Judgment (Merits and Just Satisfaction) of European Court of Human Rights, June 09, 1998 (case CASE OF TEKİN v. TURKEY)

Judge:N\/A
Defense:TURKEY
Resolution Date:June 09, 1998
SUMMARY

No violation of Art. 2 Violation of Art. 3 Not necessary to examine Art. 5-1 Not necessary to examine Art. 6-1 No violation of Art. 10 Violation of Art. 13 No violation of Art. 14 No violation of Art. 18 Non-pecuniary damage - financial award Costs and expenses partial award - Convention proceedings

 
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CASE OF TEKİN v. TURKEY

(52/1997/836/1042)

JUDGMENT

STRASBOURG

9 June 1998

In the case of Tekin v. Turkey[1],

The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A[2], as a Chamber composed of the following judges:

             Mr              R. Bernhardt, President,              Mr              Thór Vilhjálmsson,              Mr              F. Gölcüklü,              Mr              C. Russo,              Mr              J. De Meyer,              Mr              J.M. Morenilla,              Mr              L. Wildhaber,              Mr              K. Jungwiert,              Mr              V. Toumanov,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 28 March and 22 May 1998,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

  1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 27 May 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 22496/93) against the Republic of Turkey lodged with the Commission under Article 25 by a Turkish national, Mr Salih Tekin, on 14 July 1993.

    The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 2, 3, 5 § 1, 6 § 1, 10, 13, 14 and 18 of the Convention.

  2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule 30).

  3. The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 3 July 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr C. Russo, Mr J. De Meyer, Mr J.M. Morenilla, Mr L. Wildhaber, Mr K. Jungwiert and Mr V. Toumanov (Article 43 in fine of the Convention and Rule 21 § 5).

  4. As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the orders made in consequence and to the Government’s request for an extension of the time-limit for the filing of their memorial, the Registrar received the applicant’s memorial on 21 January 1998 and the Government’s memorial on 4 February 1998.

  5. Subsequently Mr R. Bernhardt, the Vice-President of the Court, replaced Mr Ryssdal, who had died on 18 February 1998, as President of the Chamber (Rule 21 § 6, second sub-paragraph).

  6. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 March 1998. The Court had held a preparatory meeting beforehand.

    There appeared before the Court:

    (a)              for the GovernmentMr              M. Özmen,              co-Agent,Mr              A. Kaya,Mr              K. Alataş,Mr              F. Polat,Ms A. Emüler,Ms M. Anayaroğlu,              Advisers;

    (b)              for the CommissionMr              H. Danelius,              Delegate;

    (c)              for the applicantMr              K. Boyle, Barrister-at-Law,Ms              A. Reidy, Barrister-at-Law,              Counsel,Mr              K. Yıldız, Kurdish Human Rights Project,              Adviser.

    The Court heard addresses by Mr Danelius, Mr Boyle and Mr Özmen, and also the Government’s replies to its questions.

    AS TO THE FACTS

    I.              THE circumstances of the case

  7. The applicant, Mr Salih Tekin, a Turkish citizen of Kurdish origin, was born in 1964 and lives in Diyarbakır. Prior to the events in question, he had been employed as a journalist for the newspaper Özgür Gündem.

    The facts in the case are disputed.

    A.              The applicant’s detention

  8. It was not disputed that in February 1993, during a visit to his family in the hamlet of Yassıtepe, the applicant was arrested, on suspicion of threatening village guards, by gendarmes under the command of Officer Harun Altın and taken to Derinsu gendarmerie headquarters.

    The applicant alleged that his arrest took place on the morning of 15 February 1993, whereas the Government claimed that it occurred on 17 February 1993.

  9. He was held at Derinsu until 19 February 1993.

    He alleged that during his time in custody there he was detained in a cell without any lighting, bed or blankets, in sub-zero temperatures, and fed with only bread and water. He claimed to have been assaulted in his cell by gendarmes, including Officer Altın. He stated that he would have died of cold had his three brothers not been permitted to enter his cell on the night of 18 February and wrapped him in extra clothing.

    The Government denied that Mr Tekin had been ill-treated. They stated that it would have been impossible for the temperature in the security room to have dropped below freezing-point, since it was situated in the centre of the building and surrounded by other units heated by coal-burning stoves. They also denied that his brothers had been allowed to join him there.

  10. On the morning of 19 February 1993, the applicant was taken to Derik district gendarmerie headquarters. He was released on the same day.

    He alleged to have been tortured at Derik, through the application of cold water, electric shocks and beatings, with the purpose of forcing him to sign a confession statement. He claimed that the district gendarmerie commander, Musa Çitil, threatened him with death if he returned to the area.

    The Government contested that any ill-treatment had taken place.

    B.                            The applicant’s complaint to public prosecutor Hasan Altun

  11. Prior to being released, Mr Tekin was brought before the public prosecutor, Hasan Altun.

    It was not disputed that he complained to Mr Altun of having been tortured and ill-treated at both Derinsu and Derik. The applicant claimed in addition that he had handed Mr Altun a wet piece of cloth with which he had been blindfolded while being hosed with water. Mr Altun recorded these allegations, but took no further action in relation to them.

  12. The Supreme Council of Judges and Prosecutors consequently decided to commence an investigation into the reasons for Mr Altun’s inaction, which led to disciplinary proceedings being launched against him. During the hearing before the Court the Government confirmed that these proceedings had not yet been concluded.

  13. Mr Tekin returned to Diyarbakır on 20 February 1993. He did not see a doctor after his release. The following week he lodged a complaint about his treatment with the Human Rights Association, which advised him to make an application to the Commission.

    C.              Criminal proceedings against the applicant

  14. Since the offence with which the applicant was charged (see paragraph 8 above) fell within the competence of the National Security Courts (see paragraph 29 below), a Derik public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır National Security Court.

    Following a hearing on 13 May 1993, the applicant was acquitted on 2 August 1993.

    D.              Proceedings against gendarmerie officers Altın and Çitil

  15. Following the Commission’s communication to the Government on 11 October 1993 of Mr Tekin’s application, the Ministry of Justice (International Law and External Relations General Directorate) contacted the public prosecutor’s office in Derik on 18 December 1993, informing it of the applicant’s complaints. A preliminary investigation was opened.

  16. Officer Altın was questioned in connection with Mr Tekin’s allegations by a public prosecutor in Daday district on 20 April 1994, at the request of the Derik public prosecutor, Bekir Özenir.

  17. Mr Özenir issued a decision of non-prosecution in relation to officers Altın and Çitil on 4 May 1994, on the grounds that there was no evidence that they had ill-treated or threatened Mr Tekin, other than the latter’s unsubstantiated allegations.

  18. However, this decision was not made final following the intervention of the Ministry of Justice, which took the view that Mr Tekin should be given the opportunity to file an appeal against it. Furthermore, because of the identities of the defendants and the nature of the allegations against them, the Ministry of Justice considered that the alleged offences might fall within the scope of the Law on the Prosecution of Civil Servants, over which the public prosecutor had no jurisdiction (see paragraph 30 below).

  19. A decision of non-jurisdiction was subsequently issued by the Derik public prosecutor’s office on 4 May 1995 and the case was referred to the Derik District Administrative Council.

  20. In this connection, on 14 July 1995, a statement was taken from Commander Çitil by a gendarmerie lieutenant-colonel.

  21. The Derik District Administrative Council submitted its summary investigation report to the office of the Mardin provincial governor on 5 September 1995. On 12 September 1995, this report was referred to the Mardin Provincial Administrative Council (see paragraph 30 below). The latter decided, on 13 September 1995, that, due to lack of evidence, officers Altın and Çitil were exempt from public prosecution.

  22. This decision was subject to an automatic appeal to the Supreme Administrative Court (see paragraph 30 below). The latter confirmed the decision of...

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