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Reflections on judgments of the European Court of Human Rights on Turkey

This report is a draft for an expertise opinion to be written in German. However, since most of the documents to be cited are in English and, because I hope that further experts can improve my theses, I have decided to draft the report in English first.

Helmut Oberdiek, July 2007

You can study this report online and jump to the headings of interest (most of the first items should be known). You can also download the draft as a word-file (*.doc) and, if you are interested in following up specific cases you can download an excel-file listing the cases related to Turkey (between January 2004 and June 2005). The comments in this file are in German. Any sort of comment is welcome. The draft can help to formulate questions for the expert opinion that may not cover all subjects mentioned here.

Table of Contents

The Basics (from the official site of the ECtHR)
Procedures (from the official site of the ECtHR)
The main provisions
General observations regarding judgments on cases from Turkey
The first hurdle: admissibility
Elements of the Study
Preparatory steps
Elements excluded from the study
(Relatively) simple issues
The difficult questions
Cases of "disappearance" and displaced people
Cases of extra-judicial executions (EJE)
The main point: TORTURE
Torture versus inhuman or degrading treatment
The problematic element: medical evidence
The case of Karagöz v. Turkey
The case of Yilmaz v. Turkey
Deaths in Custody
Fair trial (statements extracted under torture)
Establishing a pattern
The Role of Experts

The leading question stems from cases of asylum seekers from Turkey who lately are being told (simplified argument): "If you are facing political charges in Turkey you have nothing to be afraid of. If you are not guilty you will be acquitted. If you are convicted you are a 'terrorist' who does not deserve better. In case of a wrongful verdict you can correct it at the Court of Cassation. Should that fail you can apply to the European Court of Human Rights (ECtHR)."

The main question could therefore be:

"What (kind of justice) can victims of human rights violations in Turkey expect from the European Court of Human Rights?"

The Basics (from the official site of the ECtHR)

The European Convention for the Protection of Human Rights and Fundamental Freedoms was opened for signature in Rome on 4 November 1950 and entered into force in September 1953. In addition to laying down a catalogue of rights and freedoms, the Convention set up a mechanism for the enforcement of the obligations entered into by Contracting States. Three institutions were entrusted with this responsibility: the European Commission of Human Rights (set up in 1954), the European Court of Human Rights (set up in 1959) and the Committee of Ministers of the Council of Europe, the latter organ being composed of the Ministers of Foreign Affairs of the member States or their representatives.

Under the Convention in its original version, complaints could be brought against Contracting States either by other Contracting States or by individual applicants (individuals, groups of individuals or non-governmental organisations). Recognition of the right of individual application was, however, optional and it could therefore be exercised only against those States which had accepted it. Turkey did so in 1987 and, therefore, individual complaints can only be related to events after 1987.

The complaints were first the subject of a preliminary examination by the Commission, which determined their admissibility. Where an application was declared admissible, the Commission placed itself at the parties' disposal with a view to brokering a friendly settlement. If no settlement was forthcoming, it drew up a report establishing the facts and expressing an opinion on the merits of the case. The report was transmitted to the Committee of Ministers.

Where the respondent State had accepted the compulsory jurisdiction of the Court (which Turkey did in 1989), the Commission and/or any Contracting State concerned had a period of three months following the transmission of the report to the Committee of Ministers within which to bring the case before the Court for a final, binding adjudication. Individuals were not entitled to bring their cases before the Court.

If a case was not referred to the Court, the Committee of Ministers decided whether there had been a violation of the Convention and, if appropriate, awarded "just satisfaction" to the victim. The Committee of Ministers also had responsibility for supervising the execution of the Court’s judgments.

Protocol No. 11, which came into force on 1 November 1998, replaced the existing, part-time Court and Commission by a single, full-time Court. For a transitional period of one year (until 31 October 1999) the Commission continued to deal with the cases which it had previously declared admissible.

Procedures (from the official site of the ECtHR)

Any Contracting State (State application) or individual claiming to be a victim of a violation of the Convention (individual application) may lodge directly with the Court in Strasbourg an application alleging a breach by a Contracting State of one of the Convention rights.

The official languages of the Court are English and French, but applications may be submitted in one of the official languages of the Contracting States. Once the application has been declared admissible, one of the Court’s official languages must be used, unless the President of the Chamber/Grand Chamber authorises the continued use of the language of the application.

Each individual application is assigned to a Section, whose President designates a rapporteur. After a preliminary examination of the case, the rapporteur decides whether it should be dealt with by a three-member Committee or by a Chamber. A Committee may decide, by unanimous vote, to declare inadmissible or strike out an application where it can do so without further examination.

Individual applications which are not declared inadmissible by Committees, or which are referred directly to a Chamber by the rapporteur, and State applications are examined by a Chamber. Chambers determine both admissibility and merits, in separate decisions or where appropriate together.

The main provisions

Headings of substantive Articles of the European Convention of Human Rights that repeatedly occur in judgments on cases filed against Turkey are:
Article 2 Right to life
Article 3 Prohibition of torture
Article 5 Right to liberty and security
Article 6 Right to a fair trial
Article 8 Right to respect for private and family life
Article 9 Freedom of thought, conscience and religion
Article 10 Freedom of expression
Article 11 Freedom of assembly and association
Article 13 Right to an effective remedy
Article 14 Prohibition of discrimination
Protocol No. 1
Article 1 Protection of property
Article 2 Right to education
Article 3 Right to free elections

General observations regarding judgments on cases from Turkey

The work of the European Commission (and later) the Court of Human Rights is appreciated much in and outside Turkey. Certainly, the difficulties the Commission had to overcome in the beginning (for instance, when evidence was gathered in hearings held in Turkey) and the way certain standards were set regarding major human rights violations prevailing in Turkey (such as torture, extra-judicial executions, "disappearances", freedom of expression etc.) has to be honoured.

After some training many lawyers in Turkey are now familiar with the procedures and each year thousands of cases are submitted to Strasburg. One might say that the little trust the citizens in Turkey have towards the courts and judges in Turkey the higher the confidence in the judges in Strasburg is. To my mind, these expectations are not altogether justified. One reason for the misperception is the fact that only judgments in favour of the victims are reflected in the media. "Negative" decisions (ruling against a violation) have rarely been discussed in public (with the exception of the "confirmation" of dissolution of a political party and the ban on headscarves).

The first hurdle: admissibility

Article 35 of the ECHR on "Admissibility criteria" states
1 The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
2 The Court shall not deal with any application submitted under Article 34 that
a) is anonymous; or
b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.
3 The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.
4 The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

This sounds simple and straight forward, but in practice the issue is more complex. Keeping in mind that the ECtHR has defined more than 100 rules for its work someone who wants to successfully submit a case to the court in Strasburg has to know more.

In certain situations the ECtHR has ruled that it is not necessary to exhaust domestic remedies. In the judgment on Akdivar and others v. Turkey the Court concluded that under a state of emergency "it must be recognised that there may be obstacles to the proper functioning of the system of the administration of justice."

In the case of Aksoy v. Turkey the Court stated: "there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the 'generally recognised rules of international law' to which Article 26 (now 35) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal."

In the case of Selahattin Simsek v. Turkey (22490/93) the Commission declared the application inadmissible because it considered the exhaustion of domestic remedies different than the British lawyers that represented the applicant. Law 3713 of April 1991 had commuted all death penalties to prison terms. However, the sentences for some offences requiring the death penalty had been commuted to 10 years' imprisonment, while the death sentence of Mr Simsek and other Kurdish prisoners convicted under Article 125 of the Turkish Penal Code (TPC) was commuted to 20 years' imprisonment.

Relying on the principle of inequality the issue was raised with the Constitutional Court and Selahattin Simsek who according to Amnesty International had been sentenced to death after an unfair trial (and his British lawyer) waited for the verdict of the Constitutional Court believing that this was the last instance of "domestic remedies".

The Commission, however, ruled that only courts and certain institutions such as political parties can raise cases with the Constitutional Court. Since this possibility does not exist for individuals the six months' rule had started on the day Law 3713 entered into force.

In the declaration of inadmissibility the Commission also pointed to the fact that Mr Simsek had complained of torture between 1980 and 1983. Since Turkey had accepted the right to individual petitioning only in 1987 the claims brought under Article 3 of the ECHR thus were irrelevant. The claims brought under Article 6 (fair trial) were rejected because the final verdict of the Court of Cassation had been passed in February 1987, but the application had been made in June 1993 (six months' rule not observed).

Even though some of the aspects of this case do not exist in "newer" cases the problems may well demonstrate the problems applicants are faced with when appealing to Strasburg.

Elements of the Study

Preparatory steps

At the end of 2005 I carried out a research for the German section of Amnesty International (and other concerned organizations) on the question of "fair trial of political prisoners in Turkey" with the main focus on the question whether statements extracted under torture were used as evidence. Until then several country reports of the German Foreign Ministry on Turkey had maintained that "during recent years not a single (such) case has been observed". In 12 days I visited three of eight cities in Turkey that had courts to rule in political cases (formerly called state security courts) and although there was a weekend in between and two days were committed to trial observations (in other words the research lasted eight days) I collected material on 18 trials for closer examination and found out that in 12 of them statements that according to reliable allegations had been extracted under torture had been used as prime evidence without investigating the allegations of torture. In four of the remaining six cases no verdict had been passed which made it impossible to predict whether statements extracted under torture would be used as evidence.

Already in this study one of the questions had been whether the victims could get a revision of their conviction either by appealing to the Court of Cassation or forwarding their complaint to the ECtHR.

Until the end of 2005 the fair trial issue as a violation of Article 6 ECHR had only been addressed in relation to the presence of a military judge in the state security courts (a situation that changed in June 1999 by removing military judges and prosecutors from the state security courts) with the exception of three cases (Öcalan, the deputies of the Democracy Party and Hulki Günes). In these cases the ECtHR had found further abuses of Article 6 ECRH, but (without the exception of a non-political case) never ruled on the point of statements extracted under torture being used as evidence.

During my research in 2005 I also got the impression that victims of torture could not expect the ECtHR to confirm a violation of Article 3 ECHR if they had failed to obtain (at least one) medical report certifying physical traces in conformity with their allegations.

In an attempt to verify my first observations I started the study by putting together the press releases on cases from Turkey between January 2004 and June 2007. I ended up with an excel-file listing more than 700 cases of which a great deal related to Article 1 of Protocol 1 (protection of property) and often referred to more than one case (the violated Article is shortened as 1(1)). In other cases as well there were more than one applicant, but I have only mentioned the surname of the first applicant and did not always list all provisions that were considered to have been violated, not violated or not taken under scrutiny. The comments on the cases are in German and mainly for my "orientation", i.e. for an identification of the cases worth to be looked at in more detail.

Elements excluded from the study

Besides concentrating on judgments between 2004 and 2007 (there may be reference to "older" cases) I did not look into the case on "protection of property" (Article 1 of Protocol 1). Likewise, Article 3 of Protocol 1 (right to free elections) can be omitted, since it will hardly be relevant in claims for asylum. Yet, it should be noted that in 2007 the ECtHR passed two noteworthy judgments on this provision. In the Yumak and Sadak v. Turkey (application no. 10226/03) case the Court held by 5 votes to 2 that there had been no violation of Article 3 of Protocol No. 1 to the European Convention on Human Rights stating inter alias "The Court noted that the 10% threshold for obtaining seats in the Turkish parliament was laid down in section 33 of law no. 2839. It had been introduced well before the elections of 3 November 2002, so that the applicants could have foreseen that if their party did not cross the threshold they could not win any parliamentary seats, irrespective of the number of votes they obtained in their electoral constituency."

In the three complaints Kavakçi v. Turkey (application no. 71907/01), Silay v. Turkey (no. 8691/02) and Ilicak v. Turkey (no. 15394/02) the Court found a violation of Article 3 of Protocol 1, since the Constitutional Court had banned the deputies of the Bliss Party (FP = Fazilet Partisi) from becoming founder members, ordinary members, leaders or auditors of any other political party for five years, when the FP was dissolved.

Although the ECtHR has passed the most enlightening judgments on Article 10 ECHR (freedom of expression) I shall not elaborate on them. Some studies have more or less exclusively dealt with it like the project of the Human Rights Agenda Association that compared the provisions of the new Turkish Penal Code (Law 5237 of 1 June 2005) with the standards developed by the ECtHR. The texts can be found on their homepage under the banner "Reform the Penal Code".

Another interesting report was prepared for Juristras. It is entitled "Strasbourg Court Jurisprudence and Human Rights in Turkey: An Overview of Litigation, Implementation and Domestic Reform" and can be found in the Internet as a pdf-file under http://www.eliamep.gr/eliamep/files/Turkey.pdf. The author, Dilek Kurban, prepared this report looking at cases between 1996 and 2007 that made reference to minority issues. On page 13 the report states "The largest number of petitions and judgments that fall within the scope of JURISTRAS concerns the restriction of freedom of expression and the criminalization of political dissent. Out of 63 petitions filed with the court, 58 resulted in the finding of a violation and four in friendly settlements. In only one case, the seminal case of Zana, did the court not find a violation of Article 10. The vast majority of cases concern the prosecution of journalists, human rights advocates and intellectuals for expressing dissenting views on the Kurdish question, while a few concerned the criminalization of speech criticizing state’s policies on laicism. While some petitions raised Article 10 only, most of them raised Article 6 as well."

This statement of early 2007 did not realize that the number of cases in which the ECtHR voted against a violation of Article 10 has risen to at least 7 and include the following ones:
 
Dinç
42437/98
I.A.
42571/98
Hocaogullari
77109/01
Dogan
4119/02
Falakoglu
22147/02
Benli
65715/01

Like in the case of Çapan v. Turkey (No. 2) (no. 29849/02) the general line of the ECtHR can be summarized as "as long as an opinion does not exhort the use of violence or incite resistance or rebellion, and does not constitute hate-speech" the person should not be punished. Yet, there are elements that may be worth discussing. While the Court has accepted some statements of armed opposition groups, if they were printed as being protected by Article 10 (see the cases of Yildiz, no. 77641/01 and Demirel, no. 10037/03), it voted against a violation in others (examples Dogan and Falakoglu). The reason may be that some of the declarations called for the use of violence, while others did not. Another difficulty are cases in which applicants contested that their conviction was connected to their function as editors of certain publication, although the court had convicted them for "membership of an illegal organization" (the lawyer Riza Dinc was running the publishing house Komal and Mustafa Benli had been the editor-in-chief of the journal Hedef). Especially in the case of the lawyer one might get the impression that the organization PRK/Rizgari (Kurdistan Liberation Party/Liberation) was mixed up with the PKK.

More debatable are decisions concerning Article 9 (freedom of religion). Criticism can also be raised on judgments concerning Article 11 (freedom of assembly). Human Rights Watch rightfully criticized the judgment in the case of Leyla Sahin v. Turkey (application no. 44774/98) (link to the full report). The report of Juristras states on the case of the Wealth Party (RP = Refah Partisi) on page 18: "the ECtHR drew the boundaries of freedom of association. It concluded that the party constituted a serious threat to the secular regime in Turkey, justifying its dissolution in the name of protection of democracy. Thus, the ECtHR gave a very rare judgment in its overall jurisprudence, upholding the dissolution of an entire political party that had been a part of the political system for 15 and the government for two years. It is notable that, unlike in previous dissolution decisions by the Turkish Constitutional Court, the basis of this infringement was not the program or the acts of the party itself, but various statements made by its chairman and members over the course of years. In doing so, the ECtHR contradicted with its own judgment in United Communist Party where it had ruled that the dissolution of a party on the basis of its program and in the absence of any specific acts aimed at overthrowing the democratic regime was contrary to freedom of association."

Further reason for disappointment can be the cases of trade unionist who claimed that their appointment to remote places had been a sanction on their trade unionist activities. Such a measure called "sürgün" (being exiled) in Turkish was not seen as an infringement contrary to Article 11 ECHR. See the following cases:
 
Ünlü
31918/02
Akat
45050/98
Soysal
54461/00

A separate point of disappointment may be the fact that the ECtHR never ruled on a violation of Article 14 (prohibition of discrimination) except for a female lawyer that wanted to keep her surname after marriage (this point cannot be raised any more since legislation in Turkey has changed to this effect). For a discussion of Article 14 issues at the ECtHR see an article of Endre Sebok or a report by Nikolai Gughinski on the case of a gypsy against the UK.

(Relatively) simple issues

Some aspects that fall under Article 5 (right to liberty and security) and Article 6 (right to a fair trial) may lead to (relatively) simple decisions. If, for instance, someone appeals against a disciplinary measure or a fine and is not heard in court the ECtHR will attest a violation of Article 6(1) ECHR. Examples for such cases are:

Tanyar
74242/01
Arslan
75836/01
Sümer
27158/02
Önen
29782/02
Varsak
6281/02
Orhan
19497/02
Kaya
1383/02

Similarly, the ECtHR will rule on a violation of Article 6(1), if opinions of the prosecutor at the Court of Cassations are not submitted to the defendant and/or their representatives so that they can not react to it in writing. Examples are:
 
Sahin
28137/02
Tosun
4124/02
Isik
62226/00
Kaya
9007/03
Turgay
21085/02
Kaymaz
6247/03
Yeniay
14802/03

A bit more complicated are cases in which custody (at police or gendarmerie stations), the period of pre-trial detention and/or the trial itself lasted too long. From the cases in the list one might reach the conclusion that more than four (4) days in custody are considered too long. In the case of Sar and Others v. Turkey (no. 74347/01) the Court found a Violation of Article 5 § 3 for two applicants, but no violation in the case of one applicant. The detention in police custody had lasted 87 hours and 30 minutes in the case of Mahmut Öztekin and 102 hours in the case of Feyzullah Sar and Hayrettin Sar.

There is no simple rule to the maximum agreeable length of pre-trial detention that may vary according to complexity of the cases concerned. Many applications alleging a violation of Article 5 § 3 have also argued for a violation of Article 6 § 1 (length of the proceedings). To get an impression of which kind of duration the ECtHR found tolerable and which not see the following list:
 
 
 
Violation
not 
 
Kimran
61449/99
5(3)
 
MLKP, 4 years, 9 months pre-trial detention
Polat
61446/00
5(3)
 
MLKP, 5 years, 9 months pre-trial detention
Ertürk
15259/02
6(1)
 
Dev-Yol, 5 years pre-trial detention, proceedings over 21 years
Altun
73038/01
5(3), 6(1)
 
pre-trial detention 7 years, proceedings 11 years
Dereci
77845/01
5(3), 6(1)
 
pre-trial detention 7 years, proceedings 7 years
Intiba
42585/98
 
6(1)
fraud, proceedings 7 years, 11 months
Temel
40159/98
5(3), 6(1)
 
3 years, 9 months in pre-trial detention
Keçici
52701/99
 
6(1)
proceedings: 6 years, 2 months not too long
Yesiltas
52162/99
 
6(1)
proceedings: 4 years, 10 months not too long
Karabas
52691/99
 
6(1)
3 years und 9 months proceedings not too long
Tas 
21179/02
5(3), 6(1)
 
almost 9 years pre-trial detention and proceedings, PKK
Karagöz
5701/02
5(3), 6(1)
 
pre-trial detention 4 years, 4 months, proceedings 8 years, 4 months
Özata
19578/02
 
6(1)
proceedings 5 years, 10 months not too long
N.M.
35065/97
5(3)
 
23 months pre-trial detention (TDKP)
Gezici
71517/01
5(3), 6(1)
 
pre-trial detention over 5 years and over 6 years proceedings
Karakas
74798/01
6(1)
 
proceedings 5 years, 2 months
Katar
40994/98
5(3), 6(1)
 
pre-trial detention 6 years, 1 month, proceedings 7 years
Tanrikulu
60011/00
6(1)
 
proceedings 5 years, 11 months
Kiper
44785/98
6(1)
 
proceedings über 5 years
Vayiç
18078/02
5(3), 6(1)
 
pre-trial detention und proceedings 5 years
Sertkaya
77113/01
6(1)
 
proceedings 5,5 years
Agdas
77331/01
5(3), 6(1)
 
pre-trial detention 3,75 years, proceedings 7 years
Durmaz
55913/00
6(1)
6(1)
3 years pre-trial detention not too long, SSG Adana
Çobanoglu
45977/99
5(3), 6(1)
 
pre-trial detention 5 years, proceedings 6 years
Duyum
57963/00
5(3), 6(1)
 
acquittal for murder, 4 years proceedings and detention
Kosti
74321/01
5(3), 6(1)
 
juveniles in pre-trial detention 2,25 years, proceedings 2 years
Yeniay
14802/03
6(1)
6(1)
5 y. 5 m. not too long

There are many more similar cases from Turkey in just 3.5 years, but the picture would not get clearer, if they were included. It is impossible to name approximate figures or a border line for the ECtHR to decide for or against a violation of Article 5 § 3 (length of pre-trial detention) or Article 6 § 1 (length of proceedings). While in the case of juveniles 2 years in pre-trial detention and proceedings over 2 years may be termed "excessive" in other cases 3 years in pre-trial detention were found to be covered by Article 5 § 3. In one case proceedings over almost 8 years were "justified".

The following factors seem to contribute to the findings of the ECtHR: the gravity of the offence, the evidence against the defendants, prolonged proceedings with or without pre-trial detention, the age of the defendants and the way the courts justify the continuation of pre-trial detention (stereo-type reasons may easily lead to a judgment in favour of a violation).

The difficult questions

Before I get to the difficult questions (mainly violations of Article 2 and 3 ECHR, but also Article 6 relating to statement extracted under torture used as evidence) a few general remarks should be made. Most of it was said in an article entitled "The European Court of Human Rights' Jurisprudence on Issues of Forced Disappearances" by Gobind Singh Sethi to be found on the website of the Washington College of Law. Mr Sethi argued inter alias: "A comparison of the jurisprudence of the ECHR with that of the IACHR must explore three legal issues common to all forced disappearances. These issues include the legal value of finding a pattern or practice of forced disappearances; the necessary evidentiary burden to establish a violation of the right to life; and the requisite burden of proof to establish a violation of the right to be free from torture, inhuman, or degrading treatment. After concluding a pattern or practice existed and was "supported or tolerated" by the government, the IACHR stated that if the applicant could link the disappearance of a particular individual to that practice, then the "disappearance" of [a] particular individual [could] be proved through circumstantial or indirect evidence or by logical inference."

Second, as the IACHR emphasized "international protection of human rights should not be confused with criminal justice." An international human rights proceeding is civil rather than criminal in nature. The objective of international human rights law is not "to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for reparation of damages resulting from the acts of the States responsible." These objectives are identical to those in any civil proceeding. Therefore, the evidentiary burden required in most civil claims-proof by a preponderance of the evidence-should be utilized in human rights courts. Ironically, the ECHR's use of the reasonable doubt standard for torture claims has the effect of encouraging perpetrators to destroy evidence of torture. By eliminating the direct evidence, a State could shield itself from liability before the ECHR."

It is worth while to read the article as a whole, but at the moment the main ideas are: the ECtHR should not act as a criminal court that issues penalties for offences against the ECHR. The leading question should be whether applicants have a reliable case to argue that their rights were abused. What I would put second is the establishment of a pattern and the question of how much lower the burden of proof should be set.

Cases of "disappearance" and displaced people

I am not aware that the ECtHR has tried to find and define a pattern in the cases of "disappearances" in Turkey; although the list of the Human Rights Association (HRA) contains some 840 cases between 1980 and 2002 (I'm preparing a "revised" list that still has some 750 cases). It might be considered to ask expert(s) to draft a report on a pattern that might concentrate on other issues of concern as well (internal displacement, extra-judicial execution). The Human Rights Watch Briefing Paper of 4 October 2004 might give some guidance on what I would expect as a result: "Government forces drove thousands of rural farming communities out of their villages in southeast Turkey in the 1990s as part of a scorched earth policy against the illegal armed PKK. The evictions were unlawful and violent. Villagers’ homes were torched, and their crops and livestock destroyed. Security forces killed or "disappeared" scores of villagers. The Turkish army moved out any inhabitants who refused to join the paramilitary "village guards," armed and paid by the government to fight the PKK. A smaller number of communities that did join the village guards were forced to leave under the pressure of relentless PKK attacks."

After a positive reference to judgments of the ECtHR HRW in the same report continues to say: "Since 1995, in response to domestic and international criticism, the Turkish government has launched a string of projects supposedly to assist return: central villages, model villages, the Return to Village Program, the Return to Village and Rehabilitation Project. These ventures were so badly conceived, underfunded, and lacking in genuine political will that it appears they were mainly intended to deflect criticism rather than provide homes and protection."

This statement is in contrast to the ruling the Icyer v Turkey case: "The Court considered that the provisions of the Compensation Law were capable of providing adequate redress for the Convention grievances of those who were denied access to their possessions in their places of residence." After further research HRW published another report on internal displacement in December 2006. This report "Displaced Villagers Denied Fair Compensation" stated "Although a compensation law aimed at providing fair and appropriate redress to the displaced was adopted by the Turkish parliament in 2004, provincial assessment commissions have arbitrarily and unjustly reduced compensation amounts or denied compensation altogether to those displaced during counterinsurgency operations in the 1980s and 1990s."

It is evident that the Court passed the judgment, because some 1,500 similar cases were pending. In cases concerning displaced people in Cyprus the Court passed a similar judgment, but separately decided on just satisfaction. In the Xenides-Arestis v. Turkey case (application no. 46347/99) the Court held unanimously in December 2005 that Turkey should introduce a remedy, within three months, which secures, in respect of the Convention violations identified in the judgment, genuinely effective redress for the applicant as well as in relation to all similar applications (approximately 1,400) pending before the Court. Pending the implementation of general measures, the Court adjourned its consideration of all similar applications.

On 7 December 2006 the ECtHR dealt with the case again and stated "The Court welcomed the steps taken by the Turkish Government in an effort to provide redress for the violations of the applicant’s Convention rights as well as in respect of all similar applications pending before it. The Court noted that the new compensation and restitution mechanism, in principle, had taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and its judgment of 22 December 2005.

The Court pointed out that the parties in the present case had failed to reach an agreement on the issue of just satisfaction, where it would have been possible for the Court to address all the relevant issues concerning the effectiveness of the remedy in detail." The Aksakal v. Turkey case is an indication that victims of human rights abuses in Turkey cannot expect the same "sympathy" that earlier cases received. The Court regretted to be unable to attempt to establish the facts of the present case by embarking on a fact finding exercise of its own. The required evidentiary standard of proof for the purposes of the Convention was that of "beyond reasonable doubt", whereby such proof could follow from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact. The applicant had only submitted reports on destruction of property in the area.[1] Since the authors of the report by the HRA in Diyarbakir were known they could have been asked on how they obtained the information. The question could only be whether the applicant had the task to do this or whether the Court should have taken the initiative.

As Mr Sethi from the Washington College of Law pointed out the ECtHR had no experience in dealing with cases of "disappearances" until the cases from Turkey emerged. That may explain some of the difficulties in adopting a similar position to the IACHR. Only in the judgments on Timurtas v. Turkey and Cicek v. Turkey the ECtHR got somehow close to the position of the IACHR. Concerning the disappearance of Ali Ihsan, Tahsin and Cayan Cicek the Commission held two hearings in Turkey and heard eight witnesses. The results were compared with the investigation of the prosecutor and the research of the Human Rights Association. The Court concluded that the Government's claim that no operation had been carried out in the village and that Ali Ihsan and Tahsin Cicek had not been detained did not reflect the truth.

Since the unit that detained the two brothers stayed at a boarding school no records of their detention appeared, but the ECtHR concluded from earlier cases "such records cannot in general be relied upon to prove that a person was not taken into custody."

The verdict did not elaborate on the question of a pattern in cases of "disappearance" in Turkey or in the area under emergency legislation. It only described the situation as "Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan)" and continued to cite difficulties that arise from law in prosecuting members of the security forces." Citing the judgment in the Timurtas v. Turkey case the following was said on the "burden of proof": "Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody".

Among the cases judged between January 2004 and June 2007 the first one is Tekdag v. Turkey (judgment on 15.01.2004). The Court held a hearing in Ankara in 2000 and heard nine witnesses, all of them either members of the security forces or the judiciary. The specifics of this case were that only the applicant (the wife of Ali Tekdag) witnessed his detention. She could not identify a person who had informed her that he had seen her husband in custody. The authorities were unable (or unwilling) to identify two guards in front of a party building who had observed the detention. Likewise a named prisoner was never interviewed.

In summarizing the case "The Court points out that, in assessing evidence, it adopts the standard of proof "beyond reasonable doubt" (see Orhan v. Turkey, no. 25656/94, § 264, ECHR 2002). 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." While the Court detected violations of Article 13 and 38 it did not find a violation of Article 2 (and others), but a procedural violation of Article 2 which is very similar to a violation of Article 13.

Besides the "evidence" quoted in the judgment I looked at additional information (available to me). The following are excerpts from an article lawyer Serhat Bucak wrote in the daily Özgür Politika of 19 January 1997: "Ali Tekdag comes from Ergani where he ran a pastry shop. He was arrested in 1982 and convicted under Article 168(2) TPC for membership of the PKK and sentenced to six years, eight months' imprisonment. He was released in 1985. His brother Mehmet Tekdag, was an executive of HEP in Diyarbakir. He was killed by counter-guerrilla forces.

"I got to know him (Ali T.) in Zele when the KUM (Kurdistan National Assembly) was formed. After KUM was dissolved Ali Tekdag returned to Amed (Kurdish name for Diyarbakir). Until his death he was detained and tortured 19 times. The "confessors" of the PKK submitted much information about Ali to the colonialist forces. When on 14 November 1994 shots were fired at him from behind while walking with his wife and child he did not resist detention.

"His wife knocked on every door to get information, but the colonialist, genocide forces did not confirm his detention, although he was held and interrogated first at the Department to Fight Terrorism at Diyarbakir Police HQ, later at the Rapid Deployment Force and then at Pirinclik Gendarmerie Station. The intelligence officer with the code name of Boga led the interrogation. Those who want to know how this was conducted can look at the daily Evrensel of 22 January 1996 and the revelation of an officer of JITEM.

"Ali did not say what they wanted to hear and on the 120est day of his detention he was taken to an empty space and killed with a gun. His corpse was burned and buried close to a riverbed between Silvan and Diyarbakir."

This personal account of Serhat Bucak, lawyer in Istanbul, who took refuge in Europe, sounds like an insight into the disappearance of Ali Tekdag, but even though he may have known Ali Tekdag personally the "facts" are almost exclusively taken from the article in Evrensel. This is not a pro-Kurdish or pro-PKK paper and the ECtHR might easily have got closer to the "truth" by asking for further details from this paper. On the other hand, the applicant and her lawyer should also have been in a position to identify the source of the testimony.

The ECtHR found a violation of Article 2 in the case of Ipek v. Turkey (judgment on 15 February 2004). The Court held a hearing in Ankara in 2002 and heard eight witnesses. Three witnesses did not appear (for various reasons). Further to the arguments in the cases of Cicek and Tekdag the Court considered: "It is to be noted in this connection that there is no photographic or other forensic evidence to attest to the destruction of the applicant's property, no independent eye-witness account of the presence of soldiers in the hamlet on the day in question, no recent reported sightings of the applicant's sons in detention, and the documentary evidence which has been laid before the Court by both sides is no more than a reflection of their respective affirmations." and later "It cannot be excluded that many inhabitants of that region, including in the applicant's own locality, might have sympathised with the PKK cause and seized on opportunities to discredit the government forces by making unfounded allegations against them."

Summing up the Court was "satisfied on the evidence which it has assessed that there is a strong basis in fact for the applicant's claim that a military operation was conducted in the hamlet on 18 May 1994. The applicant and his witnesses have testified along consistent lines that the hamlet was set alight when the inhabitants were being held at the school, and that the soldiers returned later that day to prevent them from putting out the fires. Two military operations were carried out in the village of the disappeared shepherds on that day, one in the morning and one in the afternoon."

Being convinced that the applicant's two sons had been among six people chosen at random to help the soldiers carry their baggage but ending up in detention the Court discovered an important piece of a pattern in § 155. "This operation was not an isolated one. During that period other hamlets and villages suffered the same fate, with soldiers, again possibly from the Bolu brigade, backed up by military helicopters and vehicles, combing the area."

In § 164 the Court noted "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. Detained persons 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, Avsar, cited above, § 391). The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see Orhan, cited above, § 326)."

In § 165 the Court went on to say "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 detention, 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." (I shall get back to this point in relation to Article 3). Not necessarily an element of a pattern, but the Court also recalled "that it has held in earlier judgments that defects undermining the effectiveness of criminal law protection in the south-east during the relevant period permitted or fostered a lack of accountability of members of the security forces for their actions."

The following cases of "disappearances" resulted in judgments between Jan. 2004 and June 2007
 
15.01.2004
Tekdag
27699/95
17.02.2004
Ipek
25760/94
08.04.2004
Acar
26307/95
13.07.2004
Erkek
28637/95
17.03.2005
Türkoglu
34506/97
02.08.2005
Tanis
65899/01
20.09.2005
Özgen
38607/97
06.10.2005
Haran
28299/95
21.02.2006
Eren
57778/00
21.02.2006
Seker
52390/99
19.10.2006
Diril
68188/01
24.10.2006
Kaya
4451/02
26.04.2007
Üçak
75527/01

I have not looked at all cases that fall under the heading "disappearance" but in the majority the Court voted against a violation of Article 2. Besides the earlier mentioned case of Tekdag v. Turkey I personally find another one highly unsatisfactory. It relates to the "disappearance" of Fikri Özgen. The essence of the judgment (only in French) as reflected in the press release (in English) is "the Court considered that the allegation that Fikri Özgen had been abducted and held by State agents was hypothetical and speculative and not based on sufficiently credible evidence. In those circumstances it considered that it was not established "beyond any reasonable doubt" that Turkey’s responsibility had been engaged in the abduction and disappearance of the applicants’ relative."

As far as I understand French (also with the help of electronic translation) the following information that was publicly available prior to the judgment was not considered (possibly not submitted by the applicant) and no separate investigation was conducted by the Court. The annual report of the HRFT for the year 1997 (no page since I only have an electronic version) states:

"No information could be obtained regarding the whereabouts of Fikri Özgen, who was detained by 4 people carrying guns and in civilian clothes who checked his ID after he had left his daughter’s house on Hatboyu Street in Kosuyolu quarter of Diyarbakir around 9.30am on 27 February. He was taken to a white Renault Toros with blackened windows with a license plate of 34 BHV 60. When the relatives of Fikri Özgen, who was asthmatic, did not receive any result from their applications filed with the State of Emergency Regional Governorate, Diyarbakir Police HQ and Diyarbakir SSC Prosecution Office, they applied to Amnesty International, the Parliamentary Human Rights Commission, the HRA Headquarters, the HRA Diyarbakir Branch and the European Commission of Human Rights.

On 11 March, lawyer Mahmut Sakar, Deputy Chairman of the HRA and Chairman of HRA Diyarbakir Branch, issued a statement saying that the daughter Seniha Özgen and some shopkeepers had witnessed Özgen’s abduction, but eyewitnesses did not testify because they were afraid. Sakar said, "According to a statement by an eyewitness who was released after being detained and who wanted to be anonymous, Fikri Özgen is being kept at the Diyarbakir Branch of JITEM. The eyewitness in question stated that he saw Özgen sitting on a chair, being ill, and shouting that he was cold." Sakar added that there were also 3 other people who saw Özgen in detention.

Another witness, Ziya Özçelik, who had been kept in custody for 17 days and tortured, and whose detention was denied by the authorities, disclosed that he had seen Özgen in detention at JITEM. Making a statement from Diyarbakir Prison in March, he said that during his detention, he had seen an old man, who was laid down on a table in the corridor of JITEM, who was too exhausted, could not breathe easily, saying 'I'm ill and cold.'

Amnesty International included a shortened version in the annual report 1998 (covering 1997). Additional information became public one and half a year before the judgment was passed. The "confessor" (renegade militant of the PKK) Abdülkadir Aygan admitted to have worked as an agent of the counter-guerrilla and stated that he had knowledge of about 29 killings. One of the cases he referred to related to Fikri Özgen. In translation the passage in the daily Ülkede Özgür Gündem of 15 March 2004 read "Abdülkadir Aygan expressed that the Captain Zahit Engin who was leading the JITEM team in Diyarbakir had killed Fikri Özgen. Aygan said about the captain that he was from Canakkale. He never left his team without an occupation. At day and night people would be collected. His main duty was to kill them after interrogation. We could see what they were doing because we were in the same building. Many people were abducted and "disappeared". One of the people Zahit Engin killed was the father of the guerrilla Ferdi Özgen with the code name Ahmet. It was an old man, they took him away and killed him, but I do not know how they did it."

There may be certain doubts about what Abdülkadir Aygan revealed, but in general his remarks were found to be true (some corpses were found according to his descriptions of the case). The two pieces of information contain names of witnesses as well as the potential perpetrator. As in earlier cases the ECtHR could have tried to interview them (Mr Aygan is living in Sweden for instance).

Yet, in another case, Kaya v. Turkey (dated 22 November 2005), the Court found that the revelations of the Mr Aygan were "insufficient" and only criticized the public prosecutor in Turkey who had been unable to locate Mr Aygan.

Cases of extra-judicial executions (EJE)

Cases of extra-judicial execution decided between Jan. 2004 and June 2007 are:

30.03.2004
Sen
25354/94
09.03.2004
Boztas
40299/98
06.04.2004
Özkan
21689/92
20.04.2004
Buldan
28298/95
13.07.2004
M.K.
29298/95
27.07.2004
Agdas
34592/97
27.07.2004
Çelik
41993/98
29.07.2004
Yilmaz
35875/97
28.10.2004
Zengin
46928/99
02.11.2004
Seyhan
33384/96
18.01.2005
Mentese
36217/97
17.03.2005
Gezici
34594/97
24.03.2005
Akkum
21894/93
31.03.2005
Adali
38187/97
24.05.2005
Acar
36088/97
24.05.2005
Aydin
25660/94
31.05.2005
Akdeniz
25165/94
15.07.2005
Kaçar
35838/97
26.07.2005
Simsek
35072/97
13.09.2005
Kaplan
36749/97
22.11.2005
Kakoulli
38595/97
22.11.2005
Kaya
33420/96
10.01.2006
Biskin
45403/99
10.01.2006
Mordeniz
49160/99
21.02.2006
Memis
42953/98
28.03.2006
Perk
50739/99
25.04.2006
Erdogan
19807/92
02.05.2006
Çelebi
54182/00
20.06.2006
Esen
45626/99
27.06.2006
Ayhan
41964/98
06.07.2006
Kavak
53489/99
25.07.2006
Bilgin
40073/98
19.09.2006
Karabulut
45784/99
19.09.2006
Dinç
32597/96
19.10.2006
Yildirim
56154/00
05.12.2006
Yazici
48884/99
23.01.2007
Çardakçi
39224/98
15.02.2007
Erdogan
57049/00
05.06.2007
Anik
63758/00
12.06.2007
Ekrem
75632/01
26.06.2007
Canan
39436/98

I did not look into these cases of extra-judicial executions in detail (about half of them with a "negative" decision), but found some "conflicting" information in some of the "negative" decisions derived from other sources.

On 3 October 2006 (four months after the judgment in the case of Ayhan v. Turkey) the news agency ANF reported (translated by the HRFT): "The PKK confessor and JITEM member Abdülkadir Aygan made an announcement on the killing of Dr. Mehmet Emin Ayhan on 11 June 1992 in Silvan district of Diyarbakir. Aygan answered Ayhan’s wife Cennet Ayhan via e-mail and alleged that the killing of Dr. Mehmet Emin Ayhan was planned by Gendarmerie Commander in Diyarbakir Colonel Ismet Yediyildiz and Gendermarie Station Commander in Silvan Captain Bülent Eroglu: "I am going to tell you who was involved this incident, the things I witnessed. Cem Ersever was appointed to Ankara in 1992. He had no relation with the killing. Gendarmerie Commander in Diyarbakir Colonel Ismet Yediyildiz and Gendermarie Station Commander in Silvan Captain Bülent Eroglu, MHP follower Zahir Karadeniz, and Muhsin Topçu who was the son of MIT member Abdulkadir Topçu who was killed in Silvan. Ayhan was killed by Adil Timurtas and a confessor. They were given money by Ismet Yediyildiz and Bülent Eroglu. Adil was my neighbour. He was talking too much. Adil and Zahir Karadeniz told me about the incident." The case against Adil Timurtas and Zahir Karadeniz concerning "killings by unidentified assailants" was heard at Diyarbakir Heavy Penal Court No 3 and the court decided not to be responsible with the case in February and sent the files to 7th Army Military Court. Aygan made confessions in 2004 and 2005 concerning disappearances and killings by unidentified assailants in the region under a state of emergency."

The wife if Dr. Ayhan had first suspected Hizbullah of having committed the killing, but the information Mr Aygan gave should be a reason for the courts in Turkey as well as the ECtHR to look into the case again.

In the case of Ekrem v. Turkey the Court concluded "The Court held by six votes to one that there had been no substantive violation of Article 2 as regards the death of Süleyman Ekrem, given that it had not been established that the use of lethal force had gone beyond what was "absolutely necessary" to defend any person from violence or, in particular, to effect a lawful arrest; nor had it been established beyond a reasonable doubt that needlessly excessive force had been used."

One judge expressed a dissenting opinion and pointed at the decision of a court in Erzincan of 2 October 2000 that the shooting, which had caused the death of Süleyman Ekrem, went beyond the duties of the police force. Against this verdict the Ministry of Justice "instructed" the prosecutor at the Court of Cassation to intervene. In addition, sketches transmitted to the Court by the Government contradicted the version of the Government and, therefore, the ECtHR should decide on a violation of Article 2 in the essence and not just from a procedural point of view.

The information at my disposal is the entry on this case to the annual report 1997 of the HRFT. It states inter alias: Süleyman Ekrem, driver of a minibus, and 3 PKK militants, who reportedly took the minibus by force, were killed in the fire opened by soldiers near Pirinçli village of Pertek, Tunceli.

OHAL Governor Gökhan Aydiner stated, "Süleyman Ekrem was arrested in 1991 for supporting the organization TDKP/HK. According to the archives he was detained in 1997 for supporting the PKK. The 4 people including Ekrem fired at the security officers. 4 rifles were found in the minibus."

The statement of the Labor’s Party (EMEP) read "The State of Emergency Regional Governorate related the incident as a clash, although no shots were fired from the minibus.  Ekrem was not a PKK adherent. It has been reported that Süleyman Ekrem, who died because of the wound in the chest, had put the handbrakes on. Our member and the ones in the minibus were intentionally killed."

The Human Rights Association (IHD) Elazig Branch concluded its investigation on the killing of Süleyman Ekrem on 29 November. The report read that another PKK militant, who had been wounded in the minibus and then escaped, had been captured two days after the incident. This militant was later taken to the morgue of State Hospital. The report drew attention to the fact that the minibus had stopped properly on the road and the handbrakes had been put on. The report also said "Because of this situation, we have concluded that the minibus stopped when fire was opened against it. This gives an impression of execution, and we think that these persons could have been captured alive if the intention was so."

It is only hypothetical, but possibly the dissenting opinion (with strong arguments) could have become the vote of the majority, if the additional information had been considered.

In other EJE cases it is possible to detect some kind of inconsistency in the judgments of the ECtHR. This may be high-lighted with the cases of Berk v. Turkey and Erdogan v. Turkey. In Berk v. Turkey the Court ruled "In those circumstances, the Court considered that the use of lethal force, however regrettable, had not exceeded what was "absolutely necessary in defence of any person from unlawful violence" and, in particular, "to effect a lawful arrest". In addition, it had not been established beyond all reasonable doubt that unnecessarily excessive force had been used in this instance."

The annual report 1997 of the HRFT relates the following: "In the official statement on the raid made at noon on 9 February, it was claimed, "the house was used as a base by DHKP-C militants, three people who opened fire on the police were killed in the short fight, and five pistols were found in the house". On the other hand, Ercan Kanar, Chairman of the HRA Istanbul Branch, said that the raid was a typical extra-judicial execution. He said that the three people were killed in a short time like 10 minutes: "When we pay attention to the timing of the event, the bullet holes on the wall and the situation of the corpses, the declaration by the police that 'They opened fire disobeying the call for surrender' is hard to believe. Furthermore, even if those at home opened fire, the security forces are well equipped so as to apprehend them alive."

The ECtHR drew different conclusions in a similar case, Erdogan v. Turkey: "In sum, the Court found that in the planning and manner of execution of the operations there was a failure on the part of the national authorities to protect the right to life of the applicants’ relatives and that it had not been shown that the killing of the applicants’ relatives constituted a use of force which was no more than absolutely necessary. The applicants had therefore been the victims of a violation of Article 2."

In this case, five instead of three militants of the Revolutionary Left (Dev-Sol, later known under the abbreviation DHKP/C) had been shot dead in Istanbul. In both cases the official version had been "killed in a clash". The only difference between these cases seems to be the autopsy reports in the second incident that an independent expert may have prepared. He excluded the possibility that the deceased militants had entered a "clash".

If there was (and maybe is) a policy of killing members of armed opposition groups rather than apprehending them this can be established as a pattern. Reports of Amnesty International and HRW can provide some guidance (an AI report on EJE in the 1980s can be found on my private wiki: http://ob.nubati.net/wiki/index.php?title=Extra-judicial_ExecutioAI r One simple aspect may then be guidance for a determination whether the right to life was violated or not: if, as the government maintains, there was a clash, then police officers should at least be injured with bullets. If not, this would be a clear indication that no clash occurred and the raid "constituted a use of force which was more than absolutely necessary."

The main point: TORTURE

While it is disappointing for the applicants if they are told that the authorities have no responsibility for the deaths (disappearances, EJE, I have not dealt with deaths in custody yet) and the ECtHR only finds shortcomings in the investigation of these cases sometimes amounting to a procedural violation of Article 2, the negative judgments of the ECtHR on torture paint an even "darker" picture. One can get the impression that many people in Turkey, in particular people who have been tried on political charges, have only one aim that is to slander Turkey. This contradicts the hope of potential victims to find a justice in Strasburg that they could not get in Turkey. Since they have to wait until domestic remedies are exhausted they certainly must be convinced that their rights were violated, before they filed their cases in Strasburg.

In the following list of cases examined under Article 3 (ban of torture) I have not included the cases in which complainants argued that their grievance (for instance about the loss of a close relative) amounted to a violation of Article 3, in other words I have only listed complaints about torture in detention or prison. I have also not included the cases that resulted in "friendly settlements". As a separate issue I also excluded the cases of prisoners suffering from the Wernicke-Korsakoff disease.

Judgments on violations of Article 3 between January 2004 and June 2007
 
Violation
No violation
08.01.2004
Çolak
08.04.2004
Sadak
08.01.2004
Filizer
27.05.2004
Yurttas
03.06.2004
Bati
26.10.2004
Çelik
22.06.2004
Aydin
30.11.2004
A.K.
22.06.2004
Sahmo
21.12.2004
Tepe
01.07.2004
Bakbak
22.03.2005
Ay
20.07.2004
Yüksel
26.04.2005
Müslim
27.07.2004
A.
20.09.2005
Baltas
26.10.2004
Çelik
20.09.2005
Frik
02.11.2004
Yaman
20.09.2005
Sevgin
25.01.2005
Sunal
25.10.2005
Tekin
03.02.2005
Biyan
08.11.2005
Karagöz
03.02.2005
Sahin
24.01.2006
Yasar
31.05.2005
Gültekin
02.03.2006
Turan
07.06.2005
Dalan
02.03.2006
Bulut
28.06.2005
Karakas
11.04.2006
Uçar
12.07.2005
Önder
22.06.2006
Gökçe
20.09.2005
Dizman
08.08.2006
D.A.
20.09.2005
Karayigit
08.08.2006
Yilmaz
04.10.2005
Cangöz
19.10.2006
Öktem
13.10.2005
Günaydin
05.12.2006
Güzel-Zeybek
18.10.2005
Akdogdu
05.12.2006
Yildiz
20.10.2005
Aslan
12.12.2006
Mete
10.01.2006
Güler
12.12.2006
Kirkazak
10.01.2006
Yavuz
23.01.2007
Çetinkaya
12.01.2006
Yavuz
30.01.2007
Gündogan
21.02.2006
Bilen
20.02.2007
Toprak
21.02.2006
Çalisir
20.02.2007
Aydin
21.02.2006
Doganay
06.03.2007
Çiloglu
02.03.2006
Demir
26.04.2007
Çiftçi
11.04.2006
Demirel
03.05.2007
Soysal
04.04.2006
Akkurt
10.05.2007
Atici
04.05.2006
Saygili
26.06.2007
Timur
22.06.2006
Karakas
22.06.2006
Köylüoglu
22.06.2006
Uçkan
27.06.2006
Avci
21.09.2006
Söylemez
17.10.2006
Öner
17.10.2006
Göçmen
19.10.2006
Öktem
31.10.2006
Yilmaz
05.12.2006
Ataman
05.12.2006
Yildiz
19.12.2006
Türkmen
16.01.2007
Tosun
20.02.2007
Özcan
06.03.2007
Yagiz
12.04.2007
Güven
12.04.2007
Özen
12.04.2007
Uslu
03.05.2007
Koçak
03.05.2007
Yildirim
31.05.2007
Kurt
05.06.2007
Yilmaz
05.06.2007
Yildiz
12.06.2007
Koç

There are approximately twice as many judgments attesting a violation of Article 3 than judgments where no violation of Article 3 could be found. My impression that applicants that had no medical report to back up their claim had no change of getting a judgment on a violation of Article 3 was basically conformed. I have to add that people in possession of medical reports not necessarily can "win" their cases, because the ECtHR may also find that the injuries certified in such reports are not in conformity with the allegation or do not necessarily "prove" the allegation. In the case of Timur v. Turkey the Court ruled "Having regard to the evidence produced before it, the Court found it impossible to establish whether the injuries sustained by the applicant had been inflicted by the police as he maintained.[2] It therefore held unanimously that there had been no violation of Article 3 as regards his allegations of ill-treatment." In the case of Kirkazak v. Turkey the Court noted "The applicant underwent a further medical examination on 2 April 2002 after suffering a fall on the gendarmerie premises; on that occasion, the doctor observed, among other things, a 1 cm by 1 cm bruise on his right elbow, a subcutaneous haematoma and a 2 cm by 2 cm bruise on his left inner elbow and a 1 cm by 2 cm wound on his left knee." and ruled "The Court declared the complaints under Articles 3 and 13 inadmissible as being manifestly ill-founded."

In some cases the clear difference of - a) if a medical report exists a violation will be confirmed "in the absence of an explanation by the authorities how the injuries occurred" and b) if no medical report exists a violation of Article 3 cannot have taken place - can be highlighted in cases where applicants that were detained together, but not all of them received medical reports, some were certified a violation and others were not. Examples are the cases Celik, Öktem and Yildiz. In comparison of the cases Ataman v. Turkey and Ciloglu v. Turkey the difference was that in the first case reports existed on the affect of pepper gas used against demonstrators and in the second case no such reports existed.

Torture versus inhuman or degrading treatment

The European Commission and European Court of Human Rights have made some effort to define torture in comparison to inhuman and degrading treatment. There may be other sources but the book of Prof. Dr. Mehmet Semih Gemalmaz on "Prevention of Torture in Supra-National Human Rights Law"[3] on pages 86 to 92 cites "The Greek Case" (applications 3321/67, 3322/67, 3323/67 and 3344/67 of Denmark, Norway, Sweden and the Netherlands) and the case of Ireland v. the United Kingdom (application no. 5310/71) of 18 January 1978 as the basis for a definition. (For further details see the English Wikipedia)

Looking at judgments on Turkey passed between January 2004 and June 2007 the differences between torture and ill-treatment can be seen in the following cases (I have added the highlights):

In the case of Ayder and Others v. Turkey (application no. 23656/94) the ECtHR ruled:

"The Court considered that the destruction of the applicants’ property, as well as the anguish and distress felt by members of their families, must have caused them suffering of sufficient severity for the security forces’ actions to be categorised as inhuman treatment within the meaning of Article 3. Even assuming that the security forces had intended to punish the applicants and their relatives for their alleged involvement in, or support for, the PKK, such ill-treatment could not be justified. There had, therefore, been a violation of Article 3."

In the judgment on Orhan Aslan v. Turkey (application no. 48063/99) one can read:

"The applicant lodged a complaint against the officers responsible for his police custody; in particular, he alleged that he had been blindfolded for three days, struck, given electric shocks and hosed with cold water.

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

In the case of Durmus Kurt and Others v. Turkey (application no. 12101/03) the following was said:

"The findings in those reports, in the Court’s opinion, matched the applicants’ allegations of having been subjected to Palestinian hanging. The Court also considered it probable that the ill-treatment of the applicants was intentionally inflicted by the police with the aim of extracting from them a confession or information about the offences they were suspected of having committed.

The Court concluded that the acts of violence to which the applicants were subjected were particularly serious and cruel and capable of causing severe pain and suffering. They therefore amounted to torture, in violation of Article 3."

It may not really be important for the applicants whether their sufferings are defined as inhuman treatment or torture, since both kinds are a violation of Article 3, but it is interesting to note that people who can produce sufficient evidence for the destruction of their property are attested psychological sufferings amounting to inhuman treatment, while prisoners who allege torture or ill-treatment in custody have to provide medical proof of physical abuse that leaves visible traces.

The problematic element: medical evidence

It is hard to accept that only because of the "beyond reasonable doubt" level of proof all complainants that are not in possession of medical reports have no chance of "winning" their cases in Strasburg. There are many reasons why medical reports certifying visible traces of torture do not exist. Firstly there is the possibility that the torture inflicted did not leave visible traces (in Turkey the tendency over the last years has been to refrain from methods leaving traces). Secondly, the physician may not have been willing or been under pressure not to carry out a proper examination or write down a proper report on all complaints the patient made and thirdly, other forms of manipulation can also be imagined.

Amnesty International has repeatedly listed minimum requirements for medical reports (see for instance AI Index: 44/072/2001 of 8 November 2001) such as "Detainees should have immediate access to independent, impartial and competent medical experts. Independent medical or psychiatric reports should be admissible to the investigation. Appropriate equipment for the medical investigation of different forms of torture and ill-treatment should be provided. Medical examinations should be conducted in private under the control of the medical expert and outside the presence of security or other government officials."

The UN Special Rapporteur on torture has further stated that "where allegations of torture or other forms of ill-treatment are raised by a defendant during trial, the burden of proof should shift to the prosecution to prove beyond reasonable doubt that the confession was not obtained by unlawful means, including torture and similar ill-treatment."[4]

The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) was submitted to the United Nations High Commissioner for Human Rights on 9 August 1999. The "Istanbul Principles" subsequently received the support of the United Nations through resolutions of the United Nations Commission on Human Rights and the General Assembly.

The principles applicable to the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are to be found in Annex 1 of the Manual. The main principle reads:

...examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials.

The medical expert should promptly prepare an accurate written report."

I did not spell out the details such a report should include. In Turkey the problem of proper medical reports has been addressed more thoroughly since 1997 (mainly because of "pressure" from the CPT). Since 1998 rules for these reports exist and, although forms and questionnaires have been developed (for instance a separate questionnaire should be filled in, if prisoners allege sexual torture) they are not always used and the majority of the medical reports suffer from bad quality.

Notwithstanding the necessity of comparing the allegation to the pattern that yet has to be established the ECtHR could consider shortcomings in the medical reports as an indication that the person in question was indeed tortured (or ill-treated, more on this later).

In the chain of institutions that have to deal with torture allegations the ECtHR comes last and has no chance of conducting medical examinations with the hope to discover visible traces of torture (unless a person was disabled). Still, alternative reports of experts should also be considered. The Human Rights Foundation is an institution with great expertise on it and the physicians working there could in the native language of the applicants even go a step further. They could put together a detailed case history (what they call anamnesis) that might include some key questions (according to the pattern that was discovered). The aim would be a "test of credibility".

From my experience I can tell that torture testimonies speak a much clearer language than medical reports even if they give a detailed account of bruises and wounds (which do not much tell about the agony the patient went through).

The more the interviewer knows about the "pattern" including interrogation facilities in certain places of detention (which floor of the building, elevator or not etc.) the better they can judge on credibility. Detailed questions usually reveal whether a story is invented or not. The "ideas" expressed here will be spelt out at the end on the question of discovering a pattern.

The case of Karagöz v. Turkey

It cannot be expected that I go through all cases in which no violation of torture was found, but I would like to compare the findings of the ECtHR to what was said in publicly available reports in two sample cases. The first case is Karagöz v. Turkey. On behalf of Emurllah Karagöz and the persons mentioned in the complaint, Mustafa Yasar and Remziye Dag, AI issued an urgent action (EUR 44/079/2001) in November 2001 with several updates. In the update of 3 January 2002 the following was stated: "Emrullah Karagöz and Mustafa Yasar were remanded to Sanliurfa prison on 11 December 2001. They had been held in gendarmerie headquarters in Seyrantepe, Diyarbakir since 28 October. During that time, they were reportedly made to sign blank pages and statements, they had not been allowed to read. For 44 days, they were repeatedly brought to interrogation during which they were allegedly tortured and ill-treated. They were apparently blindfolded, stripped naked, beaten, suffocated, had their testicles squeezed, were sprayed with pressurized water and left in the cold. They were further subjected to sleep deprivation and prevented from lying down."

More is said in the AI report "Torture and prolonged detention in the Region under State of Emergency" of 1 February 2002 (AI Index: EUR 44/010/2002)

Emrullah Karagöz, an archeology student aged 23 years, was detained by gendarmerie in his home town of Diyarbakir on 28 October 2001. He was kept in detention for a total of 44 days and was not brought to prison until 11 December 2002. Throughout this period he reports that he was exposed to torture and ill-treatment almost every day:

"...My eyes were continuously blindfolded...every day they would bring me to a room for interrogation...They would beat me for about 30 minutes, afterwards they would ask me questions...They made me strip naked...[and] sprayed me for an hour with cold pressurized water. Afterwards they made me stand in front of an air-cooler and asked more questions.

They made me lie on the ground which had been covered with layers of blankets. They wrapped my arms and legs in the blankets so that I could not move at all. Someone sat on my legs and elbows and they stuffed my mouth with a piece of cotton. At this point another person began to squeeze my testicles. I felt a deep pain and I thought that I would die. After about half an hour of this, I passed out.

When I came to, they did the same things again...I again felt great pain. I can't guess how long this lasted for - I lost all concept of time."

The entry in the annual report of the HRFT for 2001 describes the torture allegations as:

"After having been put in Urfa Closed Prison, Mustafa Yasar and Emrullah Karagöz talked to their lawyers Tahir Elçi, Ayla Akat and Irfan Eser. Mustafa Yasar said, "All of the food was half a bread in 24 hours. After inflicting torture they gave me a glass of odd tasting water. Sometimes they gave a drink they called tea. I felt bizarre after drinking it. A couple of times I found myself hitting my head on the wall, crying that I wanted to die. I was subjected to such practices throughout the 30 days I was kept in custody." He had been put under pressure to testify against HADEP, HRA and TAYAD. He said that he had been interrogated for another 10 days at Siirt Gendarmerie HQ before having been put back in prison. Emrullah Karagöz said that he had been detained on 29 October and remanded 4 days later. He said that he had been taken back to the Center of the Intelligence of the Gendarmerie (JITEM) after he was registered in prison. He continued, "One day they put me in cold water for one hour. They wrapped a blanket around my arms and legs, my arms being on the back of my head. I was unable to move. One of them was sitting on me continuously and stepping on my feet. They put a piece of cloth into my mouth. They squeezed my testicles and I lost consciousness whenever they did this. They repeated the same things when I gained consciousness. This torture continued 40 days between 9.00pm and 4.00am each day. One day, they tortured me for 9 hours. They did not inflict torture only during 4 of the 44 days I was kept in custody. I knew about the time from a radio that was on. Before putting us in prison, they forced us to sign many documents without reading them. I was taken to the state hospital on the 4th, 24th and 34th days of detention. They threatened me adding that I should not tell anything to the physicians, and I avoided doing so."

Emrullah Karagöz and Mustafa Yasar, who were put in Diyarbakir Prison following their interrogation, were transferred to Urfa Prison on 12 December. Lawyer Faruk Yaygin, secretary of Urfa HRA, saw them in prison and said that they could not stand on their feet. They were unshaven and smelled, because they had been unable to wash themselves.

On 26 November lawyer Ayla Akat talked to Remziye Dag (60) in Diyarbakir E-Type Prison where she was taken when an extension of the detention period had been requested. Lawyer Akat said that her client had not been subjected to extreme violence because she was suffering from high tension and weakness of her heart. She had only been asked two questions on people she did not know. She had also stated that she was being held at the JITEM with her eyes being blindfolded and had to share her cell with 6 people. Lawyer Akat said that she had seen blood on the scarf of Dag. Remziye Dag was imprisoned after having been interrogated for 24 days."

This is in several aspects an unusual case that does not really fit the pattern of torture that existed in 2001. Yet, these three persons were not the only ones for whom the detention was prolonged under decree 430 (in force in the region under emergency legislation). The above mentioned reports were certainly available to the ECtHR when passing the judgment on 9 November 2005 (it became final on 12 April 2006). Like me, the Court might have detected some contradictions to the pattern of torture existing at that time. In addition, I feel that certain points need clarification. It cannot be true that Mr Karagöz was tortured each night from 9pm to 4am. This can only be the time span during which sessions took place.

Clarification would be required for the medical examinations that took place. This could easily be achieved since (at least) Mr Karagöz is not in prison any more and could have been called for an interview. I know a person who interviewed Mr Karagöz at some length and was absolutely convinced that he was no liar. This interview was not conducted with an aim to clarify contradictions in the different reports on his case but nevertheless reveals some "new" elements.

The interview was conducted in Frankfurt on 15 July 2004 and is available in the German language only. In translating I should point to the following additional information.

"After four days in custody I was taken to a judge, whom I told about the torture. He did not release me but ordered the prolongation of detention for another 10 days according to decree 430. Afterwards judges ordered the continuation of detention for 10 days three times without seeing me. Each time 10 days had passed I would be taken to a hospital with my blindfolds on. I was threatened not to complain and the doctor was told that he had not seen anything. The physicians asked me about complaints, but I did not say anything. The doctors looked at me briefly and wrote reports that did not reflect my true state of health.

On day 32 I was hosed with cold water in a small cell for 9 hours. I knew the time because a radio was on. A member of the infirmary saw my poor state and must have reported to the commander. I got some medication in water and a bed and physical torture stopped after that. However, psychological torture continued (no details).

During the first hearing on 24.12.2001 I narrated the things that had been done to me over one and half an hour. My lawyer Tahir Elci talked for 2 hours, but that was not recorded in the minutes."

One can see that there are many more details to the story that presumably were not considered in Strasburg. Certainly, the judges can defend themselves in saying that these details should have been forwarded to them by the applicant or his legal representative. Yet, under the current practice in Strasburg the applicants would not have a chance of getting acknowledged a violation of Article 3 regardless of the accuracy, credibility and reliability of their testimony, unless they could produce a medical report on visible traces of torture.

In saying that the applicant did not show traces of torture to the physician the Court puts the blame on the applicant who explained that under threat of further torture he remained silent. It may well be that other people including the judges in Strasburg would have been courageous enough to show traces of torture (in the presence of their torturers), but anyone in such a situation would certainly not have thought about the step s/he had to take to satisfy the standards of the ECtHR. As in many other cases the most important reflex will have been the wish to stay alive.

Looking at the methods of torture that allegedly were applied it is obvious that many or most of them would not leave visible traces. Under the assumption that such methods were applied could the ECtHR justifiably exclude them from its definition of torture or ill-treatment? Why did the Court not elaborate on the circumstances under which the medical examinations were carried out each time when the detention period was prolonged? Had police officers been present? Had the physician asked the patient to take off his shirt and looked for himself whether any traces were visible? If not, the reports should not be relied upon and it had to be assumed that torture was inflicted.

Despite repeated allegations of torture (at least noted in the minutes of a prosecutor on 13 December 2001) no proper medical examination was carried out until April and May 2002. No wonder that traces of torture could not be detected after such a long time.

The case of Yilmaz v. Turkey

The second case to dwell upon is Yilmaz v. Turkey. Judgment was passed on 8 August 2006 and became final on 8 November 2006. The Court ruled "In the absence of any evidence that the applicants had been subjected to ill-treatment, and even assuming that they had exhausted domestic remedies, the Court declared the complaint under Article 3 inadmissible as being manifestly ill-founded."

Several documents of AI exist on this case (e.g. AI Index: EUR 44/054/1997, 1 September 1997: Student campaigners tortured and imprisoned; AI INDEX: EUR 44/14/98, 19 March 1998: public statement). In particular the first one includes detailed accounts of what the students went through in detention in Ankara. Excerpts read "The reports of torture began to emerge from the Anti-Terror Branch shortly after the initial police round-up. A small number of students were released within a few days and they claimed that detainees were being tortured at Ankara Police Headquarters. They said that three students, Mahmut Yilmaz, Ahmet Askin Dogan and Bülent Karakas, had been hosed with pressurized cold water and suspended by their arms. They further reported that a female student, Elif Kahyaoglu, had been tortured and had been seen limping in the corridor. Other female students were reported to have been threatened with rape. Acting on this information, Amnesty International issued on 26 April 1996 the first of two Urgent Action appeals. The Ankara branch of the Turkish Human Rights Association (HRA) also made efforts to intervene during this period.

On 1 May the students who had been released to face later trial contacted the HRA and made statements confirming the allegations of torture. Their testimony gave details of being pulled by the hair, of their heads being hit against the wall, suspension by the arms and sexual abuse."

From the AI report I have only cited the testimony of two applicants:

Özgür Tüfekçi

Özgür Tüfekçi was detained on 19 April 1996 and taken to Ankara Police Headquarters. According to his account, as he was led through the police garage to the Anti-Terror Branch block, one of the officers said to him: "This place is not like anywhere else you know. Once you have gone in through this door, you will not emerge in one piece".

Almost immediately Özgür Tüfekçi was blindfolded and taken for interrogation by four or five police officers. He reports that after some initial routine questioning one of the officers suddenly lifted him from his chair and hurled him against the wall, after which he was kicked repeatedly by the officers, one of whom twisted his testicles. After about 20 minutes he was stripped naked and thrown into a place "with tiled walls and a damp floor". Here he was hosed with pressurized cold water aimed particularly at his mouth and genitals. Then he was led to another room where his arms were extended sideways and tied to a long thick piece of wood attached to the wall, from which he was suspended:

"My feet no longer touched the ground. After a short period there was a tremendous pain in my neck and arms. One of the officers came up to me and began to pull out the hairs on my body. Then they poured hot water over me. I don’t know how long I was hung there. When they let me down and threw me into a cell, I couldn’t feel my arms."

After this Özgür Tüfekçi was interrogated many times. He reports that the punches, kicks, abuse, and threats went on "until the arrival of the prosecutor to take our testimony in the rooms at police headquarters where we were being tortured". Thereafter the physical abuse stopped, but the abusive language and threats continued until Özgür Tüfekçi’s appearance before the judge on 1 May.

Bülent Karakas

Bülent Karakas was detained at midday on 19 April as he was leaving the Faculty of Linguistics, where he is a student of Polish language and literature. He was pushed into a car with dark tinted windows, where he was forced to lie between the seats. Inside the car, he claims, he was repeatedly punched on his back and in his kidneys.

On arrival at Ankara Police Headquarters he was pushed into a room where he alleges four or five policemen beat and kicked him. He reports that he was repeatedly thrown at the wall and that the walls "had some special covering". He alleges that his testicles were squeezed and that he was then led to a room "like a shower cubicle" where he was sprayed with pressurized water.

After 15 or 20 minutes he was taken to another room and made to sit on a chair. His arms were tied to a beam and the beam was then lifted up on the wall.

"After a while my arms began to go numb and my muscles began to hurt terribly, as if a skewer was being pushed through them. At this point they sprayed me again with pressurized water and squeezed my testicles. One of them sexually molested me with his hand and by rubbing himself against me. Then they let me down and took me back to the interrogation room."

Bülent Karakas alleges that such sessions continued at intervals over the next four days. He claims that on 24 April, after being tortured and beaten again, Anti-Terror Branch officers tried to make him hold a petrol bomb, apparently in an attempt to get his fingerprints on the device, which he refused to do. The next day he was taken with Mahmut Yilmaz to the apartment they shared. During this search petrol bombs were purportedly discovered.

According to the AI report at least one medical report exists "The Ankara Forensic Medicine Institute report of a medical examination of Metin Murat Kalyoncugil (not among the applicants, but tried together with them) dated 30 July 1996, after which he was committed to prison, stated, "On the radial area of both wrists there are grazes 1cm in diameter with scabs which are about to peel." Further to the point of medical evidence the AI reports states, "The seven students were later transferred to hospital with medical problems apparently stemming from torture, although the hospital did not issue medical certificates" [2]. Footnote 2 reads "State doctors and medical examiners, under pressure from members of the security forces, sometimes make only cursory examinations of detainees, overlook prima facie evidence of torture or refuse to issue medical certificates. The State Forensic Medicine Institute has also been found to issue misleading health certificates to suppress medical evidence of torture. This practice has been documented by Amnesty International (Turkey: Human Rights and the Health Professions; AI Index: EUR 44/159/96)."

In conclusion AI found that "the court failed to investigate the students’ allegations that they were tortured as it was obliged to do under Articles 12 and 13 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN CAT), to which Turkey is a State Party and statements which the students claimed they were forced to make under torture were allowed in evidence in violation of Article 15 of the UN CAT."

This means that either AI or the ECtHR were wrong. I could leave the decision to the reader, but I should add what a brief "research" revealed. I asked one of the applicants via e-mail some questions and got the following answer.

"On 1 May 1996 (Sunday) we were taken to the Forensic Institute and confronted with the physician on duty one by one, but without removing our handcuffs. Besides the doctor three police officers were present in the room. Although I said that I had been tortured the doctor said (looking at the police officers) that Turkish police officers did not torture and issued a report of being in good health without an examination. I argued with the doctor and said that I would complain about him because he did not stick to his Hippocratic Oath. Immediately I was taken out of the room.

The other friends had the same experience. Those who had been tortured expressed what had happened, but were not examined. Without asking a question the doctor issued reports on good health.

As far as investigations into our complaints are concerned: Prosecutor Nuh Mete Yüksel[5] participated in the torture. In one of the torture chambers he took my statement. As far as I remember the statements of the others all were taken in the same chamber.

Repeatedly I told the judge in charge (to decide for or against arrest) again on 1 May 1996 that I had been tortured and that the prosecutor had participated in it and that the police had plotted against me in planted something in my flat. I insisted that these details be noted in the minutes. The judge said "nobody can make me order to write down such things" and had me thrown out of the room.

During the first week in prison we were taken to a doctor. Again, he wanted to examine us with handcuffs on. There were two soldiers and one sergeant. Because they did not take off the handcuffs we refused to be examined.

As far as I remember we filed an official complaint. I do not remember details on the outcome. Our lawyer should know more about it."

I did not contact the lawyer believing that the details on how the complaints ended should have been part of the application. There are two possibilities. Either formal complaints were filed, but the prosecutor did not order "fresh" medical reports for the investigation or no formal complaints were filed, since lawyers and defendants found to have no chance that a prosecution of torturers would follow, because they were not in possession of "proof".

My (legal) position would be that the applicants in raising torture allegations in front of the arresting judge and during their trial at Ankara State Security Court have fulfilled their obligation to "exhaust domestic remedies". The prosecutor present at the hearing and/or the three judges had been obliged to initiate an investigation. If they failed to do so or if the prosecutor who started an investigation after a formal complaint of the victims, but ruled that there was no case to answer (with or without informing the complainants) no further step on the domestic level had a chance of success.

Certainly, some people may understand the physician who said "Turkish police officers do not torture" or the judge saying the he "will not include allegations (that he found exaggerated) into the minutes", but for me the additional information is absolutely reliable.

In October 1998 I met several students (defendants in above mentioned trial) in Ankara. We did not talk about torture since this point had already been researched. As a matter of fact I only posed as a researcher of AI for a German magazine that wanted to report on the research methods of the organization. The conversation with the students was, nevertheless, serious (we spoke about the different reports the security forces had prepared on the organization they allegedly belonged to) and I found the students very concerned not just with their own case but human rights in general. I simply cannot imagine that the students have not been honest.

Deaths in Custody

Between January 2004 and June 2007 the ECtHR passed at least the following judgments on cases of alleged deaths in custody.

27.07.2004
A.
27.07.2004
Ikincisoy
30.11.2004
A.K.
13.01.2005
Demir
06.10.2005
H.Y.
18.10.2005
Akdogdu
02.02.2006
Biç
02.03.2006
Bulut

Not included are the cases in which corpses were found outside detention centres after a suspected detention and three deaths of conscripts in the army. Only in the cases of Ikincisoy and Demir the ECtHR found a violation of Article 2. In the other cases the official versions of suicide (strangulation or jump from an upper floor) could not be rebutted and, therefore, the Court decided against a violation. In one case the Court decided that relatives could not represent a case of a person that had died: In October 1999 Ihsan Biç died in hospital from cirrhosis of the liver while in detention on remand. According to the ECtHR there was no evidence in the file to conclude that the applicants had been affected by Ihsan Biç’s detention or by the length of the criminal proceedings.

Particularly striking is the case of H.Y. that refers to the death of 15-year-old Mahmut Yildiz[6] who had been interrogated at Siirt Gendarmerie Station. He was rushed to hospital on the third day of his detention and died because of an acute subdural haematoma. The ECtHR noted that, "according to the medical reports, the trauma resulting in the applicants’ son’s death had been caused either by a direct impact to the head such as a blow or by a fall, whether accidental or provoked by another person" Eyewitnesses had corroborated the view that he had fallen by accident. The Court ruled "Having regard to the evidence before it, the Court considered that the applicants’ allegations that their son had died after being tortured by the security forces were not based on concrete and verifiable facts and were not corroborated to a decisive extent by any medical findings, witness statements or other evidence."

Two judges expressed a dissenting opinion (rough translation from French): "We think that this conclusion calls in question jurisprudence clear and constant of the Court according to which "when the events in question, in their totality or to a large extent, are known exclusively by the authorities, as cases of people under control in police custody, any injury or death that occurred in this period of detention gives strong presumptions of fact. It is advisable to consider that the burden of proof weighs on the authorities, which must provide a satisfactory and convincing explanation" (see Salman v. Turkey, No 21986/93, § 100, CEDH 2000-VII, Velikova v. Bulgaria, No 41488/98, § 70, CEDH 2000-VI and Anguelova v. Bulgaria, No 38361/97, § 111, CEDH 2002 IV). As noted in paragraph 103, the people in police custody are in a situation of vulnerability and the authorities have the obligation to justify the treatment which is inflicted to them. More particularly, when a person in detention dies, the State must provide explanations as for the causes of death."[7]

I should add that the eyewitnesses may have been "produced" by the authorities and possibly were members of the security forces stationed where Mahmut Yildiz had received the injuries. It is hard to believe that a 15-year-old youngster accidentally falls (all by himself) and sustains deadly wounds.

Fair trial (statements extracted under torture)

At the beginning I should relate the positive development that the ECtHR has started to deal with this specific violation under Article 6 of the ECHR. During my research for the expert opinion on "fair trial of political prisoners" (end of 2005) I got the impression that the Court had usually confined itself to rule on a violation of Article 6 because of the presence of a military judge on the bench of the state security courts and added that it was not necessary to deal with other aspects in the complaints. However, the military judges and prosecutors had been removed from state security courts in June 1999. Once the Court started to judge on cases where no military judge had been present it could no longer be avoided to consider complaints that statements extracted under torture had been used as evidence. Here is a list of cases between January 2004 and June 2007 in which the ECtHR ruled on this aspect:

Violation
 
no violation
 
02.08.2005
Kolu
22.06.2006
Karakas
20.06.2006
Örs
22.06.2006
Gökçe
21.09.2006
Söylemez
20.09.2005
Sevgin
17.10.2006
Göçmen
26.04.2007
Salduz
12.04.2007
Özen
03.05.2007
Koçak
05.06.2007
Yildiz
12.06.2007
Koç
26.06.2007
Kapan

These are certainly not all the cases in which allegations were raised that statements extracted under torture had been used as evidence. In some cases complaints were made but no violation of Article 6 was alleged. In other cases the Court has dealt with such a complaint under Article 3 or Article 13 of the ECHR.

In starting with the positive aspects of the above mentioned judgments particularly in non-political cases (such as murder) the ECtHR has found strong arguments on this aspect. In the Kolu v. Turkey case (that I overlooked in 2005, because it was no political case) the Court stated inter alias: "While in custody (February 1995), the applicant admitted to having carried out several dozen burglaries.

The applicant was brought before Adiyaman Assize Court and charged with unlawful entry and aggravated theft. He denied the accusations and maintained that he had been forced to confess under torture. By a judgment of 21 March 1996, the assize court convicted the applicant of theft, aggravated by unlawful imprisonment, and sentenced him to 33 years and four months’ imprisonment. The applicant appealed unsuccessfully on points of law.

With regard to the investigation stage it was clear that the applicant had made several self-incriminating statements. There was nothing to suggest that he had done so in the presence of a lawyer or after having been informed of his right to be assisted by a lawyer.

Furthermore, serious doubts persisted with regard to the attitude taken by the police officers during questioning: it had not been shown that they had informed the applicant of his right to remain silent, which was a troubling omission given that, to all intents and purposes, the applicant had been kept in solitary confinement throughout his period in police custody. If only on account of the severity of those conditions, interviews conducted in such circumstances could not fail to exert psychological coercion, which would make it more likely that the silence - which the applicant had undoubtedly never been given the right to maintain - would be broken.

With regard to the criminal proceedings, the applicant had, in practice, been denied not only the possibility of challenging the allegations made by his accusers but also, by the same token, an opportunity to challenge the use of confessions obtained in the absence of a lawyer and during police custody in solitary confinement, the conduct of which remained questionable.

In those circumstances, the Court concluded unanimously that there had been a violation of Article 6 § 3 (c) and (d) taken in conjunction with Article 6 § 1 of the Convention." The striking point here is the fact that the word "torture" or "ill-treatment" and a violation of Article 3 is not mentioned and only the condition of detention are considered as a breach of the ECHR.

A similar line was taken in the political case of Örs v. Turkey: "The Court was struck by the fact that, despite the strong presumption that members of the security services were responsible for the alleged ill-treatment and the fact that criminal proceedings were pending against them, the state security court had nonetheless admitted the confessions and statements allegedly extracted under torture in evidence for the prosecution, even though under Turkish law it was not possible for inferences unfavourable to the defence to be drawn from such evidence.

The Court considered that, owing to the absence of a lawyer and the breach of the privilege against self-incrimination, the procedural guarantees available in the case before it had not prevented confessions allegedly obtained under torture from being used." At least in this case the applicants had obtained medical reports certifying traces of torture inflicted during 10-11 days in May 1996.

Two days after the judgment in the Örs v. Turkey case the ECtHR ruled on Gökce v. Turkey: "the Court deems it necessary to take into consideration the entire criminal proceedings brought against the applicants in order to decide whether they conform to the requirements of Article 6 of the Convention (see Sakik and others v. Turkey, no. 23878/94, Commission decision of 25 May 1995, Decisions and Reports (DR) 81- B, p. 94). The Court therefore notes that, as the applicants have not yet been convicted, they still have at their disposal the possibility of submitting their complaints before the domestic courts. In this regard, the applicants’ complaints under Article 6 appear to be premature. Besides, the Court draws attention to the fact that, after the final ruling is given in domestic law, the applicants may re-submit their complaints to the Court if they still consider themselves victims of the alleged violations. It follows that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention."

This may be understandable, although the ECtHR found in other cases (like the one cited before) that the Court of Cassation was (or is, pattern?) not sensible on this issue. Another example is the Göcmen v. Turkey case. "The Court took the view that the procedural guarantees offered in the present case had not prevented the use of evidence obtained in circumstances which amounted to a violation of Article 3 of the Convention, in the absence of a lawyer and in breach of the privilege against self-incrimination. It reiterated that it had consistently held that the use in criminal proceedings of evidence of that kind obtained in violation of Article 3 raised serious questions as to the fairness of the proceedings. Given that the Court of Cassation had not remedied the defects in question, the Court held that there had been a violation of Article 6 §§ 1 and 3."

Besides "positive" judgments there are highly disputable cases. It was no surprise that in the cases where the Court found no violation of Article 3 it also did not consider claims that statements extracted under torture were used as evidence. One of these cases is the Yilmaz v. Turkey case mentioned in the section on torture. The Court ruled: "With regard to the other complaints of procedural unfairness, the Court stated that a court which had been found not to be independent and impartial could not, under any circumstances, guarantee a fair trial for persons within its jurisdiction. Consequently, it held that it was unnecessary to examine those other complaints."

The "standards" can be seen in the Canseven v Turkey case. Parts of it read: "The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrikulu and Others v. Turkey(dec.), no. 45907/99, 22 October 2002).

The Court notes that the medical report established at the end of the applicant's stay in custody [12 days] does not contain any indication that he was ill treated by the police. The Court is aware of the lack of details in this [medical] report [at the end of detention]. It notes that the applicant did not object to its contents in the course of the domestic proceedings and that there is no indication in the case file that the applicant requested and was refused permission to see another doctor at the end of the custody period.

In view of the above, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that he was subjected to ill treatment whilst in police custody. It follows that this part of the application is unsubstantiated and must be rejected as being manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

However, as regards the applicant's complaint concerning his conviction on the basis of his submissions extracted allegedly under torture, the Court recalls that it has examined the applicant's complaint under Article 3 of the Convention and found it unsubstantiated. It follows that this part of the application is also inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention."

Another arguable element in such judgments can be seen in the Kocak v. Turkey case. The Court ruled: "However, the Istanbul State Security Court's judgment of 26 November 1996, which had convicted Mr Koçak of membership of the PKK, had not been based on his statements to the police, the public prosecutor or the judge who had ordered his detention on remand. That court had taken into consideration statements made during the hearings by Mr Koçak and by four of his co-accused. Its conclusions had also relied on the fact that Mr Koçak had surrendered a pistol and bullets to the police."

I am not aware of the specifics of this case, but from similar cases (partly included in my report of January 2006) I could imagine that 5 defendants "confessed" to the police. Under the same "duress" (as courts in Turkey would formulate) Mr. Kocak provided information on the hiding place of a pistol and bullets. If, this piece of evidence was obtained by using illegal methods of interrogation, should it not be rejected?

My observations in many political trials (even before I wrote my report) are that statements extracted under torture are not used as evidence, if there is just one such statement and it is the only evidence in a case. This, of course, is a theoretical construct, because in cases of murder the corpse would be "additional" evidence or when people are charged with membership of an illegal organization, legal publications that are attributed to the organization and found in the possession of the accused become "corroborating evidence" to the statement(s) extracted under torture. Likewise, several statements of different defendants can count as "corroborating evidence" to each other, even if all defendants claim that the statements were extracted under torture.

These remarks can already be taken as a thesis towards a pattern of unfair trial governing (not only) political trials.

Establishing a pattern

The question of a pattern in certain human rights abuses in Turkey has to be tackled a) for the issues of concern (torture, disappearance, extra-judicial executions) and b) for a given time span. Talking about cases under Article 2 one could say that only very few cases of "disappearances" (DISAP) were reported in the 1980s (sometimes figuring as death in custody). In hunting down armed opposition groups several cases of extra-judicial executions (EJE) were reported (mainly in Istanbul) and first incidents of ECE in the southeast where the security forces were fighting the PKK were reported.

The 1990s saw an extreme rise in cases of DISAP and EJE. Again a difference should be made between the "West" and the "Southeast". Interestingly the issue of DISAP got on the agenda with Hasan Ocak, who was found dead some time after he "disappeared" in Istanbul in March 1995 (on 15 July 2004 the ECtHR found no violation of Article 2, although the detention of Hasan O. was affirmed "beyond reasonable doubt"). In the "West" several cases of individuals, mostly affiliated to armed opposition groups were reported afterwards, but some appeared to have survived special interrogation and attempts to be "disappeared".

The vast majority of DISAP occurred in the "Southeast", sometime in connection with military operations directed against settlement whose population had not accepted arms to fight the PKK. Many cases of DISAP in the "Southeast" involved more than just one person. Confusion about the perpetrators of abduction and subsequent disappearance can arise from the fact that the PKK also kidnapped villagers either to "punish" (kill) them because they took up arms or as a form of enforced recruitment. After the militant Islamic organization Hizbullah had taken up armed activities not directly against PKK members but rather their supporters instances of DISAP could also be attributed to this formation often said to have worked in close contact to official institutions.

Talking about these "institutions" one might have to analyze the semi-official structure of counter-guerrilla activities and names like JITEM or the Special Warfare Department would need some clarification. The so called "repentant confessors" (or renegades, itirafci) are another phenomenon that might deserve further attention. Groups formed under these "label(s)" often worked outside direct State control and are not only responsible for cases of DISAP and EJE but also drug smuggling and similar criminal activities.

The development of a pattern on DISAP and EJE may overall come too late since the new century has only witnessed few cases. Instances of people being shot, officially because they did not react to stop warnings, might fall outside a pattern and would have to be judged on their individual merits.

Regarding torture it should not be enough to see whether torture was "widespread and systematic" at a given time, but also what kind of methods were commonly used with a specific view of whether or not these methods would leave visible traces. The difficulties in documenting and prosecuting these offences should be considered with a particular stress on the problems to obtain medical reports.

I would suggest that the ECtHR asks experts to develop a detailed description of the pattern for certain time spans. These reports could rely on the great amount of reports by NGOs such as Amnesty International and Human Rights Watch, but also the Human Rights Association and Human Rights Foundation in Turkey. Further material would be available from the European Committee for the Prevention of Torture and the UN Special Rapporteur. One should not forget that the case law of the ECtHR itself is a valuable source for developing a pattern not just on torture, but also DISAP and EJE.

I could imagine that some elements of such a report could be:

Between 1987 and 1997 the maximum length of (incommunicado) detention for political prisoners was 15 days. In the region under a state of emergency (OHAL) 30 days were "allowed". Even though the maximum length was not applied in all cases, periods of 5-10 days detention in areas under ordinary rule can count as "usual" (15-20 days in OHAL). Yet, in several cases the maximum legal length was not observed and either by late registration or detention at different places some prisoners were kept for longer periods.

During interrogation prisoners would be blindfolded (almost 100%), humiliated by verbal and physical abuse (beatings) and often by being stripped naked. Threats of torture and rape also of husbands, wives and close relatives would be followed by hosing with cold water, squeezing of testicles or sexual assault against women, applying electric shocks to fingers, toes, sexual organs (not on the right side, since the heart is on the left), often combined with various forms of suspension (by the arms, by the arms tied behind the back, by the legs and on a crucifix). Much more could be said about the methods such as deprivation of sleep, food etc., but one point can be mentioned separately: in Izmir the use of the bastonade (falaka, beatings on the sole of the feet) was more or less abandoned after Prof. Veli Lök (representative of the HRFT in Izmir) developed the method of cintigraphy that enabled him to detect the effects of such beatings even months after falaka was applied.

In (year or correct date) the authorities in Turkey introduced the obligation that prisoners had to be medically examined at the beginning and the end of custody. As the reports of the CPT point out(?) this obligation was not always observed. In 1988 Turkey ratified the UN Convention against Torture (CAT) and the European Convention for the Prevention of Torture. In 1992 the Code of Criminal Procedures (TCCP) was extended by Article 135a on prohibited methods of interrogation. The new provision went further than Article 15 of the UN CAT in that not only statement extracted under torture but (as a general rule) not reflecting the free will of the suspect could not be used as evidence.

This provision remained "on paper" since the courts would not deal with torture allegations or (as a concession to overwhelming torture claims) would argue that corroborating evidence existed and, therefore, these statements could be used as evidence. In rare cases reference would be made to the lack of medical reports: "a clear indication that torture was not applied" (the same argument the ECtHR has adopted).

Until (year, correct date) political prisoners interrogated by specialized members of the anti-terror departments would be taken in small or bigger groups to a health centre or hospital at the end of custody (before they appeared at the prosecutor's office and the arresting judge) and the physician was asked to sign papers prepared at the police station with the names of all suspect and the short remark that "no trace of blows and force could be detected". In the presence of police officers all what physicians would dare to ask was whether anyone had any complaint? The prisoners having been warned that further torture was to follow, if they complained, would usually remain silent.

In 1998 specific rules for the conduct of medical examinations were issued on the pressure from the CPT. Besides a large number of circulars the Regulations on Apprehension... of 1 October 1998 set the standards. These standards were largely ignored. At least until 2002 medical reports were not prepared according to the forms that should have been distributed to all institutions of health and security.

In 1997 the detention periods were shortened and political prisoners were entitled to ask for legal counsel after 48 hours of detention. This right was not granted until 2003 when all prisoners became entitled to legal counsel from the first moment of their detention.

For a more detailed description of the pattern the above mentioned sources should be used.

Specific attention should be given to the pattern of impunity that might include observations such as complaints by prisoners and/or their lawyers are not taken seriously. Until (date, year) admission for an investigation was required from administrative bodies headed by local governors. Prosecutors relying on the assistance of the police forces are unwilling to investigate against them. The minimum requirement of an addition medical examination is often not ordered. Without taking additional testimony from the victim and possible witnesses prosecutors often decide against charges for "lack of evidence" or because the perpetrators could not be identified.

If the victim raises allegations of torture in court neither the prosecutor present at the hearing or the judges usually react by starting an investigation. Even if the victim is allowed to raise allegations in detail the minutes of the hearing usually only cite them by saying for instance "My statement to the police was taken under duress."

Regarding the ongoing pattern of impunity for torturers AI stated in its latest report of 5 July 2007 "Turkey: The Entrenched Culture of Impunity Must End" (AI Index: EUR 44/008/2007) about factors contributing to impunity:

"Medical evidence of abuses is still often not recorded in the appropriate manner for reasons of lack of expertise, incompetence or a readiness to comply with suggestions by law enforcement officials accompanying suspects that there is no need for an examination..."

Among the recommendations were:

"In cases of alleged torture or other ill-treatment ensure that prosecutors require specialist medical and forensic examinations, on-site inspections and promptly gather evidence from all persons concerned;

Take urgent steps to ensure that medical examinations of all detainees are carried out thoroughly, independently and impartially"

The Role of Experts

Inspiration for the following considerations can be found in the above mentioned Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol). The Protocol was prepared with participation of many institutions including the CPT and the ECtHR seems to highly appreciate the international standards formulated in the Protocol. Excerpts were inter alias mentioned in the case of Bati et al v. Turkey (judgment on 3 June 2006).

As purposes of an investigation into torture the Protocol states "those carrying out the investigation must, at a minimum, seek to obtain statements from the victims of alleged torture; to identify possible witnesses and obtain statements from them concerning the alleged torture; and to determine how, when and where the alleged incidents of torture occurred as well as any pattern or practice that may have brought about the torture."

If domestic institutions fail to effectively combat torture the Protocol suggests an independent Commission and experts (physicians etc.) to be asked for reports. Later a "primary investigator" is suggested. I believe that the ECtHR need exactly such a person whose duty is described as

"In selecting a person as the primary investigator with responsibility for the alleged torture victim, special consideration should be given to the victim’s preference for a person of the same gender, the same cultural background or the ability to communicate in his or her native language. The primary investigator should have prior training or experience in documenting torture and in working with victims of trauma, including torture. In situations where an investigator with prior training or experience is not available, the primary investigator should make every effort to become informed about torture and its physical and psychological consequences before interviewing the individual. Information about torture is available from sources including this manual, several professional and training publications, training courses and professional conferences."

In the following chapter the word "commission" can be replaced by ECtHR.

"The commission must assess all information and evidence it receives to determine reliability and probity. The commission should evaluate oral testimony, taking into account the demeanour and overall credibility of the witness. The commission must be sensitive to social, cultural and gender issues that affect demeanour."

To formulate my suggestion somehow differently, the best thing would be to establish patterns in all areas of concern as detailed as possible (differentiated according to place and time). The "primary investigator" should be aware of these details to establish credibility of victim(s) and witness(es). The evidence that the courts in Turkey as well as the Court in Strasburg require (up to date) can be supportive. In case that such evidence does not exist it has to be established whether "good" reasons existed for the lack of this evidence.

Getting back to the initial point the duty of the Court should be to decide on the likeliness of whether or not the right of an individual was violated. The Court should not be content with answers of the authority stating for instance that a prisoner was informed of his rights. Even if a document with the (sometimes forged) signature of the person in question exists it should be considered that the signatures may have been obtained under threats or as a result of torture.

It should be less important to establish, if and how often someone complained (in writing) about an alleged human rights violations. It is more important to see whether or not and how the officials (prosecution and judges) reacted against such allegations.

Since it is not required to determine the perpetrators in person stereo-type answers such as "we did not interrogate them and only signed the testimony after it had been taken" are of no great value. The credibility and probity of the applicant seems to be the most important point, taken together with the reliability of testimony of witnesses, even if they belong to the same group of "offenders".
 

 
 

[1] Presumably one of the reports was the brochure of the Human Rights Association in Diyarbakir of June 1996 in English and Turkish under the title "The Burned and Evacuated Settlement Units" (prepared for the Habitat meeting in Istanbul). This report lists 2047 settlements (villages and hamlets) that were completely or partly destroyed and/or evacuated (two thirds of the officially admitted number of affected settlements). The village of the applicant is mentioned on page 34 (Gürbeyli with the Kurdish name of Sexan). There are two separate entries for the Kurdish and the Turkish name on page 28 with the dates of being affected given as 13 and 15 May 1995. It may well be that the HRA received complaints on these days, since the alleged assault on the village was on 5 May.
[2] The applicant had quarrelled with the police officers prior to his detention.
[3] M. Semih Gemalmaz: "Ulusalüstü Insan Haklari Hukukunda Iskencenin Önlenmesi", Amac Publishing House, Istanbul, May 1990
[4] This is similar to what the ECtHR said in the Cicek v. Turkey case. However, considering the logic in the cases the "proof" the authorities would offer would also be the non-existence of medical reports and in itself not solve the problem in question.
[5] Further details could be said on this prosecutor at Ankara SSC
[6] I have spelt out the name since the case is known to the public and the person is dead.
[7] French original: "Nous pensons que cette conclusion remet en question la jurisprudence claire et constante de la Cour selon laquelle « lorsque les événements en cause, dans leur totalité ou pour une large part, sont connus exclusivement des autorités, comme dans le cas des personnes soumises à leur contrôle en garde à vue, toute blessure ou mort survenue pendant cette période de détention donne lieu à de fortes présomptions de fait. Il convient en vérité de considérer que la charge de la preuve pèse sur les autorités, qui doivent fournir une explication satisfaisante et convaincante » (voir Salman c. Turquie [GC], no 21986/93, § 100, CEDH 2000-VII, ainsi que Velikova c. Bulgarie, no 41488/98, § 70, CEDH 2000-VI et Anguelova c. Bulgarie, no 38361/97, § 111, CEDH 2002 IV). Comme l’arrêt le note lui-même au paragraphe 103, les personnes en garde à vue sont dans une situation de vulnérabilité et les autorités ont l’obligation de justifier le traitement qui leur est infligé. Plus particulièrement, lorsqu’une personne en détention décède, l’Etat doit fournir des explications quant aux causes de la mort."
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