ITEMID: 001-58735
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF SALMAN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 2 with regard to death in custody;Violation of Art. 2 with regard to failure to carry out an effective investigation;Violation of Art. 3;Violation of Art. 13;Violation of former Art. 25;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 6. The facts of the case, particularly concerning events on 28 and 29 April 1992 when Agit Salman, the applicant's husband, was detained by police and subsequently died, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.
The Commission heard witnesses in Ankara from 1 to 3 July 1996 and in Strasbourg on 4 December 1996 and 4 July 1997. The witnesses included the applicant; her son Mehmet Salman; her brother-in-law İbrahim Salman; Ahmet Dinçer and Şevki Taşçı, police officers who apprehended Agit Salman; Ömer İnceyılmaz, Servet Ozyılmaz and Ahmet Bal, custody officers on duty over the period of Agit Salman's detention; İbrahim Yeşil, Erol Çelebi and Mustafa Kayma, interrogation team officers who took Agit Salman to the hospital; Tevfik Aydın, the Adana public prosecutor who attended the autopsy; Dr Ali Tansı, the doctor at the Adana State Hospital who declared that Agit Salman was dead; Dr Fatih Şen, who conducted the autopsy; Dr Derek Pounder, Professor at Aberdeen University, a forensic expert called by the applicant, and Dr Bilge Kirangil, a member of the Istanbul Institute of Forensic Medicine which had reviewed the autopsy carried out by Dr Fatih Şen.
The Commission also requested an expert opinion on the medical issues in the case from Professor Cordner, Professor of Forensic Medicine at Monash University, Victoria (Australia) and Director of the Victorian Institute of Forensic Medicine.
7. The Commission's findings of fact, which are accepted by the applicant, are set out in its report of 1 March 1999 and summarised below (Section A). The Government's submissions concerning the facts and the expert medical reports are also summarised below (Sections B and C respectively).
8. Agit Salman, the applicant's husband, worked as a taxi driver in Adana. At the time of events in this case he was 45 years old. He had no history of ill-health or heart problems.
9. On 26 February 1992 Agit Salman was taken into custody by police officers from the anti-terrorism branch of the Adana Security Directorate. İbrahim Yeşil was the officer in charge of interrogating him. Agit Salman was released at 5.30 p.m. on 27 February 1992. He told the applicant and their son Mehmet that he had been beaten and immersed in cold water during the night of his detention. He remained off work for two days with a chill.
10. During an operation conducted to apprehend a number of persons suspected of involvement with the PKK (Workers' Party of Kurdistan), police officers came to the applicant's house in the early hours of 28 April 1992, looking for Agit Salman. He was on a wanted list for activities which included attending the Newroz (Kurdish New Year) celebrations on 23 March 1992 and involvement in starting a fire and in an attack on the security forces in which one person died and four were injured. However, Agit Salman was out working in his taxi.
11. Police officers located Agit Salman at a taxi rank at Yeşilova at about 1 a.m. on 28 April 1992. Assistant Superintendent Ahmet Dinçer and officers Şevki Taşçı and Ali Şarı took him into custody. The apprehension report of the officers made no mention of any struggle or the necessity to use force to place Agit Salman in the police car. There was an inconsistency between their written statements later given to the public prosecutor on 22 May 1992 when they stated that some pushing and pulling might have occurred and their evidence to the Commission. In their oral evidence to the Commission delegates, Ahmet Dinçer and Şevki Taşçı were adamant that they had to lead Agit Salman by the arms to the car but this did not involve the use of force and he did not receive any knocks or marks in the process. Mehmet Salman heard from the taxi drivers at the taxi rank that his father had not resisted arrest, nor had two taxi drivers who were asked to give statements by the public prosecutor heard that Agit Salman had resisted arrest.
12. Agit Salman was not taken to a doctor before being placed in a cell in the custody area. The Commission found that it was not established that he had suffered any injury on arrest or that he showed any signs of ill-health or respiratory difficulties.
13. The custody officer on duty, Ömer İnceyılmaz, entered Agit Salman's arrival in the custody area as occurring at 3 a.m. on 28 April 1992. There was no information recorded or evidence accounting for the time which elapsed between his apprehension, which took place according to the arresting officers' report at 1.30 a.m., and his registration in the custody area at 3 a.m.
14. Assistant Superintendent İbrahim Yeşil was the leader of the interrogation team assigned to Agit Salman. His team included officers Erol Çelebi, Mustafa Kayma and Hasan Arinç.
15. Two other suspects are known to have been apprehended in connection with the same operation: Behyettin El, taken into custody on 25 April 1992, and Ferhan Tarlak, detained also on 28 April 1992. A third suspect, Ahmet Gergin, was also detained in the custody area in relation to the offences under investigation. İbrahim Yeşil took a statement from Behyettin El and Ahmet Gergin on 29 April 1992. Behyettin El stated that he had been interrogated before the arrival of Ferhan Tarlak, which would have been on or before 28 April 1992.
16. No records existed of the movements of detainees to and from their cells, for example, noting the times of interrogations. The police officers concerned in the events denied in their statements to the public prosecutor taken between 18 and 25 May 1992 that Agit Salman had been interrogated during his detention, in particular, as no interrogations would take place before the operation was completed. İbrahim Yeşil, Mustafa Kayma and Hasan Arinç gave oral evidence to the same effect to the Commission's delegates. The Commission found that their assertion that Agit Salman had not been questioned during the twenty four hours following his apprehension to be implausible, inconsistent and lacking in credibility (see the Commission's analysis of the evidence, Commission's report of 1 March 1999, §§ 271-78). Taking into account also the other evidence, it found that Agit Salman had been questioned by the interrogation team during his period of detention.
17. In the early hours of 29 April 1992 İbrahim Yeşil, Mustafa Kayma, Hasan Arinç and Erol Çelebi brought Agit Salman to the Adana State Hospital. Dr Ali Tansı examined him immediately. His heartbeat, breathing and other vital functions had stopped, cyanosis had developed on the face and ears and the pupils were dilated. He declared that Agit Salman was dead on arrival and concluded that he had died fifteen to twenty minutes previously.
18. According to a statement signed by the police officers who had said they had brought Agit Salman to hospital at 2 a.m. on 29 April 1992, the custody officer had informed them at 1.15 a.m. that Agit Salman was ill. The suspect told them that his heart was giving him trouble and they took him without delay to the State Hospital emergency ward.
19. On 29 April 1992 Dr Fatih Şen, the forensic doctor at Adana, examined the body in the presence of the public prosecutor. The examination record noted that there were two dried 1 cm by 3 cm graze wounds at the front of the right armpit, a fresh 1 cm by 1 cm graze on the front of the left ankle and an old traumatic ecchymosis measuring 5 cm by 10 cm on the front of the chest. There were no injuries from a pointed instrument or firearm. He concluded that an autopsy was necessary to discover the cause of death. The documents indicate that the autopsy was carried out the same day. Samples of organs were sent for analysis.
20. At about 1 p.m. on 29 April 1992 Mehmet Salman was brought by the police to the Security Directorate, where the public prosecutor informed him that his father had died of a heart attack. İbrahim Salman went to the forensic department on 30 April 1992 to identify the body. The body was released to the family who undertook to bury it the day before May Day. The family washed the body at the cemetery. İbrahim Salman saw bruises and visible marks in the armpits. There were marks in the back resembling holes. There were marks on one foot, which was swollen. Four colour photographs of the body were taken on behalf of the family.
21. On 21 May 1992 Dr Fatih Şen issued the autopsy report. It repeated the physical findings of the examination record, this time describing the ecchymosis on the front of the chest as purple. The internal examination disclosed that the lungs weighed 300 g each and were oedematic and that the heart, weighing 550 g, was larger than the norm. The brain was oedematic. There was some indication of arteriosclerosis in certain vessels and the parietal layer of the myocard adhered tightly to the heart. The sternum was fractured and the surrounding soft tissues revealed fresh haemorrhage which could have been caused by attempted resuscitation.
Reference was made also to the histopathological report of 18 May 1992, which found chronic bronchitis in the lungs, arteriosclerotic changes narrowing the lumen in the coronary arteries and chronic constructive pericarditis, chronic myocarditis, myocardial hyperplasy and hypertrophy in the heart. The toxicology report of 14 May 1992 found no abnormalities. The report concluded that the actual cause of death could not be established and suggested that the case should be referred to the Istanbul Forensic Medicine Institute.
22. On 22 May 1992 the photographs taken by the family were handed over to the public prosecutor.
23. Statements were taken by the public prosecutor from the interrogating team (İbrahim Yeşil, Hasan Arinç, Mustafa Kayma and Erol Çelebi) on 18 May 1992. Statements were taken from the arresting officers Ahmet Dinçer, Ali Sarı and Şevki Taşçı and the custody officers Ahmet Bal, Servet Ozyılmaz and Ömer İnceyılmaz on 22 May 1992. Statements were also taken from Behyettin El and Ferhan Tarlak on 8 May 1992, the applicant on 26 May 1992, Temir Salman (the father of Agit Salman) on 29 May 1992, Hasan Çetin and Abdurrahman Bozkurt, two taxi drivers, on 29 and 30 June 1992 respectively and from Dr Ali Tansı on 30 June 1992.
24. On 15 July 1992 the Istanbul Forensic Medicine Institute issued its opinion, which was signed by seven members of the First Specialist Committee, including Dr Bilge Kirangil. This report recalled that Agit Salman had been pushed and shoved during his arrest, that he had become unwell before his interrogation or, as was claimed, that he had died during interrogation. It deduced from the witness statements that he had been in his cell until he complained that his heart was giving him trouble, at which point he was taken immediately to hospital.
The report took up the findings of the internal and external examination conducted at the autopsy. It concluded that, apart from small, fresh, traumatic abrasions on the ankle and the old purple ecchymosis on the front of the chest, no other traumatic injuries were identified. The fresh haemorrhage around the sternum could be attributed to a resuscitation attempt. There was no evidence to suggest that he had died from any direct trauma. The superficial traumas on his body could be attributed to his resistance and struggle on arrest or his being put in the police vehicle, although they could have been inflicted directly. They were not independently fatal. The relatively large size of the heart, the sclerosis in the heart arteries and the signs of an old infectious disease on the membrane and muscles of the heart, pointed to a long-standing heart disease. The report concluded that, although the deceased had lived and worked actively prior to his arrest, his death within twenty-four hours of being apprehended could have been caused by cardiac arrest connected with neurohumoral changes brought about by the pressure of the incident in addition to his existing heart disease.
25. On 19 October 1992 the Adana public prosecutor issued a decision not to prosecute. He stated that at about 1.15 a.m. on 29 April 1992 Agit Salman had informed officers that his heart was giving him trouble and he had been taken to Adana State Hospital, where he died. According to the forensic report, Agit Salman had had a long-standing heart disease, any superficial injuries could have occurred during his arrest and death was the result of a heart attack brought on by the pressure of the incident and his heart problem. There was no evidence justifying a prosecution.
26. On 13 November 1992 the applicant appealed against the decision not to prosecute, claiming that Agit Salman had been interrogated and had died under torture.
27. On 25 November 1992 the President of the Tarsus Assize Court rejected the applicant's appeal.
28. On 22 December 1992 the Minister of Justice referred the case to the Court of Cassation under Article 343 of the Code of Criminal Procedure. On 16 February 1994 the Court of Cassation quashed the non-prosecution decision and sent the case back to the Adana public prosecutor for the preparation of an indictment.
29. In an indictment dated 2 May 1994, ten police officers (Ömer İnceyılmaz, Ahmet Dinçer, Ali Sarı, Şevki Taşçı, Servet Ozyılmaz, Ahmet Bal, Mustafa Kayma, Erol Çelebi, İbrahim Yeşil, Hasan Arinç) were charged with homicide in case no. 1994/135. Hearings took place before the Adana Assize Court on, inter alia, 27 June, 26 September, 31 October and 1 December 1994. The defendants pleaded not guilty. Oral statements were given by six of the ten police officers (Ahmet Dinçer, Şevki Taşçı, Mustafa Kayma, Erol Çelebi, İbrahim Yeşil and Hasan Arinç) maintaining their written statements and denying any ill-treatment of Agit Salman. The court also heard Temir Salman, the father of Agit Salman, the applicant and Dr Ali Tansı, the doctor on duty in the emergency ward at Adana State Hospital. A written statement was obtained from Behyettin El.
30. In its decision of 26 December 1994, the Adana Assize Court found that it could not be established that the defendants had exerted force or used violence on Agit Salman or threatened him or tortured him in order to force him to confess. The superficial traumas on his body could have derived from other causes, for example, when he was arrested. The forensic reports indicated that Agit Salman had died from his previous heart condition being compounded by superficial traumas. However, there was no evidence proving that the traumas were caused by the accused. It acquitted the defendants on the ground of inadequate evidence.
31. The applicant, who had been a party to the proceedings as a complainant, did not appeal against the acquittal which became final on 3 January 1995.
32. The Commission found, in light of the written and oral evidence, the photographs and the medical opinions given by Professor Pounder and Professor Cordner, that Agit Salman had died rapidly, without a prolonged period of breathlessness. There were marks and abrasions on his left ankle for which there was no explanation and there was bruising and swelling on the sole of the left foot, which could not have been caused accidentally. These were consistent with the application of falaka (see paragraph 71 below). The bruise in the centre of the chest had not been dated with any accuracy by histopathological means and had not been shown to be dissociated from the broken sternum. These injuries together could not have been caused by cardiac massage. The Commission also disbelieved the oral evidence of officers İbrahim Yeşil, Mustafa Kayma and Erol Çelebi that cardiac massage had been applied, noting that this had first been mentioned as having occurred when evidence was given before its delegates in July 1996, four years after the events. The Commission concluded that Agit Salman had been subjected to torture during interrogation, which had provoked cardiac arrest and thereby caused his death.
33. On 24 January 1996 the applicant was summoned to the anti-terrorism branch of the Adana Security Directorate. A statement was taken by officers, on which her thumbprint was placed. It was headed “Concerning her application for help to the European Human Rights [institutions]” and began, “The witness was asked: You are asked to explain whether you applied to the European Human Rights Association, if you asked for help and whether you filled in the application form. Who mediated in your application?” The statement purported to set out her explanations as to how she came to submit her application to the Commission. She confirmed that the legal aid documents had been filled in by her. In her oral evidence, which the Commission found credible and substantiated, the applicant claimed that she had been blindfolded, kicked and struck at the Directorate and that the officers had told her to drop the case.
34. The applicant was summoned a second time. A report dated 9 February 1996, signed by police officers, listed details of the applicant's income and expenditure and confirmed her declaration of means. On this or another date, she was taken before the public prosecutor and again asked about her statement of means. No threats were made during that interview.
35. The Government referred to the evidence given by the police officers, the autopsy report and the report of the Istanbul Forensic Medicine Institute, and the oral evidence of Dr Bilge Kirangil before the Commission's delegates.
36. Agit Salman had suffered from a pre-existing heart disease. When he was arrested, he sustained minor injuries. The bruise on his chest, which was purple and therefore old, predated his arrest. During his detention in the custody area at Adana Security Directorate, he was not interrogated as the operation had not yet been completed. At about 1 a.m., he called for assistance and told the custody officer that his heart was giving him trouble. The custody officer sought help from the officers of the interrogating team who were waiting nearby for the next stage of the operation. These officers put Agit Salman, who was having difficulty breathing, in a police van and drove him to the hospital. On the way, they stopped the van and Mustafa Kayma briefly applied mouth-to-mouth resuscitation and cardiac massage. They took Agit Salman to the emergency ward, where they were told that he had died.
37. The autopsy and the report of the Istanbul Forensic Medicine Institute established that Agit Salman had not suffered any major trauma, that the broken sternum was caused by cardiac massage and that he had died of natural causes, despite all possible assistance being given.
38. In her evidence before the Commission delegates, Dr Bilge Kirangil had expressed the opinion that the bruise on the chest was at least 2 to 3 days old and unrelated to the broken sternum and that the oedema in the brain was indicative of a prolonged period of breathlessness prior to death. No findings could be drawn from the photographs, which were amateur and of poor quality. She did not consider the lack of proper forensic photographs to be a major deficiency. There had been no findings of ill-treatment in the Institute's report since there was no evidence of such. Cardiac arrest as in this case could be triggered by hormonal or environmental factors, such as extremes of temperature. If a direct blow had caused the bruise and fractured the sternum, she would have expected to see contusion and ecchymosis on the back surface of the sternum and bruising on the front and back surface of the right ventricle of the heart. While the lungs of an individual who had been breathless for thirty minutes could generally be expected to increase to a weight of 500 to 600 g, this was not necessarily the case but depended on the individual (see the summary of Dr Kirangil's evidence, Commission's report, §§ 233-41).
39. Professor Pounder was Professor of the Department of Forensic Medicine at the University of Dundee, and was, inter alia, a Fellow of the Royal College of Pathologists, Overseas Fellow of the Hong Kong College of Pathologists, a Fellow of the Faculty of Pathology of the Royal College of Physicians of Ireland and a Fellow of the Royal College of Pathologists of Australasia. The report was drafted, inter alia, on the basis of the domestic autopsy documents and statements and testimony of witnesses. It may be summarised as follows.
40. The autopsy findings indicated that Agit Salman suffered from pre-existing natural heart disease, namely, chronic inflammation involving pericardial adhesions, which was old and inactive. In the distant past, he might have suffered from rheumatic heart disease, which would have manifested itself at that time as an acute febrile illness, without necessarily any symptoms of heart involvement. The heart was enlarged, weighing 550 g, showing that the heart muscle had increased to compensate.
41. A heart with a weight greater than 500 g might give rise to sudden unexpected death at any time as a consequence of an abnormality of heart rhythm. This might be precipitated by physical or emotional stress or occur apparently spontaneously without any precipitating event.
42. In addition to the heart disease, there were four injuries.
At the front of the right armpit, there were two abrasions, each 3 cm by 1 cm and described as dried and parchmented. It was not apparent whether they had been dissected to discover if there was any associated bruising but, given the description, it was reasonable to accept they were post-mortem changes.
There were two grazes measuring 1 cm by 1 cm on the front of the left ankle and described as fresh and bloody. It appeared that these must have been caused during the period of police detention, but their location and size did not point to any specific cause.
There was a 5 cm by 10 cm bruise in the centre of the chest, which was described as old and purple in colour.
The sternum was fractured, with fresh bleeding in adjacent soft tissues.
43. The bruise to the chest directly overlay the fracture to the sternum. The haemorrhage around the fracture suggested that the fracture was produced before and not after death. The production of such a fracture would be sufficient to induce an abnormality in the rhythm of the underlying heart and thus cause a sudden death. Consequently, the fracture of the sternum represented a possible cause of death. While, theoretically, a fracture could be produced by a fall, it would be unusual, requiring impact on a raised object or edge and it would be associated with injuries to other parts of the body. Cardiac massage could also produce a fracture if very considerable force was applied. The fracture could also have been produced by a blow. In that case, bruising of the skin would be expected, even if the death which followed was rapid. Although Dr Fatih Şen characterised the bruise on the chest as old and by implication as resulting from a different event, his own view was that, given that the bruise directly overlay the fracture, it would require compelling medical evidence to conclude that they were unrelated. Dr Şen's opinion on the age of the bruise was based on the subjective, naked-eye assessment of the colour. However, the bruise was described as purple, which was entirely consistent with a fresh bruise. A bruise 2 to 3 days old would have been expected to have developed a yellowish tinge. A simple histopathological test would have clearly established whether it was a fresh bruise or an old bruise. Such a bruise would not have occurred as a result of the hand pressure applied during cardiac massage. His opinion was that, given the contiguity of the bruise and fracture and the absence of any clear evidence that the bruise occurred on a separate occasion, the bruise and fracture occurred at the same time as a result of a blow, which precipitated an abnormality of heart rhythm.
44. The autopsy findings, in particular the weight of the lungs (300 g each, that is, close to the minimum) indicated that the death was very rapid rather than prolonged. In individuals dying slowly with gradual heart failure, a lung weight of 500 to 600 g was common and up to 1,000 g could occur. This was the result of accumulation of fluid in the lungs consequent on the failure of the pumping action of the heart and was expressed clinically by breathlessness and difficulty in breathing. Deaths involving instantaneous collapse were associated with light lung weight as in this case. A relatively slow death would also be associated with a congested liver. Thus, the autopsy findings and histopathological examination weighed heavily against the possibility of a prolonged dying period with symptoms of breathlessness and pointed rather towards a rapid death.
45. As regarded the autopsy procedures, these were seriously deficient. Although the only two theoretical possibilities for the fracture were external heart massage or a blow, no steps were taken to establish conclusively whether or not massage had been performed. The statement in the autopsy report that it could have been caused by massage did not represent a full and frank statement and could be misread to imply that Dr Şen had knowledge that such resuscitation was attempted whereas he did not. He should have distinguished fact from speculation. There was also a need to include as much descriptive detail as possible concerning the bruise, fracture and heart disease and in this respect the detail was manifestly insufficient.
46. In the addendum of 26 November 1996, there was an analysis of the four photographs, which were described as being of poor quality. However, the photograph of the soles of the feet nonetheless showed a distinctive purple-red discolouration of the sole of the left foot, with mild swelling. The right little toe had a white glistening band at its base. The discolouration of the instep and sole of the left foot was strongly suggestive of bruising with associated minor swelling and was not consistent with post-mortem gravitational pooling of blood. Bruising of this extent could not be produced as a result of post-mortem injury and injury in such a location was unlikely to be caused by a fall sustained while the victim was alive. Therefore the injury was strongly suggestive of one or more blows to the foot. The mark to the right little toe was strongly suggestive of a ligature mark, although there was no congestion such as to suggest tight application of a ligature while the victim was alive; nor was the appearance suggestive of the passage of electricity. Neither possibility could be excluded and the mark was unusual.
47. The red injuries to the front of the left ankle, taken with the injuries to the sole of the left foot, suggested that the ankles were restrained by a mechanism across the front of both ankles and that, so restrained, the person was struck on the sole of his left foot.
48. The marks in the right armpit were not clearly shown. Their position, alignment and colouration were not what would normally be expected of post-mortem artefactual injury and raised the possibility of an electrical contact mark produced while the victim was alive. Combined with the unusual marking to the right little toe, it raised the suspicion of the use of electricity with one terminal tied round the little toe and the other terminal applied to the right armpit. Whether or not the marks were electrical burns could have been established by histopathological examination.
49. The photograph of the back showed post-mortem artefactual staining, with white areas of contact pallor. There were distinct marks, including a bright red abrasion at the spine at waist level and above this two dark reddish marks. Above these was a horizontal line of pink bruising or abrasion. All these could be post-mortem injuries, caused by the manipulation of the body over a rough or cutting surface. They could also have been caused before death. To distinguish the two would have required dissection.
50. The photographs indicated that the autopsy dissection was inadequate in that the back was not dissected, nor were the sole of the left foot or the injuries to the ankle. It was not clear whether the injury to the armpit was dissected. They also indicated that the description of the body in the autopsy was incomplete.
51. This report was drawn up by Professor Cordner, instructed by the Commission's delegates (see paragraph 6 above), on the basis of the domestic medical evidence, the witness testimonies, the reports of Professor Pounder and the photographs supplied by the applicant.
52. As regarded the photographs, the variation in colour or mottling on the foot represented bruising. He considered that the photograph was too blurred to conclude that the white glistening band on the right little toe was associated with a ligature nor could he reach any conclusion that the marks in the right armpit were the result of the application of electrical devices. On the legs, he noted, in addition to the marks which could correspond to the abrasions on the left ankle, small areas of reddening on the front and inner side of the right ankle. He agreed with Professor Pounder's findings on the back and noted in addition other areas of redness. Without the benefit of a dissection and/or histology of the dissection, the nature of the marks was uncertain. They could have been caused before death or be a post-mortem phenomenon. Bruising of the soles of the feet was relatively unusual and represented at least moderately severe force. Beating on the sole of the foot could cause such bruising. A person with such an injury would not be able to walk without at least an obvious limp.
53. As regarded the ageing of the chest bruise, recent authors in forensic medicine agreed that caution should be exercised. It was not practicable to construct an accurate calendar of colour changes as was done in earlier textbooks as there were too many variables. If the purple colour of the chest bruise was relied on to distinguish its age from the “fresh” haemorrhage around the sternal fracture, this was an invalid conclusion. The materials did not permit a distinction in age to be drawn between the two. A recent study issued to show the level of disagreement amongst authors concluded that the only point of agreement was that a bruise with identifiable yellowing was more than 18 hours old. Thus, the purple bruise could be fresh (that is, less than 24 hours old) but could be older.
54. Concerning the broken sternum, there had been no complaint of chest pain so one could infer that it occurred shortly before or around the time of death. His view was that there was a coincidence of two injuries (the bruise and the fracture) which could not be distinguished in age, or there was just one injury. If there was no chest bruise when Agit Salman was taken into custody, the issue was relatively easily resolved. Most pathologists would tend to regard them, prima facie, as one injury or state that there was a rebuttable presumption that they were one injury. As regarded the possibility of the bruising and fractured sternum being caused by an attempt at resuscitation, significant chest bruising was rare in this context. Sternal fractures caused by cardiopulmonary resuscitation were usually associated with fractured ribs and not with surrounding haemorrhage or overlying bruising. If the chest bruise and fracture with accompanying haemorrhage were the result of one trauma, it was not one associated with a resuscitation attempt. A fracture from a fall onto a flat surface would be unusual. A heavy direct fall onto a relatively smooth broad protrusion could cause such an injury but he had no recollection of having seen this as an isolated accidental injury (that is, without injuries to other parts of the body occurring at the same time). A blow from a fist, knee or foot could also cause such an injury.
55. Lungs with oedema sufficient to be regarded as a sign of heart failure and to cause breathlessness of twenty to thirty minutes weighed more than 300 g. The lung weights in this case fitted with a substantially more rapid death. The oedema found in the brain was not significant, the weight of the victim's brain being slightly under the average brain weight for a man of his age.
56. The finding of underlying heart disease was undisputed. In his view, the best explanation for the death was as follows. Before he died, Agit Salman sustained significant traumas to the sole of his left foot and to the front of his chest, causing bruising and prima facie fracturing the sternum and causing a surrounding haemorrhage. Fear and pain associated with these events resulted in a surge of adrenalin increasing the heart rate and raising blood pressure. This put a severe strain on an already compromised heart, which caused cardiac arrest and a rapid death. Alternatively, the compression of the chest associated with the fracturing of the sternum fatally disturbed the rhythm of the heart without leaving observable damage. The weakness of this opinion lay in the conclusion that the chest injuries represented one trauma rather than two, and this depended partly on circumstantial factors and could not be completely resolved. However, even allowing for the possibility that they were separate injuries, the chest bruise could still be regarded as fresh and as having occurred while in custody, in which case the formal cause of death would be the same, namely, cardiac arrest in a man with heart disease following the occurrence of injuries to the left foot and chest. If the fractured sternum was regarded as due to an attempt at resuscitation, the cause of death would only change if it was concluded that the bruise occurred prior to being taken into custody.
57. The critical task of an autopsy in this case was to evaluate the circumstances in which it was proposed that this man died, in particular, whether it was a natural death in custody or not. In this evaluation, the age of the chest bruise was critical. Even allowing for Dr Şen's view of the age based on colour, the autopsy should have been conducted in a way which allowed another pathologist at another time to come to his or her own view. Important observations had to be justified objectively. In the absence of photographs, histology was the obvious way for Dr Şen to establish the truth of his view. The lack of proper photographs had also seriously impeded the investigation and evaluation of this case. Deficiencies also appeared in the insufficient subcutaneous dissection to seek out bruises not visible externally and the absence of a histological examination of the lesions critical to the proper evaluation of the circumstances of the death.
58. Professor Cordner had met Professor Pounder professionally. He had not met either Dr Kirangil or Dr Şen.
59. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
60. Under the Turkish Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61-62) constitute criminal offences. It is also an offence for a State employee to subject anyone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment). 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).
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).
61. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
62. 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. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court.
63. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 62 above) also applies to members of the security forces who come under the governor's authority.
64. 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).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 60 above) or with the offender's superior.
65. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. 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.
66. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review ...
...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
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.
67. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 66), provides:
“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.”
68. 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 41-46) 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).
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).
69. The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey. 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, those held in police custody. A third periodic visit took place at the end of 1992, involving a visit to Adana Security Directorate. Further visits took place in October 1994, August and September 1996 and October 1997 (the latter two of which involved a visit to police establishments in Adana). The CPT's reports on these visits, save that of October 1997, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming.
70. The CPT has issued two public statements.
71. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely, 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. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention.
On its second visit in 1991, it found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit, from 22 November to 3 December 1992, its delegation was 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. On this visit, the CPT had visited Adana, where a prisoner at Adana Prison displayed haematomas on the soles of his feet and a series of vertical purple stripes (10 cm long, 2 cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. At the headquarters of Ankara and Diyarbakır Security Directorates, it found equipment that could be used 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”.
72. 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. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul. 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 headquarters of the anti-terrorism branch of Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They 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 resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey.
73. The “Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions” adopted by the United Nations in 1991 includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it noted that an abridged examination or report was never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details:
“It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results.”
74. In part 2(c), it stated that adequate photographs were crucial for thorough documentation of autopsy findings. Photographs should be comprehensive in scope and confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report.
VIOLATED_ARTICLES: 13
2
3


ITEMID: 001-68229
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SULAOJA v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4 with regard to the first set of proceedings;No violation of Art. 5-4 with regard to the second set of proceedings;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1964 and lives in the Hüüru village, Harju County.
8. On 14 February 1998 the Pärnu police took the applicant into custody on suspicion of having committed burglary. On 16 February 1998 the applicant was released from custody, but was subjected to another preventive measure in the form of a ban on leaving his place of residence.
9. On 19 February 1998 the applicant was re-arrested on suspicion of two further acts of burglary, one of which had been committed the same day.
10. On 20 February 1998 the applicant was charged with three counts of burglary and the police investigator requested the Pärnu City Court (Pärnu Linnakohus) to apply the preventive custody measure until 20 April 1998. The investigator noted that the applicant had no fixed residence and considered that he could, if released, continue to commit offences, evade investigation and abscond.
The applicant stated in writing that he did not wish to participate in the hearing before the City Court concerning the investigator's request and that he did not consider the presence of his lawyer there necessary either.
On the same day, i.e., 20 February 1998, the City Court authorised the applicant's detention until 20 March 1998.
11. In March 1998 the applicant was charged with additional counts of burglary, committed together with two minors.
12. On 20 March 1998 the investigator applied for an extension of the applicant's detention. Having noted that the applicant had been charged with additional crimes, that he had no fixed residence or place of work and that he had two prior criminal convictions, the investigator found that the applicant could, while at liberty, re-offend, evade investigation and flee. The investigator also noted that the applicant had confessed to the charges.
The applicant did not wish to participate in the hearing before the City Court, which allowed the investigator's request and prolonged the applicant's detention until 20 April 1998.
On 17 April 1998 the City Court granted the investigator's request to prolong the applicant's detention further until 20 June 1998. The request was based on reasons which were similar to those contained in the previous request. The applicant again had stated that he did not wish to attend the hearing on the extension of his custody.
On 18 June 1998 the applicant's detention was prolonged by the City Court for the third time at the request of the investigator who relied on his earlier arguments. The extension was valid until 20 August 1998.
13. On 19 August 1998 the City Court held a hearing on the further prolongation of the applicant's detention. It heard the applicant and his lawyer as well as the investigator. It rejected the applicant's request to be released and extended his detention until 20 September 1998. The court found that the applicant had no place of residence, family or work. If released, he could continue committing offences in order to support himself, and also evade investigation.
14. On 1 September 1998 the investigator drew up a final indictment which included an additional charge of inducing minors to participate in a crime.
15. On 18 September 1998 the City Court held a hearing to decide on the investigator's request to extend the applicant's detention until 20 November 1998 having regard to the large volume of the criminal case. The applicant and his lawyer, who both took part in the hearing, objected to the request. The City Court decided to allow the request and to extend the applicant's detention. It noted that the applicant had prior criminal convictions and that he had no place of residence or work. He had been charged with several offences for which he could be sentenced to imprisonment. There was thus reason to believe that he could abscond or commit new offences, if released.
16. On 20 November 1998 the City Court heard the applicant and his lawyer on the sixth application by the investigator to extend the applicant's detention. Noting again that the applicant had no place of residence, work or family to support him, it decided to prolong his detention until 20 January 1999.
17. On 18 January 1999 the investigator filed another request to extend the applicant's custody term until 20 February 1999, i.e. 12 months in total. The applicant did not wish to be present at the examination of this request before the City Court, which found the request substantiated and allowed it for reasons similar to those in its previous decisions.
18. On 12 February 1999 the applicant and his lawyer were acquainted with the results of the preliminary investigation of the criminal case. Three days later the public prosecutor approved the bill of indictment and the case was sent to the City Court for trial.
19. By a decision of 18 February 1999 the City Court, having reviewed the case-file from the prosecution, committed the applicant for trial. In respect of detention it was ordered in the decision: “To leave unchanged the preventive custody measure chosen with respect to the accused at trial.” The decision did not specify until when the applicant had to be kept in detention. The court relied on the relevant provisions, including Article 189, of the Code of Criminal Procedure. The applicant did not receive a copy of the court decision, but was notified by the public prosecutor of the renewal of his detention on 22 February 1999.
20. On 22 February 1999 the applicant complained to the City Court that he was dissatisfied with the investigator who had refused to arrange his confrontation with witnesses. He considered that the investigation had been incomplete and asked the court to send the case back to the relevant authority.
21. On 15 March 1999 the applicant filed another complaint with the City Court, arguing that his detention after 20 February 1999 was unlawful and requesting his release from custody. He submitted that under the Code of Criminal Procedure (Article 73 § 6) notification of a prolongation of detention should reach the place of detention before the expiry of the previous order. He, however, received the notification only on 22 February 1999.
22. At the hearing before the City Court on 31 March 1999 the applicant pleaded guilty to the charges of burglary, but denied that he had induced two minors, M.T. and R.P., to participate in his criminal activity. The court heard five witnesses, including M.T. and R.P. By a judgment given on the same day it convicted the applicant on five counts of burglary under Article 139 § 2 of the Criminal Code as well as on the charge of inducing minors to participate in his crime, under Article 202 of the Code, and sentenced him to 2 years' imprisonment. The judgment did not mention the applicant's request for release or the continuation of the preventive custody measure.
23. On 15 April 1999 the applicant filed an appeal against the judgment with the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he disputed his conviction under Article 202 of the Criminal Code. He also complained that the investigator had refused his request to conduct a confrontation with his accomplices M.T and R.P., and asked the appeal court to hear witness R.J., without indicating any reasons for his request.
The applicant further applied for release from custody and submitted that his continued detention after 20 February 1999 was unlawful.
24. On 23 April 1999 the Court of Appeal informed the applicant of the date of its preliminary hearing, noting that his presence was mandatory.
25. On 28 April 1999, after a preliminary hearing which the applicant did not attend, the Court of Appeal quashed the judgment of the City Court on procedural grounds and remitted the case to it for a new consideration with a different composition. It found that the lower court judgment was not reasoned and that its hearing records were incomprehensible. Moreover, as the applicant suffered from a mental handicap, it was necessary to have a psychiatric expert opinion on his mental state. Neither the decision nor the minutes of the hearing made reference to the applicant's request for release or dealt with the issue of detention pending final conviction and sentence.
26. On 6 May 1999 the applicant wrote to the City Court asking it, without specifying the reasons, to call his witness R.J. He also informed the City Court that in his view he had the right to be released.
The following day the applicant filed an appeal against the Court of Appeal's decision of 28 April 1999 with the Supreme Court, submitting that neither the City Court nor the Court of Appeal had indicated on what ground he was being detained. He argued that the maximum time-limit of one year for pre-trial detention, stipulated in Article 74 of the Code of Criminal Procedure, expired on 19 or 20 February 1999 and that his continued detention was unlawful. He also requested his release from custody.
27. At the hearing before the Supreme Court on 8 June 1999, where the applicant was not present, the defence lawyer maintained the applicant's appeal and submitted, in addition, that the applicant had not been aware of the prolongation of his detention by a decision of the City Court of 18 February 1999 as a copy of the decision had not been sent to him.
28. By a decision of 8 June 1999 the Supreme Court dismissed the appeal. It considered that the time-limit of one year for pre-trial detention under Article 74 of the Code of Criminal Procedure had not been exceeded. The applicant had been taken into custody on 19 February 1998 and on 18 February 1999 he was committed for trial and ordered to remain in custody. In response to the defence lawyer's argument, the Supreme Court stated that, according to Article 202 § 1 of the Code of Criminal Procedure, a copy of the court decision committing the accused for trial was to be sent to the person only if the court changed a preventive measure – which was not the applicant's case. The applicant, however, had the opportunity to consult the decision in his criminal case-file.
The Supreme Court noted that, in remitting the case back to the first instance court, the Court of Appeal should have indicated, for the sake of clarity, that the preventive custody measure in respect of the applicant remained in force. Nonetheless, the absence of that indication did not render the applicant's detention unlawful. In sending the case back for a new consideration, the Court of Appeal restored the procedural stage which came about following the applicant's committal for trial on 18 February 1999. This situation also involved the preventive custody measure applied in respect of the applicant on the same day.
29. On 31 August 1999 the medical experts established that the applicant was not of unsound mind or suffering from a mental disease, and was capable of understanding and controlling his actions.
30. On 5 October 1999 the City Court held a new hearing on the applicant's case. It heard 4 witnesses, including M.T and R.P. The applicant requested that an additional witness, L.M., be called to testify. The witness could provide information on the applicant's place of residence after 16 February 1998. The court rejected the request on the ground that the testimony of the proposed witness was irrelevant. The applicant had already submitted that at that time he was living at L.M.'s place and the court had sufficient evidence to decide on the case.
31. By a judgment of 5 October 1999 the City Court, having analysed the evidence in the case, including the testimonies of witnesses, found the applicant guilty as charged and sentenced him to 2 years and 6 months' imprisonment. It left unchanged the preventive custody measure applied to him, without putting forward any specific reasons for that.
32. In his appeal to the Court of Appeal, filed on 13 October 1999, the applicant submitted that his conviction under Article 202 of the Criminal Code of inducing minors to participate in burglary was based on insufficient evidence. He referred to the inability to confront the two minors during the preliminary investigation and asked the appeal court to hear his witness L.M. The applicant further disputed the lawfulness of his detention after 19 February 1999 and claimed that he had not received adequate replies to this question. He also demanded his release.
33. On 29 November 1999 the Tallinn Court of Appeal, having held a hearing, upheld the applicant's conviction, but reduced his sentence to 2 years' imprisonment. It did not hear the requested witness. The judgment of the Court of Appeal took effect on the day of its pronouncement, but was open to appeal to the Supreme Court within one month. Neither the judgment nor the hearing records mention the applicant's request for release.
34. On 21 December 1999 the applicant lodged an appeal with the Supreme Court contending, inter alia, that the investigator had acted unlawfully and pointing to the failure to hear the witness L.M. He requested to be released from custody.
On 12 January 2000 the Supreme Court refused, by a final decision, the applicant leave to appeal.
35. Under Article 35-1 §§ 1 and 2 and Article 37 § 2 of the Code of Criminal Procedure, as in force at the material time, the accused and his defence lawyer have the right to submit applications and file appeals relating to the criminal proceedings.
36. Article 69 of the Code provides that a prohibition to leave a place of residence may be imposed on a suspect, accused or accused at trial, i.e. he or she may be obliged to undertake a written commitment not to leave his or her permanent or temporary residence without the permission of a preliminary investigator, prosecutor or court. If the suspect, accused or accused at trial violates such commitment, a more severe preventive measure may be applied with regard to him or her, against which the suspect, accused or accused at trial shall be cautioned upon the obtaining of his or her signature.
37. Article 71-1 of the Code stipulates that a judge may, at the request of an accused, replace the preventive custody measure with bail.
38. According to Article 73 of the Code, preventive custody measure may be applied in respect of a suspect, accused or accused at trial in order to prevent them from evading the criminal proceedings or committing a new crime as well as to ensure the enforcement of a court judgment (§ 1).
The permission for taking a suspect or accused into custody is given by a county or city court judge on the basis of a reasoned request from an investigator (§ 2).
39. An investigator must notify the defence counsel and prosecutor of a custody application beforehand; the counsel and prosecutor have the right to participate in the hearing of the application by the county or city court judge (§ 3).
A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of the defence counsel (§ 4).
40. A county or city court judge must give a reasoned ruling on the grant or refusal of the preventive custody measure. The judge must sign the ruling and certify it with the court seal (§ 5).
41. An extension of the term of custody is effected pursuant to the provisions which regulate the taking of a person into custody (§ 5-1).
A court must inform the administration of the detainee's place of detention of its decision to prolong his detention or to annul it. The notification must reach the place of detention before the expiry of the term of detention (§ 6).
42. Article 74 of the Code provides that a period of detention during the investigation of criminal offences may not last longer than 6 months. In particularly complex and voluminous cases, the State Public Prosecutor or his Deputy may exceptionally request an extension of the time-limit for such detention up to one year.
43. According to Article 77-1 of the Code, a person in respect of whom a preventive custody measure is applied or extended, or his representative, may file an appeal against that ruling within five days pursuant to the procedure prescribed in the Code of Criminal Court Appeal and Cassation Procedure.
44. Article 78 of the Code stipulates that an investigator, prosecutor or court will annul a preventive measure if there is no further need for its application, or alter the preventive measure and choose a new preventive measure (§ 1).
A preventive measure chosen in respect of an accused at trial may be altered or annulled by the trial court or a higher court (§ 3).
45. Under Article 189 of the Code, when committing the accused for trial, a court must examine whether a preventive measure has been correctly applied.
46. Article 202 § 1 of the Code requires a court to forward to the accused a copy of its decision on the committal for trial, if by that decision the court changed a preventive measure.
47. Article 222 of the Code empowers a court to amend and annul, in the course of the court proceedings, the preventive measures previously chosen with regard to the accused at trial.
48. According to Article 325 § 1 of the Code a court judgment becomes legally enforceable upon expiry of the term for filing of appeals or protests, if appeals or protests are not filed. If an appeal or protest is filed, a court judgment enters into force after the criminal matter has been heard by a higher court, unless the judgment is annulled.
49. Article 263 § 1 (10) and Article 275 § 1 (6) provide that, upon making a judgment, a court has to decide what preventive measure shall be applied with regard to the accused at trial or whether the preventive measure previously applied shall be annulled.
50. According to Article 35 § 1 of the Code of Criminal Court Appeal and Cassation Procedure a judgment of a court of appeal enters into force after it is pronounced or communicated through the court office in its full extent.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-96599
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PARVANOV AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicants were born in 1963, 1940 and 1962 respectively and live in Sofia.
6. The applicants are heirs of Mr Parvan Vasilev Parvanov, Mr Vasil Parvanov Parvanov and Mrs Tsvetanka Parvanova Koleva who owned a house in Sofia with a yard with a total surface area of 581.2 square metres.
7. By a mayor’s order of 8 April 1987, based on section 98 of the Territorial and Urban Planning Act (“the TUPA”), the house and the yard were expropriated “for embassy needs”, but with a view to realising two separate public works’ projects: (a) the construction of a block of flats and shops (Project A); and (b) the construction of an embassy (Project B). The area designated for Project A (Plot A) was 328.2 square metres and the area designated for Project B (Plot B) was 253 square metres. The applicants’ ancestors’ house remained in Plot A. The value of the entire expropriated property was assessed at 25,118.06 old Bulgarian levs (BGL).
8. The mayor’s order of 8 April 1987 also provided that for the expropriation of the property “for embassy needs” each of the applicants’ antecedents would be compensated with an apartment, situated in a building to be constructed by the Bureau for Servicing the Diplomatic Corps (“the BSDC”).
9. By three supplementary orders of 15 April 1988, based on section 100 of the TUPA, the mayor determined the exact location, area and other details in respect of the future apartments offered as compensation. The three apartments had a total value of BGL 59,155.
10. A two-room apartment of 64 square metres was designated for Mr Parvan Vasilev Parvanov, who had passed away on an unspecified date in 1987. By virtue of his will, the property was to be received by his grandson, the first applicant.
11. Mr Vasil Parvanov Parvanov, whose heirs were the first and second applicants, his son and wife, was to receive a three-room apartment with an area of 94 square metres.
12. And lastly, Mrs Tsvetanka Parvanova Koleva was entitled to a threeroom apartment of 98 square metres, which was to be received by her daughter, the third applicant.
13. The value of the expropriated property (BGL 25,118.06) was directly credited against the value of the apartments offered as compensation. As the latter sum was higher, on unspecified dates the applicants and their ancestors paid the difference, BGL 34,036.94, to the State.
14. By orders of 4 and 27 April 1988 Mr Vasil Parvanov Parvanov and the first applicant were provided with temporary housing in two flats owned by the BSDC. It appears that after Mr Vasil Parvanov Parvanov’s death the second applicant continued to use the apartment provided for him.
15. Construction of the block of flats in which the apartments offered as compensation were to be located was never commenced.
16. On 13 April 1992, following the entry into force of the 1992 Restitution Law (see paragraph 29 below), the applicants made a request to the mayor of Sofia for the restitution of the entire property, because neither of the public works projects had commenced and the expropriated house was still standing. No response was received and on an unspecified date in May or June 1992 the applicants appealed against the tacit refusal.
17. On an unspecified date, most likely in August 1992, the expropriated house was pulled down and the BSDC commenced the realisation of Project B (see paragraph 7 above), the construction of a Polish embassy complex.
18. Upon the applicants’ appeal against the mayor’s tacit refusal, on 7 October 1994 the Sofia City Court found partly in their favour. It noted that their property had been expropriated for two distinct public works projects – Project A, to be realised on Plot A, and Project B, to be realised on Plot B. In so far as the realisation of Project B had commenced on Plot B, this part of the property, namely 253 square metres of the site, could not be restored. However, as Project A had not commenced, the restitution of Plot A, amounting to 328.2 square metres, was possible.
19. The Sofia City Court further noted that under the original expropriation and compensation orders (see paragraphs 7-9 above) the applicants and their antecedents had been provided with apartments as compensation in respect of the property expropriated “for embassy needs” (Plot B) and that the value of Plot A had been credited against the value of the apartments. On this basis, the domestic court held that the restitution of Plot A would be effective upon reimbursement of its value. On the basis of the original expropriation and compensation orders of 1987-88, it calculated that amount to be BGL 22,697.81. Apparently, the value of Plot A was much higher than the value of Plot B (which remained BGL 2,420.27) as this was where the applicants’ ancestors’ house had been standing.
20. None of the parties appealed against this judgment and it entered into force. In order to effect the restitution, on 4 September 1995 the applicants paid the State BGL 22,697.81 which, owing to inflation and the depreciation of the Bulgarian currency, equalled approximately USD 330.
21. In 1996 the Sofia municipality petitioned the Sofia City Court to interpret its judgment of 7 October 1994 in respect of whether it still owed the applicants three apartments as compensation.
22. On 27 January 1997 the Sofia City Court refused to provide the interpretation sought, pointing out that its judgment was quite clear as regards the dispute examined, namely about the claimants’ right to restitution of the property.
23. By a letter of 2 December 1997 the BSDC informed the applicants that following the judgment of the Sofia City Court of 7 October 1994 the apartments offered as compensation for the expropriation of the property were no longer due.
24. On 16 July 1998 the mayor of Sofia revoked the three orders of 15 April 1988 (see paragraph 9 above). The applicants appealed against this decision.
25. By a judgment of 21 November 1999 the Sofia City Court dismissed the appeal. The applicants appealed again.
26. In a final judgment of 29 December 2000 the Supreme Administrative Court (“the SAC”) quashed the lower court’s judgment and the decision of the mayor of Sofia of 16 July 1998. However, it based its conclusions on the finding that it had not been necessary for the mayor to formally revoke the three orders of 15 April 1988; they had been automatically revoked by virtue of the judgment of 7 October 1994 (see paragraphs 18-20 above). In particular, the Supreme Administrative Court held:
“The revocation of the expropriation, even concerning only part of the [original] property, in respect of which the requirements of [the 1992 Restitution Law] were met, resulted, by virtue of the [judgment of the Sofia City Court of 7 October 1994], in the revocation of the orders under sections 98 and 100 [of the TUPA], as it is to be considered that no expropriation ever took place. That is why the [Sofia] mayor did not have to expressly revoke the orders under section 100 [of the TUPA].”
27. The SAC did not explain why it considered that the partial restitution of the applicants’ property by virtue of the judgment of 7 October 1994 had removed their entitlement to any compensation at all.
28. No apartments or other compensation have thereafter been provided to the applicants. Neither did the authorities ever reimburse the applicants for any of the payments they had made to the State in respect of (1) the difference in the value of the apartments offered as compensation and the expropriated property (BGL 34,036.94), which the applicants and their ancestors had paid to the State in the 1980s (see paragraph 13 above); or (2) the value of Plot A (BGL 22,697.81), which had been credited against the value of the apartments promised as compensation and which the applicants had paid to the State in order to effectuate the partial restitution (see paragraph 20 above).
29. On an unspecified date after June 2002 the first applicant was evicted from the flat provided for him as temporary housing (see paragraph 14 above).
30. The relevant law and practice regarding the expropriation of private property for public use has been summarised in the judgment of Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§ 72-79, 9 June 2005).
31. In 1992 the Bulgarian Parliament adopted the Law on the Restitution of Property Expropriated under Building Planning Legislation (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the 1992 Restitution Law”) which provided for the restitution of expropriated property where specific conditions were met.
32. Section 5 § 1 of the 1992 Restitution Law provides that upon the revocation of an expropriation, any property received in compensation by the claimant shall pass to the municipality by virtue of the ruling or judgment ordering the revocation. Any amounts paid by an owner who had received restitution, to cover the difference between the value of an expropriated property and any property received as compensation, are to be reimbursed by the authorities within two months of the date of the ruling or judgment granting the restitution (section 6 § 2).
33. The domestic courts have examined numerous actions under the 1992 Restitution Law. In a case concerning formerly co-owned property, and where the restitution had been sought by only some of the co-owners, the courts ordered partial restitution, in accordance with the co-owners’ respective shares, and partial return of the compensation received (judgement no. 2357 of 10 February 1994 of the Supreme Court, case no. 2643/93).
34. The domestic courts also consider that in cases where the expropriated property has lost some of its value because, for instance, any buildings on it have been demolished, the former owners, if they decide to initiate restitution proceedings, still owe the State the entire compensation they have received (judgment no. 1471 of 21 November 1994 of the Supreme Court, case no. 4778/93; judgment no. 2013 of 7 December 1995 of the Supreme Court, case no. 1903/94).


ITEMID: 001-22190
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BAYRAM and YILDIRIM v. TURKEY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Hamail Bayram and Şekir Yıldırım, are Turkish nationals, who were born in 1958 and 1945 respectively and live in Uzungeçit, a village attached to the district of Uludere in Şırnak Province. They were represented before the Court by Mr Tahir Elçi, a lawyer practising in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 April 1994 the first applicant’s husband and the second applicant’s son were, along with other passengers, set out from Uludere by a vehicle. On their way to Şırnak their vehicle hit a mine placed on the road. All the people in the vehicle died as a result of the explosion.
The Şırnak Public Prosecutor initiated an investigation into the incident.
On 16 May 1994 the Şırnak Public Prosecutor issued a decision to the effect that he had no jurisdiction (görevsizlik kararı) in the matter. The prosecutor considered that the mine, which caused the death of three people, was placed on the road by the members of the PKK. In view of the nature of the offence and the existing evidence, the investigation into the incident fell within the competence of the prosecutor’s office at the Diyarbakır State Security Court. The decision declining jurisdiction named the suspects as unidentified members of the PKK.
On 9 September 1997 the applicants lodged a petition with the office of the public prosecutor attached to the State Security Court in Diyarbakır and requested the public prosecutor to be informed about the activities undertaken in the investigation. The public prosecutor replied on the same day that the investigation was ongoing without stating any further information as to the details of this investigation. Since then the applicants have not received any information about the investigation.
The Turkish Criminal Code (Türk Ceza Kanunu), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Articles 448) and aggravated murder (Article 450).
Pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure (Türk Ceza Muhakemeleri Usulü Kanunu; hereinafter referred to as “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP).
If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP). Pursuant to 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 shall be 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 by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.
Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP).
Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:
“All acts and decisions of the administration are subject to judicial review ...The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
This provision is not subject to any restriction even in a state of emergency or war. The second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court and the issue of the defendant’s guilt (Article 53).


ITEMID: 001-67426
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: EKENLER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Muzaffer Ekenler, is a Turkish national who was born in 1951 and lives in Ankara. He was represented before the Court by Mr B. Çiçekli, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 1980 and 1993 the applicant worked as a bus driver in the service of the Ankara Municipality.
In 1993 criminal proceedings were brought against the applicant, his wife and his daughter on charges of theft. The Ankara chief public prosecutor alleged that the applicant had stolen bus tickets and had sold them with the help of his wife and his daughter to a kiosk owner, who sold the tickets in his kiosk and who was charged, along with the applicant and his family, with buying the stolen tickets. Following the institution of the criminal proceedings, the Ankara Municipality terminated the applicant's contract.
On 5 October 1995 the Ankara Magistrates' Court (sulh ceza mahkemesi) rendered its judgment. It held that there was no evidence against the applicant, his wife and his daughter other than the statements of the kiosk owner. It further noted that no evidence concerning the impugned offence had been found in the applicant's house and that this point had been indicated in the search and seizure protocol (arama tutanağı) drafted by the police. The court considered that there was not sufficient and certain evidence against the applicant, his wife and his daughter and that, therefore, they should benefit from the principle of in dubio pro reo. In conclusion, the Magistrates' Court acquitted the applicant, his wife and his daughter and convicted the kiosk owner.
On an unspecified date, the Criminal Division of the Court of Cassation upheld the judgment of 5 October 1995.
On 28 November 1996, subsequent to his acquittal, the applicant brought a case before the Ankara Labour Court (iş mahkemesi) claiming damages from the Ankara Municipality (hereinafter: the defendant) due to the termination of his contract.
On 12 March 1998 the Ankara Labour Court awarded notice and severance compensation (ihbar ve kıdem tazminatı) to the applicant. The court dismissed the applicant's compensation claims for malicious and nonpecuniary damage. The applicant and the defendant appealed.
On 26 May 1998 the Civil Division of the Court of Cassation quashed the Ankara Labour Court's judgment. The Court of Cassation stated the following in its decision:
“The litigant (the applicant) requested compensation from the defendant employer on the grounds that it had unjustly terminated his contract. The Labour Court partially accepted this request. According to the information and the documents contained in the file, the litigant, while working as a driver of the bus belonging to the EGO General Directorate (the Ankara Municipality), collected used bus tickets by not operating the ticket shredder; took the tickets home and sold them with the help of his daughter and wife. His contract was terminated on account of the offence of theft, pursuant to Article 17 § 2 (d) of Labour Code (Law no. 1475) and Article 42 of the additional penal indicator of the collective labour contract.
Following this incident, the litigant was tried by the Ankara Magistrates' Court which acquitted him on the ground that there was insufficient evidence to convict him. This judgment was upheld by the 6th Criminal Chamber of the Court of Cassation.
Having regard to the criminal investigation file and the case file under examination, it was understood that the applicant had sold the tickets by not operating the ticket shredder on his bus. Although the criminal court acquitted the accused, under Article 53 of the Code on Obligations, its judgment acquitting him cannot bind civil courts. In the light of these considerations and having regard to the fact that the defendant administration terminated the litigant's contract in accordance with Article 17 § 2 (d) of Labour Code (Law no. 1475), the Labour Court's judgment awarding notice and severance pay to the litigant should be quashed...”
On 10 October 1998 the Ankara Labour Court confirmed its judgment of 12 March 1998 awarding compensation to the applicant. With reference to the judgments of the Ankara Magistrates' Court and the Criminal Division of the Court of Cassation which acquitted the applicant of the charges, the court found it established that there was no evidence or information which indicated the applicant's involvement in the alleged offence. In this respect, it considered that the defendant had unjustly terminated the applicant's contract, contrary to the provisions of the labour law. The defendant appealed.
On 11 November 1998 the Grand Chamber of the Civil Division of the Court of Cassation quashed the Ankara Labour Court's judgment. It ruled that the Labour Court should comply with the decision given by the Civil Division of the Court of Cassation.
On 29 December 1998 the Ankara Labour Court, complying with the Grand Chamber's decision, dismissed the applicant's request for damages.
On 3 March 1999 the Civil Division of the Court of Cassation upheld this judgment.
Article 53 of the Code on Obligations provides:
“The (civil) court is not bound by the provisions of the criminal laws concerning criminal responsibility or by an acquittal by a criminal court in deciding questions of fault or capacity to act.”
Article 17 § 2 (d) of the Labour Code, in force at the material time, provided:
“Under the following circumstances, the employer may denounce labour contracts of both indefinite and definite durations, before the end of their duration or the term of notice:
...
II. Conduct against ethical principles, good faith and etc.
...
d) if the employee commits a dishonest or disloyal act such as breach of trust, theft or disclosure of trade secrets,
...”


ITEMID: 001-78383
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RAISA TARASENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Pecuniary damage - Government to enforce the judgment debt
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1941 and lives in the town of Dniprodzerzhynsk.
5. On 1 August 1999 the applicant's husband died due to the fault of an employee of the Dniprodzerzhynskelektrotrans Municipal Enterprise.
6. On 3 September 2001 the Bagaliyskiy District Court of Dniprodzerzhynsk ordered the company to pay the applicant UAH 5,825.90 in compensation.
7. On 26 June 2002 the Zavodskiy District Bailiffs' Service discontinued the enforcement proceedings due to the debtor's lack of funds and the applicant's refusal to take the debtor's property instead of the money.
8. On 17 June 2003 the company was declared bankrupt and the liquidation proceedings were initiated against it.
9. The judgment remains unenforced.
10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1