In the case of Yagiz v. Turkey (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr N. Valticos,
Mr R. Pekkanen,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 23 May and 25 June 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 62/1995/568/654. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
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PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 10 July 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 19092/91) against the Republic of Turkey lodged with the
Commission under Article 25 (art. 25) by a Turkish national,
Mrs Yüksel Yagiz, on 8 October 1991.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Turkey recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 3 of the Convention (art. 3).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that she
wished to take part in the proceedings and designated the lawyer who
would represent her (Rule 30), to whom the President gave leave to use
the Turkish language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 13 July 1995, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr N. Valticos, Mr R. Pekkanen,
Mr A.B. Baka, Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr P. Jambrek
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Turkish
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the Government's memorial on 22 March 1996. On
1 April 1996 the Government supplied a copy of a medical report of
12 March 1996, accompanied by observations.
5. On 23 April 1996 the President of the Commission informed
Mr Ryssdal that the Commission wished to withdraw its request of
10 July 1995 (see paragraph 1 above). It had noted, in the light of
the judgment delivered on 25 March 1996 in the Mitap and Müftüoglu
v. Turkey case, that the present case fell outside the Court's
jurisdiction ratione temporis.
On 9 May 1996 the Government informed the registry that they
objected to "unilateral withdrawal" by the Commission. On 20 May the
applicant stated that she had no comment to make on the question.
On 14 May 1996 the President had cancelled the hearing due to
take place on 21 May.
6. On 23 May the Court decided that the Commission could not
withdraw its request instituting proceedings before the Court and that
the Court should accordingly proceed with its consideration of the
case. It informed the Government, the applicant and the Commission of
this decision in a letter of 18 June 1996 signed by the Registrar and
worded as follows:
"... since 1959, under the Rules of Court, the power to seek
a discontinuance has been reserved to 'parties' which have
brought the case before the Court, that is to say High
Contracting Parties and, in cases concerning States bound by
Protocol No. 9, private parties (Rule 49 para. 1 of Rules of
Court A and Rule 51 para. 1 of Rules of Court B).
The Commission is not a 'party' and, even if the Commission
were invested with an implicit power similar to that expressly
conferred by paragraph 1 of Rule 49 of Rules A, by analogy it
is for the Court to approve the discontinuance subject to the
agreement of the parties. In the present case the Turkish
Government have indicated their disagreement."
Also on 23 May, the Court decided to dispense with a hearing
in the case, after noting that the conditions for this derogation from
the usual procedure had been met (Rules 26 and 38).
AS TO THE FACTS
I. Circumstances of the case
7. On 4 December 1989 in the maternity ward of Tepecik Social
Security Hospital (SSK Hastanesi) in Izmir a baby was abducted shortly
after its birth.
8. On 14 December 1989 in the course of the investigation
conducted by the Izmir public prosecutor's office in respect of some
of the hospital staff, Mrs Yagiz, a nursing auxiliary on the maternity
ward, was questioned for several hours at the local police station.
9. Being suspected of involvement in the abduction of the new-born
child, she was arrested on 15 December 1989 and placed in police
custody at the Izmir Security Department. During her interrogation in
the offices of the "homicide and armed robbery" squad, which went on
until the following morning, she was twice taken by the police to a
hospital casualty department for treatment.
10. On 16 December 1989, the day of her release, the applicant had
to be admitted to hospital on account of the psychological shock she
had suffered. The medical examinations carried out on 18 December 1989
by, among others, the internal medicine department, the general surgery
department and the gynaecology department did not show that the
applicant was suffering from a pathological condition such as might
keep her off work, but the psychiatric examination showed that she had
suffered a psychological trauma which made it necessary to certify her
unfit for work for five days.
11. At the request of Mrs Yagiz's father, a panel of three doctors
appointed by the Izmir Medical Association examined the applicant on
20 December 1989. According to their report, of 21 December 1989,
Mrs Yagiz was suffering from "acute post-traumatic stress" and bore
marks on the soles of her feet. These symptoms proved that she had
been subjected to ill-treatment.
12. In the meantime, on 17 December 1989, the applicant had lodged
a complaint with the Izmir public prosecutor's office against the
officers in whose charge she had been while in police custody, accusing
them of torturing her. In her statement to the prosecuting
authorities, made on 20 December 1989, she asserted in particular that
during the questioning some of the police officers had beaten the soles
of her feet with sticks while she was blindfolded, that they had tied
a knot in her skirt so that she could not move her legs and that they
had placed a heavy object on her shoulders. The police had then made
her walk on a wet floor to prevent her feet from swelling up and had
sexually harassed her.
13. On 12 April 1990, after hearing the accused police officers and
witnesses, the Izmir public prosecutor brought proceedings under
Article 245 of the Criminal Code in the Izmir Criminal Court against
three police officers, who were accused of ill-treatment.
14. On 12 June 1990 the Izmir Criminal Court ruled that it lacked
jurisdiction and referred the case to the Izmir Assize Court.
15. In a judgment of 16 November 1990 the Izmir Second Assize Court
acquitted the three police officers. It held that it had been
established in the light of the medical reports, particularly the
report of 21 December 1989, that the applicant had suffered "duress"
(zora koyma) at the Izmir Security Department, but that the identity
of those responsible could not be determined, as the applicant had not
been able to identify them and the witness evidence had not produced
any further information on that point.
16. On 19 June 1991 the Court of Cassation upheld the Assize
Court's judgment.
17. As a result of the police investigation into the child's
abduction, the real offenders were arrested and prosecuted. The
proceedings against Mrs Yagiz and her four co-defendants were halted
by a discontinuation order on 28 December 1989.
II. Relevant provisions of the Criminal Code
18. Article 243 provides:
"A President or member of a court or official body or any
other public official who, in order to extract a confession of
guilt in respect of a criminal offence, tortures or ill-treats
any person, or engages in inhuman conduct or violates human
dignity, shall be punished by up to five years' imprisonment
and disqualified from holding public office temporarily or for
life.
The sentence incurred under Article 452, where such conduct
causes death, or under Article 456 in other cases, shall be
increased by between one-third and one half."
19. Article 245 provides:
"Civil servants charged with forcible execution of an order,
police officers and any other officials charged with
enforcement who enforce the order concerned, either of their
own accord or on the orders of their superiors, in an unlawful
manner or who, in doing so, ill-treat, strike or cause bodily
injury to another shall be punished by between one and three
years' imprisonment and temporarily disqualified from holding
public office."
III. Turkish declaration of 22 January 1990 under Article 46 of the
Convention (art. 46)
20. On 22 January 1990 the Turkish Minister for Foreign Affairs
deposited the following declaration with the Secretary General of the
Council of Europe pursuant to Article 46 of the Convention (art. 46):
"On behalf of the Government of the Republic of Turkey and
acting in accordance with Article 46 (art. 46) of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, I hereby declare as follows:
The Government of the Republic of Turkey acting in accordance
with Article 46 (art. 46) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, hereby
recognises as compulsory ipso facto and without special
agreement the jurisdiction of the European Court of Human
Rights in all matters concerning the interpretation and
application of the Convention which relate to the exercise of
jurisdiction within the meaning of Article 1 of the Convention
(art. 1), performed within the boundaries of the national
territory of the Republic of Turkey, and provided further that
such matters have previously been examined by the Commission
within the power conferred upon it by Turkey.
This Declaration is made on condition of reciprocity,
including reciprocity of obligations assumed under the
Convention. It is valid for a period of three years as from
the date of its deposit and extends to matters raised in
respect of facts, including judgments which are based on such
facts which have occurred subsequent to the date of deposit of
the present Declaration."
This declaration was renewed on 22 January 1993 for a period
of three years and again on 22 January 1996, in slightly different
terms, for two years.
PROCEEDINGS BEFORE THE COMMISSION
21. Mrs Yagiz applied to the Commission on 8 October 1991. Relying
on Article 3 of the Convention (art. 3), she complained of the
ill-treatment she had suffered while in police custody.
22. The Commission declared the application (no. 19092/91)
admissible on 11 October 1993. In its report of 16 May 1995
(Article 31) (art. 31), it expressed the unanimous opinion that there
had been a violation of Article 3 (art. 3). The full text of the
Commission's opinion is reproduced as an annex to this judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-III), but a copy of the Commission's report is
obtainable from the registry.
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FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT
23. In their memorial, the Government asked the Court, in chief,
to rule that it lacked jurisdiction ratione temporis on account of the
Turkish declaration recognising its compulsory jurisdiction
(Article 46) (art. 46); in the alternative, to hold that domestic
remedies had not been exhausted in the case; and in the very subsidiary
alternative, to hold that there had been no violation of the
Convention.
AS TO THE LAW
THE GOVERNMENT'S PRELIMINARY OBJECTIONS
24. The Government raised two preliminary objections of
inadmissibility relating to lack of jurisdiction ratione temporis and
failure to exhaust domestic remedies.
25. They maintained that "Turkey first recognised the Court's
compulsory jurisdiction on 22 January 1990 with regard to matters
raised in respect of facts, including judgments based on such facts,
which had occurred subsequent to" that date. As "the facts alleged by
the applicant" had taken place on 15 and 16 December 1989, the case
fell outside the Court's jurisdiction ratione temporis.
26. According to Mrs Yagiz, on the contrary, the date on which the
Turkish declaration under Article 46 of the Convention (art. 46) took
effect was not the date on which it was notified to the Secretary
General of the Council of Europe but the date of publication in the
Turkish Official Gazette, on 27 September 1989, of the Ministerial
decision of 25 September of the same year recognising the Court's
compulsory jurisdiction.
27. The Court does not accept that argument. Notification to the
Secretary General is not a mere formality, as the applicant seems to
believe, but is indeed the moment at which recognition of the Court's
compulsory jurisdiction takes effect. The very terms of the
declaration made under Article 46 of the Convention (art. 46) preclude
all argument: "This Declaration ... is valid for a period of three
years as from the date of its deposit and extends to matters raised in
respect of facts, including judgments which are based on such facts
which have occurred subsequent to the date of deposit of the present
Declaration" (see paragraph 20 above; the Loizidou v. Turkey
(preliminary objections) judgment of 23 March 1995, Series A no. 310,
p. 33, para. 102; the Yagci and Sargin v. Turkey and Mansur v. Turkey
judgments of 8 June 1995, Series A nos. 319-A and 319-B, p. 16,
para. 40, and p. 48, para. 44; and the Mitap and Müftüoglu v. Turkey
judgment of 25 March 1996, Reports of Judgments and Decisions 1996-II,
pp. 410-11, paras. 26-28).
28. Having regard to that wording, the Court considers that it
cannot deal with the merits of the case, as the detention in police
custody during which Mrs Yagiz allegedly suffered ill-treatment took
place on 15 and 16 December 1989, more than a month before Turkey's
recognition of the Court's compulsory jurisdiction.
29. That conclusion makes it unnecessary to consider the
Government's other objection.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that it cannot deal with the merits of the case.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 7 August 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy