Ataş and Seven v. Turkey (26893/02)
| Date | 20081216 |
|---|---|
| Article | 3 |
| Decision | violation |
The applicants, Mukadder Ataş and Süheyla Seven, are Turkish nationals who were born in 1977 and 1978 respectively and live in Batman (Turkey).
The case concerned the applicants’ allegation that they were tortured and raped by the security forces following their arrest in September 1998 on suspicion of membership of an illegal organisation, the PKK (the Kurdistan Workers’ Party). They also alleged that the authorities failed to carry out an effective investigation into their allegations. They relied on Article 3 (prohibition of inhuman or degrading treatment).
In particular, the applicants claimed that, blindfolded and stripped naked, they had been given electric shocks, beaten, hung from their arms and raped by gendarmes inserting a truncheon into their anus and vagina. Following their complaints of torture and rape, Diyarbakır Chief Public Prosecutor’s office issued a decision of non-jurisdiction and transferred the case file to the Diyarbakır Provincial Administrative Council. That body decided that that there was not enough evidence to bring criminal proceedings against the gendarmerie officers and consequently issued a direction of “no prosecution”. The case was automatically referred to the Supreme Administrative Court for review; that body qualified the alleged offence as ill-treatment under Article 245 of the Criminal Code and suspended the criminal proceedings against the gendarmes under Law No. 4616. That law allows for certain criminal cases to be suspended and discontinued if no offence of the same or a more serious kind is committed within a five-year period.
Released from detention on remand in May 1999, the applicants were shortly after acquitted as the courts found no evidence to prove that they had been involved in PKK activities.
The Court found that the applicants had failed to provide sufficient evidence to substantiate their allegations of ill-treatment; on the other hand, three medical reports provided by the Government stated that there had been no sign of ill-treatment on the applicants’ bodies or indication that they had had sexual intercourse. The material in the case file therefore did not show to the required standard of proof that the applicants had been tortured as alleged. Accordingly, the Court held unanimously that there had been no violation of Article 3 in that respect.
However, the Court found, as it had in previous cases against Turkey, that bodies like the Provincial Administrative Council, which were in charge of investigations concerning similar allegations directed against security forces, could not be regarded as independent, as they had been made up of civil servants hierarchically dependent on the Governor, an executive officer linked to the very security forces under investigation. Furthermore, the proceedings brought against the accused gendarmes had not produced any concrete results and, the criminal proceedings against them having been suspended, they had effectively enjoyed virtual impunity, despite the evidence against them. Consequently, the Turkish criminal-law system, as applied in the applicants’ case, had proven to be far from rigorous and had had no dissuasive effect. Accordingly, the Court concluded that the domestic authorities had not effectively investigated the applicants’ allegations of ill-treatment, in further violation of Article 3. Mukadder Ataş and Süheyla Seven were each awarded EUR 5,000 in respect of non-pecuniary damage and EUR 3,000, jointly, for costs and expenses. (The judgment is available only in English.)