Information Note on the Court’s case-law 20
July 2000
Dikme v. Turkey - 20869/92
Judgment 11.7.2000 [Section I]
Article 3
Torture
Ill-treatment during police custody: violation
Article 5
Article 5-2
Information on reasons for arrest
Failure to provide reasons for arrest: no violation
Article 8
Article 8-1
Respect for family life
Prisoner's mother prevented from visiting her son: no violation
Facts: The applicant was stopped and questioned with a lady companion while they were in possession of false identity papers. He was taken to the premises of the Anti-Terrorist Brigade of the Security Forces, where he remained in custody, with no contact with the outside world, for sixteen days. The police officers who questioned him while he was in custody told him that they were members of a unit specialising in suppressing the activities of the armed extremist movement Dev-Sol. According to the applicant, they threatened him with death on the ground that he belonged to that organisation and repeatedly subjected him to ill-treatment. He alleges, in particular, that he was blindfolded while being questioned, that he was struck on several occasions, subjected to the “Palestinian hanging”, given electric shocks in various parts of his body and subjected to a mock execution. At the end of those sixteen days he was examined by a practitioner from the Institute of Forensic Medicine and taken before a judge who ordered that he be placed in provisional detention for terrorist acts. The Institute of Forensic Medicine drew up a report which mentioned only old “scratches” on which scabs had formed. However, subsequent medical examinations carried out by the administration record the presence of numerous sequellae of grazes and bruises on various places of the body. Furthermore, the applicant’s companion, who was in custody in the same place as the applicant, stated that she had seen him blindfolded on a number of occasions. She also asserted that the police officers who questioned her had told her of the treatment they were inflicting on the applicant. While the applicant was in provisional detention his mother attempted to visit him, but the authorities refused to allow her to do so. At his trial before the State Security Court the applicant retracted the admissions he had made while in custody and lodged a complaint of torture against the police officers who had questioned him. He was sentenced to death, but the Court of Cassation set aside the judgment – since the operative part did not mention any proof forming the basis of the conviction – and remitted the case to the State Security Court, where it is still pending. The applicant’s complaint was dismissed.
Law: Preliminary objection of the Government (failure to exhaust domestic remedies and to comply with the six-month period for lodging an application) – Despite being twice being granted further time, the Government failed to communicate in due time their observations on the admissibility of the application to the Commission. It appears that the Commission itself contemplated reconsidering its decision on admissibility pursuant to the former Article 29, but failed to obtain the requisite qualified majority. Non the less, the Government, after failing to present their observations on admissibility in time, cannot profit from the fact that the Court determines preliminary objections by a simple majority whereas a qualified majority was necessary at the admissibility stage.
Article 5 § 2 – Since the applicant was stopped and questioned while in possession of forged papers, he cannot claim that he did not know the reasons for his arrest. Nor can he contend that he was not informed of the suspicions against him, since there is ample evidence that he was quickly able to realize the nature of those suspicions. It is apparent, in particular, from the applicant’s own account of the events that the death threats made by the police mentioned, inter alia, his supposed membership of Dev Sol.
Conclusion: no violation (unanimously).
Article 5 § 3 – Although it was consistent with the national provisions applicable to terrorism, the fact that the applicant was brought before a judge after being held in custody for sixteen days contravenes the requirement of prompt review by a court laid down in Article 5(3). Only rapid judicial intervention makes it possible to detect and prevent any ill-treatment during detention.
Conclusion: violation (unanimously).
Article 3 – The detailed explanations provided by the applicant, the findings of the medical reports and the lack of denials by the Government on this point suffice to show, beyond all reasonable doubt, that the applicant suffered “a large number of blows and other similar forms of torture”. As regards the psychological violence he claims to have suffered, his companion’s evidence is sufficient to establish, having regard to the level of proof required, that he was questioned while blindfolded. For the remainder, the Court finds of its own motion that, during the sixteen days of his detention in custody, the applicant was deprived of all assistance, medical or other, and of any review by a court. During that period he was therefore entirely at the mercy of the police and the physical violence which they employed. Those findings are in themselves sufficient to establish the existence of interference with his mental integrity, without there being any need to consider the applicant’s allegations in that regard. The applicant has not shown that his claims regarding the electric shocks or the “Palestinian hanging” torture are true. Article 3 does not allow of any derogation, even in the event of public emergency threatening the life of the nation, and applies to persons in detention, irrespective of the nature of the offences which they are alleged to have committed. The applicant’s suffering was exacerbated by his being completely isolated and kept blindfolded. As this treatment was intended to “humiliate him, degrade him and break his resistance and his will”, it was inhuman and degrading. The number, duration and purpose of the assaults conferred on them a “particularly grave and cruel nature likely to cause acute suffering” which justifies their being classified as torture for the purposes of Article 3. Although the applicant’s complaint did in fact lead to an investigation into those incidents, it was not successful and the Government have not even been able to supply any information on its progress, There has thus been a violation of Article 3 under this head too.
Conclusion: violation (unanimously).
Article 6 § 1 and § 3 (c) – Under Turkish law admissions obtained during detention in custody and subsequently challenged are not decisive. Furthermore, the applicant’s conviction was quashed on the ground of insufficient evidence. As the case is still pending, it is impossible at this stage to carry out an overall examination of the fairness of the trial.
Conclusion: no violation (unanimously).
Article 8 – A mother’s desire to visit her son who is being held prisoner does indeed fall within the scope of Article 8. However, the applicant’s mother does not appear to have made any determined efforts to see her son. The State did not exceed the margin of appreciation which it is recognised as having to control visits to persons in detention.
Conclusion: no violation (unanimously).
Article 41 – The Court awarded the applicant 200,000 francs in respect of the non-pecuniary harm sustained and a sum in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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