from
the previous autopsy; the facial bones and teeth were intact; despite the
putrefied and shrunken appearance of the heart, it could be seen that the
ventricles had not been opened; advanced putrefaction made it impossible to
assess the main veins or coronary arteries; no particular features could be
distinguished in the lungs or abdomen; examination of the cervical organs
revealed that the standard dissection had not been performed; the toxicological
analysis disclosed no substances for which tests were done.
81. It was concluded
as follows: The information given was that an autopsy including the opening of
the three cavities was performed, that clotted blood was found in the heart and
internal clotting in the anterior part of the coronary arteries and that death
was caused by sudden heart failure due to an embolism in the cardiac vessels.
However, as the autopsy after the exhumation showed, the organs had not been
removed, sectioned and examined and that the heart ventricles had not been
opened. The changes described therefore were of no scientific value. In cases of
torture, traumatic changes might not be visible on external examination. The
skin and deep muscle tissue had to be sectioned and examined to investigate
deceptive traumatic changes. As regarded possible electric shocks, samples of
cutaneous and subcutaneous tissue had to be taken from the usual places – the
inside of the mouth, nose and ears and genital area had to be examined and
samples taken from the organs for histopathological analysis. None of these
tests, included in the Minnesota model autopsy protocol published by the United
Nations, were performed at the time. Therefore the judicial procedure had been
left incomplete.
82. The findings
showed that no injury was suffered likely to cause bone fracture. However owing
to advanced putrefaction, it could not be established whether or not the
deceased died as a result of torture, assault or battery; nor was it possible to
determine the cause of death.
Judgment dated 14
May 1996 of the Ağri Assize Court
83. The court
summarised the evidence. It noted that the public prosecutor had given his
opinion that there was no concrete evidence to support the allegation that the
defendants had caused the death of Mahmut Tanlı. The testimonies of the
witnesses who appeared before the court did not make it possible to reach the
conclusion that the defendants tortured or ill-treated the deceased.
According to the
documents in the file and the on-site report, the deceased was apprehended by
the gendarmerie on 27 June 1994 on suspicion of being a PKK militant and was
handed to the police the same day in order to be questioned. He had not been
questioned the same day because they had other things to do and, when they
started to question him the next day, he fell ill and subsequently died despite
the first aid attempts.
According to the
corpse examination and autopsy report of 28 June 1994, a copy of which is in the
case file, there were no signs of ill-treatment or lesions on the head; there
was a cut under his right collar bone, measuring 2 cm, which had formed a scab
and which probably had been caused 2 days previously. There were no signs of
ill-treatment on the back of the body, hands or arms. On the left side of the
buttocks there were superficial cuts, measuring 2x2 cm, which had formed scabs
and which had possibly been caused a week previously. There were no signs of
ill-treatment on the legs or the feet. A full autopsy was also carried out on
the deceased’s body. There were no signs of ill-treatment on the chest. The
collar-bones and the rib cage were intact. There were no bruises on the neck.
There was no accumulation of blood in the thoracic cavity. The examination of
the heart revealed an ecchymotic area on the apex cordis, near the pallor. On
the front sides of the coronary arteries there were blood clots. There was also
clotted blood in the heart and occasional pigment spots in the lungs. There was
no blood accumulation in the thoracic or abdominal cavities. The stomach and
intestines were normal. There were no signs of ill-treatment on the scalp or on
the bones. No broken bones or oedema were observed. The brains were intact and
there was no bleeding or discoloration on the tissue covering the brains. The
cause of death was given as emboli in the blood vessels of the heart which
caused the heart to stop.
The Forensic Medicine
Council was contacted and their opinion was requested. The 1st
Specialist Committee in their report of 13 March 1996 stated that the autopsy
conducted locally on the body was inadequate. They also stated that the autopsy
conducted on the remains of the body after the exhumation was not sufficient to
determine conclusively whether he had been killed as a result of torture or
ill-treatment, or to determine conclusively the cause of death, because the soft
tissues of the body and the internal organs had seriously decomposed.
According to the
summary of the documents above, and the autopsy reports, it had not been
possible to determine the cause of death. The defendants’ denials had also not
been disproved. It was therefore not possible to determine conclusively that the
defendants had committed this crime. The cause of death had not been established
and therefore there was no conclusive evidence to prove beyond reasonable doubt
that the defendants had committed the crime with which they have been charged.
It was therefore decided, unanimously, to acquit all the defendants.
Decision dated 11
November 1996 of the Court of Cassation
84. The court noted
that on 15 May 1996 the applicant had appealed against the decision of
acquittal. However, as he had not applied to join the proceedings as an
intervenor, the Assize Court had refused leave to appeal. He appealed against
this refusal on 15 June 1996.
85. The court
decided, unanimously, that the decision of the Assize Court not to grant leave
to appeal, as the applicant was not a party, was correct. The applicant’s appeal
was therefore rejected.
4. Miscellaneous
Forensic report
dated 20 May 2000 by Dr C. Milroy
86. This report was
issued on behalf of the applicant by Dr Milroy, a Reader in Forensic Pathology
at the University of Sheffield and consultant pathologist to the Home Office.
87. The report
recounted the findings of the autopsy. It noted that no organ weights were
recorded or any indication of any material being retained for toxicology or
histology. Though the cause of death was alleged to be heart failure as a result
of emboli in the heart veins, there was no description of any such finding in
the section on the chest organs. The further post mortem examination in
June 1995 found that the heart had not been opened or dissected in an
appropriate manner, that dissection to detect traumatic changes due to torture
had not been carried out and that the neck area had not been dissected in the
classical manner at the first examination (the hyoid bone and thyroid cartilage
were firm). The black and white photocopies of the photographs of the body taken
by the applicant were of no assistance in determining the presence of injuries.
88. The opinion was
given that the post mortem examination after the death of Mahmut Tanlı
was wholly inadequate. The conclusion of death due to heart failure appeared to
have no pathological basis. It is said that there were emboli in the coronary
veins but there is no description of any source for these emboli and no disorder
of any organs was described. If the heart was dissected at all, and this
appeared unlikely from the second examination, the so-called emboli would appear
to be post mortem clotting of blood and not an event that had occurred in
life to account for death. In any event emboli, or thrombosis, in a 22 year old
man would be exceptional and, if present, would be expected to be present in
coronary arteries not veins. The cause of death given at the first post
mortem examination could be dismissed as incorrect, based on observations of
doctors who had no pathological training or as, frankly, made up as the heart
did not appear to have been dissected.
89. While no fresh
injuries were identified by the doctors at the first examination, in view of the
incompetent nature of the examination, it had to be questioned whether subtle
changes would have been detected. If such injuries were present on the skin,
they would not have been visible to the pathologists carrying out the second
examination a year later.
90. The possibility
that Mahmut Tanlı met his death as the result of torture had to be strongly
considered. Techniques such as neck holds leave subtle signs in the neck which
require detailed and appropriate dissection which was not carried out. The
absence of injury to the hyoid bone and thyroid cartilage were not conclusive as
the structures were cartilaginous and less liable to fracture than in an older
person. Another possibility was some form of restraint asphyxia or positional
asphyxia where significant pathological findings were absent or minimal and
needed careful consideration. Post mortem techniques existed for that but
were not used. Another possibility was the application of electrical current,
which left subtle skin changes that required careful examination for detection.
The autopsy was inadequate for that purpose.
91. It was concluded
that the autopsy findings did not support a natural cause of death and no other
natural cause of death was identified. In the absence of a natural cause of
death, unnatural causes had to be strongly considered. However, the first
autopsy was inadequate to identify specifically subtle forms of torture or
ill-treatment that could lead to death.
II. RELEVANT DOMESTIC
LAW AND PRACTICE
92. The principles
and procedures relating to liability for acts contrary to the law may be
summarised as follows.
A. Criminal
prosecutions
93. Under the
Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide
(Articles 61 and 62) constitute criminal offences. It is also an offence for a
government employee to subject someone to torture or ill-treatment (Article 243
in respect of torture and Article 245 in respect of ill-treatment). The
authorities’ obligations in respect of conducting a preliminary investigation
into acts or omissions capable of constituting such offences that have been
brought to their attention are governed by Articles 151 to 153 of the Code of
Criminal Procedure. Offences may be reported to the authorities or the security
forces as well as to public prosecutors’ offices. The complaint may be made in
writing or orally. If it is made orally, the authority must make a record of it
(Article 151).
If there is evidence
to suggest that a death is not due to natural causes, members of the security
forces who have been informed of that fact are required to advise the public
prosecutor or a criminal court judge (Article 152). By Article 235 of the
Criminal Code, any public official who fails to report to the police or a public
prosecutor’s office an offence of which he has become aware in the exercise of
his duty is liable to imprisonment.
A public prosecutor
who is informed by any means whatsoever of a situation that gives rise to the
suspicion that an offence has been committed is obliged to investigate the facts
in order to decide whether or not there should be a prosecution (Article 153 of
the Code of Criminal Procedure).
94. In the case of
alleged terrorist offences, the public prosecutor is deprived of jurisdiction in
favour of a separate system of State Security prosecutors and courts established
throughout Turkey.
95. If the suspected
offender is a civil servant and if the offence was committed during the
performance of his duties, the preliminary investigation of the case is governed
by the Law of 1914 on the prosecution of civil servants, which restricts the
public prosecutor’s jurisdiction ratione personae at that stage of the
proceedings. In such cases it is for the relevant local administrative council
(for the district or province, depending on the suspect’s status) to conduct the
preliminary investigation and, consequently, to decide whether to prosecute.
Once a decision to prosecute has been taken, it is for the public prosecutor to
investigate the case.
An appeal to the
Supreme Administrative Court lies against a decision of the Council. If a
decision not to prosecute is taken, the case is automatically referred to that
court.
96. By virtue of
Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the
authority of the governor of a state of emergency region, the 1914 Law (see
preceding paragraph) also applies to members of the security forces who come
under the governor’s authority.
97. If the suspect
is a member of the armed forces, the applicable law is determined by the nature
of the offence. Thus, if it is a “military offence” under the Military Criminal
Code (Law no. 1632), the criminal proceedings are in principle conducted in
accordance with Law no. 353 on the establishment of courts martial and their
rules of procedure. Where a member of the armed forces has been accused of an
ordinary offence, it is normally the provisions of the Code of Criminal
Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to
14 of Law no. 353).
The Military Criminal
Code makes it a military offence for a member of the armed forces to endanger a
person’s life by disobeying an order (Article 89). In such cases civilian
complainants may lodge their complaints with the authorities referred to in the
Code of Criminal Procedure (see paragraph 93 above) or with the offender’s
superior.
B. Civil and
administrative liability arising out of criminal offences
98. Under section 13
of Law no. 2577 on administrative procedure, anyone who sustains damage as a
result of an act by the authorities may, within one year after the alleged act
was committed, claim compensation from them. If the claim is rejected in whole
or in part or if no reply is received within sixty days, the victim may bring
administrative proceedings.
99. Article 125 §§ 1
and 7 of the Constitution provides:
“All acts or decisions
of the authorities are subject to judicial review ...
The authorities shall
be liable to make reparation for all damage caused by their acts or measures.”
That provision
establishes the State’s strict liability, which comes into play if it is shown
that in the circumstances of a particular case the State has failed in its
obligation to maintain public order, ensure public safety or protect people’s
lives or property, without it being necessary to show a tortious act
attributable to the authorities. Under these rules, the authorities may
therefore be held liable to compensate anyone who has sustained loss as a result
of acts committed by unidentified persons.
100. Article 8 of
Legislative Decree no. 430 of 16 December 1990, the last sentence of which was
inspired by the provision mentioned in the preceding paragraph, provides:
“No criminal,
financial or legal liability may be asserted against ... the governor of a state
of emergency region or by provincial governors in that region in respect of
decisions taken, or acts performed, by them in the exercise of the powers
conferred on them by this legislative decree, and no application shall be made
to any judicial authority to that end. This is without prejudice to the rights
of individuals to claim reparation from the State for damage which they have
been caused without justification.”
101. Under the Code
of Obligations, anyone who suffers damage as a result of an illegal or tortious
act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss
(Article 47). The civil courts are not bound by either the findings or the
verdict of the criminal court on the issue of the defendant’s guilt (Article
53).
However, under
section 13 of Law no. 657 on State employees, anyone who has sustained loss as a
result of an act done in the performance of duties governed by public law may,
in principle, only bring an action against the authority by whom the civil
servant concerned is employed and not directly against the civil servant (see
Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of
Obligations). That is not, however, an absolute rule. When an act is found to be
illegal or tortious and, consequently, is no longer an “administrative act” or
deed, the civil courts may allow a claim for damages to be made against the
official concerned, without prejudice to the victim’s right to bring an action
against the authority on the basis of its joint liability as the official’s
employer (Article 50 of the Code of Obligations).
C. Requirements
concerning post mortem examinations
102. Article 79 of
the Turkish Code on Criminal Procedure provides:
“Official examination
of a corpse must be made in the presence of a physician. An autopsy shall be
performed in the presence of a judge and in those case where it is necessary to
avoid prejudicial delay, the autopsy shall be performed by two physicians in the
presence of the public prosecutor, at least one of the physicians being a
forensic practitioner.
In an emergency
situation, the operation may be conducted by one doctor only.”
III. RELEVANT
INTERNATIONAL REPORTS AND TEXTS
A. Investigations
by the European Committee for the Prevention of Torture
103. By the end of
1999, the European Committee for the Prevention of Torture (CPT) had carried out
eight visits to Turkey. The two first visits in 1990 and 1991 were ad hoc
visits considered necessary in the light of the considerable number of reports
received from a variety of sources, containing allegations of torture or other
forms of ill-treatment of persons deprived of their liberty, in particular,
relating to those held in police custody. A third periodic visit took place at
the end of 1992. Further visits took place in October 1994, August and September
1996, October 1997 and February-March 1999. The CPT’s reports on these visits,
save the last two, have not been made public, such publication requiring the
consent of the State concerned, which has not been forthcoming.
104. The CPT has
issued two public statements.
105. In its public
statement adopted on 15 December 1992, the CPT concluded that torture and other
forms of severe ill-treatment were important characteristics of police custody.
On its first visit in 1990, the following types of ill-treatment were constantly
alleged: Palestinian hanging, electric shocks, beating of the soles of the feet
(“falaka”), hosing with pressurised cold water and incarceration in very small,
dark, unventilated cells. Its medical examinations disclosed clear medical signs
consistent with very recent torture and other severe ill-treatment of both a
physical and psychological nature. The on-site observations in police
establishments revealed extremely poor material conditions of detention.
On its second visit
in 1991, it found no progress had been made in eliminating torture and
ill-treatment by the police. Many persons made complaint of similar types of
ill-treatment – an increasing number of allegations were heard of forcible
penetration of bodily orifices with a stick or truncheon. Once again, a number
of the persons making such claims were found on examination to display marks or
conditions consistent with their allegations. On its third visit from 22
November to 3 December 1992, its delegation was inundated with allegations of
torture and ill-treatment. Numerous persons examined by its doctors displayed
marks or conditions consistent with their allegations. It listed a number of
these cases. On this visit, the CPT had visited Adana, where a prisoner at Adana
prison displayed haematomas on the soles of his feet and a series of vertical
violet stripes (10 cm long, 2 cm wide) across the upper part of his back,
consistent with his allegation that he had recently been subjected to falaka and
beaten on the back with a truncheon while in police custody. In Ankara police
headquarters and Diyarbakır police headquarters, it found equipment consistent
with use in torture and the presence of which had no other credible explanation.
The CPT concluded in its statement that “the practice of torture and other forms
of severe ill-treatment of persons in police custody remains widespread in
Turkey”.
106. In its second
public statement issued on 6 December 1996, the CPT noted that some progress had
been made over the intervening four years. However, its findings after its visit
in 1994 demonstrated that torture and other forms of ill-treatment were still
important characteristics of police custody. In the course of visits in 1996,
CPT delegations once again found clear evidence of the practice of torture and
other forms of severe ill-treatment by police. It referred to its most recent
visit in September 1996 to police establishments in Adana, Bursa and Istanbul,
when it also went to three prisons in order to interview certain persons who had
very recently been in police custody in Adana and Istanbul. A considerable
number of persons examined by the delegations’ forensic doctors displayed marks
or conditions consistent with their allegations of recent ill-treatment by the
police, and in particular of beating of the soles of the feet, blows to the
palms of the hands and suspension by the arms. It noted the cases of seven
persons who had been very recently detained at the Anti-Terror Department at
Istanbul Police Headquarters which ranked among the most flagrant examples of
torture encountered by CPT delegations in Turkey. They showed signs of prolonged
suspension by the arms, with impairments in motor function and sensation which,
in two persons who had lost the use of both arms, threatened to be irreversible.
It concluded that resort to torture and other forms of severe ill-treatment
remained a common occurrence in police establishments in Turkey.
B. The United
Nations Model Autopsy Protocol
107. The Manual on
the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions adopted by the United Nations in 1991 includes a Model Autopsy
Protocol aimed at providing authoritative guidelines for the conduct of
autopsies by public prosecutors and medical personnel. In its introduction, it
noted that an abridged examination or report was never appropriate in
potentially controversial cases and that a systematic and comprehensive
examination and report were required to prevent the omission or loss of
important details:
“It is of the utmost
importance that an autopsy performed following a controversial death be thorough
in scope. The documentation and recording of those findings should be equally
thorough so as to permit meaningful use of the autopsy results.”
108. In part 2(c),
it stated that adequate photographs were crucial for thorough documentation of
autopsy findings. Photographs should be comprehensive in scope and confirm the
presence of all demonstrable signs of injury or disease commented upon in the
autopsy report.
THE LAW
I. THE COURT’S
ASSESSMENT OF THE FACTS
A. General
Principles
109. In assessing
evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such
proof may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact. In this
context, the conduct of the parties when evidence is being obtained has to be
taken into account (Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 65, § 161).
110. The Court is
sensitive to the subsidiary nature of its role and must be cautious in taking on
the role of a first instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see e.g. McKerr v. the
United Kingdom [decision], no. 28883/95, 4 April 2000). Where domestic
proceedings have taken place, it is not the Court’s task to substitute its own
assessment of the facts for that of the domestic courts and, as a general rule,
it is for those courts to assess the evidence before them (see the Klaas v.
Germany judgment of 22 September 1993, Series A no. 269, p. 17, § 29). Though
the Court is not bound by the findings of domestic courts, in normal
circumstances it requires cogent elements to lead it to depart from the findings
of fact reached by those courts (see the Klaas judgment cited above, p. 18, §
30).
111. Where
allegations are made under Articles 2 and 3 of the Convention, however, the
Court must apply a particularly thorough scrutiny (see, mutatis mutandis,
the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 24, §
32). When there have been criminal proceedings in the domestic courts concerning
those same allegations, it must be borne in mind that criminal law liability is
distinct from international law responsibility under the Convention. The Court’s
competence is confined to the latter. Responsibility under the Convention is
based on its own provisions which are to be interpreted and applied on the basis
of the objectives of the Convention and in the light of the relevant principles
of international law. The responsibility of a State under the Convention,
arising for the acts of its organs, agents and servants, is not to be confused
with the domestic legal issues of individual criminal responsibility under
examination in the national criminal courts. The Court is not concerned with
reaching any findings as to guilt or innocence in that sense.
B. The Court’s
evaluation in this case
1. Background
112. On 27 June
1994, the Doğubeyazit gendarmes carried out a search at Örtülü village. At the
end of the search, they left, having taken the applicant’s son, 22 year old
Mahmut Tanlı into custody. While the applicant’s initial statements to the HRA
refer to the 26 June 1994, this appears to have been an error, the applicant’s
later documents giving the date as 27 June 1994.
113. Mahmut Tanlı
had performed his military service between 27 January 1992 and 27 June 1993.
There was no entry in the military records of any health problems or treatment.
The applicant and other villagers, later questioned, were unanimous that Mahmut
Tanlı had not suffered from any health problems or illness. The Government have
not provided any information to counter this evidence. The Court is satisfied
therefore that when Mahmut Tanlı was detained he was in good health with no
history of medical problems.
2. Detention of
Mahmut Tanlı at the Uluyol police station
114. According to
the evidence of the police officers, Mahmut Tanlı was handed over by the
gendarmes to the police at the Uluyol police station at about 9.30 p.m. on 27
January 1994. He was suspected by them of supporting the PKK as a member of
their militia. The Court observes that the police statements make reference to
the alleged confession of Ahmut Akkuş dated 7 February 1994 which named Mahmut
Tanlı as a PKK supporter. It was also claimed that a list including Mahmut
Tanlı’s name had been found amongst PKK members killed during a clash. Ahmut
Akkuş later retracted this confession when called before the Assize Court. The
applicant strenuously denied that his son was involved in any wrongdoing. It is
not for the Court, however, to resolve this issue which would have been,
properly, for the domestic courts to determine during criminal proceedings.
Nevertheless, it finds no reason to doubt that the reason for Mahmut Tanlı’s
detention was the suspicion of PKK involvement or an intention to question him
to find out information about PKK activities in the area.
115. There were
three police officers involved in interrogating Mahmut Tanlı – Superintendent
Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar, the last of whom claimed that he
did not himself participate in the questioning. According to Ali Gündoğdu (see
the record of the incident at paragraph 30 and his statement of 30 June at
paragraph 39 above), Mahmut Tanlı was not questioned on the day of his arrest
but late the next day, shortly before he collapsed and died. The statements of
Ökkeş Aybar and Murat Demirpençe were also consistent on this point (see
paragraphs 40 and 41 above). The Court would note that this is not supported by
any documentary records concerning events during custody. It was found in the
Salman case (Salman v. Turkey, no. 21986/93 [GC], § 16, ECHR 2000-VII),
which also concerned the death of a detainee in police custody, that no
documentary records existed to record the movements of detainees from their
cells, for example, noting times of interrogations. However, there is no
evidence which would substantiate any suspicion that this version of events was
self-serving and intended to minimise the contact which the police officers in
fact had with Mahmut Tanlı.
116. According to
the evidence of Ali Gündoğdu and Murat Demirpençe, the interrogation of Mahmut
Tanlı commenced at about 9 p.m. No times are mentioned again, until the public
prosecutor recorded in the report of the incident and the autopsy report that he
had been informed of the death at about 10.30 p.m. What happened in between lay
within the knowledge of the three interrogating officers. There were three other
police officers in the adjacent room who witnessed some of the events, and there
was Dr Ağralı who arrived to give treatment. His statement however made no
reference to the time at which he arrived at the police station.
117. The account
given by the three interrogating officers was that, after only a matter of
minutes into the interrogation, Mahmut Tanlı reacted to the allegations put to
him of PKK involvement by becoming agitated and pale, stammering and then
collapsing with difficulties in breathing. The police officers Ömer Güzel, Cafer
Yiğit and Nihat Acar also agreed that Ali Gündoğdu had only been in the room
about 10 to 15 minutes before coming out to request a doctor. They all agreed
that within another ten or so minutes Cafer Yiğit returned with Dr Ağralı from
the nearby Doğubeyazit State Hospital. Within a few minutes, however, the doctor
announced that Mahmut Tanlı had stopped breathing. Cardiac massage and
artificial respiration continued for about half an hour without any result. All
the police officers denied that any ill-treatment, violence or torture had
occurred.
118. The post
mortem report drawn up that night recorded that there were no signs of blows
or violence on the body and that death was from heart failure. The failings in
that examination will be examined below. The second report drawn up almost a
year later was unable to reach any conclusions as to the presence of signs of
torture due to the advanced putrefaction of the body. The photographs provided
by the applicant are not conclusive - they show some marks, which may or may not
be the result of ill-treatment; their dating and whether they were post
mortem changes are not established. Similarly, the statements of the
applicant and his uncle Ahmet Tanlı to the HRA which referred to seeing marks on
the body cannot be conclusive either. They were not apparently repeated to the
public prosecutor or before the court, while the applicant’s undated statement
to the public prosecutor laid emphasis on the types of torture which left no
visible marks (see paragraph 36 above).
119. The applicant’s
claim that his son was tortured to death is based largely on inference from the
fact that he was perfectly healthy before he entered detention and that the
likelihood of a healthy 22-year-old dying instantly of a heart attack is
minimal. There is also the consideration that use of torture on PKK detainees in
police custody was found by the CPT to be widespread at the time (see paragraphs
103-106 above).
120. While the cause
of death was attributed to an embolus in the blood vessels of the heart which
caused heart failure, this finding has come under strong criticism from the
İstanbul Forensic Medicine Institute and Dr C. Milroy, a forensic pathologist
whose opinion was submitted by the applicant. From these, it appears that:
– the organs were
not removed or weighed;
– the heart was not
dissected;
– the neck area had
not been dissected;
– no
histopathological samples were taken or analyses conducted which might discover
signs of electrical or other forms of torture and ill-treatment;
– no toxicological
analyses were undertaken;
– no photographs
were taken;
– the findings of
emboli were not adequately described or analysed; and
– the doctors who
signed the post mortem report were not qualified forensic pathologists.
On their view, it was
not possible on the basis of the material available to ascribe the cause of
death to heart failure caused by an embolus.
121. The Court
accordingly finds that the cause of death has not been medically established in
the domestic proceedings. In particular, it has not been shown that Mahmut Tanlı
died of natural causes.
122. The standard of
proof applied by the Court is one of proof beyond reasonable doubt. It may be
supplied by inferences and unrebutted presumptions of fact. The fact whether
Mahmut Tanlı was subject to ill-treatment prior to his death is closely linked
to issues of Government responsibility for his treatment and death while in
police custody. The Court will examine together the factual and legal questions,
as they are relevant to the applicant’s substantive complaints under the
Convention set out below.
3. The
investigation
123. The
investigation was conducted by the Doğubeyazit public prosecutor. He attended
the post mortem examination, carried out by the two doctors. Its defects
have been adverted to above. He took statements from the three interrogating
officers, from the three officers who were nearby and partially witnessed the
aftermath of events, from Dr Ağrali who administered first aid, the applicant
and a number of villagers. He thought to obtain the military records of Mahmut
Tanlı and made some enquiries from the Doğubeyazit gendarmes. He also took a
statement from the lawyer Ahmet Gerez, who had been assisting the applicant in
presenting his petition. He did not take statements from the other detainees
held with Mahmut Tanlı at the Uluyol police station.
124. It is
undisputed that the applicant, on the advice of his lawyer, requested the public
prosecutor to send the body for further examination by the İstanbul Forensic
Medicine Institute. The public prosecutor told him that it was for him to
arrange, in particular, in securing the proper coffin for transport. The
applicant, after discussion with other members of his family, withdrew his
request and told the public prosecutor that they intended to bury the body. He
maintained this view, even though the public prosecutor asked him to reconsider
and said that it would be a helpful step in the investigation. The public
prosecutor then released the body and the applicant took it home to be buried.
125. The reason for
the withdrawal of the request were explained by the applicant in his statements:
to the HRA, he stated that it was for fear of reprisals; the note of 29 June
1994 stated that it would serve no point; in his statement taken by the public
prosecutor of 30 June 1994 he referred to difficulties and that they would be
put under pressure; before the court on 22 September 1994 he said that it was
for fear of reprisals; in the statement of 6 June 1995 taken in response to the
application before the Commission, he allegedly said that it was too burdensome
to undertake (see paragraphs 25, 38, 45, 55 and 61 above) .
Ahmet Gerez in his
statement of 30 June (paragraph 42 above) attributed it to the difficulties in
transporting the body and an unspecified anxiety as to what might happen.
126. The Court is
satisfied that the applicant withdrew due to both the inherent strain of
undertaking the responsibility for such an exercise and from associated
anxieties as to possible adverse reactions from certain quarters.
4. The court
proceedings
127. An indictment
charging the three officers Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar
issued on 3 August 1994, charging them with causing death by ill-treatment
contrary to Article 243 of the Criminal Code. The Assize Court first sat on 12
August 1994 and gave out summonses for the witnesses to be heard. On 22
September 1994, it heard evidence from two defendants (Murat Demirpençe failed
to appear), the applicant, three villagers and three police officers – Nihat
Açar, Cafer Yiğit and Ömer Güzel.
128. On 20 October
1994, evidence was heard from Murat Demirpençe. On 17 November 1994, Ahmut Akkuş
appeared, and another villager from Örtülü, and the reply to the letters
rogatory from Dr Ağrali was received. Nothing more of substance occurred until
12 February 1995 when the court decided to send the file to the İstanbul
Forensic Medicine Institute for its opinion. On 23 May 1995, following the reply
of the Forensic Medicine Institute, the court ordered the exhumation of the
body.
129. The body was
exhumed on 9 June 1995 and a post mortem examination conducted on 12 June
1995. A report dated the same day issued on the findings and was referred to the
1st Specialist Committee for it to issue its report. The court
proceedings were adjourned successively awaiting this report. On 18 January
1996, the court ordered the public prosecutor to contact the Institute
concerning the delay. On 13 March 1996, the Institute issued its report, finding
that it was not possible to establish the cause of death.
130. On 14 May 1996,
the Assize Court acquitted the three officers as the cause of death of Mahmut
Tanlı had not been established and there was no evidence beyond reasonable doubt
that they had committed the crime charged.
131. On 15 May 1996,
the applicant sought to appeal the acquittal. He was refused leave by the Assize
Court as he was not a party to the proceedings. That decision was upheld by the
Court of Appeal on 11 November 1996.
II. THE GOVERNMENT’S
PRELIMINARY OBJECTION
132. The Government
took objection to the fact that the applicant had introduced his application
before the European Commission of Human Rights before the conclusion of the
domestic proceedings. They referred to the reasoning of the Commission in its
decision on admissibility of 5 March 1996 which criticised the delays in the
proceedings and the lack of effectiveness of those proceedings and submitted
that the investigation and court procedure was diligent, thorough and effective.
Domestic remedies not only existed but were shown to have worked effectively.
133. The Court notes
that the Government do not dispute that the proceedings have now come to a
conclusion and that there is nothing more that the applicant can now do. The
substance of their arguments relate to the alleged ineffectiveness of the
procedures and whether they can be regarded as redressing the applicant’s
complaints. The Court considers that these matters fall to be examined under the
substantive provisions of the Convention invoked by the applicant.
III. ALLEGED VIOLATION
OF ARTICLE 2 OF THE CONVENTION
134. The applicant
alleged that his son Mahmut Tanlı had died as a result of torture at the hands
of police officers at the Uluyol police station. He also complained that no
effective investigation had been conducted into the circumstances of the murder.
He argued that there had been a breach of Article 2 of the Convention, which
provides:
“1. Everyone’s right
to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of
life shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any
person from unlawful violence;
(b) in order to
effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action
lawfully taken for the purpose of quelling a riot or insurrection.”
A. Submissions of
those who appeared before the Court
1. The applicant
135. The applicant
submitted that there had been a violation of Article 2 in that Mahmut Tanlı was
unlawfully killed in custody by police officers who tortured him in the course
of interrogation. The evidence to that effect was compelling as inter alia
Mahmut Tanlı was in good health when taken into custody; he had no history of
illness or disease; he was wanted by the security forces as a suspected PKK
member; he was questioned by at least three officers; the applicant, his brother
Ahmut Tanlı and the villager Mahmut Ardin saw marks of blows on the deceased’s
body; the domestic investigation was totally inadequate and failed to establish
that he died of a heart attack and there was overwhelming evidence that in the
mid-1990’s acts of torture and inhuman treatment and extra judicial killings by
State agents in Turkey were widespread and systematic.
136. The applicant
also submitted that there had been a violation of Article 2 because of the lack
of an adequate and effective investigation into the death of Mahmut Tanlı. He
argued that the autopsy carried out was wholly incomplete and inadequate,
referring inter alia to the fact that it was not carried out by or in the
presence of forensic doctors, and to the lack of any photographs. The public
prosecutor failed to refer the body to the Forensic Medicine Institute, as he
had the power to do, in spite of the applicant’s lack of consent due to fear for
his life. He also failed to take statements from all the police officers
involved in the custody period or the doctor who examined Mahmut Tanlı on entry
into custody. The statements taken were furthermore inadequate. For example, Dr
Ağralı was not asked about any bruises on the body. The court proceedings were
deficient in that there were numerous changes in the composition of the court;
there was no investigation of the applicant’s allegations that the doctors
carrying out the post mortem examination had been intimidated and an
exhumation was ordered almost one year after the death.
The applicant further
alleged that there had been a violation of Article 2 on account of the lack of
any effective State system for ensuring the protection of the right to life and
on account of the inadequate protection of the right to life in domestic law. He
referred in particular to the alleged failure to provide safeguards in the face
of known risks of torture and death in custody and a lack of effective systems
ensuring the accountability of the police for the safety of a person in
detention.
2. The Government
137. The Government
submitted that there was no evidence proving the allegation that the applicant’s
son was ill-treated and killed by agents of the State. The autopsy findings
showed no signs of lesions, trauma or fresh bruising. In the light of the
information available, it was established that Mahmut Tanlı died of a heart
attack. This was the result of a natural death and not torture by agents of the
Government.
138. The Government
submitted that the investigation into Mahmut Tanlı’s death was prompt, thorough
and effective. There was no covering up of facts. They drew attention to the
fact that the applicant did not pursue his own complaints by intervening in the
criminal proceedings against the police officers. He also objected to the body
being referred to the Forensic Medicine Institute. They pointed out that the
public prosecutor was satisfied by the autopsy that Mahmut Tanlı had died of a
heart attack and he had recommended a referral for the sake of the applicant so
that he could dispel his doubts. In those circumstances, the public prosecutor
was under no obligation to refer the body himself for further autopsy
examination. The applicant’s failure to maintain his request cannot be imputed
to the public prosecutor who acted diligently. Further, they point out that the
autopsy was carried out by two doctors who were familiar with post mortem
examination techniques and who would have withdrawn if they had considered they
had insufficient competence. Pursuant to Article 79 § 2 of the Code on Criminal
Procedure, an autopsy did not need to be carried out by two doctors, one of whom
was a qualified forensic doctor where there was an emergency situation, when one
doctor sufficed. The Government stated that no pathologist was available at the
time and the autopsy had to be carried out prior to the emergence of rigor
mortis where allegations of ill-treatment were concerned.
B. The Court’s
assessment
1. The death of
Mahmut Tanlı
139. Article 2,
which safeguards the right to life and sets out the circumstances when
deprivation of life may be justified, ranks as one of the most fundamental
provisions in the Convention, to which no derogation is permitted. Together with
Article 3 (cited at paragraph 155 below), it also enshrines one of the basic
values of the democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must therefore be
strictly construed. The object and purpose of the Convention as an instrument
for the protection of individual human beings also requires that Article 2 be
interpreted and applied so as to make its safeguards practical and effective
(see the McCann and Others v. the United Kingdom judgment of 27 September 1995,
Series A no. 324, pp. 45-46, §§ 146-147).
140. The text of
Article 2, read as a whole, demonstrates that it covers not only intentional
killing but also situations where it is permitted to “use force” which may
result, as an unintended outcome, in the deprivation of life. The deliberate or
intended use of lethal force is only one factor however to be taken into account
in assessing its necessity. Any use of force must be no more than “absolutely
necessary” for the achievement of one or more of the purposes set out in
sub-paragraphs (a) to (c). This term indicates that a stricter and more
compelling test of necessity must be employed from that normally applicable when
determining whether State action is “necessary in a democratic society” under
paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used
must be strictly proportionate to the achievement of the permitted aims (the
McCann judgment, cited above, p. 46, §§ 148-149).
141. In the light of
the importance of the protection afforded by Article 2, the Court must subject
deprivations of life to the most careful scrutiny, taking into consideration not
only the actions of State agents but also all the surrounding circumstances.
Persons in custody are in a vulnerable position and the authorities are under a
duty to protect them. Consequently, where an individual is taken into police
custody in good health and is found to be injured on release, it is incumbent on
the State to provide a plausible explanation of how those injuries were caused
(see, amongst other authorities, Selmouni v. France [GC], no. 25803/94,
ECHR 1999-V [28.7.99], § 87). The obligation on the authorities to account for
the treatment of an individual in custody is particularly stringent when that
individual dies.
142. In assessing
evidence, the general principle applied in cases has been to apply the standard
of proof “beyond reasonable doubt” (see the Ireland v. the United Kingdom
judgment of 18 January 1978, Series A no. 25, § 161). However, such proof may
follow from the co-existence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Where the events in
issue lie wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in custody, strong
presumptions of fact will arise in respect of injuries and death occurring
during that detention. Indeed, the burden of proof may be regarded as resting on
the authorities to provide a satisfactory and convincing explanation (see the
Salman case cited above, at § 100).
143. In this case,
the Court recalls that Mahmut Tanlı, 22 years old, was in good health when taken
into custody on 27 June 1994. There was no history of illness or disease. He had
completed his military service one year before without any medical problems.
However, some twenty four to thirty six hours after being taken into custody, he
died during interrogation at the Uluyol police station.
144. The official
cause of death in the post mortem examination carried out shortly
afterwards was stated as being emboli in the heart and that Mahmut Tanlı had
died of a heart attack. The report also stated that there were no signs of
ill-treatment on the body.
145. The Court
considers that the post mortem procedure was defective in fundamental
aspects (see also paragraphs 120 above and 150 below). The İstanbul Forensic
Medicine Institute which carried out a second examination of the body on 12 June
1995 noted that there had been no dissection of the heart. It concluded that in
these circumstances the findings in the first report were without scientific
value. The expert report provided by the applicant also considered that the
alleged basis for the cause of death was insufficiently recorded or detailed to
be relied on.
146. Nor did the
examination of the body rebut the allegations made by the applicant that his son
was tortured to death. No tests apt to establish the presence of subtle signs of
torture were carried out (see paragraph 150 below). As the Court has found above
(paragraph 121), the domestic post mortem procedures accordingly failed
to provide an explanation for Mahmut Tanlı’s death. It certainly cannot be
considered as established, as submitted by the Government, that he died from
natural causes. The authorities have failed to provide any plausible or
satisfactory explanation for the death of Mahmut Tanlı, a healthy 22 year old,
in police custody.
147. The Court finds
therefore that the Government have not accounted for the death of Mahmut Tanlı
during his detention at the Uluyol police station and that their responsibility
for his death is engaged.
It follows that there
has been a violation of Article 2 of the Convention in that respect.
2. Alleged
inadequacy of the investigation
148. The Court
reiterates that the obligation to protect the right to life under Article 2 of
the Convention, read in conjunction with the State’s general duty under Article
1 of the Convention to “secure to everyone within [its] jurisdiction the rights
and freedoms defined in [the] Convention”, requires by implication that there
should be some form of effective official investigation when individuals have
been killed as a result of the use of force (see, mutatis mutandis, the
aforementioned McCann and Others v. the United Kingdom judgment, § 161, and the
Kaya v. Turkey judgment of 19 February 1998, Reports of Judgments and
Decisions 1998-I, p. 329, § 105).
149. In that
connection, the Court points out that the obligation mentioned above is not
confined to cases where it is apparent that the killing was caused by an agent
of the State. The applicant, the father of the deceased, lodged a formal
complaint about the death with the competent investigation authorities, alleging
that it was the result of torture. Moreover, the mere fact that the authorities
were informed of a death in custody gave rise ipso facto to an obligation
under Article 2 to carry out an effective investigation into the circumstances
surrounding the death (see, mutatis mutandis, the Ergi v. Turkey judgment
of 28 July 1998, Reports 1998-IV, p. 1778, § 82, and the Yaşa v. Turkey
judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 100). This
involves, where appropriate, an autopsy which provides a complete and accurate
record of possible signs of ill-treatment and injury and an objective analysis
of clinical findings, including the cause of death.
150. Turning to the
particular circumstances of the case, the Court observes that the autopsy
investigation was of critical importance in determining the facts surrounding
Mahmut Tanlı’s death. This investigation, while launched promptly by the public
prosecutor, has been shown to be defective in a number of fundamental respects.
In particular, the organs were not removed or weighed; the heart was not
dissected; the neck area had not been dissected; no histopathological samples
were taken or analyses conducted which might discover signs of electrical or
other forms of torture and ill-treatment; no toxicological analyses were
undertaken; no photographs were taken and the finding of the emboli was not
adequately described or analysed. It also appears that the doctors who signed
the post mortem report were not qualified forensic pathologists,
notwithstanding the provision in the Code of Criminal Procedure which required
the presence of a forensic doctor. The Government have relied on the second
paragraph of that provision concerning emergencies. However, the Court is not
satisfied that the perceived need for the examination to take place before rigor
mortis set in justified proceeding without the involvement of a forensic doctor.
The importance that an effective investigation be carried out into a death,
possibly resulting from ill-treatment, necessitated that a properly qualified
forensic expert be involved. Even if such a doctor was not available in the
immediate aftermath of the death, no explanation has been given for failing to
continue the examination in the presence of such an expert within the following
days.
151. Referral of the
body to the İstanbul Forensic Medicine Institute within a short time of death
might have remedied the shortcomings identified above. By the time of the second
examination in June 1995 the body was too decomposed for any useful findings to
be made about signs of possible torture or ill-treatment or the cause of death.
The Government have alleged that the public prosecutor was under no obligation
to obtain such an examination as the first report concluded that the death was
caused naturally. They asserted that it was for the applicant to obtain such an
examination and that the authorities cannot be blamed for his decision to
withdraw his request for referral.
152. The Court
considers that the primary responsibility for implementing the necessary
investigative steps into a death in custody lies with the responsible
authorities. The public prosecutor did not require the applicant’s consent to
obtain a referral. Where the post mortem examination was not carried out
by a qualified forensic expert, the death was prima facie suspicious
given the age and state of health of the deceased and the family were alleging
torture, the public prosecutor should have taken steps to secure a further
examination. Since, notwithstanding the putative reliance on the first post
mortem report, a prosecution was being prepared, the suspicious nature of
the death was accepted by the public prosecutor. The indictment however referred
to the death being possibly caused by fear, with no medical or expert report to
support this hypothesis.
153. In the light of
the defective forensic investigation, it was not surprising that the court
proceedings resulted in the acquittal for lack of evidence of the three police
officers who had been interrogating Mahmut Tanlı before he died. While the
Government also referred to the applicant’s failure to join the proceedings as
an intervenor, it is not apparent that this would have altered the course of the
trial in any material way. Even if he had been able to appeal to the Court of
Cassation, which would have had the power to remit the case for reconsideration
by the first instance court, this would have had no effective prospect of
clarifying or improving the evidence available in respect of the cause of death.
154. The Court
concludes that the authorities failed to carry out an effective investigation
into the circumstances surrounding Mahmut Tanlı’s death. It holds that there has
been a violation of Article 2 of the Convention in this respect also.
IV. ALLEGED VIOLATIONS
OF ARTICLE 3 OF THE CONVENTION
155. The applicant
complained that his son was tortured before his death, invoking Article 3 of the
Convention which provides:
“No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.”
156. The applicant
submitted that his son had been tortured in custody and denied access to
adequate medical treatment. He pointed out that his son was in good health when
he entered custody with no history of heart disease or other illness and that he
had been questioned by the police, following which he had died. He and several
others had seen marks on the body. The investigation had failed to show that his
son had died of natural causes and there was overwhelming evidence that acts of
torture and inhuman treatment by State agents in Turkey were widespread and
systematic at that time. This had to be sufficient to reach the necessary
standard of proof, bearing in mind the difficulties of proving torture in police
custody.
The applicant also
invoked Article 3 in respect of the failure of the authorities to carry out an
adequate and effective investigation into the allegations of torture and in
respect of the anguish and distress suffered by the applicant in the face of the
authorities’ complacency in relation to his son’s death (eg. Cakıçı v. Turkey,
[GC], no. 23657/94, ECHR 1999-V, §§ 98-99).
157. The Government
submitted that the allegations of torture had not been supported by any concrete
evidence and that the applicant relied mainly on the fact that his son had died
in custody and on the reports alleging practices of torture. The incision on the
body and other marks were the result of the autopsy. If his son had been
subjected to electric shock treatment or hosing, there would have been subtle
marks left which the doctors at the first post mortem examination would
have seen and recorded. All the findings from the investigation, however,
pointed to death occurring from natural causes. They disputed that there were
any failings in the investigation.
158. The Court
observes that the Government have not provided a plausible explanation for the
death of Mahmut Tanlı in custody after he had entered custody in apparent good
health (see paragraph 146 above). Unlike the case of Salman v. Turkey (cited
above, at paragraph 115) however, there are no records of marks or injuries on
the body which are consistent with the application of torture techniques. While
the applicant and other witnesses referred to seeing bruising on the body, there
is no medical substantiation that this was attributable to traumatic injury
rather than post mortem changes in the body. The forensic expert
instructed by the applicant stated himself that he could draw no conclusions
from the photographs of the body taken prior to the burial. There is therefore
no evidence, apart from the unexplained cause of death, to support a finding
that acts of torture were carried out.
159. In these
circumstances, and having regard to its conclusion under Article 2 of the
Convention, the Court does not find it appropriate to draw the inferences
proposed by the applicant as to whether torture or ill-treatment occurred. To
the extent that it is alleged that the failings in the post mortem
examination prevented any concrete evidence of ill-treatment coming to light and
thereby the identification and punishment of those responsible, the Court
considers that the complaint falls to be considered in this case under Article
13 of the Convention (see İlhan v. Turkey, [GC], no. 22277/93, ECHR
2000-VII, §§ 89-93). As regards the applicant’s submissions as to the effect
which events had on himself, the Court has no doubt of the profound suffering
caused by the death of his son. It finds no basis however for finding a
violation of Article 3 in this context, the Court’s case-law relied on by the
applicant referring to the specific phenomenon of disappearances.
160. The Court finds
that it has not been established that there has been a violation of Article 3 of
the Convention. It consequently finds no violation of that provision.
V. ALLEGED VIOLATIONS
OF ARTICLE 5 OF THE CONVENTION
161. The applicant
invoked Article 5 in respect of alleged violations disclosed by the
circumstances of his son’s detention. Article 5 provides as relevant:
“1. Everyone has the
right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by
law:
(a) the lawful
detention of a person after conviction by a competent court;
(b) the lawful arrest
or detention of a person for non- compliance with the lawful order of a court or
in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest
or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so; ...
2. Everyone who is
arrested shall be informed promptly, in a language which he understands, of the
reasons for his arrest and of any charge against him.
3. Everyone arrested
or detained in accordance with the provisions of paragraph 1 (c) of this Article
shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release may be conditioned by guarantees to appear
for trial.
4. Everyone who is
deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.
5. Everyone who has
been the victim of arrest or detention in contravention of the provisions of
this Article shall have an enforceable right to compensation.”
162. The applicant
submitted that his son’s detention was not carried out by a procedure prescribed
by law and was without any lawful justification permitted under Article 5. The
Government’s failure to create, maintain and produce adequate documentation in
relation to Mahmut Tanlı’s arrest amounted to a violation of the “lawfulness”
requirement. There was no objective, reasonable suspicion that he had been
involved in any offence, Ahmut Akkuş’s evidence having been obtained by inducing
him to sign a statement blindfolded. The finding of a “list” on dead PKK
terrorists could not form a reliable ground of suspicion either. His son had not
been informed promptly of the reasons for his arrest contrary to Article 5 § 2,
the Government having failed to produce any evidence that he was informed of the
reason for his arrest on 27 June 1994. Nor had he been brought promptly before a
judge or other relevant officers as required by Article 5 § 3 of the Convention.
The applicant also
claimed that there was a violation of Article 5 in that he was denied access to
his son and his son was denied access to a lawyer while in detention. His son
was furthermore denied access to adequate medical assistance and was unable to
challenge the lawfulness of his detention in violation of Article 5 § 4. There
was no enforceable right to compensation as required by Article 5 § 5.
163. The Government
submitted that the security forces had reasonable suspicion for depriving Mahmut
Tanlı of his liberty in order to question him as to his alleged involvement with
the PKK and its terrorist activities. Mahmut Tanlı had been taken to the police
station which was normal in such a case. There was no violation of Article 5 of
the Convention in the circumstances.
164. The Court’s
case-law stresses the fundamental importance of the guarantees contained in
Article 5 for securing the rights of individuals in a democracy to be free from
arbitrary detention at the hands of the authorities. It has reiterated in that
connection that any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law, but must
equally be in keeping with the very purpose of Article 5, namely, to protect the
individual from arbitrary detention. In order to minimise the risks of arbitrary
detention, Article 5 provides a corpus of substantive rights intended to ensure
that the act of deprivation of liberty be amenable to independent judicial
scrutiny and secures the accountability of the authorities for that measure.
165. In the present
case, the Court recalls that Mahmut Tanlı was taken into custody by gendarmes on
27 June 1994 and transferred into police custody that evening. He died some 24
hours later on 28 June 1994. The statements from the police officers and
materials from the gendarmes indicated that there was a statement dated 7
February 1994 by Ahmut Akkuş naming Mahmut Tanlı as being involved with the PKK
and that his name appeared on a list of PKK supporters found on or about 13 May
1994 by the gendarmes on the body of a dead terrorist after a clash. While Ahmut
Akkuş told the Ağrı Assize Court that he had not known what he was signing and
knew nothing about Mahmut Tanlı’s alleged involvement with the PPK, it has not
been established which of the versions he has given is in fact true. It is
possible that his testimony to the court was motivated by exculpatory
intentions. Nor are there any elements which would enable the Court in this case
to reject the account of the finding of a list of PKK supporters as a manifest
fabrication. The Court is not satisfied therefore that the security officers
acted without a reasonable suspicion that Mahmut Tanlı had committed a criminal
offence. Similarly, it is not persuaded that “unlawfulness” has been made out on
the grounds of a lack of proper documentation recording the detention. No
request was made by the applicant for the custody records to be provided. Indeed
in this case no factual issue arose regarding when or where Mahmut Tanlı was
detained.
166. As regards the
allegations of breaches of Article 5 § 2, it is not possible to establish what
information may have been given to Mahmut Tanlı or when prior to his death. It
cannot be inferred, from the absence of written proof that reasons were given,
that none were, or that he was not able, from the context, to deduce with
sufficient certainty the grounds for his detention. Concerning the allegation
under Article 5 § 3, the Court notes that Mahmut Tanlı was held in detention for
between 24-36 hours without being brought before a judge or other properly
empowered officer. It is true that there was no indication that he would have
been brought before a judge if he had not died, it being possible under Turkish
law at that time for a detainee to be held for up to 30 days. However, no
request for an extension in custody had been made and it is speculation to
assume that a violation of Article 5 § 3 would inevitably have occurred. On the
same basis, the Court is not prepared to draw the conclusion that Mahmut Tanlı
was denied the opportunity to challenge the lawfulness of his detention. In the
absence of any established violation of the other provisions of Article 5, there
is no scope for Article 5 § 5 to come into play either.
167. The Court finds
that no violation of Article 5 of the Convention has been shown to have occurred
in this case.
VI. ALLEGED VIOLATION
OF ARTICLE 13 OF THE CONVENTION
168. The applicant
asserted that he had been denied access to an effective domestic remedy and
alleges a breach of Article 13, which provides:
“Everyone whose rights
and freedoms as set forth in [the] Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.”
169. The applicant
complained that he had taken every reasonable step possible in order to ensure
that the allegations of torture and the death of his son were properly and
thoroughly investigated by the State. However, the response of the authorities
to his petitions was utterly inadequate. He repeated his submissions made under
the procedural aspect of Article 2 of the Convention (see paragraph 136 above).
The applicant further submitted that the practice of official tolerance of the
lack of effective remedies aggravated the breach of Article 13 and demonstrated
that there had been a practice of violating Article 13, referring to the
previous findings of the Convention organs in Turkish cases.
170. The Government
reaffirmed that all the necessary enquiries had been made with the required
expedition. The available evidence had not, however, corroborated the
applicant’s allegations. The public prosecutor had acted properly and it had
been for the applicant to request a further examination of the body if he so
wished.
171. The Court
reiterates that Article 13 of the Convention guarantees the availability at the
national level of a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they might happen to be secured in the domestic legal
order. Article 13 thus requires the provision of a domestic remedy to deal with
the substance of an “arguable complaint” under the Convention and to grant
appropriate relief, although the Contracting States are afforded some discretion
as to the manner in which they conform to their Convention obligations under
this provision. The scope of the obligation under Article 13 also varies
depending on the nature of the applicant’s complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be “effective” in practice
as well as in law, in particular in the sense that its exercise must not be
unjustifiably hindered by the acts or omissions of the authorities of the
respondent State (see the aforementioned Çakıcı judgment, loc. cit., §
112, and the other authorities cited there).
Given the fundamental
importance of the protection of the right to life, Article 13 requires, in
addition to the payment of compensation where appropriate, a thorough and
effective investigation capable of leading to the identification and punishment
of those responsible for the deprivation of life and including effective access
for the complainant to the investigation procedure (see the Kaya judgment cited
above, pp. 330-31, § 107).
172. On the basis of
the evidence adduced in the present case, the Court has found that the
Government are responsible under Article 2 of the Convention for the death in
custody of the applicant’s son. The applicant’s complaints in this regard are
therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v.
the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52, and
the Kaya and Yaşa judgments cited above, § 107, and p. 2442, § 113,
respectively).
173. The authorities
thus had an obligation to carry out an effective investigation into the
circumstances of Mahmut Tanlı’s death. The Court recalls its findings above
concerning the defective post mortem examination which was carried out
after the death (see paragraph 150 above). The second examination which took
place almost a year later was unable to remedy these shortcomings. The domestic
investigation failed thereby to provide an explanation for the death in custody
and undermined the effectiveness of the criminal proceedings brought against the
three police officers. For this reason, no effective criminal investigation can
be considered to have been conducted in accordance with Article 13, the
requirements of which may be broader than the obligation to investigate imposed
by Article 2 (see the Kaya judgment cited above, pp. 330-31, § 107). The Court
finds therefore that the applicant has been denied an effective remedy in
respect of the death of his son and thereby access to any other available
remedies at his disposal, including a claim for compensation. It does not
consider it appropriate to make any additional finding concerning the
applicant’s allegations of a practice of violating Article 13.
174. Consequently,
there has been a violation of Article 13 of the Convention.
VII. ALLEGED VIOLATION
OF ARTICLES 14 AND 18 OF THE CONVENTION
175. The applicant
submitted that the death of his son in custody illustrated the discriminatory
policy pursued by the authorities against Kurdish citizens and the existence of
an authorised practice, in violation of Articles 14 and 18 of the Convention
respectively.
Article 14 provides:
“The enjoyment of the
rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article 18 provides:
“The restrictions
permitted under this Convention to the said rights and freedoms shall not be
applied for any purpose other than those for which they have been prescribed.”
176. The applicant
submitted that the circumstances of the case disclosed a violation of Article 14
taken together with Articles 2, 3, 5, 13 and 18, relying on the substantial
evidence from inter alia UN agencies and non-governmental organisations
as to the systematic unlawful treatment of the Kurds in south-east Turkey.
Further, by failing to keep adequate records of his son’s detention and failing
to investigate adequately his death, the authorities had subverted the domestic
safeguards existing in relation to the detention of suspects. The lack of
effective steps taken to end the widespread and systematic violations disclosed
in this case demonstrated a breach of Article 18 of the Convention.
177. On the basis of
the facts established in this case however, the Court does not find that the
applicant has substantiated his allegations that his son was the deliberate
target of a discriminatory policy on account of his ethnic origin or that he was
the victim of restrictions contrary to the purpose of the Convention.
Accordingly, there has been no violation of the Convention in these respects.
VIII. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
178. Article 41 of
the Convention provides:
“If the Court finds
that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Pecuniary damage
179. The applicant
stated that his son Mahmut Tanlı had been married with a daughter, now 5 years’
old. In the year and a half before his death, he had worked as a driver,
chauffeuring people who had cars but no driving licences. He had worked about 5
to 6 months of the year, returning to live with his family the rest of the time.
He had an average annual income of 1,625,000,000 Turkish liras (TRL). Taking
into account his age and average life expectancy in Turkey, the calculation
according to actuarial tables resulted in the capitalised sum of 38,754.77
pounds sterling (GBP).
180. The Government
denied that any violation had been proved and asserted that there was no
convincing evidence that Mahmut Tanlı was killed deliberately. There was no
basis for awarding compensation. In any event, the sum claimed was excessive.
181. As regards the
applicant’s claims for loss of earnings, the Court’s case-law establishes that
there must be a clear causal connection between the damage claimed by the
applicant and the violation of the Convention and that this may, in the
appropriate case, include compensation in respect of loss of earnings (see,
amongst other authorities, the Barberà, Messegué and Jabardo v. Spain judgment
of 13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58, §§ 16-20;
Cakıcı v. Turkey judgment cited above, § 127).
182. A precise
calculation of the sums necessary to make complete reparation (restitutio in
integrum) in respect of the pecuniary losses suffered by an applicant may be
prevented by the inherently uncertain character of the damage flowing from the
violation (Young, James and Webster v. the United Kingdom judgment (former
Article 50) of 18 October 1982, Series A no. 55, p. 7, § 11). An award may still
be made notwithstanding the large number of imponderables involved in the
assessment of future losses, though the greater the lapse of time involved the
more uncertain the link between the breach and the damage becomes. The question
to be decided in such cases is the level of just satisfaction, in respect of
either past and future pecuniary loss, which it is necessary to award to an
applicant, the matter to be determined by the Court at its discretion, having
regard to what is equitable (Sunday Times v. the United Kingdom judgment (former
Article 50) of 6 November 1989, Series A no. 38, p. 9, § 15; Lustig-Prean and
Beckett v. the United Kingdom (just satisfaction), nos. 31417/96 and
32377/96 [Section 3] [25.7.00], ECHR 2000, §§ 22-23).
183. The Court has
found (paragraph 154 above) that the authorities were liable under Article 2 of
the Convention for Mahmut Tanlı’s death. In these circumstances, there was a
causal link between the violation of Article 2 and the loss by his widow and
child of the financial support which he provided for them. The Court notes that
the Government have not queried the amount claimed by the applicant, beyond a
general assertion that it was excessive. Having regard therefore to the detailed
submissions by the applicant concerning the actuarial basis of calculation of
the appropriate capital sum to reflect the loss of income due to Mahmut Tanlı’s
death, the Court awards the sum of GBP 38,754.77 to be held by the applicant for
Mahmut Tanlı’s widow and daughter, such sum to be converted into Turkish liras
at the rate applicable at the date of payment.
B. Non-pecuniary
damage
184. The applicant
claimed, having regard to the severity and number of alleged violations, GBP
30,000 in respect of his son’s widow and daughter and GBP 10,000 in respect of
himself for non-pecuniary damage.
185. The Government
considered that the amounts claimed were excessive and submitted that unjust
enrichment should be avoided.
186. The Court
recalls that it has found that the authorities were accountable for the death of
the applicant’s son on custody. In addition to the violation of Article 2 in
that respect, it has also found that the authorities failed to provide an
effective investigation and remedy in respect of these matters, contrary to the
procedural obligation under Article 2 of the Convention and in breach of Article
13 of the Convention. In these circumstances and having regard to the awards
made in comparable cases, the Court awards on an equitable basis the sum of GBP
20,000 for non-pecuniary damage to be held by the applicant for his son’s widow
and daughter and the sum of GBP 10,000 for non-pecuniary damage suffered by the
applicant in his personal capacity, such sums to be converted into Turkish liras
at the rate applicable at the date of payment.
C. Costs and
expenses
187. The applicant
claimed the sum of GBP 14,627 for legal fees and expenses, such sum to be paid
into his representatives’ bank account in the United Kingdom. This sum included
GBP 1,560 for translation expenses, GBP 375 for administrative costs,
professional fees for 42 hours’ work at a rate of GBP 100 for the applicant’s
lawyer in the United Kingdom and GBP 4,867 in respect of work done by lawyers in
Turkey.2
188. The Government
considered that sum was excessive and estimated on a fictitious basis. In
particular, they submitted that the hourly sum was irrelevant where legal fees
in Turkey were concerned and that the administrative expenses were
insufficiently documented. They also disputed that any sums should be paid to
the KHRP, whose role in the application was fictitious. The translation costs
were also exaggerated.
189. The Court notes
that the applicant’s representative before the Court is Mr P. Leach, a solicitor
working for the KHRP. Making an assessment on an equitable basis and having
regard to the details of the claims submitted by the applicant, it awards the
applicant the sum of GBP 12,000 plus any value-added tax that may be chargeable,
such sum to be paid into the sterling bank account in the United Kingdom as set
out in the applicant’s just satisfaction claim.3
D. Default interest
190. According to
the information available to the Court, the statutory rate of interest
applicable in the United Kingdom at the date of adoption of the present judgment
is 7,5% per annum.
FOR THESE REASONS, THE COURT
1. Dismisses
unanimously the Government’s preliminary objection;
2. Holds by six
votes to one that the Government are liable for the death of Mahmut Tanlı in
violation of Article 2 of the Convention;
3. Holds
unanimously that there has been a violation of Article 2 of the Convention on
account of the failure of the authorities of the respondent State to conduct an
effective investigation into the circumstances of the death of Mahmut Tanlı;
4. Holds
unanimously that there has been no violation of Article 3 of the Convention;
5. Holds
unanimously that there has been no violation of Article 5 of the Convention;
6. Holds by six
votes to one that there has been a violation of Article 13 of the Convention;
7. Holds
unanimously that there has been no violation of Articles 14 or 18 of the
Convention;
8. Holds by six
votes to one that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final according to Article 44
§ 2 of the Convention, the following sums, to be converted into Turkish liras at
the date of settlement:
a) by way of
compensation for pecuniary damage, 38,754 (thirty eight thousand, seven hundred
and fifty four) pounds sterling and 77 (seventy seven) pence, which sum is to be
held by the applicant for his son’s widow and child;
b) by way of
compensation for non-pecuniary damage
(i) 20,000 (twenty
thousand) pounds sterling to be held by the applicant for his son’s widow and
child;
(ii) 10,000 (ten
thousand) pounds sterling for the applicant in his personal capacity;
9. Holds
unanimously that the respondent State is to pay the applicant, within the
above-mentioned three months and into the bank account identified by him in the
United Kingdom, 12,000 (twelve thousand) pounds sterling by way of costs and
expenses, (plus any value-added tax that may be chargeable);4
10. Holds
unanimously that simple interest at an annual rate of 7.5% shall be payable from
the expiry of the above-mentioned three months until settlement of the above
sums.
11. Dismisses
unanimously the remainder of the applicant’s claims for just satisfaction.
Done in English, and
notified in writing on 10 April 2001, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
S. Dollé J.-P. Costa
Registrar President
In accordance with
Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the
partly dissenting opinion of Mr Gölcüklü is annexed to this judgment.
J.-P.C.
S.D.
PARTLY DISSENTING
OPINION OF JUDGE GÖLCÜKLÜ
(Translation)
Much to my regret, I
cannot subscribe to the majority’s conclusions in respect of points 2, 6 and 8a
of the operative provisions, for the following reasons:
1. In the instant
case there is only one material fact which must be examined and judged in
the light of the Convention, as the Court rightly found in paragraph 147 of the
present judgment. The Court states that “... the Government have not accounted
for the death of Mahmut Tanlı during his detention at the Uluyol police
station”, and deduces from this that “their responsibility for his death is
engaged”; it concludes that there has been a violation of Article 2 in its
substantive aspect (point 2 of the operative provisions).
2. The reasoning
which culminated in that conclusion can be summarised as follows: the
Government’s submission that Mahmut Tanlı died of a heart attack failed to
convince the Court, for want of an adequate and effective investigation into the
cause of his death.
3. In my opinion,
the conclusions drawn by the Court from that single “material fact”,
namely the findings of a violation of Article 2 in its substantive aspect
(paragraph 147) and of Article 13 (procedural aspect) (paragraph 174) are merely
different facets of one and the same “object”, corresponding in criminal law to
the concept of “concours idéal d’infractions” (a single act fulfilling
the conditions required to constitute various offences).
4. From that
negative fact (the lack of thorough investigations), the Court draws a positive
conclusion, as though the lack of an effective investigation had killed the
individual in question, which defies all logic. There is no causal link between
the “cause” and the “effect”.
5. What is more, the
Court did not find a violation of Article 3 (point 4 of the operative
provisions), for want of convincing evidence! Its observations on the subject
are as follows:
“The Court observes
that the Government have not provided a plausible explanation for the death of
Mahmut Tanlı in custody after he had entered custody in apparent good health
(see paragraph 146 above). Unlike the case of Salman v. Turkey (cited above, at
paragraph 115) however, there are no records of marks or injuries on the body
which are consistent with the application of torture techniques. While the
applicant and other witnesses referred to seeing bruising on the body, there is
no medical substantiation that this was attributable to traumatic injury rather
than post-mortem changes in the body. The forensic expert instructed by
the applicant stated himself that he could draw no conclusions from the
photographs of the body taken prior to the burial. There is therefore no
evidence, apart from the unexplained cause of death, to support a finding that
acts of torture were carried out.” (paragraph 158)
It adds:
“In these
circumstances, ..., the Court does not find it appropriate to draw the
inferences proposed by the applicant as to whether torture or
ill-treatment occurred. To the extent that it is alleged that the failings in
the post mortem examination prevented any concrete evidence of
ill-treatment coming to light and thereby the identification and punishment of
those responsible, the Court considers that the complaint falls to be considered
in this case under Article 13 of the Convention (see İlhan v. Turkey,
[GC], no. 22277/93, ECHR 2000-VII, §§ 89-93). As regards the applicant’s
submissions as to the effect which events had on himself, the Court has no doubt
of the profound suffering caused by the death of his son. It finds no basis
however for finding a violation of Article 3 in this context, the Court’s
case-law relied on by the applicant referring to the specific phenomenon of
disappearances.” (paragraph 159)
Is it not
contradictory to find, on the one hand, that it has not been established that
Mahmut Tanlı was ill-treated and died as a result of ill-treatment and to
assert, on the other hand, that the Government are responsible for the death and
that there has thus been a violation of Article 2 in its substantive aspect?
Moreover, the majority acknowledge implicitly, in paragraph 159 of the present
judgment (ibid.), that the only issue raised by this case under the Convention
relates to the procedural aspect of Article 2 and explains that the issue
falls to be considered under Article 13.
6. Consequently, no
separate issue arises in this case under the substantive aspect of Article 2.
I therefore consider
that the lack of an effective investigation did not amount to a violation of
Article 2 in its substantive aspect – even if there has been a violation of the
procedural aspect of that provision.
7. With regard to a
violation of Article 13, I consider that where the Court finds a violation of
Article 2 in its procedural aspect, as the majority did in the instant case, no
separate issue arises under Article 13, since the finding of a violation of
Article 2 takes account of the fact that there has been neither an effective
inquiry nor a satisfactory procedure after the incident.
For more details on
that subject, I refer to my dissenting opinion in the Ergi v. Turkey judgment of
28 July 1998 (Reports of Judgments and Decisions 1998-IV), the Akkoç v.
Turkey judgment of 10 October 2000, and the Taş v. Turkey judgment of 14 October
2000.
8. As regards an
award of compensation to the applicant for pecuniary damage, there is no
evidence to enable the Court to assess the type of damage sustained, and the
Court’s calculation on the basis of actuarial tables is purely speculative.
Since, moreover, I
consider that only the procedural aspect of Article 2 has been infringed, I can
only state that I am opposed to paying the heirs of the applicant’s son
compensation for pecuniary damage.
1. dates of service 27
January 1992 to 27 June 1993
2
Rectified on 28 August 2001. The former text reads:
“187. The applicant
claimed the sum of GBP 9,760 for legal fees and expenses, such sum to be paid
into his representatives’ bank account in the United Kingdom. This sum included
GBP 1,560 for translation expenses and GBP 375 for administrative costs and
professional fees for 42 hours’ work at a rate of GBP 100.”
3
Rectified on 28 August 2001. The former text reads:
“189. The Court notes
that the applicant’s representative before the Court is Mr P. Leach, a solicitor
working for the KHRP. Neither the rates and hours claimed nor the
administrative and translation costs appear unreasonable and the sums claimed
may be regarded as actually and necessarily incurred. Having regard to the
details of the claims submitted by the applicant, it awards the applicant the
sum of GBP 9,760 plus any value-added tax that may be chargeable, such sum to be
paid into the sterling bank account in the United Kingdom as set out in the
applicant’s just satisfaction claim.”
4
Rectified on 28 August 2001. The former text reads:
“9. Holds
unanimously that the respondent State is to pay the applicant for legal fees and
expenses, within the above-mentioned three months and into the bank account
identified by him in the United Kingdom, 9,760 (nine thousand seven hundred and
sixty) pounds sterling plus any value-added tax that may be chargeable. ” |
