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)

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)

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

General observations regarding judgments on cases from Turkey

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

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

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

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

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

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

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)

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

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			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

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

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.

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

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 4^th, 24^th and 34^th 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).