SECOND SECTION
 
 
 
 
 
 
CASE OF AHMET ÖZKAN AND OTHERS v. TURKEY
 
(Application no. 21689/93)
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
6 April 2004
 
This version was rectified on 1 March 2005 under Rule 81 of the Rules of the Court. The rectification necessitated changing the page numbering of the original version. In the case of Ahmet Özkan and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Mr J.-P. Costa, President,
 Mr A.B. Baka,
 Mr K. Jungwiert,
 Mr V. Butkevych,
 Mrs W. Thomassen,
 Mr M. Ugrekhelidze, judges,
 Mr F. Gölcüklü, ad hoc judge,
and Mr T.L. Early, Deputy Section Registrar,
Having deliberated in private on 16 March 2004,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 21689/93) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former[1] Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 32 Turkish nationals (“the applicants”) on their own and their relatives' behalf on 8 April 1993 and registered on 20 April 1993. The applicants' names and family ties are set out in Appendix I. 2. The applicants, who had been granted legal aid, were represented by Mr Tahir Elçi, a lawyer practising in Cizre (Turkey), who delegated his representation on 24 February 1994 to Mr Kevin Boyle and Ms Françoise Hampson, lawyers practising in the United Kingdom, who were also directly authorised by the applicants. On 23 September 1996 Mr Boyle and Ms Hampson delegated their representation to Mr Tony Fisher of Fisher Jones Greenwood Solicitors in Colchester (United Kingdom), who was later also directly authorised by the applicants. The applicants' United Kingdom representatives engaged the assistance of the Kurdish Human Rights Project (“KHRP”), a non-governmental organisation based in London. The Turkish Government (“the Government”) were mainly represented by their Agent, Mr Munci Özmen, of the Turkish Ministry of Foreign Affairs. 3. Relying on Articles 2, 3, 5, 6 and 8 of the Convention, the applicants complained of a military raid conducted on 20 February 1993 on the village of Ormaniçi and related events, including the death of two children, the taking into detention of the male villagers, the conditions in which these villagers were held in detention, their treatment in detention and the death of one villager in detention. The applicants further alleged a violation of former Article 25 (now Article 34) and former Article 28 of the Convention (now 38). 4. On 11 May 1993 the Commission decided to bring the application to the notice of the Government, inviting them to submit written observations. The Government submitted their observations on 23 September 1993, to which the applicants responded on 11 June 1995. The application was declared admissible by the Commission on 16 January 1996 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date. 5. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6. The applicants and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided on 20 June 2000 that no hearing on the merits was required (Rule 59 § 2 in fine) and invited the applicants to submit their claims for just satisfaction within the meaning of Article 41 of the Convention. After receipt of these claims, the Government were given the opportunity to submit comments, an opportunity of which they availed themselves in their submissions of 15 January 2001. 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1, and included the appointed ad hoc judge Mr F. Gölcüklü. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The case mainly concerns events which took place in 1993 in the village of Ormaniçi in the Güçlükonak district of the Şırnak province in south-east Turkey. The applicants alleged that, on 20 February 1993, security forces had attacked Ormaniçi, as a result of which two children had died. The applicants further alleged that on the same day the security forces had set fire to houses in Ormaniçi and had taken most of the male villagers into detention. The applicants claimed that these men had been subjected to ill-treatment in detention, resulting in various serious injuries and the death of one villager. They further alleged that the security forces had returned to Ormaniçi later in 1993, when they had burned houses and destroyed harvested crops, and that they had returned once again in the spring of 1994 when they had killed four villagers and forced the villagers to leave Ormaniçi. 9. The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 2 to 4 April 1998 and from 5 to 10 October 1998 from 25 applicants, 8 other villager witnesses and 15 officials. 10. The certified transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court. 11. The parties' submissions on the facts (Sections A and B) and the proceedings conducted before the domestic authorities (Section C) are summarised below. The documentary material before the Court is summarised in Appendix II and the oral evidence to the Delegates in Appendix III, which appendices are available on the Court's website and which are held in the Court's archives. A. The applicants' submissions on the facts
12. In the early morning of 20 February 1993, military forces attacked the village of Ormaniçi. Many soldiers were dressed in white camouflage gear. There was snow on the ground and it was very cold. The military forces started attacking the village with rifles and heavy weaponry and later moved into the village, systematically removing each family from their house and taking them to the village square. Many families were unable to dress and were forced into the open with their children without proper clothing and/or shoes. 13. Most of the male villagers were beaten as they were taken to the village square, where they were made to lie face down in the mud and snow, and were subsequently blindfolded. The villagers arrived in the square between 10 a.m. and 12 noon and remained there until just before sunset. The women and children were also assembled near the village square but were not blindfolded. 14. While the villagers were being gathered in the square, a detailed search of all the properties was conducted and the soldiers began systematically setting fire to the homes, using an incendiary agent that they appeared to have brought with them specifically for this purpose. Many of the animals which were kept in stables or were wandering around the village were shot, or burned in their stables. 15. During the raid one soldier threw a bomb into the house of a villager called Mevlüde Ekin. The bomb exploded, causing severe intestinal injuries to her six-year-old-daughter Abide. Ms Ekin and her other children, together with Abide, were then evacuated to the village square. The village muhtar[2], Mehmet Aslan, was taken to the house of Mevlüde Ekin to accompany the soldiers in a search. It was claimed that somebody had been shooting from her house at the soldiers when the bomb was thrown. During this search a soldier inside the house was shot and killed instantaneously. The army commander instructed Mehmet Aslan to indicate that he had been shot by terrorists, whereas he had in fact been shot by another soldier. 16. Just before sunset about twelve people who had been blindfolded, including Mevlüde Ekin's daughter Halime Ekin, were taken from Ormaniçi to Şırnak by helicopter. They were placed in custody in Şırnak. The remainder of the men were roped together and forced to walk blindfolded and, in many cases, without adequate clothing or footwear, from Ormaniçi to Güçlükonak. They had to walk some 7 kilometres in the snow, which took 2½ hours. 17. When the men arrived in Güçlükonak, they were put into a partly constructed military building. The floors were wet and constantly under water to a depth of about 10 cm. There was no heating or furniture. Many of the men were not fed for several days. They were systematically tortured and forced, whilst blindfolded, to fingerprint statements which had been prepared for them. They suffered various forms of torture including electric shock treatment, burning with hot metal bars, beatings, and anal rape with a truncheon and with bottles. 18. As a result of the walk to Güçlükonak and the conditions of detention there, many of the men suffered severe injuries to their feet, some of which required subsequent amputation of toes or feet. The men at Güçlükonak were moved to Şırnak by helicopter on or about 5 March 1993. 19. The persons who had been taken directly to Şırnak were also tortured and forced to sign statements. Allegations were put to them that they were members or supporters of the PKK[3]. One man, İbrahim Ekinci, having been tortured, fell ill and was removed to hospital, where he died of pneumonia on 16 March 1993. 20. On 21 February 1993, military forces returned to Ormaniçi to burn more houses and kill more animals. The women of the village, together with the children, slept in the mosque, in caves, and in some unburned outbuildings. Abide Ekin died in the mosque, without having received medical attention for her injuries. A few days later, another child, Ali Yıldırım, was killed as a result of the explosion of a mortar bomb or grenade that had been left in the village by the military forces after the attack on 20 February 1993. 21. Most of the detained villagers were released either on 9 or 16 March 1993. They appeared before public prosecutors at Eruh (Siirt district) and many complained of the torture that they had suffered. On 30 April 1993 a number of the men were charged with terrorist offences, which were to be tried before the Diyarbakır State Security Court. A number of villagers remained in custody until approximately June 1993. Two villagers, Mehmet Nuri Özkan and Ali Erbek, were still in custody at the time of the oral hearing held in October 1998. Mehmet Nuri Özkan has been released since, but Ali Erbek is currently still in custody. 22. Both before and at the time of the transfer of the men from Şırnak to Eruh a number were taken to the Mardin and Diyarbakır State Hospitals, where they were placed in the prison wing. After medical treatment, some had parts of their feet amputated. This was the case of Fahrettin Özkan, who was only 13 years old at the material time. 23. At the time of their release on 9 and 13 March 1993 respectively, the majority of the detained men were taken by bus to Siirt and subsequently to a nearby village. For the most part they returned to Ormaniçi by mule since they were unable to walk. During the period between 9 March 1993 and the summer/autumn of 1993, as they gradually recovered from their injuries, many of the men attempted to rebuild the burnt houses. 24. In the late summer or autumn of 1993 there was a further incident in Ormaniçi. On this occasion all the villagers were assembled near the school. Two women were taken into the school and tortured and the soldiers went to a number of houses and removed all of the harvested crops and destroyed them. Some more buildings were also burnt, and further animals died after eating contaminated food. Many of the villagers had left the village to live in caves nearby but had continued to cultivate their land. 25. A number of other villagers returned to Ormaniçi in the spring of 1994. In or about May 1994 the soldiers came to the village once more and gunfire was heard in the orchards and fields nearby. After that the soldiers arrived in the village indicating that they had killed seven terrorists. In fact four villagers had been killed as well as three alleged members of the PKK. After this incident the villagers were given three days to leave the village, otherwise they would be killed. They all left and moved to various towns in south-east Turkey, including Güçlükonak, Tarsus and Siirt. A number also moved to İstanbul. They have been unable to return to the village since that date. Some have remained in a neighbouring village. 26. In August 1994 the Government carried out an investigation in Ormaniçi into the events which had taken place there in February 1993. No investigation was carried out into the detention of the villagers in Güçlükonak or Şırnak, notwithstanding the injuries they had suffered whilst in custody. None of the applicants has been offered any compensation for their losses. B. The Government's submissions on the facts
27. While the security forces were approaching the village of Ormaniçi on 20 February 1993 in order to carry out a search in the valley of the Ormaniçi stream, they came under fire from the village. 28. In the course of the ensuing clash, the roofs of some houses in the village caught fire as a result of being hit by tracer bullets fired in the course of the exchange of fire. No house was deliberately set on fire by members of the security forces involved in the incident. Although some livestock in the village may have died of suffocation caused by smoke, none of the members of the security forces involved deliberately killed any livestock there. 29. Apart from one soldier who was killed when conducting a search in one of the houses of the village, nobody was injured or killed in Ormaniçi on 20 February 1993. 30. Those villagers who were subsequently taken into detention were not ill-treated during their detention. The injuries sustained by a number of these villagers, which in the case of four villagers resulted in the amputation of toes, had been caused by frostbite, for which they received medical treatment while in detention. 31. One of the villagers taken into detention, who suffered from epilepsy, was transferred to hospital while in detention. He subsequently died in hospital of natural causes. C. Proceedings before the domestic authorities
32. On 31 March 1993 the Eruh public prosecutor issued a decision of lack of jurisdiction in respect of 42 persons who had been taken into detention on 20 February 1993 in the village of Ormaniçi and referred the case to the office of the public prosecutor at the Diyarbakır State Security Court. 33. On 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued a decision of non-prosecution in respect of 25 Ormaniçi villagers for lack of sufficient evidence of the charges of membership of the PKK or aiding and abetting the PKK. These villagers were consequently released. 34. As regards the other 17 Ormaniçi villagers, on 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued an indictment committing them to appear before the State Security Court on charges of armed activities on behalf of the PKK, membership of the PKK and/or aiding and abetting the PKK. Although most of these villagers were released at some point in time, the villagers Mehmet Nuri Özkan and Ali Erbek were still in detention in October 1998. In September 1998 the proceedings before the State Security Court in the case were still pending. 35. On 24 June 1993 the public prosecutor at the Diyarbakır State Security Court took a decision of non-prosecution in relation to the death on 17 March 1993 of İbrahim Ekinci, one of the Ormaniçi villagers taken into detention on 20 February 1993. In this decision it was noted that the cause of death found had been pneumonia and it was held that no offence had been committed in that the incident was due to no one's fault or influence. It was decided that, unless there were any objections, there were no grounds for instituting proceedings. 36. The applicants did not make an official complaint about the destruction of their property and homes or about their treatment in detention. On 12 April 1993 Ayşe Ekinci filed a criminal complaint with the office of the public prosecutor in Cizre in relation to her husband İbrahim Ekinci, who had died in hospital while in detention. 37. On 15 August 1994, on the basis of this criminal complaint, the Eruh public prosecutor took a decision of non-prosecution. In his decision it was pointed out that the cause of death found was pneumonia. 38. After the Commission had communicated the applicants' complaints to the Government, the Turkish Ministry of Justice ordered an investigation into the events of 20 February 1993 in Ormaniçi, including the death of two children in the village. 39. On 10 August 1994 the Siirt public prosecutor carried out an on-site inspection in Ormaniçi in order to establish whether houses had been demolished and burned and to take statements from applicants. He was accompanied by a civil engineer, who drew up a separate report on the conditions of the houses found in Ormaniçi. Also on 10 August 1994, the Eruh public prosecutor went to Ormaniçi in order to carry out an investigation of the death of two children, Abide Ekin and Ali Yıldırım, in the course of which the two children's remains were disinterred. 40. On 27 June 1995 the Eruh public prosecutor issued a decision of lack of jurisdiction in the investigation concerning the death of Abide Ekin and Ali Yıldırım. In his decision it was found to have been established that the children had died as a result of the explosion of explosive devices with which they had played and which had been left unexploded after the incident in Ormaniçi on 20 February 1993. The offence was described as causing the death of two persons by leaving explosive material in the village. According to this decision, the perpetrators – referred to as defendants – were an unspecified number of illegal PKK terrorists. The decision further stated that the case file was to be transmitted to the office of the public prosecutor at the Diyarbakır State Security Court for further proceedings. 41. On 21 July 1995 the public prosecutor at the Diyarbakır State Security Court decided that the Eruh public prosecutor – in co-operation with the Eruh District Gendarmerie Command, the Siirt Directorate of Security and the Siirt Provincial Gendarmerie Command – was to conduct a further investigation into the deaths of Abide Ekin and Ali Yıldırım and to communicate the results of this investigation to the office of the public prosecutor at the Diyarbakır State Security Court at regular intervals. It appears that such reports were sent on a regular basis. According to the wording of the last report made available, a letter of 3 June 1998 from the Siirt Provincial Directorate of Security to the office of the public prosecutor at the Diyarbakır State Security Court:
“the incident occurred as a result of the activities of the outlawed PKK terrorist organisation and upon the establishment of open [as yet unknown] identities and apprehension of the perpetrators information will be submitted separately”. 42. No information has been submitted as to the outcome of the investigation conducted by the Siirt public prosecutor into the destruction of houses in Ormaniçi. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. State of emergency (Olağanüstü Hal)
43. 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). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. By 1996 the violence had claimed the lives of 4,036 civilians and 3,884 members of the security forces. In 1987 ten of the eleven provinces of south-eastern Turkey became the subject of emergency rule. 44. Two principal decrees relating to the south-eastern region were made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). Decree no. 285 (of 10 July 1987) established a regional governorship of the state of emergency region in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the Decree, all public security forces and the Gendarmerie Public Peace Command were at the disposal of the regional governor. Decree no. 430 (of 16 December 1990) reinforced the powers of the regional governor. 45. The number of provinces affected by the emergency rule decreased over the period between 1987 and November 2002. The state of emergency in south-east Turkey was fully lifted on 30 November 2002 when the emergency rule ceased to apply to the last two provinces affected by it. B. Criminal law and procedure
46. The Turkish Criminal Code (Türk Ceza Kanunu) makes it a criminal offence, inter alia:
–  to deprive someone unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
– to coerce through force or threats (Article 188)
– to issue threats (Article 191)
–  to subject someone to torture and ill-treatment (Articles 243 and 245);
–  to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450);
–  to commit arson (Articles 369, 370, 371, and 372), or aggravated arson if human life is endangered (Article 382);
–  to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); and
–  to damage another's property intentionally (Articles 526 et seq.). 47. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). Pursuant to Article 135a of the Turkish Code of Criminal Procedure, evidence obtained by way of torture or ill-treatment is not admissible in criminal proceedings. If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 48. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. An appeal against a conviction of a terrorist offence by a State Security Court lies with the Court of Cassation (Yargitay). 49. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the relevant local administrative council (for the district or province, depending on the suspect's status). That council will appoint an investigator (muhakik) to conduct the preliminary investigation, on the basis of which the council will decide whether to prosecute. These councils are made up of civil servants, chaired by the governor. If a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. A decision not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. 50. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285, the 1914 Law on the prosecution of civil servants also applies to members of the security forces who come under the governor's authority. 51. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). C. Civil and administrative liability arising from criminal offences
52. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage because of an act of the authorities may file a claim for compensation within one year after the alleged act was committed. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 53. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities shall be subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
54. That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 55. However, Article 8 of Legislative Decree no. 430 of 16 December 1990 (see paragraph 44 above) provided:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
56. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). 57. However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). D. Relevant domestic provisions on deprivation of liberty
58. Article 19 of the Turkish Constitution provides:
 “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ... The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days... These time-limits may be extended during a state of emergency... A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful. Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”
59. Article 168 of the Turkish Criminal Code reads as follows:
 “Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.”
60. Article 169 of the Turkish Criminal Code provides:
 “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment...”
61. Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”. Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half. 62. Under section 9(a) of Law no. 2845 on procedure in the State Security Courts, only these courts can try cases involving the offences defined in Articles 168 and 169 of the Criminal Code. 63. At the material time, section 30 of Law no. 3842 of 18 November 1992 provided that, with regard to offences within the jurisdiction of the State Security Courts – including those mentioned in paragraph 61 above – any arrested person had to be brought before a judge within forty‑eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively. 64. Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”
E. The Notice of Derogation of 6 August 1990 and its subsequent amendments
65. On 6 August 1990 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:
“1. The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation in the meaning of Article 15 of the Convention. During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces. 2. The threat to national security is predominantly [occurring] in provinces of South East Anatolia and partly also in adjacent provinces. 3. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights. 4. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10 1990 the decrees with force of law [nos.] 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto...”
66. A descriptive summary of the contents of the Legislative Decrees nos. 424 and 425 was annexed to this notice. 67. According to a note in the notice of derogation, “the threat to national security [was] predominantly occurring” in the provinces of Elazığ, Bingöl, Tunceli, Van, Diyarbakır, Mardin, Siirt, Hakkari, Batman and Şırnak. 68. In a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Legislative Decree no. 424 had been replaced by Legislative Decree no. 430, promulgated on 16 December 1990. A descriptive summary of the decree was appended to this letter. 69. On 5 May 1992 the Permanent Representative of Turkey wrote to the Secretary General in the following terms:
“As most of the measures described in the decrees which have the force of law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention only. The derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation.”
70. On 1 February 2002 the Turkish Government informed the Secretary General that its Notice of Derogation in respect of Article 5 of the Convention had been withdrawn. III. RELEVANT INTERNATIONAL MATERIALS
71. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) of the Council of Europe has carried out sixteen visits to Turkey between September 1990 and September 2002. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill‑treatment of persons deprived of their liberty, in particular, relating to those held in police custody. A third periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996 and October 1997. The CPT's report on its visit in October 1997[4] was made public on 23 February 1999 with the authorisation of the Turkish Government. 72. In a public statement of 15 December 1992, the CPT reported that on its first visit to Turkey in 1990 it had reached the conclusion that torture and other forms of severe ill-treatment were important characteristics of police custody. It noted that the following types of ill‑treatment had been alleged time and time again - inter alia, Palestinian hanging, electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. It emphasised that its medical examinations had disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and a psychological nature. The on-site observations in police establishments had revealed extremely poor material conditions of detention. It stated that on its second visit in 1991 it had found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons had made complaints of similar types of ill-treatment. An increasing number of allegations had been heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims had been found on examination to display marks or conditions consistent with their allegations. The CPT stated that on its third visit (a periodic visit) from 22 November to 3 December 1992 its delegation had been inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. In Ankara police headquarters and Diyarbakır police headquarters, it found equipment which was consistent with use for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”. 73. In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill‑treatment by the police. A considerable number of persons examined by the delegations' forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police, and in particular of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the Anti-Terror Department at İstanbul Police Headquarters, cases which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. The persons examined showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that recourse to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey. 74. In the CPT report on its visit in October 1997, it noted that the existence and extent of the problem of torture and other forms of ill-treatment of criminal suspects by law-enforcement officials – and, more particularly, by police officers – had been established beyond all doubt in the course of previous CPT visits to Turkey between 1990 and 1996. Further, in recent times, senior political figures had openly recognised the realities of the situation. During the CPT's visit in October 1997, a considerable number of allegations were once again heard of torture and ill-treatment by law-enforcement officials. Those allegations emanated from both ordinary criminal offenders and persons detained in respect of offences falling under the jurisdiction of the State Security Courts. Further, medical evidence of recent ill-treatment by the police was obtained by the CPT delegation. 75. The CPT further observed that several of the police establishments visited still possessed interrogation rooms of a highly intimidating nature and stressed that facilities of this kind had no place in a modern police service. 76. In the CPT report on its visit in September 2001[5], published on 24 April 2002 with the authorisation of the Turkish Government, the CPT expressed concerns about the continued use in the eastern part of Turkey of interrogation rooms with a highly intimidating character, such as those seen in the Anti-Terror Departments at Ağrı, Elazığ, Erzurum and Van Police Headquarters and in Van Provincial Gendarmerie Headquarters. According to the CPT, such oppressive facilities had no place in a modern police service. 77. The CPT further stated in this report that the findings made in the September 2001 visit indicated that the blindfolding of persons in police/gendarmerie custody remained common practice throughout Turkey and that persons suspected of narcotics or terrorist offences were apparently particularly prone to this practice. It noted that blindfolds were usually applied at the “preliminary questioning” stage prior to the taking of a formal statement, i.e. at the time when ill-treatment was most likely to occur. It could further not be ruled out that blindfolds were also applied at later stages. The CPT had been told by certain persons that they had been obliged to sign statements attributed to them whilst blindfolded. After the CPT delegation had discovered a blindfold in an interrogation room inspected, the delegation was informed by a senior officer that it would be applied to certain suspects undergoing questioning in order to prevent them from seeing the interrogating officers. In its report the CPT stated that it was clear from the information gathered by it over the years that in many, if not most, cases, persons were blindfolded in order to prevent them from being able to identify law-enforcement officials who inflicted ill-treatment upon them. As a result of this practice, legal proceedings against those who tortured and ill‑treated could be severely hampered. 78. As regards the medical examination of persons held in custody, as already addressed in considerable detail in previous CPT visit reports, the CPT noted that dialogue with the Turkish authorities on this point had focused on two issues: the principle that law-enforcement officials should not be present during the medical examination, and possible exceptions to that principle; and the need to ensure that doctors carrying out the medical examination used the standard forensic medical form approved by the Turkish authorities. The CPT delegation that carried out the visit in September 2001 found that there remained much room for progress as regards both these issues, in particular in the eastern part of Turkey, where interviews with detained persons suggested that it was very rare for law‑enforcement officials not to be present during medical examinations. Numerous persons stated that they had been warned prior to the examination not to say anything to the doctor about the treatment they had received, and that the presence of law-enforcement officials during the examination had ensured that they heeded that warning. Some persons interviewed stated that when the doctor had inquired as to the origin of injuries they bore the law-enforcement official present had protested. Doctors at the Primary Health Care Centre in Elazığ acknowledged that the examination always took place in the presence of police officers or members of the gendarmerie. In discussion with doctors at Van State Hospital, it was indicated that it was common for two or more persons to be examined simultaneously and that lesions observed might not be recorded “in order to avoid problems with the police”. The CPT further concluded that it was clear that, instead of using the “General Judicial Medical Examination Form” approved by the Turkish authorities, the old practice of very brief findings set out on a piece of paper without any headings, and often covering several detained persons, remained common. 79. Reiterating that no legal safeguard against ill-treatment was more fundamental than the requirement that the fact of a person's deprivation of liberty be recorded without delay, the CPT indicated in its report that the current practice concerning the recording of detention required improvements in certain respects. It appeared that the trigger for making an entry in the book of admissions was the fact of placing someone in a cell. As a person could be deprived of his liberty for several hours in a law‑enforcement establishment before being placed in a cell, this initial period of detention often appeared to go unrecorded. 80. In the preliminary observations made by the CPT delegation on its visit carried out in March 2002, it was noted that prison staff were still present during medical examinations. The CPT delegation further indicated that it had gathered compelling evidence of severe ill-treatment of several persons held by the gendarmerie in Diyarbakır in late 2001. This ill‑treatment had apparently begun during the initial period of custody and had continued during the period spent in the custody of the gendarmerie. The delegates' visit to the Provincial Gendarmerie Command, where the ill‑treatment was said to have occurred, reinforced the credibility of the allegations made. It was of an oppressive and intimidating nature, not unlike the facilities criticised in the CPT report on its September 2001 visit[6]. 81. The CPT delegates further discovered that, in Diyarbakır, law‑enforcement officials were systematically present when suspects were medically examined at the outset and at the end of their custody. Many prisoners interviewed told the CPT delegates that they had been warned not to make any complaints to the doctor about how they had been treated, and that the presence of law-enforcement officials had deterred them from making complaints. Some doctors spoken to indicated that, despite their objections, law-enforcement officials had been present during medical examinations. Moreover, some doctors mentioned cases in which reports which they had drawn up recording injuries had been torn up by law-enforcement officials. THE LAW

Article of the Convention at issue: Article 8
Outcome: violation