Tonka and Others v. Turkey (11381/02)

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Date 20080722
Article 5
Decision violation

(3rd applicant) No violation of Article 3 (treatment)

(3rd applicant) Violation of Article 3 (investigation)

(3rd applicant) Violation of Article 5 § 3

(All applicants) Violation of Article 5 §§ 1 (c), 4 and 5

Tonka and Others v. Turkey (no. 11381/02)

The applicants, Alaattin Tonka, Mehmet Sabır Özdemir and Mithat Yılmaz, are three Turkish nationals who were born in 1966, 1972 and 1964 respectively and live in Diyarbakır and Mersin (Turkey).

Mr Tonka and Mr Özdemir were arrested and taken into police custody in September 2000 on suspicion of belonging to an illegal organisation, Hizbullah (the Party of God). When Mr Yılmaz was arrested in March 2001 on suspicion of the same offence, an altercation took place between him and the arresting officers. He underwent a number of medical examinations, which revealed the traces of injuries he had sustained.

Relying on Article 5 (right to liberty and security), the applicants complained in particular that they had been sent back to police headquarters to be questioned after being placed in pre-trial detention. They further complained of the length of their detention and of the lack of a remedy whereby they could obtain compensation. In addition, Mr Yılmaz alleged that he had been ill-treated while in police custody at police headquarters and complained that there had been no effective investigation of his allegations. He relied on Article 3 (prohibition of inhuman or degrading treatment).

With regard to Mr Yılmaz, the Court considered that the information available to it did not enable it to establish beyond a reasonable doubt that he had been subjected to torture while in police custody, and held unanimously that there had been no violation of Article 3 in that respect. The Court observed that an investigation had been opened by the Mersin public prosecutor and that the applicant, who declared that he had been tortured, had been interviewed on 28 November 2001. However, it had no information about the subsequent progress of the investigation. Having regard to the lack of an investigation and/or criminal proceedings capable of providing a plausible explanation concerning the origin of the injuries recorded on the applicant’s person, the Court held that there had been a violation of Article 3. The Court further held that there had been a violation of Article 5 § 3 on account of the length of time Mr Yılmaz had spent in police custody.

With regard to all the applicants, the Court observed that in similar cases it had previously found violations of the Convention on account of the fact that applicants had been made available to the security forces for questioning after being placed in pre-trial detention, with a view to circumventing the legislation in force concerning the maximum duration of detention in police custody, and on account of the lack of effective judicial review. It accordingly held unanimously that there had been a violation of Article 5 §§ 1 (c) and 4. Lastly, the Court noted that owing to the circumstances of the case the applicants had been unable to avail themselves of the statutory provisions providing for compensation to be paid to persons arrested unlawfully or detained without justification, contrary to Article 5 § 5. It awarded EUR 8,000 to Mr Yılmaz and EUR 3,000 each to Mr Tonka and Mr Özdemir. (The judgment is available only in French.)