SALMAN v. TURKEY

 EUROPEAN COMMISSION OF HUMAN RIGHTS

 Application No. 21986/93

 Behiye Salman

against

 Turkey

 REPORT OF THE COMMISSION

(adopted on 1 March  1999)

TABLE OF CONTENTSPage

I.INTRODUCTION

(paras. 1-45)............................................1

A.The application

(paras. 2-4)........................................1

B.The proceedings

(paras. 5-40).......................................1

C.The present Report

(paras. 41-45)......................................4

II.ESTABLISHMENT OF THE FACTS

(paras. 46-260)..........................................6

A.The particular circumstances of the case

(paras. 47-70)......................................6

B.The evidence before the Commission

(paras. 71-244)....................................10

1) Documentary evidence

(paras. 71-161)....................................10

2) Oral evidence

(paras. 162-244)...................................30

C.Relevant domestic law and practice

(paras. 245-256)...................................50

D.Relevant international material

(paras. 257-260)...................................52

III.OPINION OF THE COMMISSION

(paras. 261-360)........................................54

A.Complaints declared admissible

(para. 261)........................................54

B.Points at issue

(paras. 262-263)...................................54

C.The evaluation of the evidence

(paras. 264-306)...................................54

TABLE OF CONTENTS

Page

D.As regards Article 2 of the Convention

(paras. 307-324)...................................68

CONCLUSION

(para. 325)........................................72

E.As regards Article 3 of the Convention

(paras. 326-330)...................................72

CONCLUSION

(para. 331)........................................73

F.As regards Articles 6 and 13 of the Convention

(paras. 332-339)...................................73

CONCLUSION

(para. 340)........................................75

G.As regards Article 18 of the Convention

(paras. 341-344)...................................75

CONCLUSION

(para. 345)........................................76

H.As regards Former Article 25 of the Convention

(paras. 346-356)...................................76

CONCLUSION

(para. 356)........................................78

I.Recapitulation

(paras. 357-361)...................................78

CONCURRING OPINION OF MR E.A. ALKEMA.....................79

APPENDIX I :    DECISION OF THE COMMISSION AS TO THE

                             ADMISSIBILITY OF THE APPLICATION..............80

APPENDIX  II : PHOTOGRAPHS OF THE BODY OF AGIT SALMAN......88

I.INTRODUCTION

1.                    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.                    The applicant is a Turkish citizen resident in Adana and born in 1942. She is represented before the Commission by Professor K. Boyle and Professor  F. Hampson, both lecturers at the University of Essex.

3.                    The application is directed against Turkey. The respondent Government were represented by their Agents, Mr. A. Gündüz and Mr. S. Alpaslan.

4.                    The applicant complains that her husband died as a result of torture while in police custody. She invokes Articles 2, 3, 6, 13 and 18 of the Convention. She also complains of intimidation exerted on her in relation to her application, invoking former Article 25 of the Convention.

B.The proceedings

5.                    The application was introduced on 20 May 1993 and registered on 7 June 1993.

6.                    On 30 August 1993, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7.                    The Government's observations were submitted on 31 January 1994, after an extension in the time-limit. The applicant's observations in reply were submitted on 23 March 1994 and further documents on 13 April 1994.

8.                    On 27 June 1994, the Commission adjourned further examination of the application with a view to examining it at its session commencing on 10 October 1994. It requested that the Government provide information about pending proceedings in the High Court of Appeals.

9.                    On 11 October 1994, the Commission decided that the adjournment should not be prolonged and invited the Government to submit any further observations on the admissibility and merits which they might wish.

10.                By letter dated 11 January 1995, the Government submitted further observations.

11.                On 20 February 1995, the Commission declared the application admissible.

12.                The text of the Commission's decision on admissibility was sent to the parties on 24 February 1995 and they were invited to submit such further information or observations on the merits as they wished. They were also invited to indicate the oral evidence they might wish to put before delegates.

13.                The Government provided further information on 27 February 1995.

14.                By letter of 15 May 1995, the applicant's representatives stated that they had no proposals to make at this stage.

15.                On 1 July 1995, the Commission decided to take oral evidence in respect of the applicant's allegations. It appointed three Delegates for this purpose: MM. Pellonpää, Cabral Barreto and Bratza. It notified the parties by letter of 19 July 1995, proposing certain witnesses. The Government were requested to provide documents from the investigation file.

16.                By letter dated 15 September 1995, the applicant made proposals as regards witnesses. By letter dated 14 November 1995, the applicant provided information about various witnesses.

17.                By letter dated 26 February 1996, the Delegates requested the Government to provide documents from the investigation file and to identify certain witnesses.

18.                By letter dated 30 April 1996, the Secretariat, on behalf of the Delegates, again requested the Government to provide investigation documents and information about witnesses. It also requested further clarification from the applicant concerning witnesses proposed by her.

19.                On 2 May 1996, the Government provided documents from the investigation file and identified certain police officers.

20.                By letter dated 9 May 1996, the applicant submitted a statement alleging that she had been summoned to the Security Directorate concerning her application.

21.                By letter dated 27 June 1996, the Government provided the information that two witnesses proposed by the applicant were not in detention as alleged.

22.                Evidence was heard by the Commission's Delegates in Ankara from 1 to 3 July 1996. Before the Delegates, the Government were represented by Mr. A. Gündüz and Mr. S. Alpaslan, Acting Agents, assisted by Mr. A. ölen, Mr. A. Kurudal, Ms. N. Erdim, Ms. A. Emüler, Mr. C. Çakir, Mr. O. Sever, Ms. B. Pekgöz, Ms. M. Gülen and Ms. S. Yüksel. The applicant was represented by Ms. F. Hampson and Mr. O. Baydemir, as counsel, assisted by Ms. A. Reidy and Mr. Mahmut Kaya (interpreter).

23.                On 7 September 1996, the Commission decided to call an additional witness to an oral hearing to be held in Strasbourg and to invite the Government to make written submissions concerning allegations that the applicant had been subject to intimidation. By letter dated 13 September 1996, the parties were informed of these decisions.

24.                By letter dated 4 November 1996, the Government provided information concerning the absence of the police officer, Ali Sarı, at the hearing in Ankara.

25.                By letter dated 22 October 1996, the applicant requested permission to submit further expert medical evidence. By letter dated 6 November 1996, the Delegates agreed to this request. By letter of 7 November 1996, the applicant requested that the Delegates hear evidence from a forensic expert, Professor Pounder. By letter of 18 November 1996, the Secretariat informed the parties that this request was accepted by the Delegates and enclosed the amended timetable for the hearing.

26.                On 26 November 1996, the applicant submitted an expert report by Professor Pounder.

27.                Evidence was heard by the Commission's Delegates in Strasbourg on 4 December 1996. Before the Delegates the Government were represented by Mr. A. Gündüz and Mr. S. Alpaslan, Acting Agents, assisted by Mr. M. Özmen, Mr. A. Akay, Ms. M. Gülsen and Mr. A. Kaya. The applicant was represented by Ms. F. Hampson and Ms. A. Reidy. The Government Agent made representations concerning the evidence of Professor Pounder and withdrew from the hearing of his evidence.

28.                On 10 December 1996, the Delegates invited the Government to make proposals as to further expert evidence which they might wish to adduce.

29.                By letter dated 13 December 1996, the Government made submissions concerning the allegations of intimidation.

30.                On 9 January 1997, the Government requested that the Delegates hear evidence from a forensic doctor. On 28 February 1997, the parties were informed that the Delegates would hear evidence from the forensic witness in Strasbourg during the Commission's session in July 1997.

31.                By letter dated 28 May 1997, the Secretariat reminded the Government that they should provide a curriculum vitae of the forensic expert.

32.                By letter dated 30 May 1997, the Government informed the Commission that the forensic expert was unable to attend but proposed a second expert, whose curriculum vitae was enclosed.

33.                Evidence was heard by the Commission's Delegates in Strasbourg on 4 July 1997. Before the Delegates the Government were represented by Mr. A. Gündüz and Mr. S. Alpaslan, Acting Agents, assisted by Mr. F. Polat, Ms. A. Emüler, Ms. M. Gülsen, Mr. D. Karaca, Mr M. Bağriaçik and Mr. A. Kaya. The applicant was represented by Ms. F. Hampson and Ms. A. Reidy, assisted by Mr. M. Kaya (interpreter).

34.                By letter dated 24 September 1997, the Commission's Secretariat requested, on instructions of the Delegates, that Professor Cordner of the Victoria Institute of Forensic Medicine submit an expert opinion on the medical aspects of the application.

35.                On 10 March 1998, Professor Cordner submitted his report to the Delegates.

36.                By letter dated 17 April 1998, the parties were provided with a copy of the report and requested to submit their final observations on the merits by 22 June 1998. At the request of the Government and the applicant, the time-limit was extended to 24 August 1998.

37.                On 20 August 1998, the Government submitted their final observations.

38.                On 17 November 1998, the applicant submitted her final observations, after a further extension of the time-limit for that purpose.

39.                On 1 March 1999, the Commission decided that there was no basis on which to apply former Article 29 of the Convention[1].

40.                After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

41.                The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM.S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

MrsG.H. THUNE

Mr.F. MARTINEZ

MrsJ. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

Sir Nicolas BRATZA

MM.I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

C. BÎRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MM.R. NICOLINI

A. ARABADJIEV

42.                The text of this Report was adopted on 1 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

43.                The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State                             concerned of its obligations under the Convention.

44.                The Commission's decision on the admissibility of the application is annexed as Appendix I and the photographs of the body of Agit Salman as Appendix II hereto.

45.                The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

46.                The facts of the case, particularly concerning events on or about 29 April 1992 during the detention of the applicant's husband Agit Salman, aged approximately 45 years,  in police custody, are disputed by the parties. For this reason, pursuant to former Article 28 para. 1 (a) of the Convention, the Commission has conducted an investigation, with the assistance of the parties, and has accepted written material, as well as oral testimony, which has been submitted. The Commission first presents a brief outline of the events, as claimed by the parties, and then a summary of the evidence submitted to it.

A.The particular circumstances of the case

1.Facts as presented by the applicant

47.                The various accounts of events as submitted in written and oral statements by the applicant and other members of her family are summarised in  Section B: "The evidence before the Commission". The version as presented in the applicant's final observations on the merits is summarised briefly here.

48.                On 28 April 1992, at about 01.30-2.00 hours, four police officers came to the home of Agit Salman, looking for him. They questioned the applicant about Hıdır Salman, the nephew of Agit Salman. Agit Salman had previously been detained overnight on 26-27 February 1992, at which time he had been questioned about the whereabouts of his nephew. During this time, Agit Salman had been subjected to cold water treatment and caught a chill.

49.                Agit Salman, who was out working as a taxi driver, was arrested at the Aksoy taxi rank by a team of three officers, Ahmet Dinçer, evki Taçı and Ali Sarı. The applicant and her family were informed by eye witnesses that he did not resist arrest. There was no mention in the arrest report or the incident report after his death that Agit Salman had resisted arrest. The oral evidence of the arresting officers also emphasised that the circumstances of his arrest could not have caused him injury. His arrest therefore had no direct bearing on his subsequent death.

50.                Agit Salman was entered into the custody record of Adana Security Directorate by Ömer nceyılmaz at 03.00 hours. A little under 24 hours later, at about 01.30 hours on 29 April 1992, he was taken to Adana State Hospital by the interrogation team headed by brahim Yel, where he was declared to have been dead  on arrival. Dr Ali Tansı, who was on duty in the emergency unit of the Hospital at the time of Agit Salman’s admission,  stated that he had been dead for at least 15-20 minutes. The applicant disputes the accounts of the police officers as to what occurred during this intermediate period, in particular, their account that Agit Salman remained in his cell, without being questioned and that he fell ill, calling for help, that after 4-5 minutes he was placed in a mini van and taken to the hospital on a journey lasting 15-17 minutes and that during that journey there was a brief two minute stop while one officer applied mouth to mouth resuscitation and a heart massage.

51.                The accounts of the police officers are stated to be unreliable and implausible, particularly as to their claim that there was a resuscitation attempt, since the first time this was mentioned was before the Commission Delegates. Their evidence as regarded Agit Salman’s resistance to his arrest and his alleged breathlessness was unsubstantiated and self-serving. It was striking that it was the interrogation team who took Agit Salman to hospital  and that it was brahim Yel who took the statement of Behyettin El. Of the three suspects known to have been connected with the operation, it was Agit Salman who was the last to be detained (the others being Behyettin[2] El and Ferhan Tarlak) and there was no reason to delay the interrogation any longer. While Agit Salman was arrested at 01.30 hours, he was not logged into the custody record until 03.00 hours, a gap which is unexplained since it is denied that he was subjected to any preliminary interview. Further, the evidence by the officers as to the interrogation roles of the interrogation team was very evasive. Globally, the version of events is so flawed that the compelling inference to be drawn is that the story was constructed to be compatible with what the police officers believed that the medical evidence would show and provide a cover for the reality of what happened, which was that Agit Salman was tortured to the point that a heart attack was induced.

52.                The applicant submits that, during his  24 hours’ detention, Agit Salman was subjected to torture which resulted in several wounds being inflicted on his body and which led to a cardiac arrest. The medical evidence shows that his death was rapid and not prolonged, as alleged by police officers. While he had a significant pre-existing natural disease of the heart, this had been fully compensated for and he showed no external signs of the heart condition. The heart condition could give rise to sudden unexpected death however and in this case resulted from being subjected to serious ill-treatment amounting to torture.  The presence of bruising on the sole of the left foot indicates the application of at least moderately severe force, and combined with the marks on the left and right ankles, this is consistent with the infliction of  “falaka” (the technique of beating the sole of the foot with a solid object to induce intense pain and suffering in a short period of time). The reports of the European Committee for the Prevention of Torture (the “CPT”) and the UN Special Rapporteur show that there was widespread use of this technique of torture during or around 1992. The bruising on Agit Salman’s chest overlying a fractured sternum has not been shown to have been caused separately. As injuries inflicted together, they could not have resulted from attempted resuscitation but the most likely cause would have been the result of a heavy blow. There were other suspicious marks and possible injuries eg. marks on the back, right little toe and in the armpit. The latter two could possibly have been electrical shock contact marks. It is not possible to resolve the causes of these marks conclusively due to the inadequacies of the autopsy procedures.  Attempts to clarify the possible causes of the injuries and provide a full and frank record of the injuries was not undertaken by the forensic personnel in Adana.

53.                The applicant and her family were not informed of Agit Salman’s death until about noon on 29 April 1992, after Mehmet Salman had been summoned to the security directorate.  They filed a complaint with the public prosecutor the same day. On 30 April 1992, brahim Salman, the applicant’s brother-in-law, went to the morgue to identify the body. The family were able to collect the body the same day. While they prepared the body for burial, they saw evidence of discolouration and marks. The family arranged for the press to take photographs for evidence. The story was reported in three daily newspapers. The police wanted to bury the body under escort for fear that there would be a demonstration but the family undertook to bury the body that day so that there would be no risk that a demonstration could coincide with the burial on 1 May 1992.

54.                On 24 January 1996, at about 14.00 hours, the applicant was taken to the Security Directorate, blindfolded and asked questions about her application to the European Commission of Human Rights.  She was told that she should drop her case to the Commission and was hit. She was requested to thumbprint a document while she was there.

55.                On 7 February 1996, the applicant was taken to the prosecutor by two police officers and asked about her statement of means. Two days later, she was taken to the Security Directorate where she was brought before the Chief Prosecutor and again asked about her statement of means.

2.Facts as presented by the Government

56.                The Government's account of events as based on their observations are summarised as follows.

57.                On 30 April 1992, after his arrest, Agit Salman fell ill while detained in the police cells at the Security Directorate. An autopsy was conducted which concluded that the case should be sent to the Istanbul Forensic Institute for clarification of the cause of death. In its report of 15 July 1992, the Forensic Institute found that the superficial traumatic changes on Agit Salman's body could be ascribed to resistance or struggle on arrest and that the breakage of the sternum corpus could have been caused by attempted resuscitation. It was their unanimous and considered decision that death was caused by the stoppage of the heart connected to neurohumeral changes brought about by the pressure of the incident because of his existent heart disease.

58.                Following the quashing of the public prosecutor's decision not to prosecute by the High Court of Appeals, an indictment was prepared charging ten officers with homicide. The Adana Aggravated Felony Court acquitted the officers stating that "...there exists no sufficient evidence proving the ill-treatment of Agit Salman by the defendants thus causing his death”.  This decision, which was not appealed, became final on 3 January 1995.

59.                Agit Salman was not interrogated by any police officers between his arrest and his falling ill in his cell. He was showing signs of difficulty of breathing prior to this. When he became ill, he was placed in a van and taken to hospital. They stopped the van when it appeared that Agit Salman's heart had stopped and police officer Mustafa Kayma carried out a heart massage. They were told at the hospital that Agit Salman was dead.

3.Proceedings before the domestic authorities

60.                On 29 April 1992, Agit Salman was pronounced dead at Adana State Hospital. His body was transferred from the hospital morgue to the forensic morgue for the purposes of an autopsy. On 30 April 1992, his body was identified by his brother brahim Salman and the body released for burial.

61.                On 14 May 1992, a toxicological analysis of certain organs, blood and urine was submitted which found no trace of toxic, organic or inorganic substances.

62.                On 18 May 1992, a histopathological report was submitted in respect of organs and spinal tissue.

63.                On 21 May 1992, an autopsy report was issued by Dr Fatih en, recommending referral of the case to the Istanbul Forensic Medicine Institute.

64.                On 15 July 1992, the Istanbul Forensic Medicine Institute issued a report, stating that the cause of death was heart failure.

65.                On 19 October 1992, the Adana public prosecutor issued a decision not to prosecute. The decision stated that Agit Salman had been taken into custody on 28 April 1992 for participating in the Newroz celebrations on 23 March 1992, lighting a fire in the road and chanting PKK slogans, collecting money for the PKK and sending PKK recruits to the rural areas, being involved in attacks on the security forces, during which one person died and four were injured and being involved in the killing of Hüseyin Aslan on 5 February 1991. At about 01.15 hours on 29 April 1992, Agit Salman informed officers that his heart was giving him problems and he was taken to Adana State Hospital where he died. According to the forensic report, Agit Salman had a longstanding heart problem, any superficial signs of trauma could have been received whilst being apprehended and death was the result of stoppage of the heart due to neurohumeral changes brought about by the pressure of the incident as a result of a heart disease. Although the forensic report had stated that Agit Salman had received direct trauma, it had not been possible to obtain evidence justifying the opening of a case.

66.                On 13 November 1992, the applicant appealed against the decision not to prosecute, claiming that Agit Salman had been interrogated and died under torture.

67.                In a decision dated 25 November 1992, the Tarsus Serious Crimes Court rejected the applicant's appeal.

68.                Pursuant to article 343 of the Code of Criminal Procedure, the Minister of Justice referred the case to the High Court of Appeals. It quashed the non-prosecution decision and sent the file to the Adana public prosecutor for the preparation of an indictment.

69.                An indictment charged ten police officers (Ömer nceyılmaz, Ahmet Dnçer, Ali Sarı, evki Taçi, Servet Özyılmaz, Ahmet Bal, Mustafa Kayma, Erol elebi, brahim Yeil, Hasan Arinç) with homicide under case number 1994/135. Hearings took place before the Adana Aggravated Felony Court on, inter alia, 27 June, 9 September, 31 October and 1 December 1994. Oral statements were given by six of the ten police officers (Ahmet Dnçer, evki Taçi, Mustafa Kayma, Erol elebi, brahim Yeil, Hasan Arinç ), Temir Salman, the father of Agit Salman, the applicant and Dr Ali Tansı, the doctor on duty in the emergency unit at Adana State Hospital. A written statement was obtained from Behyettin El.

70.                In its judgment of 26 December 1994, the Adana Aggravated Felony Court found that it could not be established that the defendants had exerted force or 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 died of his previous heart condition being compounded with superficial traumas. However there was no evidence to prove that the traumas were produced by the accused. It acquitted the defendants on the grounds of inadequate evidence.

B.The evidence before the Commission

1)Documentary evidence

71.                The parties submitted various documents to the Commission. These included documents from the investigation and court proceedings and statements from the applicant and witnesses concerning their version of the events in issue in this case.  The applicant also submitted reports by the UN Special Rapporteur on Torture (E/CN.4/1994/31, E/CN.4/1995/34 and E/CN.4/1997/7), a 1993 report from the UN Committee Against Torture (A/48/44/Add.1 - 9 September 1993), and a report, “Deaths in detention places or prisons (12 September 1980 to 12 September 1994)” by the Human Rights Foundation of Turkey and four colour photographs taken by journalists of the body of Agit Salman at the cemetery on 30 April 1992.

72.                The Commission had particular regard to the following documents:

a) Statement by the applicant, undated, submitted with her application on 19 May 1993

73.                At about 01.30 to 02.00 hours on 28 April 1992, police officers in plain clothes and special teams came to their house, banging on the door. When she opened, they asked for her husband Agit. She said that he was a taxi driver and worked at the Aksoy taxi stand. The officers opened all the doors in the house to check if anyone else was there.

74.                At about 02.30 hours, friends of her husband from the taxi stand brought his car home and said that the police had taken her husband away. On the following day, 29 April, at about 11.30 hours, there was a telephone call to the house. It was said that the police were at the taxi stand and were waiting to see her son Mehmet. Mehmet left. The police at the taxi stand took him to the security headquarters, saying his statement was going to be taken. They asked him if there was anything wrong with his father. Her son said that there was nothing wrong. The police then told him that his father had died of a heart attack and asked him to collect the body.

b) Documents relating to allegations of intimidation of the applicant

Statement dated 24 January 1996 taken by police officers

75.                This statement, with a thumbprint by the applicant’s name, was taken by officers of the Anti-Terror Department of the Adana Security Directorate. It is headed “In relation with her application for help to the European Human Rights” and begins, “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 for your application?”

76.                The statement states that three years before her husband died and she was unable to provide for her seven children. During the mourning period for her husband, two people approached her, whom she later learned were members of the PKK terrorist organisation though she did not know their names. They asked her to write a petition letter and sent it to Europe via the Human Rights Association. They said that they were her husband’s friends. Upon their instructions, she went to the petition typists next to the Adana Palace of Justice. They typed a petition letter and she sent it by post to the Diyarbakir Human Rights Association.  Six months later, she received a letter asking her to go to Diyarbakir and she went. She herself filled in the forms which they had shown her and was asked the questions in the forms.  The thumbprint in the application was hers. After posting them, she had not received any financial assistance. Her only reason in applying was to help her children. She did not know that it subsequently went to the authorities abroad.

Report dated 9 February 1996 by police officers

77.                This report, signed by a superintendent and another officer, describes an investigation into the income declaration of Behiye Salman, enclosed with correspondence from the Ministry of Justice, General Directorate of International Law and Foreign Relations. It lists items of the applicant’s income, expenditure and her dependent children and relatives and appears to indicate that their investigation confirmed her declaration of means.

Statement, undated, submitted by the applicant’s representatives on 9 May 1996

78.                In this thumbprinted statement, the applicant stated that she had been subject to various forms of pressure exerted many times by the police to induce her to withdraw her application to the European Court of Human Rights. The pressure was increasing. On 24 January 1996, at about 14.00 hours, two cars came to her house. Four people put her in a car and took her to the security directorate. Her eyes were taped. She was taken to a room where she sat down.  They asked her who and which organisations had introduced her to the European Court of Human Rights. She told them she applied through her lawyer Niyazi and the Diyarbakir Human Rights  Association. She did not answer when they asked who was helping her to pursue her case, since she feared the police. They insulted the people who were helping her and said that her efforts would fail. The interrogation continued until about 16.30 hours. Later, they took the tape off her eyes. They placed a typewritten sheet of paper in front of her and told her to sign. She said that she could not read or write and would not sign it. They said it was compulsory to sign. They said that the document was from the European Court of Human Rights. She was suspicious. They told her that she should voluntarily withdraw her case or they would torture her and send her to join her husband. Though she was scared, she refused to sign. They called her names and insulted her. She could not bear the pressure and signed the document. She did not know the contents of it. After this, she was allowed to go home.

79.                On 9 February 1996, at about 12.00 hours, she was fetched in an unmarked car and taken to the second floor of the security directorate. She was told that she was to see the Chief Public Prosecutor. When she entered the room, the Chief Public Prosecutor was there, with five-six other people. There was a file in front of them. They asked her which organisations helped her with her case. She told them that she did it herself. They asked her about her property and belongings and the names of those whom she looked after. They made her sign the document and then said she could go.

c) Statements of the police officers involved in the incident

Apprehension report dated 28 April 1992, 01.30 hours

80.                This report, signed by Assistant Superintendent Ahmet Dinçer and officers evki Taçi and Ali Sarı, stated that they looked for Agit Salman at Savas taxi stand. Upon being informed that he was waiting for a fare at the Yeilova leisure centre, they apprehended him there.

Statement of 29 April 1992 signed by the police officers who delivered Agit Salman to hospital

81.                Agit Salman had been detained by the Security Directorate as a suspect for activities, including carrying out propaganda for the PKK, and attacking the security forces in an incident where one person died and four were injured. He was on a wanted list and was apprehended at about 03.00 hours on 28 April 1992.

82.                At about 01.15 hours, the custody officer approached them, saying that Agit Salman had knocked on his cell door and said that he was ill. The custody officer had placed him in the hall. On the suspect's claim that his heart was giving him problems, they (undersigned) had taken him without delay to the state hospital emergency ward. They waited while he was examined and were informed that he was dead. The public prosecutor was informed. The statement was signed at 02.00 hours by Assistant Superintendent Yel and officers Mustafa Kayma, Hasan Arinç and Erol eleb.

Statement of Ahmet Dinçer dated 22 May 1992 taken by the Adana public prosecutor

83.                The witness was an assistant superintendent. On 28 April 1992, his superiors ordered them to carry out an operation at about midnight. Agit Salman was wanted for his enrolment into the PKK, carrying out propaganda and provoking people to attack the security forces. They looked for him first at Savas taxi stand but he was not there. They found him at the leisure centre on the E-5 intercity road, waiting for fares. When they introduced themselves, informing him of his offence and that he was to go to the security directorate, Agit Salman said, "I'm innocent. You can't take me," and resisted arrest. They took him by the arms and forced him into their vehicle without beating him up.  There was some pulling and shoving.  Some marks on his body may have resulted from this but they did not exceed their authority.

84.                Agit Salman was apprehended at about 01.00 hours and delivered to the custody officer Ömer nceyılmaz at about 01.30 hours. When they delivered him, he was taking shallow breaths, rapidly as if he had asthma. He occasionally drew deep breaths. Agit Salman was not interrogated since the operation was still under way and, according to their methods, interrogations only began upon completion of the operation. He was not taken out of the custody area. He became ill and lost his life due to natural causes.

Statement of Ali Sarı dated 22 May 1992 taken by the Adana public prosecutor

85.                On 28 April 1992, the witness accompanied Assistant Superintendent Dinçer and officer evki Taçı  to take Agit Salman into custody for the offence of membership in the PKK.  They went first to the Savas taxi stand but he was not there. They found him at the Yeşilova leisure centre. When they told him of his offence, Agit Salman resisted, saying, "I am innocent. You can't take me away." They took him by the arms and forced him into the vehicle. There was some pulling and shoving but they did not act irresponsibly and they did not ill-treat or torture him. At about 01.30 hours, they delivered him to the custody officer Ömer nceyılmaz at the directorate. On apprehension, Agit Salman seemed excited and had difficulty breathing. They thought it was due to anxiety. He was not interrogated or taken to an identity parade. His interrogation was postponed as the operation was not complete. In his opinion, Agit Salman died of natural causes.

Statement of evki Taçı dated 22 May 1992 taken by the Adana public prosecutor

86.                Pursuant to their orders, he went with Assistant Superintendent Dinçer and officer Sarı, to find Agit Salman who was wanted for PKK membership and running propaganda. They found him at Yeşilova leisure centre. When they told him the charge, he did not want to accompany them, saying, "I am innocent. You can't take me away." Upon his resistance, they took him by the arms, putting him in the vehicle by force. They were in civilian clothes but they had introduced themselves. Despite that, Agit Salman had resisted and insisted on seeing their IDs. Upon that, they put him in the vehicle by force. He was apprehended at about 01.00 hours and delivered to the custody officer nceyilmaz at 01.30 hours. When apprehended, Agit Salman was breathing rapidly. He did not ill-treat or torture Agit Salman. Due to the fact that the operation was ongoing, he was not interrogated or taken to an identity parade.

Statement dated 22 May 1992 of Ömer nceyılmaz taken by the Adana public prosecutor

87.                This witness was on duty in the custody area from 18.00 hours on  27 April 1992 until 08.00 hours on 28 April 1992, when he was relieved by Servet Özyılmaz. Agit Salman had been arrested and brought to his office by Assistant Superintendent Ahmet Dinçer and officer evki Taçı. He carried out a search. He did not observe any mark or injury and placed Agit Salman in a cell. No-one interrogated him during the night, nor was any pressure applied. Agit Salman remained in cell B2. He was taken out by the witness for natural needs (eg. toilet, eating and drinking). The witness did not think that he had been interrogated before being brought to the custody area. Neither Agit Salman nor the arresting officers mentioned anything about his resisting arrest. He was not taken out to an identity parade with Ferhan Tarlak or Behyettin El.

Statement of Servet Özyılmaz dated 22 May 1992 taken by the Adana public prosecutor

88.                The witness was on duty as custody officer from 08.00 to 18.00 hours on 28 April 1992. There were three individuals in custody in respect of Superintendent Yel's team - Agit Salman, whom he knew before (he had been taken into custody with his brother Remzi on an earlier occasion on suspicion of PKK membership), Behyettin El and Ferhan Tarlak. When he saw Agit Salman, he asked how he was and why he was there and they talked for a while. Salman said nothing about being beaten up or being ill-treated. He did not see any marks on Salman’s body. He did not ill-treat him and did not see or hear anyone else ill-treating him.

89.                There were 12 single cells in the custody area. No-one wanted to interrogate Salman. During his duty period, Salman went to the toilet normally and ate the food delivered. He made no complaints. He transferred his duty to officer Ahmet Bal.

 
Statement of Ahmet Bal dated 22 May 1992 taken by the Adana public prosecutor

90.                On 28 April 1992, he was on duty as custody officer between from 18.00 hours until 08.00 hours the next day. At about 01.00 hours on 29 April 1992, a man, whom he later learned was Agit Salman, knocked on his cell B1. Salman was saying, "I am suffocating, I am having difficulty breathing. Let me out." He opened the door and took Salman into the custody hall. Salman did not have any wound or graze but his illness was obvious. He informed the others, brahim Yeil, Hasan Arinç, Erol eleb and Mustafa Kayma, who took Agit Salman to the hospital in the minibus. During his duty period, no-one took Salman out for interrogation. The superior officer instructed the custody officer who was to interrogate a suspect and the custody officer could only hand the suspect to that person. He did not ill-treat or torture Agit Salman and did not hear or see anyone else do so. There were two other suspects in custody, Ferhan Tarlak and Behyettin El.

Statement of brahim Yeil dated 18 May 1992 taken by the Adana public prosecutor

91.                On 28-29 April 1992, he was on duty as an assistant superintendent at the Adana Security Directorate. At about 01.00 hours, on 29 April, he was informed by officer Ahmet Bal that Agit Salman was ill. He was having difficulty breathing and Bal had placed him in the hall. Agit Salman claimed that his heart was troubling him. They put him in a minibus and took him to Adana State Hospital, delivering him to the duty doctor. The doctor came out and told them that Agit Salman had been dead on arrival. The officers who took Salman to the hospital were himself, Hasan Arinç, Mustafa Kayma and Erol eleb. Murat Pehlivanlı, also on the duty list, was the typist but he was not on night duty. He had not seen any mark or injury on Agit Salman on the way to hospital. He did not ill-treat or torture him. On the same night, they had another operation to carry out related to the same file. They did not have an opportunity to interrogate him or identify any other individual, including Bahyettin El.

 Statement of Hasan Arinç dated 18 May 1992 taken by the Adana public prosecutor

92.                On the night of the incident, he was on duty at the directorate. At about 01.00 hours, the custody officer Ahmet Bal told him that someone had become ill. Their immediate response was to take Agit Salman to hospital, where the doctor in the emergency ward told them that he was dead. According to Ahmet Bal, Salman had had difficulty breathing. He did not ill-treat or torture Salman, nor did he see or hear any other person do so. That night there had been an ongoing operation concerning Salman's incident. Moreover they were involved in other operations. For that reason, they had not interrogated Salman.

Statement of Mustafa Kayma dated 18 May 1992 taken by the Adana public prosecutor

93.                On the night of the incident, he was also on duty at the Adana Security Directorate. The custody officer Bal came to his record office to tell them that someone was ill. He and his colleagues took Salman to the hospital. The doctor told them that Salman was dead. He did not torture or ill-treat Salman, nor see or hear any other person do so. On his way to the hospital, Salman was pale. He did not see any wounds or grazes.

 Statement of Erol eleb dated 18 May 1992 taken by the Adana public prosecutor

94.                On the night of the incident, he was also on duty at the Adana Security Directorate. At around 01.00 hours, the custody officer Bal came to their record office to tell them that someone was ill and was having difficulty breathing. They immediately took Salman to the hospital. The doctor told them that Salman was dead. He did not torture or ill-treat Salman, nor see or hear any other person do so. Salman was not interrogated that night. Since that night they had other external operations, they did not have time.

Statement of Murat Pehlivanlı dated 25 May 1992 taken by the Adana public prosecutor

95.                On 28 April 1992, he was on duty at the custody area of the Directorate as a typist. He did not type Salman's statement. He was not subjected to interrogation as there was a continuing operation concerning fugitive suspects. He did not hear or see Salman being subjected to any torture or ill-treatment.

d) Other statements

 Statement of Behyettin El dated 8 May 1992 taken by the Adana public prosecutor

96.                He had been detained on 25 April 1992 at the Adana Security Directorate for membership of the PKK, murder and running propaganda. He was interrogated and three days later learned that Ferhan Tarlak had been taken into custody for the same offences. He did not stay with or talk to Tarlak. He did not see Agit Salman, whom he knew as a driver in the district. He was in a cell on his own.  He did not see or hear Agit Salman being ill-treated or tortured. Ferhan Tarlak was in the cell next door and when Tarlak spoke out loud, he heard him.  This was the first time he learned that Agit Salman had died in custody.

Statement of Ferhan Tarlak dated 8 May 1992 taken by the Adana public prosecutor

97.                On 28 April 1992, he was detained at the Adana Security Directorate for membership of the PKK and carrying out activities on its behalf. He stayed in cell 4 by himself. Behyettin El, a distant relative, was in the cell next door. He did not know Agit Salman and did not hear or see him being ill-treated. He was confronted with El on the day of his detention but not Agit Salman. There were about 15 persons in the cells. He did not hear Agit Salman calling out for help.

 Applicant’s statement of 26 May 1992 taken by Adana public prosecutor

98.                The applicant stated that before he was taken into custody her husband was healthy. He did not have any heart disease, breathing problems or other illness. She was of the opinion, as she had stated in her petition of 30 April 1992 co-signed by her husband's father, that her husband had been ill-treated or tortured by the police officers. She demanded their punishment.

Statement of Temir Salman dated 29 May 1992 taken by the Adana public prosecutor

99.                He was the father of Agit Salman. He used to live in the apartment below his son. Before being taken into custody, his son was healthy. He had no illness and had not been to the doctor recently. He stated that his son must have been ill-treated at the security directorate, even tortured. He wanted those responsible to be punished and named persons who were witnesses from Aksoy taxi stand, including Abdurrahman Bozkurt.

 Statement of Hasan etin dated 29 June 1992 taken by the Adana public prosecutor

100.     He worked at Aksoy taxi stand. He knew Agit Salman. Agit Salman was wearing a polo-necked sweater and a jacket despite the hot weather. Around the time he was taken into custody, he asked why. Agit replied that he had been taken into the Security Directorate a month before and felt ill. He did not explain the nature of his illness. The witness saw no external signs of illness.

Statement of Abdurrahman Bozkurt dated 30 June 1992 taken by the Adana public prosecutor

101.     He worked at Savas taxi stand. He had known Agit Salman for two years. Salman did not mention any illness prior to his detention. He did not see Salman being ill. He had heard that Salman had been detained before but was not told about any ill-treatment. He did not remember what the deceased was wearing.

 Statement of Dr Ali Tansı dated 30 June 1992 taken by the Adana public prosecutor

102.     He remembered the incident. Around midnight on 29 April 1992, police officers in plain clothes brought Agit Salman to the hospital. They said that he had been in custody and become ill. He examined Agit Salman immediately. His heartbeat, breathing and other vital functions had stopped. He was dead on arrival at the hospital. On examination, he saw that the deceased's pupils were dilated and had no reflex to the light and that cyanosis was developed on the face and ears. He concluded that the deceased had died 15-20 minutes prior to the examination. He informed the police officers and due to the suspicious circumstances had the body transferred to the morgue. He did not remember applying any pressure to the chest for resuscitation. He did not see any mark or blow on the body.

Official documents and reports

Extract of the custody record for Adana Security Directorate

103.     The extract for February 1992 records that Agit Salman was taken into custody in relation to an investigation at 18.15 hours on 26 February 1992. He was released by team 39.26 at 17.30 hours on 27 February 1992.

Detention request and authorisation

104.     By a letter dated 28 April 1992, the Director of the Anti- Terror Department of the Security Directorate requested permission from the Adana public prosecutor for Agit Salman and Ferhan Tarlak to be detained for 14 days, on suspicion of specified activities for the PKK, for the purpose of facilitating the necessary interrogations and investigations.  The public prosecutor counter-signed the request the same day, granting the authorisation for 14 days.

Extract of custody record of Adana Security Directorate

105.     The extract for April 1992 records that Agit Salman was taken into custody in relation to an investigation at 03.00 hours on 28 April 1992, at which time he was also searched.

Statement of Ahmet Gergin dated 29 April 1992 taken by Assistant Superintendent brahim Yel

106.     The suspect gave details of his participation in the Newroz celebrations. He stated that Agit Salman was involved in the preparations, coercing Kurdish people into participating and arranging for banners and slogans.

Statement of Behyettin El dated 29 April 1992 taken by Assistant Superintendent brahim Yel

107.     This statement, signed by Behyettin El, recounts his activities as a member of the PKK, inter alia, buying them provisions and medicine and giving them shelter in his village. When he moved to Adana, he continued his involvement and listed other active members, including Agit Salman and Tarlak (first name illegible). He was told that Salman had collected TL 5 million for the PKK. On one occasion, Agit Salman came with Hidir Salman and told him to deliver nine people they had trained to the rural area. He saw Agit Salman carrying big weapons.

Letter dated 29 April 1992 from the Director of the Anti-Terror Department to the Adana public prosecutor

108.     This explained that Agit Salman had been on the wanted list for activities, including attending the Newroz celebrations on 23 March 1992, starting a fire in the street to protest events in Cizre, participating in an attack on the security forces in which one person died and four were injured.  Also according to the declarations of Ahmet Gergin, Agit Salman was involved in propaganda and other activities for the PKK. Behyettin El had also been apprehended and in his statement it was disclosed that Salman had collected TL 5 million for the PKK and recruited members who were taken to the rural areas for training.

109.     Agit Salman was detained on 28 April 1992. On 29 April 1992, at about 01.15 hours, he knocked on his cell door saying that he was ill. He was let out into the hall where he declared that his heart was troubling him. He was immediately taken to the state hospital emergency ward in the team vehicle.

110.     The letter enclosed, inter alia, statements by Behyettin El and Ahmet Gergin.

Identification report

111.     This report, dated 30 April 1992, is signed by brahim Salman who is recorded as identifying the body in the forensic medicine morgue as that of his brother, Agit Salman. He stated that he had been told that his brother had fallen ill in custody and had been transferred to the hospital where he died.

Letter dated May 1992 from the Director of the Anti-Terror Department of the Security Directorate to the Adana public prosecutor

112.     This letter, referring to various warrants from the public prosecutor, provided information as to the names of the police officers who arrested Agit Salman and took him to the hospital. It is stated that Agit Salman was not interrogated.  Behyettin El and Ferhan Tarlak were also apprehended as being involved in the same incidents.  The three suspects were kept in separate cells - Salman in B-1, El in C-2 and Tarlak in D-2 - to prevent communication.

113.     Appended to the letter was a duty list for 28-29 April 1992.  This listed as Interrogation Team No. 5 (PKK fundamentalist activities), brahim Yel as team leader, Hasan Arinç as team driver, Murat Pehlivanlı, Erol eleb, Mustafa Kayma and Teyfik Firat, as protection officer.

e) Minutes of the court proceedings concerning the prosecution of ten police officers for the murder of Agit Salman

Court sitting of 27 June 1994

114.     Six of the accused officers were present.  The applicant and Temir Salman were present as complainants.

115.     brahim Yel submitted a statement. On the date of the event, he was working in the Anti-Terror department. Agit Salman had been apprehended. He had not yet been interrogated as the operations were continuing. When the orderly reported to him that Salman had been taken ill, they took him to hospital immediately. Agit Salman had said that he was having difficulty breathing.  There was no question of him being ill-treated since his interrogation had not even started.

116.     Erol eleb made a statement agreeing with brahim Yel's statements. Mustafa Kayma agreed with his colleagues and Hasan Arinç stated that the deceased was in no way ill-treated in their department. evki Taçı requested that his statement be read out and confirmed that it was correct. Ahmet Dinçer stated that they found Agit Salman beside his taxi; he was starting the engine. When he and his men informed Agit Salman of his offences, he resisted arrest, claiming that he had not committed these offences. They caught him by the arms and made him get into the car.

117.     No questions were put to the officers by the prosecutor.

118.     Temir Salman, in reply to a question, stated that his son Agit did not suffer from any heart condition. He was informed two days after Agit's arrest that Agit had died.

119.     Behiye Salman stated, in reply to a question, that her husband did not suffer from any health complaint. On the night that he was arrested, she told the police that he was at the taxi rank. She was told that the police went to the taxi rank and asked for Agit. He said, "I am Agit" and went with them without making any trouble.

120.     The autopsy record and report were read out. Each individual accused stated that he had no comments to make and that it was possible that the external findings were caused as a result of the resistance shown by the deceased when he was being taken to the police station.

121.     The court decided to issue letters rogatory to require the three custody officers nceyılmaz, Özyılmaz and Bal and Behyettin El to give evidence, to issue a warrant summoning defendant Ali Sarı and witnesses Erhan Parlak (presumably a misspelling of Ferhan Tarlak), Murat Pehlivanlı, Hasan etin, Abdurrahman Bozkurt, Adnan Koroğlu and Ali Tansı. It adjourned the proceedings until 26 September 1994.

Court sitting on 26 September 1994

122.     The defendants were not present. The applicant and Temir Salman attended. It was noted that the testimonies of officers nceyılmaz, Özyılmaz, Bal and Sarı had been received. They were read out.  No reply had been received from Nusaybin in respect of Behyettin El.

123.     Dr Ali Tansı was sworn in to give evidence. He requested his statement to the public prosecutor to be read out.  When asked to comment, he confirmed that his statement was correct. His examination established that Agit Salman had been dead for about 15-20 minutes. He did not apply any pressure by way of resuscitation. He did not recall any marks of blows on the body.

124.     The court, inter alia, decided to issue summonses for Murat Pehlivanlı, Hasan etin and Abdurrahman Bozkurt and to adjourn until 31 October 1994.

Court sitting on 31 October 1994

125.     The defendants were not present. The applicant and Temir Salman attended. It was noted that relevant warrants for Abdurrahman Bozkurt and Erkan Parlak (see para. 121 above), and Hasan etin had been returned as they had moved to addresses unknown. No reply had been received in respect of Behyettin El. The court decided, inter alia, to send a reminder to Nusaybin concerning El and to adjourn until 1 December 1994.

Court sitting on 1 December 1994

126.     The defendants were not present. The applicant attended. The statement of Ferhan Tarlak had been received and was read out, as was the testimony of Behyettin El received from Nusaybin. The court decided, inter alia, to summon Abdurrahman Bozkurt and to adjourn until 26 December 1994.

Court judgment of 26 December 1994

127.     The decision named ten police officers (Ömer nceyılmaz, Ahmet Dinçer, Ali Sarı, evki Taçı, Servet Özyılmaz, Ahmet Bal, Mustafa Kayma, Erol eleb, brahim Yeil and Hasan Arinç) as defendants on the charge of homicide. On the basis of the evidence, the court concluded that it could not be established that the defendants had exerted force or violence on Agit Salman by way of ill-treatment or torture, that the superficial traumas could have derived from other causes when he was arrested and that it was equitable to acquit. It was concluded that Agit Salman died as a result of his previous heart condition compounded with superficial traumas.

f) Medical and expert reports concerning the death of Agit Salman

Record of the examination of a body dated 28 April 1992

128.     This report, signed by the public prosecutor, Teyfik Aydin, and the forensic doctor Fatih en, gives a description of the body of Agit Salman when examined in the hospital morgue. It noted that rigor mortis and discoloration had set in, that there were two dried 1 x 3cm graze wounds on the front of the right armpit, a fresh graze on top of a 1 x 1cm graze on front of the left ankle and an old traumatic ecchymosis of 5 x 10cm in the front centre of the breast. There were no injuries from a firearm or pointed instrument. An autopsy was necessary to discover the cause of death.

Toxicology report dated 14 May 1992

129.     This certified that the toxicological analysis of parts of internal organs, blood and urine showed no trace of alcohol, organic poisons, soporifics or narcotics or  inorganic toxic substances.

Histopathological report dated 18 May 1992

130.     The report indicated that samples of lungs, coronary arteries, heart, liver, spleen, kidneys, brain, cerebellum and spinal cord tissue had been submitted.

131.     It made, inter alia, the following findings:

Lungs:chronic bronchitis, hyperinflation, liver oedema;

Coronary arteries:arteriosclerotic changes narrowing the lumen by 50%;Heart:chronic pericarditis, chronic myocarditis, myocardial

hyperplasy and hypertrophy vascular fullness.

132.     The final diagnosis was chronic constructive pericarditis, chronic myocarditis, myocardial hyperplasy and hypertrophy.

 Autopsy report dated 21 May 1992

133.     This report is signed by Dr Fatih en, who performed the autopsy in the presence of the public prosecutor.

134.     The body was described. Rigor mortis had set in, ecchymosis had set in on the back and unpressurised parts of the body. Under external marks is noted: two superficial angular shaped haemorrhaged traumatic graze wounds 1 x 1cm on the front left ankle; on the front middle chest an old violet coloured traumatic ecchymosis measuring 5 x 10cm; on the front right armpit, 2 parchmented angular shaped traumatic graze wounds 3 x 1cm. The body was stated as being free of any blows or marks from firearms or sharp instruments.

135.     The internal examination disclosed, inter alia, that the lungs weighed 300g each and were oedematic and that the heart, 550g, was larger than normal. Changes in the arteriosclerotic vascules were noted and the parietal layer of the myocard was adhered inseparably to the heart. The brain was also oedematic. The sternum corpus was fractured and the surrounding soft tissues revealed fresh haemorrhage which could have been caused by attempted resuscitation.

136.     The report referred to the findings of the toxicology and histopathology examinations and concluded that the actual cause of death would not be established by them. It gave the opinion that the case should be referred to the Istanbul Forensic Medicine Institute.

Report of the Istanbul Forensic Medicine Institute dated 15 July 1992

137.     This report, signed by seven members of the 1st Specialist Committee, including Dr Cahit Ozen and Dr Bilge Kirangil, noted that Agit Salman had been arrested, that he had been pushed and shoved during the arrest, that he became unwell before his interrogation or, as was claimed, he died during the interrogation. The witness statements and reports indicated that he had been in his cell until he complained that his heart was giving him problems when he was taken immediately to hospital.

138.     It recalled the findings of external marks and internal examination made by the first autopsy report (paras. 134-135 above).

139.     The report concluded as follows. Apart from the small fresh traumatic changes on the ankle and the old violet-coloured ecchymosis on the front thorax, no other traumatic changes were found. The fresh haemorrhage  around the sternum bone could be attributed to a resuscitation attempt and there was no evidence to suggest that he died as the result of any direct traumatic reason. Those traumas found were not independently fatal in quality. The superficial traumas could be attributed to the resistance and struggle of the person on arrest or his placement in the vehicle. They could also have been inflicted directly. It was not possible to draw any distinctions on this point.  However, in view of the relatively large size of the heart, the arteriosclerotic changes in the heart veins and signs of an old infectious disease on the membrane and the muscles of heart, there were indications of a longstanding heart disease.  Though the deceased had lived and worked actively prior to his arrest, his death within 24 hours of his arrest could have been caused by cardiac arrest connected to neurohumeral changes brought about by the pressure of the incident in addition to his existing heart disease.

              Report of Professor Pounder submitted on 26 November 1996

140.     The report was drafted  on the basis of the record of examination of the body, the autopsy report of 29 April 1992, the identification report, the autopsy report of 25 May 1992, the histopathological report dated 18 May 1992, the toxicology report dated 14 May 1992 and the Istanbul Forensic Institute opinion of 15 July 1992. Professor Pounder also had available to him the witness statements of Dr Ali Tansı and 12 police officers, and the verbatim records of testimony of, inter alia, Dr Fatih en and various police officers. 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 and 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.

141.     The autopsy findings indicated that Agit Salman suffered from pre-existing natural disease of the heart.  There was no other significant pre-existing disease.  All other pre-existing pathological changes described in the reports were either trivial and inconsequential or minor and incapable of accounting for or contributing to the death.

142.     The findings regarding the heart indicated that there was chronic inflammation involving pericardial adhesions, which was old and inactive. This indicated that at some time in the distant past he suffered from rheumatic heart disease, which would have manifested itself at that time as an acute febrile illness but without necessarily any symptoms of heart involvement.  The heart was enlarged, weighing 550g, whereas the maximum in an athletic, well-built, middle-aged male would be in the order of 450g.  This represented an ongoing disease state in which the heart muscle enlarged to compensate for the malfunction of the mitral valve resultant upon the scarring of the valve which occurred in the distant past due to rheumatic heart disease.  The narrowing of the arteries (sclerosis) was a common pathological change in industrialised countries and only produced significant damage to the heart muscle if above 75% (as opposed to 50% in this case).

143.     A heart with a weight greater than 500g 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. Where the precipitating event is emotional such events may be characterised as “cardiac arrest connected to neurohumoral changes brought about by the pressure of the incident in addition to his existing disease”. While this was a possible cause of the death in this case, it needed to be evaluated critically in light of the totality of the information, which includes not only medical examination of the body but the precise circumstances surrounding the death.

144.     In addition to the disease of the heart, there were four injuries:

- at the front of right armpit there were two abrasions each 3cm by 1cm described as dried and parchmented. It was not apparent that they were dissected to discover if there was any associated bruising but given the description it was reasonable to accept they were post mortem changes;

- two grazes 1cm by 1cm on the front of the left ankle, 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 indicate any specific causation - they were not consistent with electrical torture;

- a bruise 5cm by 10cm in the centre of the front of  the chest, described as old and as violet-coloured (this is considered below);

- fracture of the sternum, with fresh bleeding in the surrounding soft tissues (considered below).

145.     The bruise to the chest directly overlay the fracture to the sternum. The haemorrhage into the tissues producing this bruise lay between the skin surface and the outer surface of the sternal bone.  In a middle-aged male of Agit Salman’s build and weight, this distance would be 3-4mm. Since in his case, the pericardial sac was obliterated by adhesions, his heart was adherent to the undersurface of the sternal bone, at a distance of less than 5mm. The haemorrhage around the fracture suggested that the fracture was produced during life 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 which had to be evaluated.

146.     Theoretically, a fracture could be produced by a fall, a blow or pressure. It would be unusual as a consequence of a fall, requiring impact onto  a raised object or edge and it would be associated with injuries to other parts of the body (hands or arms etc).  Cardiac massage could produce a fracture. It could reasonably be excluded that massage was performed at the hospital since Dr Tansı’s evidence was that he was already dead and in those circumstances any competent medical practitioner was aware that it would serve no purpose. To fracture a sternum by external cardiac massage requires the application of very considerable force.  A relatively unskilled or inexperienced person would be more liable inadvertently to use excessive force. It would be difficult to apply such pressure  within the confines of a vehicle, though the force would be more easily applied if the seats were solid rather than padded. 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.  There was bruising here but Dr Fatih en characterised it as old and as by implication resulting from a different event.  His own view was that given the bruise directly overlay the fracture it would require compelling medical evidence to conclude that they were unrelated.  Dr en based his opinion on the age of the bruise on the subjective, naked eye assessment of the colour. However, the bruise was described as violet-coloured which is entirely consistent with a fresh bruise.  A bruise 2-3 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 at 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.

147.     The autopsy findings indicated that the death was very rapid rather than prolonged. The lungs, although described as oedematous, weighed only 300g, close to the minimum weight of 250g. In individuals dying slowly with gradual heart failure, a lung weight of 500-600g is common and up to 1000g may occur. This is the result of accumulation of fluid in the lungs consequent on the failure of the pumping action of the heart and is expressed clinically by breathlessness and difficulty in breathing.  Deaths associated with instantaneous collapse are associated with low lung weight as in this case. A relatively slow death would be associated also 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.

148.     As regarded the investigation around the autopsy examination, this was seriously deficient. Though 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 that it could have been caused by massage did not represent a full and frank statement and may be misread to imply that Dr en 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 concerning the bruise, the fracture and heart disease and in this respect the detail was manifestly inadequate.

Additional report of Professor Pounder submitted on 26 November 1996

149.     This report had regard to the four colour photographs. The photographs were of poor quality, not all elements being in focus and at least one has a colour cast. However, taking into account these limitations, the photograph of the undersurfaces of the feet showed a distinctive purple-red discolouration of the sole of the left foot. In comparison with the right foot, there appeared to be mild swelling of the sole of the left foot.  There was discolouration of the heels of both feet but this was not the same as the purple colouration of the  left foot instep and sole. There was no dirt soiling of the feet. 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.  This appearance 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 of such location was unlikely to be caused by a fall sustained in life. Therefore the injury was strongly suggestive of one or more blows to the foot. The mark to the right toe was strongly suggestive of a ligature mark, though there was no congestion of the toe to suggest tight application of a ligature in life nor was the appearance suggestive of the passage of electricity.  Neither possibility could be excluded and the mark was unusual.

150.     The red injuries to the front of the left ankle accorded with the autopsy description. Taken with the injuries to the sole of the left foot, this suggested that the ankles were restrained by a mechanism across the front of both ankles and that, so restrained, he was struck on the sole of his left foot.  The injury to the left ankle would represent counter pressure consequent on a blow or blows to the sole of the left foot. In the absence of bruising to the sole of the right foot, a lesser degree of counter pressure would be expected on the front of the right ankle.

151.     The marks in the right armpit were poorly seen in the photograph. As far as could be seen, their position, alignment and colouration were not what would normally be expected of post mortem artefactual injury. They raised the possibility of  an electrical contact mark produced in life. 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.

152.     The photograph of the back shows post mortem artefactual staining, with white areas of contact pallor. There were distinct marks - inter alia, a bright red abrasion at the spine at the level of the waist line and above this two dark reddish marks. Above these two marks, was a horizontal line of pink bruising or abrasion.  All these may be post mortem, resulting from the manipulation of the body over a rough or edged surface. They could also have been ante mortem injuries. To distinguish the two would have required dissection.

153.     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.

Report of Professor Cordner dated 12 March 1998

154.     This report was drawn up by Professor Cordner, instructed by the Commission’s Delegates,  on the basis of the medical evidence produced in the domestic investigation, the witness testimonies, the reports of Professor Pounder and the photographs supplied by the applicant. Professor Cordner was Professor of Forensic Medicine at Monash University, Victoria (Australia) and Director of the Victorian Institute of Forensic Medicine.

155.     As regarded the photographs, the variation in colours or mottling on the foot was against the proposition that there was shadow and in his opinion was a real discolouration. He discounted that this was attributable to post mortem  lividity since it was at odds with the colour of lividity elsewhere on the body. The one sided nature of the discolouration also was a significant factor in favour of bruising. He did not regard it as a reasonable possibility that it was an isolated area of putrefactive change.  In his view,  it represented bruising.  He considered that the photograph was too blurred to conclude that the white glistening band on the little right toe was associated with a ligature. He considered that the area was too small to conclude that it was an abnormality. He could not reach any conclusion that the appearance of the marks in the right arm pit 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 aspect of the right ankle. He agreed with Professor Pounder’s findings on the back and noted in addition other areas of redness. But, without the benefit of a dissection and/or histology of the dissection, the nature of the marks was uncertain. They could represent post mortem phenomena. Bruising of the soles of the feet was relatively unusual. Such bruising 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.

156.     Concerning the bruising on the chest, recent authors in forensic medicine agreed that caution should be exercised in ageing bruises. He cited and agreed with one author who stated that 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 violet 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 and observations 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.  His opinion was that the violet coloured bruise could be fresh (i.e. less than 24 hours old) but could be older.  He noted that there was no reference to Agit Salman being injured in the day or so before his arrest but that it did not appear that anyone had been asked.

157.     Concerning the fractured 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 one injury. If there was no chest bruise when Agit Salman was taken into custody the issue was relatively easily resolved. Most pathologists, himself included, would tend to regard them, prima facie, as one injury. Another way would be to state that it was a rebuttable presumption that they were one injury. As regarded the possibility of the bruising and fractured sternum being caused by resuscitation, significant chest bruising was rare in this context. He referred to a study at his institute, showing that only one out of 24 cases of fractured sternums showed any external bruising. This one case showed certain unusual features, in that the deceased was an obese woman with congestive cardiomyopathy, indicating there was more sternal fat less well supported. It also resulted from 25 minutes of cardiopulmonary resuscitation (CPR). Out of 57 cases, 24 had sternal fractures, of which all but 5 were associated with rib fractures.  Sternal fractures were thus common in CPR but usually associated with fractured ribs and not associated with surrounding haemorrhage or overlying bruising. In summary, if the chest bruise and fracture with associated haemorrhage were the result of one trauma, it was not a resuscitation associated trauma. 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. A blow from a fist, knee or foot could also cause such an injury.

158.     As regarded the history of an alleged 20-30 minutes breathlessness prior to arrival at hospital, lungs with oedema sufficient to be regarded as a sign of heart failure and to cause breathlessness weighed more than 300g.  He found it hard to reconcile the lung weights as given with the description of them macroscopically (and apparently microscopically) as oedematous. Those conditions which would involve breathlessness and low lung weights would be easily detected at the autopsy (e.g. pulmonary thromboembolism). The lung weights fitted with a substantially more rapid death.  From a table of randomly selected cases of adult deaths where the lungs together weighed less than 650g the preponderance of trauma deaths was striking. There was no indication from the brain weight of oedema, the average brain weight for the man of his age being slightly more than his. The accounts of the police officers however appeared compatible with Agit Salman dying before the arrival of the van to take him to hospital.

159.     There was no dispute about the finding of underlying heart disease in this case. In his view the best explanation for the death was as follows. In life, Agit Salman sustained significant trauma to the sole of his left foot and to the front of his chest, causing bruising and prima facie fracturing the sternum associated with surrounding haemorrhage. Fear and pain associated with these events resulted in a surge of adrenalin causing an increased heart rate and a raised blood pressure. This put a severe strain on an already compromised or diseased heart which caused cardiac arrest. This arrest resulted in a rapid death rather than one protracted over 20-30 minutes. 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 in this opinion lay in the conclusion that the chest injuries represented one rather than two trauma, which 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 circumstances the formal cause of death would not differ - 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 resuscitation injury, the cause of death would only change if it was concluded that the bruise occurred prior to being taken into custody.

160.     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 en’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 must be justified objectively. In the absence of photographs, histology was the obvious way for Dr en to establish the truth of his view. Since forensic pathology is essentially a visual enterprise, the absence of proper photography had seriously impeded and prolonged the investigation and evaluation of this case.  Having regard to the proper aims of forensic autopsy, the deficiencies appeared in the insufficient subcutaneous dissection to seek out bruises not visible externally, a failure to take histology of lesions critical to the proper evaluation of the circumstances of the death and a failure to take photographs.

161.     Professor Cordner informed the Commission that he had met Professor Pounder at various scientific meetings and when he was working in Canada. He had not met either Dr Kirangil or Dr en.

2)                 Oral evidence

162.     The evidence of the 16 witnesses heard by the Commission's Delegates may be summarised as follows:

(1) The applicant

163.     The applicant was born in 1942 and was resident in Adana. She had been married to her husband for 30 years. Between 01.30 and 02.00 hours on 28 April 1992, the doorbell rang. She opened the door. The police asked her where her husband Agit Salman was.  She said he was innocent and that he was at the Aksoy taxi rank. They entered and searched her house.  They woke her father-in-law and asked about his elder brother's son. They also asked her where he was but she did not know. They said that they had heard that he had gone abroad.

164.     The police went to the taxi rank and called out, "Agit Salman". He said, "That's me". He gave his car keys to someone else and they took him away. One hour later, someone brought his taxi home. She was sent news the next day and told to come and get his body. Her young son was serving tea at the taxi rank when the police came. He rang home, warning his elder brother not to come as they were looking for him. Her elder son went anyway. The police took him to the Security Directorate. They asked him if his father had been ill. He said that his father had been healthy. They told him that his father had died of heart failure. They gave him his father's clothes. The people at the taxi rank brought him home and he told her that his father was dead. This was about the evening. She said that he had never had a heart condition. A person with a heart condition could not work at a taxi rank. He had no other illness either. The next day, his brother identified him at the morgue and they handed the body over to him, at about 16.00 or 17.00 hours, after they finished the paperwork.

165.     She saw her husband's body when it was taken to the cemetery. They saw the places where he had been hit from the knees down to the feet, under his arms and on the back. His body was black from the knees down. There were wounds in the middle of his back which looked like they had been made by a screwdriver.  The armpits were all purple and black.

166.     After his death, she applied to Diyarbakır. She and her children were poor, without property. The public prosecutor sent for her a few times. He told her it was heart disease. They said that it was not the result of torture. After the documents were sent to Europe, Diyarbakır sent for her and said, "You've made a statement." They asked her the same questions again, and about her property and belongings. She did not remember when this was. She remembered going to court. There were six policemen who gave their testimony and then she gave her testimony.  She went back several times. Finally, when she went on the 26th of the month, she was told it was over. So she went to Diyarbakır to make a statement and went home. When asked by the Government Agent why she did not appeal against the acquittal, she said that on the last occasion the public prosecutor told her not to come back again.

167.     When asked if she had been contacted by the police or prosecutor after the criminal proceedings, she stated that the police summoned her. They took her from her house, blindfolded her and took her inside the Security Directorate. Two of her children waited for her outside. She was beaten. They hit her head with their hands and fists and kicked her knees and head. There may have been two or three of them. One of them asked her why she had given that statement. She said that she was poor. They told her to drop the court case. She said, "No way!" They said that she should have complained to Turkey. She said that she had. They asked her about her property. She signed a paper three or four hours later, putting her fingerprint on it as she was scared. She was blindfolded so she did not know what it was. Then she went home. 

168.     Two weeks later, the police came on a Wednesday and took her to the public prosecutor. He asked her, "Is this your statement?", as well as the names of her children and if she had any property. She said that she had nothing, that she had to pay 3 million lira per month for the special bus that took her deaf and dumb daughters to school and that she had 10 million lira debts. He referred to documents coming from Europe. He took her statement and she fingerprinted it. She told the prosecutor that the police had ill-treated her and he said that he would warn them not to interfere with her. On the Friday, they came back again and took her to a different prosecutor. He took her statement. He asked her what had happened, if she was working and if she had a car, lorry or land. She said that she could not work as she was ill and that she had nothing. He put her fingerprint on the document. Altogether, she was taken three times during the month of fasting in this year. Only on the first occasion was she asked to give up her case.

169.     Her husband had not had a recent medical examination. But when he had become a taxi driver three or four, maybe five years before, he had to see a doctor to get his licence. He had never complained of pains in the chest or difficulties breathing.  During their marriage, he had never been ill. He had worked in Libya for six-seven years and in Arabia for one year, as a craftsman. He only had the occasional cold. Before he started as a driver in someone else's taxi, he had a shop. He always wore warm clothes for fear of catching a chill and getting sick. 

170.     Her husband had been arrested previously a month before, when they raided the house. They were asking for Hıdır Salman, the son of her husband's brother. He was detained overnight. He had said that he had been beaten and was immersed in water all night. He was released in the morning. She saw no marks on him. But there was something wrong with his neck. He went back to work on the third day. She did not know if he got a medical certificate. She said that it was impossible that there was a struggle or fight when her husband was arrested.

(2) Mehmet Salman

171.     Mehmet Salman was born in 1965. On 28 April 1992, at about 01.30 to 02.00 hours, there was a raid on their house by security forces from the Anti-Terror Department. When he and his mother opened the door, the security forces crowded into the yard. They asked for his father, Agit Salman. They did not search the house, but opened all the doors. They asked who else was in the house. He told them that his father was working in the car registered in his name at one of two taxi stands - Savas Taxis or Aksoy Taxis. Colleagues came with the car at about 02.30-2.45 hours. According to what they said, the security forces arrived at the taxi rank and asked which of them was Agit Salman. His father was sitting in the common room drinking tea and stood up, saying that he was. They said, "You're coming with us to security headquarters." He gave his car keys to the colleagues and went voluntarily, without any resistance.

172.   On 29 April, two police officers came to the Savas taxi rank, asking for him. At about 12.00 hours, his brother, the teaboy there, phoned him to tell him this. His mother cried and tried to dissuade him from going but since he had done nothing he went. From the taxi rank, the two officers drove him to the security directorate. On the way upstairs, he was asked if his father had had health problems. He said that his father had no problems. While he was waiting at the directorate, there were people coming in and out looking at him, with agitation and nervousness. When he was taken upstairs, another officer asked him if his father had had health problems. He said there was nothing wrong with him. He was taken into an office where he was informed that his father had passed away and that they had done everything they could for him. This was at about 13.00 hours. He was not told that an attempt had been made to resuscitate him or given details about how his father had been taken ill.

173.     It was his paternal uncle who went to identify the body at the forensic department on 30 September. He signed a document and his uncle told him afterwards that the body had gone purple in the armpits from hanging, that the body had been kicked on the feet and that the ankles were all purple with rope marks. He did not see his father's body himself. He fainted when they were washing it at the cemetery. In answer to other questions, he was not sure if his uncle's description of the body related to the identification at the morgue or from the washing of the body at the cemetery. The body was picked up between 14.00 and 14.30 hours on 30 April. They were warned that the body should not be buried on May Day as it would be undesirable to attract crowds. His uncle undertook to bury the body that day. 

174.     He did not recall that his father had had cause to go for any medical examination  or doctor. His father had been taken into custody a month and a half before, and detained overnight at the Security Directorate. When he came back, he said that he had caught a chill. He said that he had been kept under cold water and that his fingers had been beginning to get painful. He had said that he had been hosed with water. He did not think it necessary to go to a doctor. From what his father said, he had been arrested and questioned about his paternal uncle's son, Hıdır, who had allegedly joined the organisation. When they came to the house a second time, they asked about Hıdır.

175.     In Ramadan, possibly on a Wednesday, about the 27th of the month, officers came to the house and took away his mother, accompanied by his sister and his 10 year old deaf and dumb sister. They were taken to the Security Directorate. His sisters were left outside while his mother was blindfolded and taken inside. They asked her why she had started legal proceedings and told her to drop the case. They kicked her on the feet a couple of times. On a second occasion, she was summoned by the Adana chief prosecutor and another statement was taken from her on the second floor, by a sort of committee of six or seven people. He had not come under pressure himself.

176.     From his own knowledge as a taxi driver, it took 5-7 minutes to drive from the Security Directorate to the hospital. It was about 3.5-4 km. Even at midday, with headlights on and horn blowing, he could make the trip in 10-12 minutes. He and his father alternated shifts in the taxi. At the time his father was working the nightshift from 17.30-18.00 hours until 06.00-7.00 hours. Since it could get cold until June, he always had a pullover with him in the car and his father had his jacket etc. However, he agreed with the Government Agent who said that Adana was a very hot place and that their car, a Sahin 89, warmed up fairly well. He and his father had begun taxi-driving together in 1989-90. Before, from 1983, they had a shop. His father came back about then from Libya where he had been a construction worker for seven years. At the end of 1984, his father went as a construction worker to Arabia for seven months. His father came back as he was going to do his military service. His father applied for his licence about then, since he had it when the witness returned from the army in February 1987. The family had come to Adana from Mardin in 1973.

(3) Tevfik Aydın 

177.     The witness was born in 1945. He was the Adana public prosecutor in April 1992 until present. When Agit Salman died, he was called to the incident. It was treated as a suspicious rather than a natural death. He was present at the autopsy. Since the cause of death was not absolutely clear, it was the joint decision of himself and the doctor that an autopsy be conducted. As he died in police custody, it was his duty as public prosecutor to clarify if there had been any outside influence or interference. He did not recall anything unusual about the state of the body - no signs of heavy blows, burning, wounds etc. Whatever minor things they saw were noted down. It was the first time he had personally come across the case of someone who had died in custody. The prosecutor was responsible for instructing the police to inform the next of kin of a death in custody. When asked why it took ten hours to inform the family, he thought that there was no-one at the hospital who knew Agit Salman. No identification document had been issued. While his ID card was on his body, this did not have the address of his family. He agreed that it was not acceptable if the police knew of the address of the family but did not inform the family or give the address to the prosecutor. He agreed with the Government Agent that another possible cause of the delay was a change in the police teams on duty.

178.     He was not sure exactly when suspects were taken for a medical examination on being detained. The police had a general power at law to take people into custody but after 24 hours they had to bring the person to the public prosecutor who could authorise detention up to 15 days. When the person was brought to the prosecutor, the police presented the medical report. He was not sure that there was a medical examination when the person was first detained, as well as before being taken before the prosecutor.

179.     He probably transferred the case to his colleague Mehmet Ali Tuncay or Ethem Ekim who dealt with terrorist offences. At that time, one prosecutor dealt with terrorism offences. After Ekim was killed by an organisation known as the THKPC, they changed the system as the people associated the prosecutor in charge of the Anti-Terror Department as someone appointed specifically to harm them and he became a target. He noted down on the record of examination of the body that Agit Salman had died in the hospital because that was what he had been told, probably by the morgue attendant. He did not speak to the doctor. When asked about the black marks on the sole of the left foot in the photographs, he said it was impossible to see what they were. As regards the blood-filled hole in the back, if he had seen it during the autopsy, it would have been noted in the report.

(4) brahim Salman

180.     The witness was born in 1957. In 1992, he worked as a driver for a newspaper. When he came back from work, his sister-in-law and her son told him that his brother Agit Salman had been taken away. When he came back from work on 29 April, in the evening, there was a terrible commotion. He was told that his brother had died and that the police had told his nephew that it was heart failure. He was bewildered since Agit had never had any health problems. He was robust.

181.     He went to collect the body the next day. He identified it at the forensic department at about 14.30-15.00 hours on 30 April. He only saw the face at that time. The police said that they would bury the body under police escort. They were reluctant to release the body since the family might not bury the body until May Day and hold a demonstration. He undertook to bury his brother that day, signing a paper. He told the police that his brother was popular in the district, that there was a big crowd outside the house and that if the police came, there might be an incident as the death was suspicious. The police escorted them halfway. They took the body directly to the cemetery. Journalists came. They took the photographs. Some photographs were published in the newspaper.

182.     When the body was being washed, there were bruises, visible marks in the armpits, on the feet, on the back. There were marks of blows on the foot, as if he had been kicked on the feet, like he had seen done in the army. The foot was swollen. The holes on the back looked like they had been made by a screwdriver. There were also purple bruises on the back. The purple bruising in the armpits had even gone green. He could think of no other explanation for the death except that he had died under torture.

183.     His brother had been detained one and a half months before. They had held him under cold water for quite a while. When he came out he had a chill and sore throat and stayed at home for two days. When asked why his brother had been detained, he supposed that the first time it was to ask him about the witness's stepbrother's son. He had been given no explanation for the second occasion. It took five or six minutes to go from the Security Directorate to the hospital. At night, it could be done in five minutes, seven at the most.

(5) Dr Ali Tansı

184.     The witness was born in 1958. In April 1992, he was emergency unit physician at Adana State Hospital. He remembered the death of Agit Salman as he had been asked to provide information by the court. Agit Salman had been admitted to the emergency unit with no vital signs. The pupils were fixed and dilated and he was cyanosed, so he could say that he had died 15-20 minutes earlier. He could not be more exact. He did not recall anything abnormal about the body. The body would have been lying on its back on the examination table. At most they would have opened the shirt.  He did not perform a resuscitation operation because he was dead. He did not ask if anyone else had done so on the way to the hospital. While the unit was crowded, there would have been no time loss between the arrival of the body and his examination. Urgent cases are always seen first and persons with no vital signs as a matter of priority.

185.     When shown the autopsy and other reports, he noted that there was 50% narrowing of the arteries to the heart which was a significant ratio and was a major cause of the heart attack. The findings of chronic pericarditis, chronic myocarditis, myocardial hyperplasia and hypertrophy, indicated that the heart muscles and the membrane enclosing them were inflamed. There was indication that the lungs, coronary arteries, the heart, the liver and kidneys were afflicted with advanced disease originating from the past. Persons with these conditions would have certain complaints, even if they did not consider themselves ill. Narrowing of the arteries by itself could cause a heart attack. It could also be caused by emotion, distress or joy. His opinion was that it would have done more harm than good for the police to have attempted resuscitation. Bruising or grazes could be inflicted on a dead body during transport shortly after death, possibly within minutes or half an hour. In his view, great force was not required to break the sternum corpus.

186.     When shown the photographs, he thought it difficult to tell anything. The darkness on the foot could be a shadow or dirt or an ecchymosis. There seemed to be an ecchymosis on the left ankle but he could not be sure.

(6) Dr Fatih en

187.     The witness said that he had been born in 1953. In April 1992, he had been the director of the Adana Forensic Medicine Section, as he still was. He recalled that several years ago he had been questioned about this case by two doctors from Switzerland. They were members of the CPT (see para. 257).

188.     He confirmed that in the record of examination of the body the injury on the chest was described as a blunt traumatic ecchymosis. The ecchymoses were caused by blunt trauma but whether caused by a fall or another person he could not say. An autopsy was ordered since it was not possible to tell from an external examination what was the cause of death.

189.     When shown the photographs, he stated that the spots on the back were purplish death spots. As regarded the marks on the feet, they were not caused by trauma since trauma did not cause such dark black marks. When directed to a particular area in the back, he noted that there was a wound in the form of a graze wound. Since, however, it was not in the record of examination of the body, it must have occurred afterwards. There could be many reasons, for example, during the transportation of the body or its transfer onto a stretcher. From the photograph alone, it would not be possible to deduce whether it was caused before or after death. In answer to the Government Agent's questions, he agreed that if after death a screwdriver had pierced the body it would have left a slot, without bleeding. The discolourations and purple marks on the back, right knee, lower right arm were death marks, caused by accumulation of the blood due to the way in which the body lay. People without training frequently assumed such marks to have resulted from trauma.

190.     As regarded the injury to the chest and sternum, this was frequently seen in autopsies. They presumed them to be attempts at resuscitation.  This was the most likely cause of a broken sternum. A strong trauma might also cause such an injury. The ecchymosis on the chest dated from before the death, at a rough estimate 2 or 3 days. Medically, it could not be dated but it definitely was not fresh, and did not occur just before death. The bruise was in the position on the thorax where a resuscitation attempt would be carried out. Bruising did not occur after death, since it required a functioning heart and circulating blood. Similarly, the fresh bleeding in the chest indicated that it occurred shortly before death since it had not yet been absorbed. The bruise occurred before this.

191.     If a dead body is being carried, a graze can occur but there would be no bruise under the graze. Since corpses are subject to rapid desiccation, the grazed spot would  change colour due to drying. The surface hardens, with the feeling to the touch of parchment paper. Then the wound is described as having "eschar" and this is an entirely post mortem phenomenon. The graze under the armpit with eschar occurred after death.  After a trauma, there is a reddening stage, with bleeding under the skin within three or five hours. Much depends on the intensity of the blow and the location of the injury. An electric shock would not leave traces, unless there was a burn due to resistance on the skin.

192.     As regarded the findings of various heart conditions, he explained that constrictive pericarditis (where the pericardium which should enclose the heart loosely was closely stuck to the heart) was the result of recovery from past inflammation in that region. Myocarditis refers to an inflammatory condition of the heart muscle (myocardium). Hyperplasia and hypertrophy referred to the enlargement of the left ventricle (lower left chamber of the heart). This was due to the fact that the heart, as a result of the pressure from the membrane surrounding it, grew larger and stronger to overcome that restraint. In his opinion, the condition might have resulted from an acute articular rheumatism at the age of 11-13. It might also have resulted from a previous myocardial infarction (at another point the witness stated that there were no medical findings to support the hypothesis that he had suffered a previous infarctus). The person with this condition would have felt indications when he walked, climbed stairs, got angry. He also would had a chronic coughing condition from the chronic bronchitis. He did not agree that a person with all these conditions would necessarily have died if subjected to cold water treatment.

193.     When referred to the Istanbul Forensic Institute's report, he explained the finding of "stoppage of the heart connected to neurohumeral changes brought about by pressure", as changes brought about by neural stimuli, for example, an immediate, high rise in adrenalin, as when a person quarrels. That can cause a heart attack where some-one has an existing cardiac problem. He agreed that ill-treatment could have triggered the heart failure.

(7) Ahmet Dinçer

194.     The witness was born in 1951. In April 1992, he was an investigating officer in the Anti-Terror Department of Adana Security Directorate. He was on duty with the arresting team in operations planned against the PKK. His only role in the investigation was to arrest Agit Salman, who was wanted. They found him since they had the licence number of his taxi. They did not go to his home. When they went to the taxi rank at about 01.00 hours on 28 April, they found him in a hut close to the car, where he was sitting with his friends.  First, they asked for the owner of the vehicle. Agit Salman said that it was his. They asked for his identification. They told him that they were police officers and that he had to come to the Anti-Terror Department. He said "Why are you taking me?" They introduced themselves again, taking out their IDs. He said, "No. You cannot take me. I did not do anything wrong." They took him by the arms and led him to the car normally, not in a rough way. No more force was necessary. He did not hit himself anywhere and did not receive any marks from the arrest. However, his resistance was a little more than passive. At first, he leaned against the car with his hands. When the witness turned round in the car and looked at Agit Salman, he saw him breathe deeply once or twice. He asked Salman if anything was wrong. He answered, "No. I don’t have anything wrong. I'm nervous. That must be it." When asked, he said that he did not wish to go to the hospital. They took him to the Department and handed him over to the custody officer. He sighed deeply once or twice in the presence of the custody officer and said that it was caused by his nervousness. He remembered that they had reported about the apprehension of Salman to the Department supervisor.

195.     When asked if he had told Agit Salman why he was being taken, he said that they told him that there was an investigation about him and that they had instructions to take him to the department. Since the year before <1995>, suspects were taken for a medical examination at the time they were taken in as well as at the end of the investigation.

196.          Interrogations were never conducted until the arrest operation was completed. Suspects were kept separately. When a suspect was wanted for interrogation, the officer would inform the custody officer who would bring the person and hand him over. When asked if there was a register or entry indicating at what time detainees were interrogated, he stated that officers had their own notes. It was a busy time, with detainees apprehended before the operation and arrests continuing during the operation. brahim Yel was in charge of the team dealing with PKK suspects.

(8) evki Taçı

197.     The witness said that he had been born in 1963. In April 1992, he was an officer in Adana Security Directorate. On 28 April 1992, his team was given Agit Salman's name and told to arrest him. They were given the taxi rank address, and told that if he was not there, he might be at a second place, "Yeilova". After they checked Salman's identity, they introduced themselves as police officers and told him that he had to go to the Department. He reacted, saying things like "You cannot take me. I am innocent." They repeated that they were police officers and that they had to go. He resisted in that he had to be forced to go. They took his arms and put him in the car. But there were definitely no injuries and no forcing of any kind. He got in the car normally. In the car, he started breathing deeply and rapidly. The team supervisor asked if he was ill. Salman said that he was nervous. After several kilometres, the supervisor asked again why he was breathing like that. He offered to take him to a doctor. Salman said that he was nervous. He did not say he had a condition. The witness thought it was normal for people who felt guilty to act like that.  He rarely came across calm people in that situation.

198.     He had not been told Salman's home address. They had been given their instructions by their department supervisor and did not know if the supervisor's information had come from police officers who had visited Salman's house. He had been driving the car. When asked if Salman had been handcuffed, he could not exclude that his colleague in the back seat had done so while he was driving. He agreed that the custody officer who took the suspect's details on arrival would have information about his address. When he was referred to his statement where it was recorded that he had said that Agit Salman was not taken to an identity parade or interrogated, he thought that such a thing should not have appeared in his statement. He had not been involved after handing the suspect to the custody officer and did not remember mentioning such things in his statement. His supervisor had told the custody officer that he had been breathing deeply. He could not explain why there was no mention of heavy breathing in the statement that the custody officer made.

(9) Ömer nceyılmaz

199.     The witness was born in 1963. In April 1992, he was a police officer in Adana. On 28 April, he was the custody officer. After the arrest team brought in Agit Salman, he conducted the body search. Everything on him would have been taken and put in a search record. The practice was to take a suspect’s identification, and record his name, last name, father's name, mother's name, date and place of birth in the book.  After that, he saw to his needs for toilet, water or food. Salman was excited, nervous, so they took him to the sink to wash his face and hands and gave him water. His breathing was not normal. He was breathing rapidly.  He did not remember being told by the arrest team that Salman had a health problem or that he had resisted arrest but doubted he could remember after such a long time. He did not consider sending Salman to a doctor as, after a while, his excitement passed. He had no further contact with him while on duty.  They checked the detainees every 15-20 minutes however, looking through the windows in the doors.

200.     There was no interrogation. It was not possible for Salman to be taken for interrogation without his knowledge. It was not his duty to take steps to inform the suspect's family of his arrest. It was for the superior officer to inform the family if a suspect was taken ill. He did not remember how many cells there were at Adana, more than ten, maybe 12 or 13. There was no record of which cell people were placed in, though they had charts with room numbers on which they made notes as suspects were brought in. The witness drew a sketch of the cells, which indicated that there were small corridors of three or so cells branching off a main corridor. The custody officer had his desk at the entrance to the main corridor.  The cell doors were not locked but secured from a bolt on the outside.

(10) Servet Özyılmaz

201.     The witness was born in 1961. In April 1992, he was a police officer at Adana Security Directorate Anti-Terror Department. On 29 April, he was on duty as custody officer from 08.00 hours until 18.00 hours. He would have seen Agit Salman when he took over his duties. He had seen Agit Salman when he was detained a month or two before and chatted to him, asking why he was back. Agit Salman did not complain of any health problems. He did not remember being told by the officer whom he relieved about any problems but it was a long time ago.  He remembered taking Salman out to the toilet. Otherwise he remained in his cell. There was no interrogation. No-one could have taken him without his knowledge. There were no particular times for interrogations, which could take place during the night. It was not unusual for a person to be detained for 24 hours without being interrogated. People were not questioned in or near their cells but taken to the appropriate interrogation room.

202.     Agit Salman was not tortured during his first period of detention either. There was no way that he could have been kept in cold water as alleged. When a person had to be taken to hospital, there was no particular rule about who should do it; in an emergency, whoever was available would do it. brahim Yel was part of the interrogation team at that time.

(11) Ahmet Bal

203.     The witness was born in 1960. In April 1992, he was custody officer at Adana Security Directorate. On 29 April, he was on duty from 18.00 hours until 08.00 hours the next day. The incident took place at about midnight. Agit Salman banged on his door for attention. He went immediately. Agit Salman said that he was unwell. The witness had seen him before for regular checks but he had made no previous complaints. From time to time, he had said that he was sweating and he wanted frequently to go out for toilet and water needs, to refresh himself. It was very hot and humid in Adana. It was particularly hot that night, uncomfortably hot. The previous custody officer had not told him of any problems. People had frequently fallen ill during his time there, as the heat inside the custody area used to be suffocating. They were taken to the hospital if they wished.

204.     He could see that Agit Salman was ill. He was not upright, short of breath. He was sweating excessively and did not look healthy. When the door was opened, he asked for help saying that he was feeling choked, having difficulties breathing. He helped Agit  Salman to a spot under a window nearby, holding him under the arms or by the arm. He left him sitting, leaning against the wall so that he would not fall and shouted through the outer door for help. His colleagues were in another room outside the corridor. They arrived and took him away. This took altogether about 3 or 4 minutes. When asked if Agit Salman was still alive when he was taken away, he said that he could not say but that he had talked to him as he was taken from his cell.  He had to be carried out entirely, unable to walk on his own. But he was taken vertically, supported, to the exit of the custody area. He did not remember any talking at that point.

205.     He made no attempt to resuscitate him. Nobody was taken for interrogation that night. He would have known if they were. He did not think that Behyettin El was taken either.

206.     It would take not less than 15 minutes, maybe 15-17 minutes even at night,  to drive to the State Hospital, which was across the river where the bridge was narrow, and where there were a lot of junctions. He did not remember who told him that Agit Salman had died or whether his colleagues returned. When shown the report signed at 02.00 hours, he recognised his signature but did not remember the report. They must have drawn it up jointly.

207.     The interrogation officers had their rooms very close to the custody area, which was on the ground floor. Nothing happened however to Agit Salman which could have caused him injury. He had a plan of the cells which showed him where everyone was. When the stage of interrogation began, the chief gave out assignments as to who would interrogate whom and instructed the custody officers, who would then hand over the suspects to the appropriate officers. The previous custody officer informed the person on duty of who these were. Such instructions were usually verbal. The interrogation room was about 25-30 metres away on the same floor.              

(12) Erol Çelebi

208.     The witness was born in 1962. In 1992, he was a police officer at Adana Security Directorate. He was on duty  at the Directorate when Agit Salman was taken ill. He had gone on duty at about 19.00-20.00 hours the previous day. His team had been out on external duties but had returned as the Department director had told them that there was to be an operation and they should be present after midnight. They accordingly arrived back at about midnight-01.00 hours. They sat and rested in a room. It was the last room on the right, commonly used by officers resting. He was not an interrogation officer. He carried out team duties, patrolling the city and took part in operations when their director assigned them. He stated that his team definitely did not do interrogations. Interrogation experts were more senior, superior officials. As newcomers and policemen, they were definitely not asked to take part in interrogations. During his time, his team leader did not take part in any interrogations either. While the team was called officially an “interrogation team” on paper, in assignment records, it never took part in interrogations. They were conducted by officers from the Directorate, appointed by the Department director. They were not told who they were. He did not know if they were on a list. When referred to his statement, he did not recall saying that they had not had time to interrogate Agit Salman. Nor would he have known whether or not Agit Salman had been interrogated or not. He did not know whether it was normal to keep detainees from one operation waiting for a long time before they were interrogated.

209.     An official shouted for help, that someone had been taken ill. They immediately went into the corridor. They went to the custody officer who told them that someone was ill. When he saw Agit Salman, he was sitting leaning against the door in the corridor, with his legs stretched out. He had no colour in his face. He said nothing. They realised that he was ill and the driver rushed to bring the vehicle to the entrance door.  He could just about sense that Agit Salman was breathing. He and Mustafa Kayma carried him by the armpits and legs, in a sitting position to the car. It would have taken about 4-5 minutes. Agit Salman said nothing during this process.

210.     The minibus could not go fast while crossing the bridge over the river. It might have taken fifteen minutes but he could not say exactly. Yel, the team leader, was sitting in the front next to the driver. The witness was in the row immediately behind. Agit Salman was in the seat behind his, with Mustafa Kayma next to him. He could not say if Salman was still breathing in the car. After a hundred metres, Mustafa Kayma, who had medical knowledge, said to Hasan Arinç, the driver, "Stop. His heart's stopped. I'll apply cardiac massage." The driver stopped. He saw Mustafa applying massage several times on  Salman lying on the seat of the car. After one or two minutes, Mustafa told the driver to go on. It took them 12-15 minutes to reach the hospital after that. When asked why his statement did not mention the resuscitation attempt, he said perhaps they were not asked. He did not think that Salman was injured when they put him in the car. When asked by the Government Agent, he agreed that part of Salman’s body might have touched the doors when being placed inside.

211.     At the hospital, they handed Agit Salman over to the emergency unit people outside, who placed him on a stretcher. They were told to wait outside. After about 15-20 minutes, someone in a white overall came and told them that Agit Salman was dead. They reported to their department director, Hasan Özden, who contacted the public prosecutor. Yel typed up the report which they all signed.

(13) Mustafa Kayma

212.     The witness was born in 1959. In April 1992, he was a police officer at Adana Security Directorate. His team had the function of seizing or bringing before the court suspects and taking them out for fingerprints or medical reports. They returned to the headquarters at about midnight, as it was said that there was to be an operation. They were waiting in an office for common use. The custody officer called for help. He knew of Agit Salman as someone wanted in their files.  He and Erol elebi rushed to see him. He was leaning against the wall, very pale. He did not talk, did not appear able to talk. He informed their team leader, brahim Yel, who told them Agit Salman would have to go to hospital. When asked if he was still alive at this point, the witness stated that he was not sure, that Agit Salman was motionless. He and Erol eleb carried him to the car when the driver said it was ready. This was no more than five minutes later.

213.     Agit Salman was lying with his head in his lap. He suddenly noticed that he did not seem to be breathing. He asked the driver to stop. He performed mouth-to-mouth resuscitation once or twice, while applying a heart massage. He lay Salman down on the seat and placed his left hand on his chest, pushing down several times with his right.  He had been a medical orderly during his military service for 20 months. Also police schools offer first aid training. He had used the mouth-to-mouth technique once before. After that, it took about 15 minutes to get to the hospital. When they arrived, Salman was taken into the emergency unit on a stretcher. They were not allowed in. They told the hospital staff that he had perhaps had a heart attack. He said nothing about the resuscitation attempt, perhaps because of the excitement.

214.     There were five persons in their team, brahim Yel, Hasan Arinç, Erol eleb, himself and Murat, the typist. The team was separate from ordinary security duty. They had their own political work, seizing people at addresses. They helped their colleagues who carried out the interrogations by completing formalities (eg. fingerprinting, taking suspects to prison).  In April 1992, they had not done any interrogations themselves as a team. They were continuously out on operations. During 1992, the superintendent and the typist might have taken statements but that was not interrogation.  He did not know that anyone in his team was familiar with interrogation. He himself later took part in interrogations and statement taking. He stated that Behyettin El was seized along with Agit Salman, as part of that operation. He agreed, when brahim Yel’s statement was read to him, that this implied that their team was to be responsible for the interrogation of Agit Salman but stated that he did not know anything save that the department director would assign the person to be responsible for the interrogation. To his knowledge however, Agit Salman was not interrogated.

(14) brahim Yel

215.     The witness was born in 1955. In April 1992, he was the interrogating officer for matters related to the PKK organisation and other associated organisations at Adana Security Directorate. He roughly remembered Agit Salman but not events connected with him.  He had been on duty on 28 April 1992. They had been out on operation the night before, had rested during the day and were preparing to go out on another operation that night. They carried out no interrogations that night.  He knew Salman had been wanted as a deserter and as someone who aided the PKK and that he had been arrested the day before. He had not met him yet.

216.     On the night of the incident, he was preparing the operation in his room, accompanied by three or four of his officers. At some point, the custody officer asked for help, saying that someone was ill. He had taken the person to his own room as he was complaining that he was having difficulty breathing and the room was a little larger, airier. When the witness went there, Salman was sitting down, leaning against the wall, between two corners. He asked what was wrong. “My heart hurts a lot. I mean I don’t feel well.”[3] he answered. He spoke very slowly, in a kind of whisper. His eyes were not quite open.  The witness unbuttoned his shirt to free his chest and rubbed eau de cologne on him. He gave instructions to the driver to bring the car immediately. It was a minibus for 12 persons.

217.     They placed him in the car, laying him on a seat for two persons. Salman was in no condition to sit up. After 100-200 metres, his colleague in the back seat, Mustafa Kayma, asked the driver to stop. Kayma gave Salman mouth-to-mouth resuscitation and massaged him, pressing his chest in the centre with both hands, not punching or thumbing. Kayma said that Salman was not doing well, that it could be his heart and that he could not hear him breathing.  The witness told him to leave it, that they should find a doctor at once and that they might do something wrong. They continued.  At the hospital, Salman was taken inside immediately. After about 15-20 minutes, a doctor came out and told them that Salman had been dead on arrival and that nothing could be done. They returned to the Security Directorate and he informed his station manager, who contacted the public prosecutor. He went back to his office and prepared the record of the incident. This was to account to the public prosecutor for a person who had been in custody. He typed it himself as the clerk was not on duty.  It had not been important for the purpose of the record to mention the attempted resuscitation or perhaps it did not occur to them.

218.     The seats in the minibus were made of sponge 3-4cm thick on top of metal rods and elastic bands. The sponge flattened with use to 1-2cm. The seats were not comfortable but hard, the sponge pressing onto the metal rods They took about 15-20 minutes to get to the state hospital. It would have taken longer during the day with traffic.

219.     His code number was 36.26 while the code of his team was 39.27. He agreed that he had issued the instructions to release Agit Salman after his arrest in February 1992 but was unable to recall if he had interrogated him prior to this. Either he would have or a colleague working for him. He then stated that he personally carried out the interrogations and that none of the people working for him had the authority or knew how to do so. Only officials doing the same job in other departments were usually present with him. He asked questions alone or together with these others. On further questioning, he stated that in February Agit Salman’s file was assigned to him and he carried out the investigation. On the night of the incident in April, no interrogations had been begun by anyone. His room was on the ground floor (where a briefing room was marked currently on the plan).

220.     As regarded the role of his team members, they were only present in the interrogation if needed to assist him. They carried out duties such as bringing or taking away the person, taking notes etc. The head of the Department at that time, Hasan Özden, assigned the person who was to be in charge of a particular file for interrogation purposes. No-one else would have the authority to interrogate. The person assigned may give instructions to the custody officer concerning the suspect. There was no written record of when and where suspects were taken out for interrogation. The custody officer had rough notes which were thrown away afterwards.

221.     Agit Salman was not an important person to them. He was not a renowned terrorist but helped and harboured the PKK. He was an ordinary man, whose statement they would take and send to court. He was not a person who could deliver PKK members or guns to the authorities. The interrogation could only start after the operation was finalised ie. the instruction given to complete the file. He remembered Behyettin El as a terrorist, whose sister was a known terrorist.  After writing the incident report, he must have rested for the day. He could not remember if he was on duty that night again. He probably interrogated El 13-14 days later, at the end of his detention period. Because of the incident, he thought that they did not carry out the operation intended and it was cancelled as the organisation would by that time have been alerted. They may have carried it out much later.

(15) Dr Derek Pounder

222.          The witness was born in 1949 in the United Kingdom. He detailed his academic and professional qualifications as a specialist in pathology and forensic pathology. He had qualified partly in Ireland and partly in Australia, where he had spent eight years. He had dealt with dozens of cases of deaths in custody in varying jurisdictions (Australia, Canada and the United Kingdom, and countries within the European Union). He had not been involved in the clinical examination of victims of alleged torture but had seen physical abuse at later stages. He confirmed his written reports.

223.     In respect of his conclusion that the evidence weighed heavily against a prolonged dying period, he stated that the autopsy findings suggested a death which was rapid, within a few minutes, and were incompatible with a longer time period with pronounced symptoms of breathlessness. Half an hour would be a long period in that context.

224.     While he did not exclude that the fractured sternum could have resulted from an attempted resuscitation, he found that Dr en’s statement was misleading in only offering one of several possibilities.

225.     His opinion was that the bruise on the sternum was linked with the fracture, resulting from the same physical event. It covered the area of the fracture. He noted that Dr en’s view that the two were unrelated was based on his finding that the bruise was old. However, his description of a violet-coloured bruise was consistent with a recent bruise. He agreed with Dr en that at two-three days a bruise started to yellow. A violet coloured bruise was reasonably fresh and one could not say how old it was precisely.  The colouration of a bruise depended on where it was in the skin. A bruise in the superficial layer (eg. a love bite) is bright red whereas a bruise deeper in the fatty tissue never appeared red as it was in the deeper layers and would appear violet at the beginning. A bruise which was violet could appear in a couple of hours. He considered that it would need something compelling to say that the bruise and fracture were separate. A histopathological examination could have dated the bruise more precisely. If the breaking of the sternum and the bruise were related - which was his view - the sternum could not have been broken by heart massage as that would not have caused a bruise of 5cm by 10cm. The pressure in the blood vessels would not be sufficient to produce one of that size.

226.     In his view, Agit Salman had a heart disease which was fully compensated for by his body. But he was not having heart problems as he had no prior symptoms. His disease could not be discounted in looking at the cause of death however since the large size of the heart had to be regarded as a contributory factor.  A blow to the sternum could cause the death of some-one young and healthy but was not an inevitably lethal event. To some extent, it depended on chance whether such a blow would cause death and having a heart disease would increase the risk.

227.     The witness had stated in his report that the haemorrhaging round the fracture suggested that it occurred while Agit Salman was alive, since though some bleedings and bruising might occur in a resuscitation procedure, this was minimal. The autopsy report suggested that the haemorrhaging was more than minimal but the extent is not specified.  The more extensive the haemorrhaging the more probable that it was produced during life. Some circulation and therefore some haemorrhaging may occur during the resuscitation if it is partly successful in making the heart beat.  While it was true that the sternum was not as strong as some bones, it was misleading to state that it was made of cartilage. The fracture was in the substance of the bone and the cartilage on either side had nothing to do with the fracturing process. To produce such a fracture required more force than was normally required in resuscitation - in other words a considerable degree of force. Such sternum fractures occurred in a small percentage of patients, particularly the elderly who had brittle bones. It would be quite unusual in a male in his forties.

228.     His opinion that the marks in the armpit were post mortem was based on the autopsy report’s description of them as being parchmented. His later opinion was given in light of the photographs, in particular, showing the location and alignment of the marks and in the context of the mark on the right little toe. Though the photos were of poor quality, his previous presumption was displaced and the marks raised concerns (eg. of the possibility of electrical contact marks) which were neither proven or provable at this stage.

229.     The bruises to the foot and ankle and the injury to the armpit (if it was not post mortem) would have required those parts of the body to be unclothed. The bruise to the sternum could have occurred while he was clothed. The swelling of the feet (though the photograph was poor and it was always difficult to assess swelling from a photograph) would have occurred during life. It would not have occurred naturally (eg. from tightfitting shoes), the sole of the foot having to be damaged quite badly in order to swell.

230.     The low lung weight was not consistent with a period of 20-30 minutes’ breathlessness.  However breathlessness was a subjective phenomenon and one had to be careful in assessment. If a person was truly breathless over a prolonged period of time then the lungs would be much heavier. Agit Salman had no signs of lung disease.

231.     As a general rule, deaths in custody were treated as homicide attracting investigative techniques, with full documentation and photography. A glaring deficiency in this case was a lack of official photographs. He also noted that the Istanbul Forensic Institute made no requests for information clarifying whether there had been a resuscitation.  A histological examination at that stage would have been useful. He had been in contact with Turkish forensic specialists, being associated with the Bulletin of Legal Medicine in Turkey. He had been informed that some public prosecutors complain when pathologists document unpalatable facts and this is seen by the pathologists as some pressure not to report facts accurately.

232.     It was his opinion that Agit Salman died of unnatural causes, on a standard of proof beyond reasonable medical doubt.

(16) Dr Bilge Kirangil

233.     The witness stated that she was born in 1949. Since 1983, she had been a specialist in forensic medicine. She became a member of the Istanbul Institute of Forensic Medicine in 1987 and, from 1996, she had been chairperson of the First Specialist Committee of the Istanbul Institute of Forensic Medicine. There were five specialist committees, the first dealing in general with causes of death and their subsidiary issues.  She was also currently chairperson of the Training Commission set up in the Institute in 1996. She had devoted her entire professional career to the Institute.

234.     The First Specialist Committee dealt with around 1500 to 1800 cases per year, about 5 to 6 each working day.  If, on arrival of the file from the courts, there were not enough documents or data in the file, they had extensive powers to request further materials or information, including the exhumation of bodies.  The rapporteur appointed to the file would then draw up preliminary conclusions which would be examined extensively by the Committee and a joint decision reached on the basis of their joint expertise. The file was open to all members and examined when considered necessary. It could be sufficient to reach a decision on the basis of the report alone. They came across allegations of torture in custody from time to time. They evaluated findings however, not allegations, it being the role of the courts to evaluate allegations and intent. They drew up scientific reports as to the cause of death and did not do so on the basis of hypotheses. The members of the committee included a specialist in forensic medicine and experts in cardiology, pathology, internal medicine, general surgery, neural surgery, gynaecology and obstetrics.

235.     As regards Dr Pounder’s report, while she agreed with some of his views, she was surprised at some of his interpretations, particularly as regarded bruising.  She disagreed strongly with his assertion that bruises started to yellow at 2-3 days. According to herself and other authors, a bruise which had started to go yellow had been forming for 7 days, and according to others, for 10-12 or even 21 days.  She had never seen a bruise turning yellow in 2 days.  The dating of bruises from colour was one of the problems of forensic science. A distinction had to be drawn between a bruise forming and becoming visible. The latter depended on its location, how it had been formed, the instrument used, the severity, the sex of the person, the individual characteristics of the person. The one constant feature was that when the ecchymosis occurs it will be red (crimson, cyclamen), or sometimes blue. It changes gradually, presenting purple, purple/violet, green, yellow and pale yellow.  That can take from 12 to 21 days according to her own teacher, 7 to 10 days according to another author.  Her own view was three weeks on average, but it depended on all the factors referred to previously. An ecchymosis was the condition where the blood seeped into the interstitial tissue as the result of the tearing of little capillary blood vessels when the body suffers a trauma.  The changing of colour was a purely physiological phenomenon, caused by the haemoglobin separating from the cells as the red corpuscles broke down. This formed a green colour.  As the green mixed with the red, the result is first purple/violet and as the products from the breaking down increase, the green colour increases - this fades and yellow appears as the products are carried away through the healthy arteries. The yellow forms after 7 days.

236.     The witness agreed that colouration was affected by the depth of the bruise in the skin. This related to when the bruise became visible. If the ecchymosis formed in deep tissues (eg. the hip), it would take time to migrate to the upper layers of the skin and become visible.  But the bruise would no longer be the same colour as when it originally formed - if a bruise became visible three days after formation it would have changed to purple/violet in colour.  She agreed that a histopathological examination of bruises was sometimes helpful, allowing the dating of a bruise as having occurred 2-3 days previously from the presence of iron for example.  But such an examination did not permit distinguishing between bruises 1, 2, 2½ days old, 6 hours before, at or immediately prior to or following death. So it was not always used.  The colour of the bruise was interpreted instead and she did not think this was a very great shortcoming.  A forensic medical expert could tell the difference between old and fresh ecchymoses. It might have been good if the forensic doctor in this case has produced other findings in addition to his visual assessment but the fact that he did not should not be regarded as indicating a possible misinterpretation.  She would not herself have carried out such a test if she had been confident about ageing the bruise from its colour. Her colleague in this case must also have thought it unnecessary.

237.     The witness differed from Dr Pounder as regarded his views on the significance of the low lung weight contrasted with the reported period of breathlessness. She did not consider that 20-30 minutes was a prolonged period for what were termed sudden deaths.  Instantaneous deaths, occurring on the spot, can occur but generally forensic medical experts defined such deaths as occurring within the period of up to an hour. Rapid death was used to refer to where the person died within several hours to several days after complaining of being unwell. She considered that the testimonies in this case indicated that it took 20 minutes from Agit Salman complaining of breathing difficulties to his arrival in hospital. She had come across lung weights of 300 g occurring in that time. It was said that there were certain problems of asphyxia and circulatory problems in the other organs. She also noted the considerable increase in the cerebrum and cerebellum related to oedema.

238.     Cases where heart massage was given prior to death were usually hospital deaths. Fractures of the sternum or ribs were fairly common occurrences, with which anaesthesiologists and resuscitation experts are very familiar. She referred to a 1983 study from the Hamburg Army hospital in which 45.9% of 140 autopsies disclosed such fractures. Only one of those was severe enough to cause death.  Bruises could be caused during massage but it depended on the severity of the force used and the time intervening before death.  She disagreed with Dr Pounder that the fresh bleeding indicated that the injury occurred shortly before the death. According to one author, ecchymosis could form in a period up to several hours after death. She considered that bruises could form in the first half hour after death before the separation post mortem phase began to take effect. She recalled from her research and experience that the sternum could be fractured by a heavy fall on the knees, when the knees were excessively bent and the jawbone fractured the sternum. She agreed with Dr Pounder that the sternum was weaker because of the cartilaginous joints.  Cartilage gave children’s bones resistance. In a 45 year old male, the sternum would be completely ossified. A double laminated, old bone can break quite easily if direct pressure is applied.

239.     There was no information before the Committee to the effect that cardiac massage had been attempted.  She considered it was useful of the doctor who completed the autopsy to have pointed to the possibility of cardiac massage causing the fracture.  She pointed out that cardiac massage was usually performed on a hard surface which enabled the amount of force being used to be assessed. If performed on a soft surface,  the active force is absorbed by the surface and the person applying the force is unable to judge how much force is being applied and is more likely to injure the person. She considered that the bruise and the fracture on Agit Salman were separate traumatic transformations, and could not have been reported in any other way. The description of the bruise as purple/violet indicated that the haemoglobin had disintegrated, that decomposition had started and the colour had started to turn green. That only takes place in the course of 2 or 3 days.  The possibility could not be excluded that it took place before that time but she had never seen it. It was also in the superficial tissues over the sternum and would have appeared red soon after it formed.

240.     As to the cause of death, there had been no findings of ill-treatment as there was no evidence of such.  External modifications may operate so as to trigger cardiac arrest in a person suffering with heart disease. For example, there are deaths which occur suddenly when the person with a heart disease rests after exercise, which has produced exhilaration hormones.  Modifications can also occur because of hot and cold weather. She also considered that if a direct blow had inflicted the bruise and fractured the sternum she would expect to see contusion and ecchymosis on the back surface of the sternum, an ecchymosis on the front surface of the right ventricle of the heart, as well as bruising, contusion, on the back surface of the right ventricle facing the vertebrae. There would also be serious damage to the arteriosclerotic blood vessels. Where there was no lesion caused to the heart, a blow fracturing the sternum would not cause death where there was no heart disease. Agit Salman was not suffering from any respiratory disease or problems as such, though his lungs were not absolutely sound. He would not have been suffering from respiratory difficulties. While the lungs of someone who had been breathless for 30 minutes could be expected to increase to 500-600g, this was not necessarily the case. Cases vary with the individual. However such an increase can be expected.

241.     There was no legal requirement to produce photographs from a classic autopsy.  The unavailability of photographs in addition to a detailed report was not a very major deficiency. She commented that in general the Committee would not be provided with photographs if the case came from a remote area but could not specify what percentage of cases included photographs. As regarded the photographs provided by the applicant, she noted that they were of bad quality. She saw nothing in the right armpit which she would call a mark. Nor could she make any interpretation about the slight difference in colour on the right little toe. She pointed out that colour changes occurred after death and that it was not possible to tell that the swelling on the foot was not simply the finger of the witness who was holding the person’s foot. She was aware of the United Nations Model Autopsy Protocol which they already followed at the Committee as regarded photographs and she was sure that if her colleague had had a camera at his disposal he would have done so also. It would have been an offence for her colleague not to have noted down all that he had seen.

 Witnesses who did not appear

242.     The Commission's Delegates had also called as witnesses: Behyettin El and police officers Ali Sarı and Hasan Arinç and public prosecutors Ali Tancay and Tekin Özer.

243.     The applicant’s representatives informed the Commission that Behyettin El had been detained in prison. By letter dated 27 June 1996, the Government informed the Commission that El was not under detention.

244.     The Government provided the Commission with a doctor’s note excusing Hasan Arinç from work advising seven days’ bed rest.  They forwarded letters dated 17 and 18 October 1996 respectively, from Ali Sarı and his superior officer, explaining that he had not attended the hearing in Ankara due to his involvement in duties in ırnak. No explanation has been forthcoming with relation to the failure of the public prosecutors Ali Tancay and Tekin Özer to attend. In this respect, referring to its previous findings in the case of Cakıcı v. Turkey (No. 23657/94 Comm. Rep. 12.3.98, para. 245, pending before the Court) and Tanrıkulu v. Turkey (No. 23763/94, Comm. Rep. 15.4.98, para. 237, pending before the Court), the Commission considers that the failure of the public prosecutors to appear has affected detrimentally its possibilities of establishing the facts, in particular with regard to the domestic investigations and proceedings. For these reasons, the Commission finds that in the present case the Government have fallen short of their obligations under former Article 28 para. 1(a) of the Convention to furnish all necessary facilities to the Commission in its task of establishing the facts of this case.

C.Relevant domestic law and practice

245.     The Commission has referred to submissions made by the parties in this and previous cases and to the statements of domestic law and practice recited by the Court (see eg. Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, paras. 56-62 and Tekin v. Turkey judgment of 9 June 1998, paras. 25-30, to be cited in Reports 1998).

1. State of Emergency

246.     Since approximately 1985, serious disturbances have raged in the south-east of Turkey between security forces and members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

247.     Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law No. 2935, 25 October 1983). The first, Decree No. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey. Under Article 4(b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor.

248.     The second, Decree No. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:

“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.”

2. Criminal law and procedure

249.     The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (section 450). It is a criminal offence to subject someone to torture or ill-treatment (Articles 243 and 245) and to issue threats (Article 191).

250.     For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.

3. Prosecution for terrorist offences and offences allegedly committed by members of the security forces

251.     In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.

252.     The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Decree No. 285, Article 4 para. 1, provides that all security forces under the command of the Regional Governor (see para. 247 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecutor of Civil Servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces. A decision by the Council not to prosecute is subject to an automatic appeal to the Council of State. 

4. Constitutional provisions on administrative liability

253.     Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the Administration are subject to judicial review ...The Administration shall be liable for damage caused by its own acts and measures.”

254.     This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the Administration, whose liability is of an absolute, objective nature, based on 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.

255.     Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.

5. Civil law provisions

256.     Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code and non-pecuniary or moral damages awarded under Article 47.

D.Relevant international material

257.     The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey. The two first 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 custody, in particular, relating to those held in police custody.  A third periodic visit took place at the end of 1992, involving a visit to Adana Police Headquarters. 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 were not made public, such publication requiring the consent of the State concerned, which has not been forthcoming.[4]

258.     The CPT  has issued two public statements.

259.     In its public statement adopted on 15 December 1992, the CPT reported that on its first visit to Turkey in 1990 it reached the conclusion that torture and other forms of severe ill-treatment were important characteristics of police custody. It noted that the following types of ill-treatment were alleged time and time again - inter alia, 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. It emphasised that 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. It stated that on its second visit in 1991 it found no progress had been made in eliminating torture and ill-treatment by the police. Many persons made complaint 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. It stated that on its third visit (a periodic 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. It recounted that a prisoner at Adana prison displayed haematomas on the soles of his feet and a series of vertical violet stripes (10cm long, 2cm 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. In Ankara police headquarters and Diyarbakır police headquarters, it found equipment consistent with use in 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”.

260.     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 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 Anti-Terror Department at Istanbul Police Headquarters 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.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

261.     The Commission has declared admissible the applicant's complaints:

- that her husband, Agit Salman, has been deprived of his life while in police custody;

- that her husband was tortured and subjected to inhuman and degrading treatment while in police custody;

- that there is no access to court or remedy available in respect of these claims;

- that these matters disclose restrictions on Convention rights imposed for ulterior purposes.

B.Points at issue

262.     The points at issue in the present case are as follows:

- whether there has been a violation of Article 2 of the Convention in respect of the death in custody of the applicant’s husband, Agit Salman;

- whether there has been a violation of Article 3 of the Convention in respect of Agit Salman;

- whether there has been a violation of Article 6 and/or 13 of the Convention;

- whether there has been a violation of Article 18 of the Convention.

263.     Additionally, there is the issue whether there has been a failure of the Turkish Government to comply with their obligations under former Article 25 of the Convention.

C.The evaluation of the evidence

264.     Before dealing with the applicant's allegations under specific Articles of the Convention, the Commission considers it appropriate first to assess the evidence and attempt to establish the facts, pursuant to former Article 28 para. 1 (a) of the Convention. It would make a number of preliminary observations in this respect:

i. The Commission has based its findings on the evidence given orally before its Delegates or submitted in writing in the course of the proceedings; in the assessment as to whether or not the applicant's allegations are well-founded the standard of proof is that of "beyond reasonable doubt" as adopted by the Court. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact and, in addition, the conduct of the parties when evidence is being obtained may be taken into account (mutatis mutandis, Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).

ii. In relation to the oral evidence, the Commission has been aware of the difficulties attached to assessing evidence obtained orally through interpreters: it has therefore paid careful and cautious attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its Delegates.

iii. In a case where there are contradictory and conflicting factual accounts of events, the Commission is acutely aware of its own shortcomings as a first instance tribunal of fact. The problems of language are adverted to above; there is also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. In addition, the Commission has no powers of compulsion as regards the attendance of witnesses. In the present case, while 20 witnesses were summoned to appear, only 16 in fact gave evidence before the Commission's Delegates. The Commission has therefore been faced with the difficult task of determining events in the absence of potentially significant testimony. It acknowledges the unsatisfactory nature of these elements which highlights forcefully the importance of Contracting States' primary undertaking in Article 1 to secure the rights guaranteed under the Convention, including the provision of effective remedies as under Article 13.

1) Background to events in February 1992

265.     Agit Salman, the applicant’s husband, worked as a taxi driver in Adana. On 26 February 1992, he was taken into custody by police officers. He was released the next day at 17.30 hours. The custody record indicates that he was detained in relation to an investigation and that he was released by team 39-26.  Assistant Superintendant brahim Yel stated in testimony that this was his code number and accepted that he must have been in charge of Agit Salman’s file. Though he stated that he had no recollection of meeting or interrogating Agit Salman, it would appear from his own description of the allocation of responsibilities in his own team and within his department that he must have been present during any interrogation that took place. The Commission finds that his evidence on this issue is less than full and frank. Servet Özyılmaz, who remembered Agit Salman from this earlier period, recalled that brahim Yel was part of the interrogation team at that time. The Commission is satisfied that brahim Yel as the officer assigned to Agit Salman’s file would have met him in the context of questioning or interrogating him during his period of detention.

266.     The applicant  gave evidence before the Delegates that her husband had stated that he had been beaten and immersed in cold water during the night he was detained. While he did not visit a doctor, he did not go back to work for two days. Mehmet Salman also said that his father had stated that he had been kept under cold water and hosed during his detention. He caught a chill as a result. brahim Salman, Agit Salman’s brother, confirmed that he also had been told that Agit had been kept under cold water and had a sore throat and chill when he was released and that he took two days off work. The Commission notes that their accounts are consistent. The Delegates found all three witnesses to be credible and honest in the way in which they gave their evidence. That Agit Salman felt ill after being taken into custody was also corroborated by the taxi driver Hasan etin in a written statement to the public prosecutor. While the Commission notes that this period of detention is not in issue in the present application, it considers that this evidence is highly persuasive that Agit Salman was subjected to ill-treatment during his period of detention on 25-26 February 1992 when he was under the responsibility of brahim Yel as investigating officer.

2) Arrest of Agit Salman on 28 April 1992

267.     During an operation during which a number of persons suspected of involvement with the PKK were arrested, the police came to Agit Salman’s house looking for him in the early hours of 28 April 1992. While two of the arresting officers (Ahmet Dinçer and evki Taçi) denied to the Delegates that they had gone to Agit Salman’s house to arrest him, the Commission accepts the oral evidence of the applicant and Mehmet Salman that police officers came to the house. This is not necessarily in contradiction with the oral evidence of the arresting officers since there were other police teams working that  night who could been instructed to visit Agit Salman’s house. According to a letter dated 29 April 1992 from the Director of the Anti-Terror Department to the Adana public prosecutor, Agit Salman was on the wanted list for activities which included attending the Newroz celebrations on 23 March 1992 and involvement in starting a fire and an attack on the security forces in which one person died and four were injured.

268.     At about 01.00 hours on 28 April 1992, according to the officers concerned, the police found Agit Salman at the taxi rank at Yeilova. In their oral testimony to the Delegates, Assistant Superintendent Ahmet Dinçer and officer evki Taçı stated that Agit Salman showed a certain reluctance to accompany them to the Anti-Terror Department and they had to take him by the arms and lead him to the car. They were however clear that this did not involve the use of force and that he did not hit himself or receive any marks in the process. They both however commented that when in the car Agit Salman showed signs of breathlessness, such that Ahmet Dinçer suggested that they take him to see a doctor. This is to be contrasted with the written statements taken by the public prosecutor from the arresting officers on 22 May 1992. In his statement , Ahmet Dinçer described that there was some pulling and shoving required to force Agit Salman into the car and some marks might have resulted from this. The statement of officer Ali Sarı agrees with this, as essentially does the statement of evki Taçi.  While the written statements make reference to Agit Salman breathing rapidly or deeply, there is no reference to this causing any concern at the time. Ali Sarı said that they thought that it was due to anxiety. In his oral evidence, Ahmet Dinçer stated that he asked Agit Salman if he wanted to see a doctor, which would appear to indicate a certain level of concern about his health. The oral and written accounts are therefore strikingly contradictory and appear to the Commission to have been made with a view to presenting a particular story at a particular time to a particular audience. There is accordingly a question mark as to the trustworthiness of these officers’ evidence, which makes it difficult to assess what in fact occurred. Nonetheless, it is important, in light of later events, to establish as far as possible the physical condition of Agit Salman at the time of his arrest. It is to be regretted that there was no immediate medical examination of Agit Salman on his arrival in custody which would have afforded a written, contemporaneous record of his condition.

269.     As regards whether or not force was used in the arrest of Agit Salman, the Commission notes that Mehmet Salman was told by the drivers at the taxi rank that there was no struggle or force used at the arrest. Statements taken by the public prosecutor from drivers Hasan etin and Abdurrahman Bozkurt also make no mention of any struggle taking place on arrest. In particular, the apprehension report signed by Ahmet Dinçer at 01.30 hours, shortly after the arrest of Agit Salman, makes no reference to any resistance or application of force which would account for injuries having been received. The Commission considers that it cannot be regarded as established that Agit Salman suffered any injury on arrest and that the circumstances of his arrest cannot be regarded as providing a satisfactory explanation for any marks later found on his body.

270.     As regards the alleged breathlessness suffered by Agit Salman after his arrest, this was described by Ahmet Dinçer in his oral evidence as sufficiently worrying for him to suggest that he be seen by a doctor whereas evki Taçı seemed to consider that it was a normal condition for suspects to be in, few people being calm in such a situation. In his oral testimony, Ömer nceyılmaz, the custody officer who placed Agit Salman in a cell on his arrival, also maintained in his oral evidence that Agit Salman was nervous, breathing rapidly and that he took him to the toilet to wash his face and hands. Nonetheless since the nervousness seemed to pass, Ömer nceyılmaz did not consider it necessary to call a doctor. These details did not figure in his written statement to the public prosecutor. The Commission is not persuaded that any particular significance can be drawn from this testimony. It does not doubt that on his arrest Agit Salman felt and showed a certain amount of nervousness. However, his medical condition was not such, according to the evidence before the Commission, that this would have had any tangible effects on his breathing, short of the later stages of cardiac arrest and it has not been suggested that from the moment of his arrest until his death 24 hours later he was in a state of prolonged cardiac failure, which would in any event have been noticeable. The Commission therefore finds that the officers have exaggerated events in light of hindsight.

3) Detention period 28-29 April 1992

271.     There is no record of any occurrence relative to Agit Salman during his detention period until he allegedly asked for assistance from the custody officer at about or after midnight on 29 April 1992. There were three custody officers on duty over this period - Ömer nceyılmaz, Servet Özyılmaz and Ahmet Bal. According to their written statements and the oral testimony of nceyılmaz and Bal, nothing of significance occurred during this time. They all state that no interrogation took place. The evidence of all the officers in the teams which had anything to do with Agit Salman during this time were insistent on this point (see the officers in the arrest team, Ahmet Dinçer, para. 84, Ali Sarı, para. 85, evki Taçı, para. 86; officers in the team which took him to hospital, brahim Yel, para. 91, Hasan Arinç, para. 92, Mustafa Kayma, para. 93, Erol eleb, para. 94; Murat Pehlivanli, the typist, para. 95; the custody officers, Ömer nceyilmaz, para. 87, Servet Özyılmaz, para. 88, Ahmet Bal, para. 90; see also the oral evidence, Ahmet Dinçer, para. 196; Ömer nceyılmaz, para. 200, Servet Özyılmaz, para. 201, Ahmet Bal, para. 202; brahim Yel, paras. 219 and 221). The reason given in many of these accounts was that the operation had not yet terminated and that interrogations did not commence until the operations had done so. The written statements show in this respect and others a tendency to repeat the same, stereotyped phrasing.

272.     The Commission notes with concern however that there was no procedure whereby a formal record of date and time was made by custody officers when suspects were removed from their cells for interrogation. Nor were any formal notes or procès-verbaux drawn up by interrogators by way of a record of the time or length of interrogations. Insofar as there are written records of the overall detention period, there is a period of one and a half hours unaccounted for. The Commission observes that the arrest report signed by Ahmet Dinçer gave the time of apprehension as 01.30 hours, whereas the custody record indicates Agit Salman’s time of arrival as 03.00 hours.

273.     Several of the police officers became less adamant concerning the impossibility of an interrogation having taken place when they gave oral evidence to the Delegates. evki Taçı, an arresting officer, thought no such denial should have been in his statement since he had not been involved with Agit Salman after the arrest and knew nothing of what had occurred afterwards. There was also a reluctance on the part of the officers in Yel’s team to claim any knowledge as to what might have occurred. Erol eleb insisted that he had no interrogating role and claimed that his team leader did not take part in any interrogations either, nor did his team. He would not have known therefore if Agit Salman had been interrogated or not. This contrasts with his written statement where he allegedly stated that his team had not yet had time to interrogate Agit Salman, clearly implying that this was their role.  Mustafa Kayma also stated that he and his team had no interrogation role and that he was not involved in any interrogations until a later date. He claimed to have no knowledge as to who was responsible for interrogating Agit Salman.

274.     The Commission finds that the evidence of the police officers on this point is hard to reconcile with what was contained in their written statements and with the other evidence. The reluctance of Erol eleb and Mustafa Kayma to admit to any involvement in an interrogation at that time, or even to the possibility that the responsibility for interrogating Agit Salman had been allocated to their team, contrasts with Ahmet Dinçer’s identification of brahim Yel, their team leader, as the officer in charge of the team dealing with PKK suspects; it also contrasts with brahim Yel’s written statement which indicates that an interrogation would have taken place when the operation was concluded and with his oral evidence to the effect that he carried out interrogations, with the practical and administrative assistance of his team. There are also the duty rosters for 28 and 29 April 1992, which under the heading “Interrogation Team No. 5” list brahim Yel, as team leader, with Hasan Arinç, Murat Pehlinvanli, Erol eleb, Mustafa Kayma and Teyfik Firat as team members (see para. 113).

275.     The Commission finds that there is no doubt that brahim Yel was assigned Agit Salman’s file and that it was his responsibility to carry out any questioning of Agit Salman , whether this was to be called an interrogation, a  statement-taking or interview. It finds that the evidence of Erol eleb and Mustafa Kayma is riddled, at best, with evasions and inconsistencies, which severely undermines their credibility. It has already noted that brahim Yel’s account concerning Agit Salman appeared less than frank as regarded earlier contact with him in February 1992. It finds also that his evidence that no interrogation took place due to the ongoing operation raises certain difficulties.

276.     Firstly, brahim Yel and all the members of his team on duty[5] happened to be present in a room close to the custody area when Agit Salman reportedly fell sick. They were, according to his oral evidence, waiting in his room while he prepared for the next operation which they were to carry out that night.  Erol elebi said they were waiting and resting in the room commonly used by officers about to go out on operation.  Mustafa Kayma also stated that they waited in a room for common use. The plan provided by the Government in response to a request by the Delegates for a plan of the Anti-Terror Department in April 1992 indicates a large briefing room next to two interrogation rooms across the corridor from the custody area. When asked to point out where his office was on the plan, Yel indicated the briefing room stating that this description was a mistake and at this time this was his office.  In their written statements, Mustafa Kayma and Erol eleb stated that they had been waiting in the record office.  The exact nature of the room in which they were assembled is therefore subject to confusion and doubt.

277.     Secondly, brahim Yel denied to the Delegates that he undertook any other interrogations at this time, which was consistent with his explanation as to why he did not interrogate Agit Salman - namely, that the operation was not yet concluded. There were at least two other suspects in custody in connection with the operation - Behyettin El, taken into custody on 25 April 1992 and Ferhan Tarlak, detained on 28 April 1992 (see the letter from the Director of the Anti-Terror Department, para. 112). There was also a third suspect, Ahmet Gergin, whose statement reveals that he was questioned about associated events. When asked by the Delegates, brahim Yel thought that he must have interrogated Behyettin El one-two weeks later but subsequently agreed that the initials at the bottom of El’s statement taken on 29 April 1992 were his and that he must have interrogated him. El’s statement to the public prosecutor of 8 May 1992 also gives the impression that he was interrogated on or shortly after his detention on 25 April 1992. The Commission further notes that brahim Yel signed the statement of Ahmet Gergin of 29 April 1992. It therefore appears that he commenced or continued with the interrogation of two of the suspects connected with the operation on the same day Agit Salman died. When the applicant’s representative questioned whether the operation in respect of which Agit Salman’s interrogation was allegedly suspended had ever taken place, brahim Yel stated that it had not, though perhaps it might have much later. The Commission is unconvinced therefore by the alleged reason for not interrogating Agit Salman. It is particularly striking that two of the other suspects connected with the same incidents in respect of which Agit Salman was apprehended were interrogated shortly after his arrest and detention.  It also notes that in his statement of 8 May 1992 Ferhan Tarlak told the public prosecutor that on the day of his detention - 28 April 1992 - he had been confronted with Behyettin El. This also is inconsistent with the assertions that no steps were taken to question or interrogate the suspects at this stage.

278.     Thirdly, brahim Yel also stated, in answer to questions as to why there was a delay in questioning Agit  Salman,  that Agit Salman was not important to them. His testimony downplayed Salman’s significance. This does not appear to correspond with the list of suspicions against him contained in the letter of 29 April 1992 from the Director of the Anti-Terror Department, alleging his involvement in an attack on the security forces which resulted in a death and four casualties.

279.     brahim Yel’s evidence is consequently not convincing or reliable. The Commission considers that the plausibility of his denial that an interrogation took place must also be considered in light of the evidence given on another crucial area, namely, the circumstances in which Agit Salman allegedly fell ill and was transported to hospital, examined below.

4) Circumstances surrounding the death of Agit Salman

280.     According to the written and oral statements of the duty officer Ahmet Bal, and the officers who took Agit Salman to hospital (brahim Yel, Mustafa Kayma, Erol eleb and Hasan Arinç), Agit Salman called for assistance after midnight, showing signs of difficulties in breathing and was so weak that he could not stand, sit or walk. He was able to talk, faintly, with Ahmet Bal and brahim Yel and was carried to a van within about 4-5 minutes. After arrival at the hospital, which was 15-20 minutes away, the doctor informed them that he was dead.

281.     A number of details about their account are in dispute.

- According to Mehmet Salman, a taxi driver, it was 3.5-4 km from the Security Directorate to the hospital which would take only five to seven minutes at night. brahim Salman thought that it would only take five minutes, seven at the most. The doctor at the hospital, Dr Tansı, was clear that Agit Salman was dead when he arrived, beyond any possibility of resuscitation and estimated that he had been dead about 15-20 minutes. If it indeed took only seven minutes to drive to the hospital, this casts doubts on the police officers’ version of events as Agit Salman would appear to have died while still inside the Anti-Terror Department. This makes it less credible that he called for help and was rendered speedy assistance by officers as alleged. The Commission notes that travelling 3.5 to 4 km at the relatively sedate pace of 50 km per hour would render the time of travel at a little under 5 minutes. Ahmet Bal stated that there was a narrow bridge to cross and a lot of junctions. However, the Commission would doubt that at 01.00 hours that these would have posed time-consuming obstacles, particularly if the police officers were concerned to reach the hospital as soon as possible.  This aspect of the case therefore raises significant doubts.

- The autopsy included the finding that Agit Salman’s lungs weighed 300g each. This indicated a low level of oedema and was consistent with a rapid death, in the view of both Professor Pounder and Professor Cordner. It was not consistent in their opinion with a period of 20-30 minutes’ breathlessness. Professor Cordner noted that low lung weights were a preponderant feature in deaths resulting from trauma but observed that the accounts of the police officers were compatible with death having occurred even before the van arrived. Dr Bilge Kirangil differed in general about descriptions concerning instantaneous or rapid deaths, disputing Dr Pounder’s conclusion that death was rapid in this case and stated that she had seen lung weights of 300g occurring over a 20 minute period. However, since Dr Ali Tansı was of the view that death had occurred 15-20 minutes before arrival at hospital, the Commission considers that her opinion that death was not particularly rapid does not find support from the surrounding circumstances.

- In their oral testimony to the Delegates, Erol eleb, Mustafa Kayma and brahim Yel stated that en route to the hospital, the van stopped and Mustafa Kayma tried briefly to resuscitate Agit Salman. According to eleb, he saw Kayma applying external heart massage several times. Kayma said that he tried mouth-to-mouth resuscitation and applied pressure to his chest several times with his hands. brahim Yel stated that Kayma briefly used both mouth-to-mouth and cardiac massage, pressing his chest, without thumbing or punching. None of the written statements of the officers in the van (Hasan Arinç, the driver was requested to give oral evidence but did not do so) makes any mention of this attempt. The incident report drawn up and signed by all the officers states that they took him to the hospital without delay. When this omission was pointed out to the officers in the proceedings before the Delegates, Kayma stated that he might have forgotten to mention it due to excitement; eleb said that perhaps they were not asked about it; and Yel who drew up the incident report considered that either it was not relevant to the purpose of the record or it did not occur to them. The Commission considers that this is a significant omission. In view of the fact that a detained person held at their Directorate had died, it would appear to have been of great relevance to give details of the steps which they took to assist him and prevent his death. The incident report was compiled within an hour of the return of the officers to their department. The written statements were taken by the public prosecutor on 18 May 1992. The first written mention of a possible cardiac resuscitation attempt was the autopsy report of 21 May 1992 where Dr en offered this hypothesis as a possible explanation for the finding of fracture of the sternum, with fresh bleeding. It is not apparent that any further questioning of the officers was carried out to verify this hypothesis, either by the public prosecutor or forensic authorities, or in the course of the criminal proceedings. It therefore appears that the first time that evidence was given about the alleged resuscitation attempt was in July 1996 before the Commission’s Delegates. Having regard to the failure to mention the resuscitation attempt earlier and the previous doubts arising as to the evidence given by these police officers, the Commission finds the oral evidence concerning this aspect to be of dubious reliability. It must also be assessed in light of the medical evidence in this case, see below.

5) Medical evidence relating to the cause of death of Agit Salman

282.     The medical evidence before the Commission consists of the forensic reports of the domestic forensic authorities, the reports and oral evidence of Professor Pounder, instructed by the applicant, the oral evidence of Dr. Fatih en who conducted the autopsy and Dr Bilge Kirangil who reviewed his findings at the Istanbul Forensic Institute and the written report of Professor Cordner, instructed by the Commission’s Delegates as regards the contradictions in the various opinions given.

283.     The Commission notes that the Government in their final observations submit that no weight should be given to the opinion of Professor Cordner, who was instructed by the Commission Delegates. They point out that Professor Pounder, the applicant’s expert, studied and worked for eight years in Australia where Professor Cordner is based and that they are both Fellows of the Royal College of Pathologists of Australasia. They regret that the Delegates did not find a forensic scientist among the member states and state that they are disturbed that the Commission may have been “influenced”.  The Commission observes that Professor Cordner informed the Delegates that he had met the applicant’s expert, Professor Pounder, at scientific meetings and in Canada. Given the extent of Professor Pounder’s professional experience in a number of countries, and his membership of associations and colleges in numerous countries, it does not find any striking or disqualifying coincidence from the facts adverted to by the Government. It does not consider that these professional contacts, or the fact that they were apparently over a period of eight years living in the same country are such as to cast any doubt on Professor Cordner’s integrity or objectivity.

i) the cause of death

284.     The forensic report issued by the Istanbul Forensic Institute stated that the cause of death of Agit Salman may have been cardiac arrest connected to neurohumeral changes brought about by the pressure of the incident in addition to his existing heart disease. There was no disagreement amongst the various doctors and experts that Agit Salman had an underlying heart disease. This was likely to have been caused by an illness some time in the past, such as rheumatic  heart disease which could have manifested itself as an acute febrile illness without necessarily disclosing any heart symptoms. There was also no disagreement that Agit Salman, as testified by the members of his family, would have been able to live and work normally without suffering any disabling or visible symptoms.

285.     The effect of the heart disease had been to enlarge the heart to an abnormal size (550g) as a result of compensation for the malfunction of the mitral valve.  There was also a narrowing of the arteries of 50%.  Professor Pounder considered that this was not  an abnormal finding in itself in industrialised countries. However, there would appear to be agreement that this aspect would also have contributed to Agit Salman’s vulnerability to cardiac malfunction when under stress.

286.     The crucial question remains as to what triggered the cardiac arrest. The Istanbul Forensic  Institute referred to neurohumeral changes and the pressure of the incident. Dr Bilge Kirangil in her oral evidence to the Delegates elaborated that external modifications could act as a trigger, such as hot or cold weather, or hormonal variations arising after exercise. She dismissed the possibility that there were any signs of physical trauma which could have done so. It is in this area that the medical opinions are in clear contradiction.

287.     The autopsy conducted by Dr Fatih en revealed a number of findings:

-a fracture in the sternum, with fresh bleeding in the tissues;

-a violet bruise on the front middle chest 5 x 10 cm;

-two superficial grazes 1x1cm on the front left ankle;

-two parchmented angular shaped traumatic graze wounds 3x1cm on the front right armpit.

288.     In addition, the applicant has provided four photographs of amateur quality. Professor Pounder gave his opinion that these disclosed further possible signs of injury:

-purple-red discolouration on the sole of the left foot, with some indication of swelling;

-a white glistening band on the right little toe;

-a bright red abrasion on the spine at waist level, with two reddish marks above and a horizontal line above them of pink bruising or abrasion.

289.     Professor Cordner on the basis of the photographs considered that there could be discerned;

-mottling and discolouration on the sole of the left foot;

-small areas of reddening on the front and inner aspect of the right ankle;

-abrasions and areas of redness and discolouration on the back.

The Commission has considered each of these indications below.

ii) fractured sternum and

iii) bruise on the front middle chest

290.     The Istanbul Forensic Institute report, based on Dr Fatih en’s report, and Dr Bilge Kirangil gave the opinion that the fractured sternum could have been caused by attempted resuscitation. Dr Kirangil disagreed that the presence of fresh bleeding in the tissues indicated that the injury occurred shortly before death, since bruises could occur up to half an hour after death. Relying on Dr Fatih en’s dating of the bruise as old due to its colour, she was of the firm opinion that the bruise was unconnected with fracture. Her opinion as to when the large bruise (5 x 10cm) would have been inflicted is not readily apparent since she emphasised that the timing of the progression of the colours of the bruises varied according to particular authors and with the location and circumstances in which the bruise occurred. Since, however, it had not started to go yellow, it would seem that her view was that the bruise could have occurred up to seven days previously and accordingly prior to Agit Salman’s detention. But in any event, she emphasised that Dr en’s professional opinion on his visual examination had to be accepted.

291.     Professor Pounder’s opinion was to the effect that there was a strong presumption that, as the bruise directly overlay the fracture, the two injuries were connected. He considered that a violet coloured bruise could be a recent or fresh bruise and that the presence of fresh bleeding indicated that the fracture occurred shortly before death. Since cardiac massage did not generally cause a bruise of this type, and it would be an unusual fall which fractured the sternum, the most likely cause of both bruise and fracture was a blow or kick of considerable force.

292.     Professor Cordner’s opinion emphasised that the dating of bruising by colour was subject to widely differing views. and that an accurate calendar was not practicable due to the many variables. He identified the only point of agreement in experts as being that a bruise with identifiable yellowing was more than 18 hours old. On this view, a violet coloured bruise could be fresh ie. less than a day old. The only method of accurately determining the bruise’s age would have been to carry out a histopathological analysis. As it was not possible to distinguish between the bruise and fracture by age in this case, they had to be regarded as one injury. On his experience, it was very rare for cardio-pulmonary resuscitation (CPR) to cause a bruise and he referred to a survey which indicated that commonly a fractured sternum caused by CPR was also accompanied by broken ribs. The best explanation for the death was that in life Agit Salman had experienced trauma, to the chest and to the foot (see below) and the fear and pain associated with these events raised his blood pressure and increased heart rate putting a severe strain on his heart causing cardiac arrest.

293.     The Commission observes that the dating of the bruise appears crucial to finding that the bruise was separate from the fracture and thus to the probability of the fracture being caused by CPR rather than an unexplained violent trauma. It is satisfied however from its reading of all the medical expert opinions in this case that the dating of a bruise from its colour is an unreliable method. While Dr Kirangil was emphatic that an experienced forensic pathologist would be able to tell an old bruise from a fresh one and that Dr en’s judgment had to be trusted on this point, the Commission notes that her own explanations indicated widely varying expert views and the importance of individual features in each case. The lack of photographs and a histopathological analysis is a significant omission and impacts on the reliability, for the purpose of making findings of fact, of Dr en’s report and assessment.

294.     The Commission finds therefore that there is no strong evidential basis in the medical context for finding that the bruise was unconnected with the fractured sternum. It considers that the location of the bruise and the absence of other indications such as broken ribs supports the view that it was caused at the same time as the fracture and thus by an unexplained application of force.

iv) marks under the armpit and right little toe

295.     The marks on the right armpit were described in Dr en’s report as traumatic graze wounds 3 x 1cm but qualified as being parchmented. In his oral evidence, he explained that these marks were caused after death, the crucial feature being the desiccated appearance and texture of the skin occurring after death. Professor Pounder had initially agreed with his assessment from the description though noted that they had not been dissected to verify if there had been any associated bruising. When he saw the photographs, he had doubts that they were post mortem artefactual injury due to their apparent position, alignment and colouration and suggested the possibility that they were consistent with the application of electrical current. He also suggested that the white glistening mark which he had noted on the right little toe was consistent with a ligature mark, also deriving from the application of electrical current. Professor Cordner was unable to draw any such conclusions. He found that it was not possible to assess the significance of the apparent white mark on the toe from the poor quality photograph nor to conclude that the marks on the armpit resulted from the application of electricity. The Commission considers that there is insufficient basis to attribute the marks under the armpit or the colouration of the right little toe to injuries occurring during Agit Salman’s detention.

v) marks on left ankle

296.     These marks, abrasions, on the left ankle were recorded by Dr en and are visible on the photographs. No explanation has been established for their presence. While reference was made in the Istanbul Forensic Institute report that superficial traumas could be attributed to his resistance on arrest or placement in the vehicle, the Commission has not found it established that any force was necessary to carry out the arrest or that any injury occurred at that time (see para. 269).

vi) other findings

297.     The Commission has summarised above the various marks and abrasions indicated by Professor Pounder and Cordner (paras. 288-9). It recalls that these photographs were shown also to Dr Bilge Kirangil and Dr Fatih en. Dr en attributed the marks on the back to death marks, post mortem discolouration and considered that the darkness on the foot was not related to trauma as this would not have left  black marks. He was certain that he noted in his autopsy report all relevant marks and injuries. Dr Kirangil pointed to the bad quality of the photographs and stated that she saw nothing that she could interpret as connected to marks or swellings or discolouration .

298.     The Commission finds that the photographs are of poor quality. It notes that they were taken after Dr en’s autopsy examination, which makes it possible that certain marks on the body could have conceivably been the result of handling afterwards. It regrets, once more, that there were no professional, forensic photographs obtained immediately at the time of the autopsy. The difference in opinions between three experts as to what can be deduced from the photographs indicates the importance of that omission.

299.     There can be observed on the back of the body discolouration which corresponds with what had been described of the effects of the blood pooling and settling after death. There are however identifiably marks which look different - a small round mark, filled with blood, two smaller round red marks, and a bruise-like red mark above those. The Commission can understand why the applicant’s family regarded these as signs of ill-treatment. As stated above, it is not possible to deduce with any certainty whether Dr en omitted to mention these marks or whether they occurred from clumsy handling of the body afterwards.  It recalls however that according to Dr Kirangil, bruising as such would not occur more than a half hour after death and according to Dr en wounds piercing the skin after death would not bleed or leave the kind of mark shown. No conclusions can be drawn from these marks however, save to underline the importance of photographs and for dissection and analysis of any mark the origin of which may be disputed.

300.     In the Commission’s view, there may also be observed on the photograph dark discolouration on the sole of the left foot. Due to the lack of clarity of the photograph, it is possible that what may appear to be swelling is confused with the hand of the person holding the foot. There is however no overlap between the person’s hand and the colouration over a large area of the sole of the foot. The Commission is not convinced by Dr Fatih en’s assertion that the area appears black, which is not consistent with bruising. The photograph shows the area as visibly dark red, purple shading into black where there appears to be shadow. The explanation that it might be dirt is also not convincing, when compared with the state of the body generally. The Commission notes Professor Cordner’s view that it does not present the appearance of post mortem discolouration.  The Commission considers therefore that the photograph very strongly suggests bruising. It recalls Professor Cordner’s opinion that bruising on the sole of the foot is relatively unusual, representing the application of moderately severe force, which was consistent with beating. In particular, it notes that a person with such bruising would not be able to walk without pain or a limp. There is no evidence that Agit Salman was impaired in his ability to walk before or at the time of his arrest. The presence of such bruising is therefore substantial evidence of another unexplained injury having occurred during his detention.

301.     The Commission recalls that Professor Cordner found that marks could be seen on Agit Salman’s right ankle. These are very small and faint. It does not consider that any conclusions can be drawn from these. It may be observed however that when placed in context with the undisputed and unexplained marks which were recorded as found on the left ankle these marks would accord with Professor Pounder’s description of how injuries could have occurred in the process of falaka (see para. 150).

Overall evaluation

302.     The Commission finds that the medical evidence - the bruise overlying the fractured sternum, the size of the lungs,  the discolouration on the sole of the left foot, abrasions on the left ankle - very strongly suggests that Agit Salman died rapidly from cardiac arrest after the occurrence of physical  trauma during his detention which has not been satisfactorily accounted for. It considers that the autopsy examination conducted by Dr Fatih en was incomplete, due to the lack of photographs and histopathological analysis of marks, and therefore an unreliable basis on which to draw conclusions as to the cause of death of Agit Salman.

303.     Taken together with the grave difficulties arising from the evidence of the police officers in this case, which the Commission has found to be lacking in reliability, the Commission is satisfied, beyond a reasonable doubt, that Agit Salman was questioned during the period of his detention and suffered physical ill-treatment of a serious degree prior to his death.

5) Aftermath of the death of Agit Salman

304.     The Commission notes that Agit Salman was declared to be dead at Adana State hospital. According to the statements of the police officers who took him there, this would have been shortly between 01.00 and 02.00 hours on 29 April 1992. There was an examination of the body at the hospital morgue by Dr Fatih en in the presence of the public prosecutor on that day, the exact time not being recorded.

305.     According to the testimony of the applicant, she did not receive the news that her husband had died until the evening when her son, Mehmet Salman, returned from the Security Directorate. Mehmet Salman stated that it was at 12.00 hours that his younger brother rang from the taxi stand stating that police officers were looking for him. When he was taken to the Directorate, he was informed at about 13.00 hours that his father had died of a heart attack. The public prosecutor, when asked why it took so long to contact the family, suggested that no-one at the hospital was aware of his address (it was not on his identification card) and accepted the suggestion of the Government Agent that delay might have arisen from the change over of the police officers on duty. He agreed however that it was the responsibility of the public prosecutor to instruct the police to inform the family and that it was unacceptable for the police, if they knew the address, not to inform the family or give the address to the public prosecutor. When the custody officer  Ömer nceyılmaz was questioned, he stated that the address of the suspects was not taken on arrival at the custody area.  The Commission notes however that the police called at Agit Salman’s house prior to his arrest at the taxi stand. His address must therefore have been known to the police. The Commission does not consider therefore that any acceptable explanation for the delay has been forthcoming.

306.     On the basis of its findings above, the Commission will now proceed to examine the applicant's complaints under the various Articles of the Convention.

D.As regards Article 2 of the Convention

307.     Article 2 of the Convention provides:

"1.Everyone's right to life shall be protected by law.  No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

a.in defence of any person from unlawful violence;

b.in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c.in action lawfully taken for the purpose of quelling a riot or insurrection." 

308.     The applicant submits that the death of Agit Salman was attributable to the treatment to which he was subjected in detention, which included a blow and beatings. This discloses an unlawful deprivation of life through the use of unlawful force for an unlawful purpose contrary to Article 2.  She submits that Article 2 not only prohibits the arbitrary taking of life but requires the protection of the right to life. The special dependency of a detained person places an increased duty on the authorities to protect from potentially lethal treatment.  Where a person is in custody, there is also a duty on the State to account for any deaths which occur. Without a plausible explanation for death of a person in custody, that death must be considered attributable to the authorities (mutatis mutandis, Eur. Court HR, Tomasi v. France judgment of 27 August 1992, Series A no. 241). In the present case, the Government have failed not only to provide a plausible account for how Agit Salman died (they attribute it to over-excitement and overheating during the night in the cell) but also for the serious injuries sustained by him in custody (the chest bruise, fractured sternum, bruising to the left foot, grazes on the left foot, the wounds to the armpit). The protection of the right to life additionally requires a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the death of a person in custody, which includes effective access by the complainant to the investigatory procedure. The applicant submits that in this case the necessary investigation has not been carried out.

309.     Finally, the applicant submits that there is substantial, cumulative evidence to establish that the failure to investigate violations of the right to life, in particular where suspicion falls upon the security forces and law enforcement officers, is both a systemic and systematic failure in Turkey.  This failure arises from a combination of inadequate procedures, the attitudes of the prosecuting authorities, failure to gather and test basic evidence, assumptions that the authorities are not responsible and a failure to call into question official claims of events (see e.g., No. 21549/93, Oğur v. Turkey, Comm. Rep. 30.10.97, pending before the Court, and Tanrıkulu v. Turkey, op. cit., where there were violations of Article 2 for failure to investigate deaths, and the many cases declared admissible, in which there were no effective remedies to exhaust). This discloses an administrative practice with respect to failures effectively to investigate violations of the right to life.

310.     The Government submit that Agit Salman fell ill while in custody and died as a result of heart failure connected to neurohumeral changes brought about by the pressure of the incident. Any superficial traumas disclosed by the autopsy could be ascribed to his resistance or struggle on arrest. The fractured sternum was the result of a resuscitation attempt on the way to the hospital. Accordingly, the Government submit that there is no ground for finding a violation of the right to life contrary to Article 2 of the Convention. As regards the procedural aspects of Article 2, they submit that there was no inadequacy in either the forensic or investigative procedures into the death, referring to the prosecution which occurred.

As to responsibility for the death of Agit Salman

311.     The Commission recall, firstly, that Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention, and together with Article 3 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe. It must be interpreted in light of the principle that the provisions of the Convention  be applied so as to make its safeguards practical and effective (Eur. Court HR, McCann and others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46, paras. 146-147).

312.     Article 2 not only protects the right to life but sets out, in its second paragraph, the limited circumstances in which the deprivation of life may be justified. These exceptions are to be strictly construed and cover not only intentional killing, but also those situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. The use of force must be no more than “absolutely necessary” for the achievement of one of the permitted purposes set out in sub-paragraphs (a), (b) or (c) and this term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the sub-paragraphs of Article 2 para. 2 (McCann and others v. the United Kingdom judgment, op. cit., p. 46, paras. 148-149).

313.     In the present case, the Commission notes that the Government contend that Agit Salman might have suffered minor trauma (grazes etc) when he was arrested on 28 April 1992. The Istanbul Forensic Institute report stated that these minor trauma might have combined with neurohumeral changes and the stress of the situation to trigger an already existing heart disease and cause heart failure. The Commission has found however that there is no convincing evidence that Agit Salman resisted arrest or that he suffered injury in the process (see para. 269). It has also found that the evidence of the police officers as regarded what happened to Agit Salman in custody was evasive, implausible and unreliable. The Commission has drawn very strong inferences from this. It has found that the evidence relating to his physical condition after he died is strongly consistent with the infliction of injury to his foot by way of “falaka” and with the infliction of a bruise and fracture of the sternum during his period of detention.

314.     The Commission notes that, even though it considers that the accounts of the police officers are fundamentally discredited, there is no conclusive evidence as to what occurred during Agit Salman’s period of detention. It recalls also that Professor Cordner acknowledged that there was a weakness in his opinion as regarded the chest injuries, since the conclusion that they represented one injury was based on partly circumstantial evidence. Nonetheless, the Commission’s assessment of the evidence as a whole, medical and oral and written testimony, is such that it is satisfied that it can reach findings to the necessary standard of proof, beyond reasonable doubt, that Agit Salman’s death was caused, to a significant degree, by physical and mental stress resulting from ill-treatment of a serious degree (para. 302). 

315.     The Commission would emphasise, as in other cases, that a person in custody, in the power of the authorities, is in a vulnerable position and that the way in which he is treated must be subjected to strict scrutiny under the Convention (see eg. Eur. Court HR, Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 40-41, paras. 108-115 and Comm. Rep. 11.12.90, p. 52, paras. 99-105; Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, pp. 23-26, paras. 27-40 and Comm. Rep. 4.7.94, pp. 35-38, paras. 104-115 and Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2278, para. 61). The authorities must be able to account for injuries which occur during that period of detention. Where death occurs in custody in connection with even minor injuries, there is a heightened burden on the Government to provide a satisfactory explanation.  In this context, the authorities bear the responsibility to ensure that they keep detailed and accurate records concerning the person’s detention and place themselves in the position that they can account convincingly for any injuries. The Commission recalls that there was no medical examination of Agit Salman when he was apprehended, which would have enabled his state of health at that time to be established and that there was no procedure whereby the date and time of interrogations were noted.

316.     The Commission accordingly concludes that Agit Salman was deprived of his life as a result of ill-treatment occurring during his detention for which no justification has been established within the meaning of the second paragraph of Article 2.

Concerning the investigation into Agit Salman’s death

317.     The case-law of the Convention organs has established that to ensure the effective protection of the right guaranteed under Article 2 the authorities must provide a mechanism whereby the circumstances of a deprivation of life receive adequate, public scrutiny:

"The obligation to protect the right to life under this 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 some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State." (McCann and others v. the United Kingdom judgment, op. cit., p. 49, para. 161)

318.     The Commission would emphasise that effective investigation procedures and enforcement of criminal law prohibitions in respect of events which have occurred  provide an indispensable safeguard.

319.     The Commission has already noted the defects in the forensic examination and report of Dr Fatih en (para. 302). It has found that there were no steps taken to substantiate the crucial dating of the bruise by way of histopathological analysis or to dissect and analyse other marks. There were no photographs which allowed verification of the external state of the body. Dr en also proposed the possibility that a cardiac resuscitation attempt had taken place without asking for verification that such had occurred. While Dr en referred the case to the Istanbul Forensic Institute, the 1st Specialist Committee did not look beyond his report. Dr Bilge Kirangil confirmed that they had the power to ask for further evidence or analyses. No such measures were requested. The Commission notes in particular that they sought no clarification of any possible resuscitation attempts before relying on this hypothesis in their report.

320.     As regards other aspects of the investigation, the Commission recalls that the public prosecutor took statements from the arresting officers, the custody officers on duty over the period of Agit Salman’s detention, and the officers who took Agit Salman to hospital. He took statements also from the applicant and her husband’s father, two other persons, Behyettin El and Ferhan Tarlak, who were detained at the same time and from two taxi-drivers who witnessed the arrest. Most of the statements were taken in May-June 1992, within two months of the death. On 19 October 1992 however, the Adana public prosecutor issued a decision not to prosecute. It stated, relying heavily on the Istanbul Forensic Institute report, that Agit Salman had a longstanding heart problem and that the superficial signs of trauma could have resulted from his arrest. Death resulted from the stoppage of the heart due to neurohumeral changes brought about by the pressure of the incident. Although he noted that Agit Salman had received direct trauma, there was insufficient evidence to justify the opening of a case.

321.     While the applicant’s appeal against this decision was rejected by the Tarsus Serious Crimes Court, the High Court of Appeals quashed it on referral by the Minister of Justice. A case commenced, on indictment, in 1994 in the Adana Aggravated Felony Court, listing ten officers as defendants. From the materials submitted the court sat on five days between 27 June and 26 December 1994, during which time evidence was heard orally from the applicant, her husband’s father, a number of the police officers and Dr Ali Tansı, while written statements from Ferhan Tarlak and Behyettin El were read out. While summonses were also issued in respect of the taxi drivers, Hasan etin and Abdurrahman Bozkurt, and the officer, Murat Pehlivanlı, they were not heard. The Court acquitted the ten officers on the basis that there was inadequate evidence. It referred to the forensic reports as indicating that Agit Salman had died of his previous heart condition compounded with superficial traumas, which could have derived from the arrest.

322.     The Commission considers that the investigation and subsequent criminal proceedings were flawed fundamentally by the defects in the forensic evidence and their apparent reliance on the opinion of the forensic authorities that a major injury  resulted from a cardiac resuscitation attempt, such opinion in fact constituting an unsubstantiated hypothesis.

323.     In these circumstances, the Commission finds that there has been a failure to provide an adequate and effective investigation into the circumstances of the death of Agit Salman.

Overall assessment

324.     The Commission finds that there has been a violation of Article 2 in that Agit Salman was deprived of his life while in custody and in that there was a failure to provide a proper investigation into his death.              The Commission finds it unnecessary in light of those findings to examine whether there has been any more general systemic or systematic failure to protect the right to life in this case.

CONCLUSION

325.     The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention in respect of Agit Salman.

E.As regards Article 3 of the Convention

326.     Article 3 of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

327.     The applicant submits that the medical evidence establishes that Agit Salman was subjected to ill-treatment amounting to torture whilst in the custody of Adana Security Directorate, in particular that he was subjected to “falaka” which consists of the repeated beating of the soles of the feet with a strong instrument and is known for its ability to cause severe pain and agony. In addition, he suffered a strong blow to the chest, with force sufficient to fracture his sternum and there is the possibility that he suffered electric shock treatment, though the latter cannot be conclusively proven due to the inadequacies of the post mortem examination and autopsy.

328.     The Government submit that the applicant's allegations are unfounded and that the evidence of Professors Pounder and Cordner cannot be relied upon.

329.     The Commission has had regard to the strict standards applied in the interpretation of Article 3 of the Convention, according to which ill-treatment must attain a certain minimum level of severity to fall within the provision's scope (Ireland v. the United Kingdom judgment, op. cit., p. 65, para. 162). The practice of the Convention organs has been to require compliance with a standard of proof  "beyond reasonable doubt" that ill-treatment of such severity has occurred (see para. 264(i) in fine).

330.     The Commission recalls that it has found very strong evidence that there was bruising on Agit Salman’s foot, consistent with beating, and that he suffered an injury to his chest while in custody  which was not the result of an attempted resuscitation. In light of its evaluation of the evidence, oral and written, it is satisfied, beyond reasonable doubt, that Agit Salman suffered serious ill-treatment during custody which is unaccounted for and which led in the circumstances to his death. Having regard to its findings in respect of the evidence of the police officers, the Commission draws very strong inferences that this ill-treatment resulted from the deliberate infliction of injuries in the course of interrogation. It has no doubt that the physical and mental anguish inflicted on Agit Salman as a result can be described as very serious and cruel suffering, falling within the special stigma of “torture” under Article 3 of the Convention (Ireland v. the United Kingdom judgment, op. cit. p. 66, para. 167).

CONCLUSION

331.     The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention in respect of Agit Salman.             

F.As regards Articles 6 and 13 of the Convention

332.     Article 6 of the Convention provides in its first sentence:

"1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

333.     Article 13 of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

334.     The applicant complains of both a lack of access to court contrary to Article 6 of the Convention and a lack of effective remedies in respect of her complaints under Article 13 of the Convention. She complains that her right to a civil remedy has been denied by the failure of the judicial authorities to conduct the prosecution in such a way as even to establish that her husband was the victim of torture, or unlawful killing, without which minimum determination the applicant is unable to claim with any prospect of success a civil remedy in respect of what happened. In addition, due to its fundamental flaws, the investigation into the death of her husband did not provide a thorough and effective investigation of the kind required by Article 13, nor effective access for the complainant to the investigatory procedure and the payment of compensation where appropriate. She further submits that the other cases before the Commission and Court establish beyond reasonable doubt that there are systematic and systemic violations of the right to an effective remedy which amount to a practice in violation of the Convention.[6]

335.     The Government rely on the proceedings which culminated in the acquittal of the police officers. They point out that the acquittal was pronounced within two years and eight months of the death and that the applicant did not appeal against the acquittal to the appeal court, which had previously quashed the decision not to prosecute.

336.     Having regard to the findings of the Court in previous cases (eg. Eur. Court HR, Aydin v. Turkey judgment of 25 September 1997, Reports 1997, para. 102, Kaya v. Turkey judgment of 19 February 1998, to be reported in Reports 1998, para. 105), the Commission has found it appropriate to examine the applicant's complaints about remedies under Article 13 of the Convention alone.

337.     The Commission notes that Article 13 of the Convention requires the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant the appropriate relief. The Commission recalls that, in concluding that there was a violation of Article 2 of the Convention, it found that the investigation and criminal proceedings concerning the death of Agit Salman were fundamentally flawed. It notes however that the Court has held that the requirements of Article 13 are broader than the procedural requirements of Article 2 to conduct an effective investigation (Kaya v. Turkey judgment, op. cit., para. 107). Where relatives have an arguable claim that the victim has been unlawfully killed in circumstances engaging the responsibility of the State, the notion of a remedy in Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure (see also Ergi v. Turkey judgment, op. cit., paras. 96-98).

338.     The Commission recalls its findings above on the inadequacies of the investigation, in particular, the defects in the forensic procedure, involving the failure to take photographs, and to carry out tests to aid in the establishment of the cause of marks on the body (para. 302). It observes that the forensic reports of Dr en and the Istanbul Forensic Institute  were relied on by the public prosecutor in his initial decision not to prosecute on the basis of lack of evidence of causation. Though this decision was overturned following referral to the High Court of Appeals, the Adana Aggravated Felony Court having considered the available evidence provided by the prosecution, acquitted the police officers, also on the basis of a lack of evidence that he had been tortured or that he died from anything but a heart attack compounded with superficial traumas when arrested. The Commission observes that the applicant was a complainant in these proceedings, where she was represented and which she attended in person. In view however of the inadequate evidence before the courts, and the fact that the applicant had already appealed unsuccessfully against the decision not to prosecute, the Commission is not persuaded that the possibility of a further appeal against the acquittal constitutes an effective remedy within the meaning of Article 13 of the Convention. The Commission finds therefore that the applicant has been denied an effective remedy in respect of the death of her husband, and thereby access to any other available remedies at her disposal, including a claim for compensation.

339.     In light of its findings above, the Commission finds it unnecessary to examine the applicant's complaints as regards an alleged practice of failure to provide effective remedies under Article 13.

CONCLUSION

340.     The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention.

G.As regards Article 18 of the Convention

341.     Article 18 of the Convention provides as follows:

"The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

342.     The applicant maintains that Article 18 imposes a requirement of good faith on the State Party. In this case, the evidence discloses a concerted attempt by the police officers involved in the arrest and detention of Agit Salman to create a fabricated account of what happened to bring about his cardiac arrest, which conduct is calculated, inter alia, to frustrate the ability of the Convention to secure the protection of the rights contained therein.  This is the ultimate abnegation of effective accountability, the rule of law and democratic values and represents a violation of Article 18 of the Convention.

343.     The Government deny that there is any factual or juridical basis for these complaints.

344.     The Commission has examined the applicant's allegations, and recalls that it has made findings concerning the evidence of the police officers, which substantiates to some extent her complaints. However, it does not find that this discloses any basis for the finding of a violation of Article 18 of the Convention.

CONCLUSION

345.     The Commission concludes, unanimously,  that there has been no violation of Article 18 of the Convention.

H.As regards former Article 25 of the Convention

346.     Former Article 25 para. 1 of the Convention provides:

"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions.  Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."

347.     The applicant states that she was called before the domestic authorities three times, on which occasions she was, inter alia, blindfolded, beaten, questioned about her application and explicitly told to drop her case before the Commission. This discloses an interference with the free exercise of her right of individual petition.

348.     In their submissions of 13 December 1996, the Government denied the allegations that the applicant had been subjected to intimidation. They referred to their earlier communication of 4 July 1996, which concerned the applicant’s legal aid application. They state that the authorities contacted the applicant to obtain verification of information included in her declaration of means submitted to the Commission in her legal aid and that this was necessitated by the absence of certification of the declaration of means required by Rule 3 of the Legal Aid Addendum to the Commission’s Rules of Procedure.  It was in that context that the Anti-Terror Department and Directorate of Security in Adana considered it necessary to contact the applicant.

349.     The Commission recalls that former Article 25 para. 1 imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Commission. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings.  In this respect, as in others, the Convention must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory (see Eur. Court HR, Cruz Varas and others judgment of 20 March 1991, Series A no. 201, p. 36, para. 99).

350.     The Commission would further emphasise that the right of individual petition guaranteed under former Article 25 of the Convention is of fundamental importance to the effective protection of the substantive rights and freedoms provided for in the Convention and its Protocols. Deliberate or repeated interferences with the free exercise of that right must be regarded,  in the Commission's view, with the gravest concern. Interference may also result from indirect pressure on applicants from State authorities. In particular, approaches by domestic authorities to applicants to question them about their applications in circumstances which may be construed as attempts to discourage or penalise the pursuit of complaints may lead to a finding that a Contracting State has failed to comply with its obligations under former Article 25 para. 1 of the Convention. In this context, the Court, having regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, has found that the questioning of applicants about their applications to the Commission amounts to a form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition in breach of former Article 25 of the Convention (see Eur. Court HR, Akdivar and others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1192 at pp. 1217-1219).

351.     The Commission recalls that it found the applicant to be a credible and reliable witness. It accepts her evidence that she was summoned by the authorities on at least two occasions concerning her application. The written statement provided by her representatives referred to two occasions, as did the oral evidence of Mehmet Salman.  Her oral testimony indicated three occasions but was consistent in asserting that it was only on the first occasion, when she was taken by the police, that she was ill-treated and told to give up her application. The documents provided by the Government substantiate that she was questioned by police officers at the Anti-Terror Department and on a second occasion by other police officers at the Security Directorate. While the Government contend that this questioning related to her request for legal aid and verification of her declaration of means, the Commission notes that the statement of 24 January 1996 drawn up the officers at the Anti-Terror Department is framed in far wider terms, including questions as to whether she had applied to the European Commission and who was involved in helping her.

352.     The Commission considers questioning of an applicant by the police about any aspect of an application to the Commission to be unacceptable, save in exceptional circumstances which have not been shown to exist here and in any event such questioning should only take place where the applicant is accompanied by her own lawyer (see also Ergi v. Turkey judgment, op. cit., para. 105, Comm. Rep. 20.5.97, para. 180).

353.     Such questioning may reasonably be regarded as intimidatory by applicants and thus, at the very least, discourage the exercise of the right of individual petition.  The Commission also finds no explanation of why it was necessary to question the applicant more than once about her declaration of means, and considers it remarkable that this task was, on the first occasion, carried out by the officers from the Anti-Terror Department.

354.     The Commission recalls that the applicant alleged before the Delegates that she was blindfolded, struck and kicked when she was taken to the Anti-Terror Department and also told to drop her case. It notes that the applicant’s son, Mehmet Salman, confirmed that his mother had told him that she had been blindfolded, kicked and told to give up her statement. Further, the applicant stated that she informed the public prosecutor about the ill-treatment. The Commission considers that her account is credible and not without substantiation.    However, in light of its findings above, it considers it unnecessary to make any specific findings as to the extent of the pressure exerted on the applicant. Indeed it is for the purpose of preventing the risk of such abuse that any contact by the authorities with an applicant be strictly limited and attended by safeguards, such as the presence of a lawyer.

355.     The Commission concludes that the applicant has been subject to pressure from authorities which constitutes a hindrance on her right of individual petition guaranteed under former Article 25 para. 1 of the Convention.

CONCLUSION

356.     The Commission concludes, unanimously, that Turkey has failed to comply with their obligations under former Article 25 para. 1 of the Convention.

I.Recapitulation

357.     The Commission concludes, unanimously, that there has been a violation of Article 2 of the Convention in respect of Agit Salman (see para. 325 above).

358.     The Commission concludes, unanimously, that there has been a violation of Article 3 of the Convention in respect of Agit Salman (see para. 331 above).

359.     The Commission concludes, unanimously, that there has been a violation of Article 13 of the Convention (see para. 340 above).

360.     The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention (see para. 345 above).

361.     The Commission concludes, unanimously, that Turkey has failed to comply with their obligations under former Article 25 para. 1 of the Convention (see para. 356 above).

M.-T. SCHOEPFER                      S. TRECHSEL

         Secretary                                       President

        to the Commission                    of the Commission

(Or. English)

 CONCURRING OPINION OF Mr. E. A. ALKEMA

I have voted for finding a violation of Article 2, the right to life, but only with respect to the manner in which the investigation into Mr. Salman’s death has been conducted.  My reasons are the following.

As to the responsibility for Mr. Salman’s death, the conditions for applicability of Article 2 set out in para. 312 of the report (intentional killing or the outcome of permitted use of force) have – in my opinion – not been met.  To quote from para 284: “There was no disagreement amongst the various doctors and experts that Agit Salman had an underlying heart disease”.  This heart condition – denied by the applicant was apparently not known to those responsible for Mr. Salman’s arrest and detention.

I readily accept that the circumstances as described in the report caused or could have caused the heart failure and consequently Mr. Salman’s death.  There is, however, no proof of an intentional killing.  Neither is there sufficient evidence that those involved in arresting and detaining Mr. Salman were using permitted force (para. 329).  To the contrary, the force exercised amounted, as is rightly concluded in paras. 326-331, to a clear violation of Article 3.  That force consisted of at least subjecting Mr. Salman to “falaka” and a strong blow to the chest which possible fractured his sternum (para. 327).  There is, however, no evidence that the officers in charge could and ought to have foreseen that their maltreatment would be lethal in effect.

Thus, the conditions for applying Article 2 exclusively to this maltreatment, however serious, are not fulfilled.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[2]  In various documents, his first name is spelt also as Bahyettin , Bahiyettin or Bayettin. For consistency, the spelling Behyettin is used throughout this text.

[3] At another point, he described Salman as saying that his heart felt squeezed, that he could not breathe, that he felt terrible.

[4]  Shortly before the adoption of this report the CPT’s report on its visit in October 1997 (CPT/Inf (99)2) was made public on 23 February 1999 with the authorisation of the Turkish Government.

[5]  While the Interrogation Team list included also Teyfik Firat, it appears from the documentary and oral evidence that he was absent that day.

[6]  The applicant refers to eleven cases in which the Court found a violation of Article 13 and a further six cases in which the Commission found a violation of Article 13.

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