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Publication:1996-VI, no. 26
Title:Aksoy v. Turkey
Application No:21987/93
Referred by:Commission; Respondent State
Date of reference by Commission:04-12-1995
Date of reference by State:12-12-1995
Date of Judgment:18-12-1996
Conclusion:Violation of article 3
Violation of article 5-3
Not necessary to examine article 6-1
Violation of article 13
No violation of article 25
Compensation under article 50 awarded

The facts of the case are disputed by the parties. It is, however, agreed that the applicant was arrested and taken into police custody in Kiziltepe Security Headquarters towards the end of November 1992. He was detained for fourteen days and released on 10 December 1992. According to the applicant he was subjected by the police, inter alia, to a form of torture known as 'Palestinian hanging' which involved being stripped naked and hung up by his arms. He also alleged to have been electrocuted in his genitals, kicked, slapped and verbally abused whilst in this position. He stated that as a result of the hanging he lost the use of his arms and hands. The Government, on the other hand, denied the applicant's claims and submitted that they were completely unsubstantiated. On 8 December 1992 the applicant was brought before the Public Prosecutor who, after questioning him, ordered his release. There is disagreement as to whether his physical condition at the time was mentioned at all before the Public Prosecutor and whether he had complained to him about his treatment during detention. However, on 15 December he was admitted to hospital and was diagnosed as having a bilateral paralysis of the lower arms which required the application of splints. He remained in hospital until 31 December when he discharged himself. On 21 December 1992 the Public Prosecutor had decided that there were no grounds to institute criminal proceedings against the applicant. On 20 April 1994, the Commission was informed by the applicant's representatives that Mr Aksoy had been murdered on 16 April. They alleged that on 14 April he had been threatened with death over the telephone in order to make him withdraw his application to the Commission and that this amounted to an interference with the effective exercise of the right of individual petition contrary to Article 25 of the Convention. The Court first dismissed the Government's preliminary objection that the applicant had failed to exhaust the domestic remedies. The Court found it understandable that the applicant had formed the belief that he could not hope to secure satisfaction through national legal channels, having seen the Public Prosecutor took no action although he was aware of the injuries and under the duty to investigate. Thus, there existed special circumstances which absolved him from the obligation to exhaust domestic remedies. With respect to Article 3, the Court considered that where an individual is taken into police custody in good health but is found to be injured at the time of release, it was incumbent on the State to provide a plausible explanation as to the causing of the injury. If such is not the case, a clair issue arises under Article 3 ECHR. The Court recalled that the Commission found, inter alia, that the applicant was subjected to `Palestinian hanging', in other words, that he was stripped naked with his arms tied together behind his back, and suspended by his arms. In the view of the Court this treatment could only have been deliberately inflicted. In addiction to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms, which lasted for some time. The Court considered that this treatment was of such a serious and cruel nature that it could only be described as torture. Therefore there has been a violation of Article 3 ECHR. With respect to Article 5(3) ECHR the Court noted that Turkey had given notice of a derogation under Article 5 to the Secretary General on 5 May 1992. The Court considered that the extent and impact of PKK terrorist activity in South East Turkey had given rise to `public emergency'. However fourteen days is an exceptionally long period of detention without judicial supervision. There were insufficient safeguards and it was not necessitated by the exigencies of the situation. The Court found that it was competent to examine of its own motion whether the Turkish notice of derogation met the formal requirements of Article 15(3) ECHR. In conclusion, it found that there has been a violation of Article 5(3) ECHR. The applicant had also alleged a violation of Article 6(1) ECHR since the Public Prosecutor had failed to investigate the allegation of torture. The Court found that the crux of this complaint concerned the lack of investigation and therefore it was more appropriate to consider this complaint in relation to Article 13 ECHR. In that respect the Court held that where an applicant has an arguable claim to have been tortured by agents of the State, the notion of an `effective remedy' entails, in addition to payment of compensation where appropriate, a thorough and effective investigation capable of leading to identification and punishment of those responsible. There had been a violation of Article 13 ECHR. With regard to the allegation that the applicant had been killed because of his application to the Commission, the Court found no evidence to support this claim. Therefore there was no violation of Article 25(1) ECHR.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)