Akkoç v. Turkey

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 23

October 2000

Akkoç v. Turkey - 22947/93 and 22948/93

Judgment 10.10.2000 [Section I]

Article 2

Article 2-1

Life

Shooting by unidenfied perpetrator and effectiveness of investigation: violation

Article 3

Torture

Torture in custody: violation

Article 34

Victim

Annulment of disciplinary penalty imposed on teacher: no violation

Facts: A disciplinary penalty of one year’s suspension of promotion was imposed on the applicant, a teacher, in 1993 after she had made a statement to a newspaper in her capacity as head of the local branch of a teachers’ union. She had made allegations of verbal abuse, harassment and assaults by the police during a meeting. The penalty was ultimately annulled in 1999.

The applicant’s husband, of Kurdish origin and also involved in the union, was shot dead by an unknown assailant in 1993. The applicant had received threats both before and after the incident and her husband had been detained on several occasions. The prosecutor issued an indictment in respect of a student alleged to be a member of Hizbollah. The latter claimed to have signed a confession under duress and he was later acquitted due to lack of evidence. The applicant was also detained on several occasions and claims that she was tortured. A decision not to prosecute two police officers was issued by the prosecutor.

The European Commission of Human Rights took evidence from witnesses and concluded that the applicant’s testimony was credible, whereas that of the police officers was evasive and unreliable.

Law: Government’s preliminary objections (non-exhaustion as to the complaints under Articles 2, 3 and 10) – The Government were estopped from raising these objections, since the Commission had declared this part of the application admissible without the Government having submitted observations, despite the extension of the time-limit.

Article 10 – The applicant used the available means of redress in respect of the disciplinary penalty and the procedure cannot be characterised as an extraordinary one. Although the proceedings took six years, this did not in the circumstances deprive them of their effectiveness in providing redress, and while the applicant did not receive any compensation she has not specified any concrete financial loss resulting from the decision. Consequently, she can no longer claim to be a victim of a violation.

Conclusion: no violation (unanimously).

Article 2 (positive obligation to protect life) – It has not been established beyond a reasonable doubt that any State agent or person acting on behalf of the State authorities was involved in the killing. However, the victim was of Kurdish origin and involved in the activities of a union regarded as unlawful and he had been detained and received threats; moreover, a significant number of “unknown perpetrator killings” of suspected PKK sympathisers occurred around that time, so that the applicant was at particular risk and the risk was real and immediate. The authorities must be regarded as having been aware of the risk and of the possibility that it derived from persons acting with the knowledge or acquiescence of elements within the security forces, this being born out by certain reports which strongly indicated that contra-guerrilla groups were active. The Court has already found defects in the functioning of the criminal law in south-east Turkey with regard to acts involving the security forces (the role of administrative councils, the failure of prosecutors to investigate and the lack of independence of the State Security Courts) and these defects undermine the effectiveness of the system of criminal justice to the extent that the legal protection which the victim should have had was removed. A wide range of preventive measures would have been available to the authorities to provide protection but they failed to take reasonable measures.

Conclusion: violation (6 votes to 1).

Article 2 (effectiveness of investigation) – Having regard to the limited scope and short duration of the investigation carried out into the killing, the authorities failed to carry out an effective investigation. In particular, the person charged with the murder was not charged with the murder of a second victim in the same incident, giving the impression that the charges were made arbitrarily.

Conclusion: violation (unanimously).

Article 13 – Although it has not been shown beyond a reasonable doubt that there was any State agent involved in the killing, the applicant may be regarded as having an arguable claim, since it is undisputed that her husband was the victim of an unlawful killing. For the reasons given in relation to Article 2, no effective criminal investigation can be regarded as having been conducted for the purposes of Article 13, the requirements of which are broader.

Conclusion: violation (6 votes to 1).

Article 3 – Accepting the facts as established by the Commission (that the applicant had been subjected to electric shocks, hot and cold water treatment, blows to the head, psychological pressure), the Court concluded that she had been subjected to very serious and cruel suffering which could be characterised as torture. It endorsed the view of the European Committee for the Prevention of Torture that proper medical examinations are an essential safeguard against ill-treatment of persons in custody and emphasised that such examinations must be carried out by a properly qualified doctor, without any police officer being present; the report must include the detail of any injuries found as well as the patient’s explanations as to how they occurred and the doctor’s opinion as to whether the injuries are consistent with those explanations.

Conclusion: violation (unanimously).

Article 34 – The Court accepted the Commission’s finding that during her detention the applicant had been questioned about her application. Having regard to the context in which this took place, and in particular the fact that she was the victim of torture during the interrogations, the Court found that she must have felt intimidated in respect of her application to the Commission. This constituted undue interference with her petition.

Conclusion: failure to comply with obligations (unanimously).

Alleged practice infringing Articles 2, 3 and 13 – Having regard to its above conclusions, the Court did not find it necessary to determine whether the failings identified in the case were part of a practice adopted by the authorities.

Article 41 – The Court considered that there was a causal link between the violation found in respect of the failure to protect the applicant’s husband’s life and the loss of his financial support by his widow and children and awarded £35,000 (GBP) in that respect. It awarded £15,000 in respect of the non-pecuniary damage suffered by the applicant’s husband, to be held by her as surviving spouse, and £25,000 in respect of the non-pecuniary damage suffered by the applicant herself. It also made an award in respect of costs.

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