Tekin and Others v. Turkey (8534/02)

Date	20080520
Article	3
Decision	violation

CHAMBER JUDGMENT TEKİN AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Tekin and Others v. Turkey (application no. 8534/02).

The Court held unanimously that there had been two violations of Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment) on account of the ill-treatment to which the applicants had been subjected by the security forces and the failure of the Turkish authorities to conduct an effective investigation.

Under Article 41 of the Convention (just satisfaction), the Court awarded 9,000 euros (EUR) to Sıddık Tekin, EUR 14,000 to Haşim Elmas and EUR 7,000 to Tayyar Kılıç in respect of non-pecuniary damage. (The judgment is available only in French.)

1. Principal facts

The applicants, Sıddık Tekin, Haşim Elmas and Tayyar Kılıç, are Turkish nationals who were born in 1956, 1973 and 1961 respectively and live in Şemdinli (Turkey).

The case concerned the applicants’ complaints of ill-treatment to which they were allegedly subjected during an operation conducted in their village.

On the morning of 21 July 1999 the security forces carried out a major operation in the village of Altınsu and the hamlet of Dereboyu (Turkey), where the applicants lived, looking for members of the illegal PKK organisation (Workers’ Party of Kurdistan) suspected of hiding there following clashes during which a soldier had been killed. The zone was sealed off by the security forces and checkpoints were set up at the points of entry. Searches were then conducted in the area and in people’s homes.

The same day the applicants lodged a complaint alleging ill-treatment with the Şemdinli public prosecutor, who took statements from them.

Tayyar Kılıç alleged that armed forces personnel had carried out searches in his home. After blindfolding him, they had taken him to a nearby bridge and accused him of sheltering terrorists. They had stripped him of his clothes and struck him with a stick on the forehead and in the face, breaking two of his teeth, and had forced him to remain standing for almost an hour.

Sıddık Tekin stated that an NCO and five members of the Kayseri commando brigade (Kayseri Komando Tugayı) had searched his house. The NCO had taken him to an apple tree near the house and had questioned him about terrorists hiding in the village. The NCO and the brigade members had blindfolded him, struck him and insulted him. When the applicant said that he intended to lodge a complaint the brigade members had threatened to kill him. One of them had fired two shots into the air.

Haşim Elmas alleged that two officers and eight members of the Kayseri commando brigade had questioned him about terrorists suspected of carrying out an attack and had asked him to denounce the villagers who had assisted them. One of the brigade members had held him while the officer kicked him, breaking several of his teeth. The soldiers had then pointed their guns at him, threatening to kill him, and had struck various parts of his body with sticks.

The Şemdinli public prosecutor took evidence from the applicants, ordered that they undergo medical examinations, organised an identification parade and took statements from the armed forces personnel concerned and from numerous witnesses. The medical reports found various injuries on the bodies of the applicants, including bruising, subconjunctival haemorrhage, grazes, splitting of the lower lip and dislocated teeth. The doctors certified Mr Kılıç unfit for work for 11 days, Mr Tekin for 13 days and Mr Elmas for 20 days.

In November 1999 the prosecutor forwarded the file to the Şemdinli district administrative council, which decided not to bring proceedings against the security forces. The regional administrative court overturned the administrative council’s decision in October 2001, finding it established that the applicants had been subjected to ill-treatment.

In November 2001 criminal proceedings were brought against six members of the armed forces on charges of ill-treatment. In July 2005 the criminal court acquitted the defendants on the ground that there was insufficient evidence against them. In particular, the court noted contradictions in the statements of the applicants and the prosecution witnesses and rejected their testimony, relying on the fact that they were related. The Court of Cassation quashed the acquittal decision in 2007 and ruled that the prosecution was time-barred.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 31 January 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Josep Casadevall (Andorran), President,
Rıza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Boštjan M. Zupančič (Slovenian),
Egbert Myjer (Dutch),
Ineta Ziemele (Latvian),
Ann Power (Irish), judges,

and also Stanley Naismith, Deputy Section Registrar.

3. Summary of the judgment2

Complaints

Relying on Articles 3 (prohibition of inhuman or degrading treatment), 6 (right to a fair hearing) and 13 (right to an effective remedy), the applicants complained that they had been subjected to ill-treatment during the operation conducted in their village and that they had not had an effective remedy by which to complain of their treatment.

Article 3

As to the alleged ill-treatment

The Turkish Government disputed the applicants’ allegations. They maintained that a criminal investigation had been conducted and that evidence had been gathered which shed light on the allegations concerned.

The Court observed that it was not claimed that the applicants’ injuries could have pre-dated the operation in question. It also noted that the Turkish authorities did not dispute the presence of the armed forces in the applicants’ village. The area had been under the effective control of the military authorities at the time of the incident.

Furthermore, on the day of the incident, the applicants had made their allegations to the public prosecutor and had undergone medical examinations which noted significant injuries. In addition, numerous witnesses had stated that they had seen members of the armed forces striking the applicants.

The Court further noted that, following the criminal proceedings, the Court of Cassation had quashed the acquittal decision and held that the prosecution was time-barred. That put an end to any prospect of shedding light on the origin of the applicants’ injuries.

Accordingly, the Court considered that the Turkish State was to be held responsible for the injuries observed on the applicants’ bodies and held that there had been a violation of Article 3.

As to the alleged lack of an effective investigation

The Court reiterated that where an individual made a credible assertion that he or she had suffered treatment infringing Article 3 at the hands of the police, there should be an effective official investigation capable of leading to the identification and punishment of those responsible.

The Court noted that the public prosecutor had taken the applicants’ complaint seriously and had immediately started an investigation into their allegations. However, the ensuing criminal proceedings as a whole had been lengthy.

Firstly, the criminal proceedings against the members of the security forces had been initiated over two years after the events owing, among other factors, to the refusal of the administrative council to authorise such proceedings. Secondly, the proceedings before the criminal court had lasted for almost four years. Furthermore, the proceedings as a whole had lasted so long that the limitation period expired.

Accordingly, the Court considered that the Turkish authorities had not acted with sufficient promptness or with reasonable diligence, with the result that the perpetrators of the violent acts had enjoyed virtual impunity. There had therefore been a violation of Article 3.

Articles 6 and 13

The Court considered it unnecessary to examine separately the complaints under Articles 6 and 13.