İlhan v. Turkey

The applicant alleged that his brother had been severely beaten by police when they apprehended him at his village and that he was not provided with the necessary medical treatment for his life-threatening injuries. He also complained of discrimination on the basis of his brother’s Kurdish origin.

In 1992, the applicant Nasır İlhan and his brother were apprehended by police during a police raid against PKK, the Workers’ Party of Kurdistan. They were severely beaten by Turkish police.

An incident report drawn up by the police stated that the applicant’s brother and another villager attacked by the gendarmes had failed to stop when ordered and that the brother had fallen down a slope, injuring himself. The report was signed by the operation commander and bore the apparent signature of the brother, even though he was illiterate and unable to sign his name. The brother was then put in detention for 36 hours without any medical treatment while his conditions kept on worsening. A couple days later, he was admitted for treatment to a nearby hospital. His conditions were still severe: the hospital report stated that the life of the patient, who suffered from left hemiparesis, was threatened. He was treated with drugs and discharged from hospital several weeks later.

A report from the day he was discharged stated that he was suffering from a 60% loss of function on the left side. His brother submitted to the Commission scans of his brain showing an area of brain atrophy.

The public prosecutor issued a decision not to prosecute the police officers, concluding that the brother’s injury resulted from an accident for which no one was at fault. He did not interview the brother or any police officer who had witnessed the alleged accident before issuing his decision.

The public prosecutor charged the brother with the offence of resistance to officers. The brother appeared before the Mardin Justice of the Peace Court. He accepted that the charge was true. He was then sentenced to a fine of 35,000 Turkish lira (TRL), which was suspended. The applicant İlhan had not been allowed to accompany his brother into the courtroom and his brother, who spoke Kurdish, was not provided with an interpreter during the proceedings.

The applicant alleged violations of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”), which safeguards the right to life, of Article 3, which prohibits torture, and Article 13.

The Court held that there had not been a violation of Article 2 of the Convention (right to life), because the use of force applied by the gendarmes when they apprehended the brother had not been lethal, so it did not rise to the degree required to constitute a breach of Article 2.

The Court held that there had been a violation of Article 3 of the Convention (prohibition on torture) because he had been kicked and beaten and struck at least once on the head with a G3 rifle. This had resulted in severe bruising and two injuries to the head, which caused brain damage and long-term impairment. Notwithstanding the visible injuries to his head and the evident difficulties which he had walking and talking, there was a delay in bringing him to a hospital. Given the severity of the ill-treatment, including the significant lapse in time before he received proper medical attention, the Court found that the brother was a victim of very serious and cruel suffering that may be characterised as torture.

The Court also held that there had been a violation of Article 13 of the Convention, which guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms. The Court found that the State was responsible under Article 3 for torture. The authorities thus had an obligation to carry out an effective investigation into the circumstances in which the brother had sustained his injuries. No such investigation was carried out by the public prosecutor. Moreover, there were a number of features about the brother’s incident report and the statements which were taken by the police which should have alerted the prosecutor to the need to investigate further, yet he had not probed further.

“The text of Article 2, read as a whole, demonstrates that it covers not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The deliberate or intended use of lethal force is only one factor, however, to be taken into account in assessing its necessity. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (see the McCann and Others judgment cited above, p. 46, §§ 148-49)” (pp. 18 -19, §§ B.1.73-74). The Court recalls that in the present case the force used against Abdüllatif İlhan was not in the event lethal. This does not exclude an examination of the applicant's complaints under Article 2. It may be observed that in three previous cases the Court has examined complaints under this provision where the alleged victim had not died as a result of the impugned conduct.” Paras. 74-75.

“The Court has accepted the findings of the Commission concerning the injuries inflicted upon Abdüllatif İlhan, namely, that he was kicked and 22 İLHAN v. TURKEY JUDGMENT beaten and struck at least once on the head with a G3 rifle. This resulted in severe bruising and two injuries to the head, which caused brain damage and long-term impairment of function. Notwithstanding the visible injuries to his head and the evident difficulties which Abdüllatif İlhan had in walking and talking, there was a delay of some thirty-six hours in bringing him to a hospital. 87. Having regard to the severity of the ill-treatment suffered by Abdüllatif İlhan and the surrounding circumstances, including the significant lapse in time before he received proper medical attention, the Court finds that he was a victim of very serious and cruel suffering that may be characterised as torture (see also Selmouni v. France [GC], no. 25803/94, §§ 96-105, ECHR 1999-V).” Paras. 86-87.