SECOND SECTION

CASE OF ATAŞ AND SEVEN v. TURKEY

(Application no. 26893/02)

JUDGMENT

STRASBOURG

16 December 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of ,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

	Ireneu Cabral Barreto,
	Vladimiro Zagrebelsky,
	Danutė Jočienė,
	András Sajó,
	Nona Tsotsoria,

and SallyDolléSection Registrar,
Having deliberated in private on 25 November 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 26893/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Ms Mukadder Ataş and Ms Süheyla Seven (“the applicants”), on 14 March 2002.
2.  The applicants were represented by Mrs F. Karakaş Doğan and Ms Eren Keskin, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicants alleged that they been subjected to ill-treatment in the form of sexual abuse during their detention in the custody of security forces and that the national authorities had failed to carry out an effective investigation into their complaints in violation of their rights protected by Articles 3, 6, 13 and 14 of the Convention.
4.  On 11 June 2007 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
A.  The arrest and detention of the applicants
5.  The applicants were born in 1977 and 1978 respectively and live in Batman.
6.  On 15 September 1998 gendarmerie officers arrested the applicants at a checkpoint in a rural area of Diyarbakır on suspicion of membership of an illegal organisation, the PKK (the Kurdistan Workers' Party). Subsequent to their arrest, both applicants were taken to the Çınar Central Health Clinic in Diyarbakır where they underwent a medical examination. According to the doctor's report, there were no signs of ill-treatment on their bodies. The doctor noted that neither of the applicants had had sexual intercourse. The applicants were then placed in the custody of the Çınar Gendarmerie Station in Diyarbakır.
7.  The applicants alleged that during their custody at the gendarmerie station, they had been blindfolded, threatened, insulted, stripped naked, given electric shocks, beaten, and hung from their arms. The gendarmerie officers had also raped the applicants by inserting a truncheon into their anus and vagina.
8.  On 18 September 1998 the applicants were questioned by gendarmes. They stated that they had been on their way to join the PKK and gave detailed information about their connections with the organisation.
9.  On 19 September 1998 the applicants underwent a new examination by a forensic doctor, who did not find any trace of ill-treatment on their bodies. The doctor also reported that the applicants had not had any sexual intercourse.
10.  On 21 September 1998 the applicants were once again taken to the Çınar Central Health Clinic, where they were examined by a forensic doctor. As regards the first applicant Mukadder Ataş, the doctor found that there was no sign of ill-treatment on her body or any indication of sexual intercourse. In his report concerning the second applicant Süheyla Seven, the doctor stated that following a vaginal and anal examination, it was established that the second applicant had not had sexual intercourse and that there were no signs of ill-treatment on her body.
11.  Again on 21 September 1998, the applicants were brought, respectively, before the Çınar Public Prosecutor and a Çınar Magistrate's Court judge. Before the Public Prosecutor, the applicants stated that they had already given detailed information to the gendarmes concerning their involvement in the PKK. They noted that the statements they had given to the gendarmes were true and that they had not been subjected to any ill‑treatment or duress.
12.  However, when questioned by the judge on the same day, both applicants denied the charges against them and claimed that the gendarmes had tortured them and forced them to sign some statements which they had not read. When their statements to the public prosecutor were read to them, the applicants admitted that they were true. The judge then ordered their detention on remand.
B.  The proceedings against the accused gendarmerie officers
13.  On 12 February 1999 the applicants' legal representative, Ms Eren Keskin, filed a criminal complaint with the Chief Public Prosecutor's office in Istanbul, for submission to the Diyarbakır Chief Public Prosecutor's office, alleging that the applicants had been subjected to various forms of torture during their detention at the Diyarbakır Çınar Gendarmerie Station. She alleged that the applicants had been beaten up, given electric shocks, stripped naked and then raped by truncheons which had been inserted into their vagina and anus. She asked the judicial authorities to take statements from the officers and their superiors who had questioned the applicants and to take oral evidence from the applicants. She further asked the court to send the applicants first to the Batman State Hospital for physical examination and then to the psychological trauma centre of the Çapa Medical Faculty in Istanbul with a view to determining the psychological effects of the torture which could help to prove the rape alleged by the applicants. She lastly requested the Prosecutor's office to initiate a criminal investigation against the perpetrators of the torture inflicted upon the applicants.
14.  Recalling that the prosecution of State officials and/or civil servants was governed by the Act on the Procedure for the Prosecution of Civil Servants, on 25 March 1999 the Diyarbakır Public Prosecutor declared that he had no jurisdiction and transferred the case file to the Diyarbakır Provincial Administrative Council to obtain permission to prosecute the gendarmes who had allegedly tortured the applicants.
15.  On 19 August 1999 the Diyarbakır Provincial Administrative Council, composed of the Deputy Governor and six other civil servants, decided that there was not enough evidence to initiate criminal proceedings against the gendarmerie officers and consequently issued a direction of “no prosecution”. This decision was automatically referred to the Supreme Administrative Court for review.
16.  On 21 December 2000 Law no. 4616 on conditional release was enacted. This law provided for the suspension of substantive proceedings or of the execution of sentences in respect of crimes committed before 23 April 1999 and for which the maximum penalty did not exceed ten years' imprisonment. Section 5 (a) of Law no. 4616 stipulated that the execution of sentences in respect of offences proscribed by, inter alia, Article 243 of the former Criminal Code could not be suspended.
17.  On 18 October 2001 the Supreme Administrative Court considered that the acts allegedly committed by the gendarmes fell within the scope of Article 245 of the Criminal Code. It therefore decided that, pursuant to Section 1 § 4 of Law no. 4616, the criminal proceedings against the gendarmes should be suspended and subsequently discontinued if no offences of the same or of a more serious kind were committed by the offenders within a five-year period, in accordance with that law.
C.  The criminal proceedings against the applicants
18.  On 6 October 1998 the Diyarbakır State Security Court Public Prosecutor indicted the applicants, charging them under Article 168 § 2 of the Criminal Code with membership of the PKK.
19.  At the hearing of 20 May 1999 the applicants both denied the charges against them and asserted that they had been subjected to torture in the course of their detention in the custody of the gendarmerie. The second applicant further alleged that she had been raped by the gendarmes. When asked about their statements given at the gendarmerie station and before the public prosecutor, the applicants submitted that they had accepted all charges against them in order to escape torture by the gendarmes and that they could not speak freely to the public prosecutor since the gendarmes had threatened them with torture in case they denied their statements at the gendarmerie station. The court ordered the release of the applicants.
20.  On 9 September 1999 the Diyarbakır State Security Court acquitted the applicants, finding that they had been arrested before they joined the PKK and that there was no evidence to prove that they had been involved in the activities of the organisation. As there was no appeal, this judgment became final on 22 December 1999.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
21.  The relevant provisions of the Criminal Code, in force at the material time, were as follows.
Article 243 § 1
“Any public servant ... who inflicts torture or cruel, inhuman or degrading treatment on accused parties to make them confess to their crimes shall be sentenced to up to five years' imprisonment and temporarily or permanently barred from public service.”
Article 245
“Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ..., ill-treats, injures or strikes a person or causes them bodily harm shall be sentenced to between three months' and five years' imprisonment and temporarily barred from public service.  ...”
22.  Pursuant to Article 153 of the Code of Criminal Procedure, in force at the material time, a public prosecutor who was informed by any means whatsoever of a situation that gave rise to the suspicion that an offence had been committed was obliged to investigate the facts in order to decide whether or not there should be a prosecution.
23.   Pursuant to the Prosecution of Civil Servants Act, as in force at the material time, if the alleged perpetrator of an offence was an official of the State, permission to prosecute had to be obtained from the local “administrative council”. An appeal against the local council's decision lay to the Supreme Administrative Court; a refusal to prosecute was subject to an automatic appeal of this kind.
24
25
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
26.  The applicants complained under Articles 3 and 13 of the Convention that they had been subjected to various forms of torture, including rape, during their detention in the custody of the gendarmerie and that the national authorities had failed to carry out an effective investigation capable of bringing the perpetrators to justice.
27.  The Court considers that these complaints should be examined solely from the standpoint of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
28.  The Government argued that the applicants had failed to exhaust the domestic remedies available to them within the meaning of Article 35 § 1 of the Convention. In this connection, they submitted that the applicants had not availed themselves of the civil and administrative law remedies which could have provided reparation for the harm they had allegedly sustained.
29.  The Court reiterates that it has already examined and rejected the Government's preliminary objections in similar cases (see, in particular,The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned case. It therefore rejects the Government's preliminary objection.
30.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties' submissions
31.  The applicants alleged that they had been subjected to various forms of torture, including rape, by gendarmes at the Çınar Gendarmerie Station with a view to extracting confessions concerning their alleged involvement in the PKK. The gendarmes had forced them to sign confession statements which they had not been allowed to read. Furthermore, although they had undergone three medical examinations, all reports stated that they had not had any sexual intercourse and that there was no sign of ill‑treatment. These reports had been written in a suitable manner to preclude any criminal responsibility on the part of the gendarmes and, very strangely, none of them had indicated the name of the medical doctor who had examined them. Lastly, the national authorities had turned a blind eye to their allegations of torture by failing to carry out an effective investigation and had allowed the gendarmes to escape justice.
32.  The Government submitted that the applicants' allegations were unfounded. They noted that the applicants had undergone three medical examinations and that the medical reports had stated that there were no signs of ill-treatment or sexual intercourse. Accordingly, it was understandable that the investigating authorities had terminated the proceedings against the gendarmes since there was no evidence capable of substantiating the applicants' allegations. The Government further claimed that the applicants had failed to adduce any concrete evidence capable of proving that they had been subjected to torture in the hands of the security forces.
2.  General principles
33.  The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see , no. 25657/94, § 390, ECHR 2001-VII).
34.  The Court further reiterates that, where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the veracity of the victim's allegations, particularly if those allegations are backed up by medical reports. Failing this, a clear issue arises under Article 3 of the Convention (see , nos. 32578/96 and 32579/96, § 30, 8 January 2004;  [GC], no. 25803/94, § 87, ECHR 1999-V; Aksoy v. Turkey, 18 December 1996, § 61, Reports of Judgments and Decisions 1996-VI; and , 4 December 1995, § 34, Series A no. 336).
35.  The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see, among other authorities, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). However, where allegations are made under Article 3 of the Convention, the Court must conduct particularly thorough scrutiny (seeÜlkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties.
36.  In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002, and  § 282). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or ofsimilar unrebutted presumptions of fact(see cited above, § 142).
37.  Furthermore, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see  [GC], no. 21986/93, § 100, ECHR 2000-VII).
38.  Lastly, the Court reiterates that where an individual raises an arguable claim of having been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports ‑VIII).
3.  Application of the above principles to the circumstances of the present case
a)  Alleged ill-treatment suffered by the applicants
39.  In the instant case, the Court notes that the applicants underwent three medical examinations, two of which were after their release from police custody – on 15 September 1998, 19 September 1998 and 21 September 1998. The medical reports stated that there were no signs of ill-treatment on the applicants' bodies and that there was no indication that they had had sexual intercourse (see paragraphs 6, 9 and 10 above).
40.  Although the applicants alleged that these reports had been dictated by the security forces and that therefore they did not reflect the truth, they did nothing to challenge the findings contained in those reports. It is true that the applicants' legal representative Ms Eren Keskin asked the authorities to send the applicants to hospital for further medical examination with a view to determining the physical and psychological effects of the alleged torture, particularly the rape (see paragraph 13 above). However, in view of the inertia displayed by the authorities, the applicant's legal representative could have helped the applicants to obtain an alternative medical report from a clinic or hospital following their release from custody (see, as an example, Aksoy, cited above, § 19). Such a report could even have been obtained and submitted in the course of the proceedings before the Court, given that rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence (see Aydın v. Turkey, 25 September 1997, § 83, Reports1997‑VI). In addition, the applicants or their representatives did not consider submitting independent witness evidence in order to substantiate their allegations.
41.  In the light of the parties' conflicting submissions as regards the events in question, and taking into account in particular the lack of any sign of ill-treatment corresponding to the alleged ill-treatment suffered by the applicants (see paragraphs 6, 7, 9 and 10 above), the Court considers that the applicants have failed to adduce sufficient evidence to substantiate their allegations of ill-treatment. It finds therefore that the material in the case file does not enable it to conclude to the required standard of proof that there has been a substantive violation of Article 3 of the Convention as a result of the treatment allegedly sustained by the applicants.
b)  Alleged failure to conduct an effective investigation
42.  The Court notes that subsequent to the applicants' complaints of torture and rape in the hands of the security forces, the Diyarbakır Chief Public Prosecutor's office issued a decision of non-jurisdiction and transferred the case file to the Diyarbakır Provincial Administrative Council to obtain permission to prosecute the gendarmes who had allegedly tortured the applicants (see paragraph 14 above). The latter body decided that that there was not enough evidence to initiate criminal proceedings against the gendarmerie officers and consequently issued a direction of “no prosecution” (see paragraph 15 above).
43.  In this connection, the Court reiterates its previous findings in cases against Turkey that bodies like the Provincial Administrative Council, which are in charge of investigations concerning similar allegations directed against security forces, cannot be regarded as independent, as they are made up of civil servants hierarchically dependent on the Governor, an executive officer linked to the very security forces under investigation (see, among other authorities, Ipek v. Turkey, no. 25764/94, § 174, 17 February 2004). It considers that, in the circumstances of the present case, this body's manifestation of an unacceptable degree of restraint with regard to the security forces, by not questioning the gendarmes who had interrogated the applicants at the Çınar Gendarmerie Station and the conclusion reached by it without conducting a meaningful investigation, despite the allegations of an egregious crime committed by the gendarmes, confirm the Court's previous findings (see paragraph 15 above).
44.  Furthermore, subsequent to the automatic referral of the case to the Supreme Administrative Court for review, this body suspended the criminal proceedings against the gendarmes by virtue of Law no. 4616 (see paragraph 17 above). These proceedings will subsequently be discontinued if no offence of the same or a more serious kind is committed by the offenders within a five-year period, in accordance with that law.
45.  The Court reiterates that the rights enshrined in the Convention are practical and effective, and not theoretical and illusory. Therefore, investigations of the present kind must be able to lead an establishment of the facts and, where a crime is found to have been committed, to the identification and punishment of those responsible. In the instant case, however, the proceedings in question did not produce any concrete result owing to the classification of the alleged offence committed by the gendarmes as ill‑treatment, within the meaning of Article 245 of the Criminal Code, and the suspension of the criminal proceedings against them in accordance with Law no. 4616 (see paragraphs 16 and 17 above). Thus, the application of the said law to the present case created virtual impunity for the alleged perpetrators of acts of violence, irrespective of the evidence against them (see, mutatis mutandis, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 147, ECHR 2004‑IV, and Abdülsamet Yaman, cited above, § 59).
46.  Consequently, the Court considers that the criminal-law system, as applied in the applicants' case, has proved to be far from rigorous and has had no dissuasive effect capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicants (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 78,ECHR 2006‑...).
47.  In the light of the foregoing and given the authorities' failure to pursue the criminal proceedings against the gendarmes leading to the determination of their responsibility and possibly to their punishment in the event of a conviction, the Court does not consider that the above proceedings can be described as sufficiently thorough and effective to have met the procedural requirements of Article 3 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
48.  Lastly, the applicants complained of violations of Article 6 and Article 14 of the Convention. In this connection, they alleged that the authorities who had conducted the investigation into their complaints were not independent and impartial and that they had discriminated against them on the basis of their ethnic origin.
49.  The Government contested these arguments.
50.  An examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
51.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
52.  The applicants claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 20,000 for non-pecuniary damage.
53.  The Government contended that the amount claimed was excessive and that any award made under this head should not lead to unjust enrichment.
54.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, having regard to the violation found and ruling on an equitable basis, it awards the applicants EUR 5,000 each in respect of non-pecuniary damage.
B.  Costs and expenses
55.  The applicants also claimed EUR 5,800 for the costs and expenses incurred before the Court (EUR 3,800 for legal fees and EUR 2,000 for translation, postage and stationery costs). In this connection, they submitted a contract signed with their legal representatives stipulating a fee of 6,100 new Turkish liras (approximately EUR 3,800) for the presentation of their application before the Court and photocopies of postage receipts.
56 The Government maintained that the amount claimed was not justified or actually and necessarily incurred.
57.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 for the proceedings before it.
C.  Default interest
58.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaints under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 3 of the Convention under its substantive limb;

3.  Holds that there has been a procedural violation of Article 3 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:
(i)  EUR 5,000 (five thousand euros) for each applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, for costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 16 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	Sally Dollé	Françoise Tulkens
	Registrar	President