Aksoy v. Turkey

Judgment of the ECtHR, 18 December 1996
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Aksoy (A) claimed that in November 1992 he was taken into custody by twenty policemen after M (another detainee with them) had allegedly identified him as a member of the PKK which was engaged in a conflict with security forces for Kurdish autonomy. This conflict had resulted in nearly 8,000 deaths and there was a state of emergency in most of the region concerned. Turkey disputed the circumstances and the timing of A’s arrest, submitting that it was with thirteen other suspected terrorists, two days later and in the morning rather than shortly before midnight.

A claimed that, after a day at security headquarters, he was taken to anti-terrorist headquarters and kept with two others in a small cell with one bed.  A claimed that he was tortured when interrogated about whether he knew M. A submitted that as a result of this torture he lost the movement of his arms and hands and that his interrogators had ordered him to make movements to restore control but that his request to see a doctor was refused.

A was seen by a doctor several days later and the report stated in a single sentence that he bore no traces of blows or violence. Turkey submitted that there were fundamental doubts as to A being ill-treated in police custody and that, shortly before his release, he had been brought before the public prosecutor, signed a statement denying any involvement with the PKK and made no complaint about having been tortured. A submitted that the prosecutor had insisted that he sign a statement whose contents were untrue but that he had told him that he could not because he could not move his hands.

After his release in December 1992 Awas admitted to a hospital and was diagnosed as suffering from paralysis of both arms caused by nerve damage in the upper arms. Turkey submitted that A left the hospital without having been properly discharged, taking his medical file with him. In the meantime the prosecutor had decided that there were no grounds to institute criminal proceedings against him but eleven of the others detained were charged. No criminal or civil proceedings were ever brought in the Turkish courts in relation to A’s alleged ill-treatment.

A was shot dead in April 1994 and his representatives alleged that his death was a direct result of persisting with his application despite being threatened in order to make him withdraw it.

The Commission, after evaluating oral and documentary evidence concluded: (a) that it was not possible to establish the exact date of A’s arrest but he had been detained for at least fourteen days; (b) A was diagnosed with paralysis and left hospital without having been properly discharged, (c) there was no evidence of disability before his arrest or of any untoward incident between his release and admission to hospital, (d) his injuries could have had various causes but the paralysis was not a common condition and was consistent with the way in which he was alleged to have been suspended by his arms, (e) the evidence from a police officer and prosecutor that it was inconceivable that A could have been ill-treated in any way was unconvincing since it gave the impression that they were not even prepared to consider the possibility of it occurring at the hands of the police, (f) Turkey offered no alternative explanation for A’s injuries and (g) there was insufficient evidence for conclusions to be drawn with regard to the alleged electric shocks and beatings but it did seem clear that he had been kept in a small cell with two others, sharing a bed and blanket, and that he had been kept blindfolded during the interrogation.

Turkey entered a derogation under Art 15 in August 1990 because of terrorist activity and this applied to Arts 5,6,8,10,11 and 13. The only measure invoked with respect to Art 5 concerned a power to require a person to settle outside the state of emergency region. This derogation was modified in December 1990 so as to apply only to Art 5. It was a criminal offence for a government employee to subject someone to torture or ill-treatment and illegal acts by civil servants could give rise to civil liability. Acts and decisions of the administration were subject to judicial review and there was liability for the damage they caused but governors within a state of emergency region could not be held criminally, financially or legally responsible for their decisions or acts connected with the exercise of emergency powers. The Commission found breaches of (15-1) Art 3, (15-1) Art 5(3) and (13-3) Art 6(1) but (13-3) that no separate issue arose under Art 13. It also found no further action was needed in respect of the alleged breach of Art 25. Turkey objected that A had failed to exhaust domestic remedies in that he had not brought a criminal prosecution for torture or brought a civil action or administrative proceedings in respect of it.


[Adapted from INTERIGHTS summary, with permission]

The Court held:

(1) that, having regard to hearing of evidence by the Commission and its delegation, it should accept the facts as established by the Commission;

(2) that, although there were various remedies against ill-treatment of detainees, the Commission found that A was suffering from paralysis at the time of his interview with the prosecutor;

(3) (8-1) that, having regard to the fact that (a) the prosecutor chose to make no enquiry as to the cause of injuries that must have been clearly visible despite being under a duty to do so, (b) this omission took place after A had been detained in police custody for at least fourteen days without access to legal or medical assistance or support and (c) these circumstances alone gave A cause to feel vulnerable, powerless and apprehensive of the representatives of the State and to believe that he could not hope to secure concern and satisfaction through national legal channels, there existed special circumstances absolving him from his obligation to exhaust domestic remedies;

(4) that it was, therefore, unnecessary to examine A’s claim that there existed an administrative practice of withholding remedies in breach of the ECHR;

(5) that, having accepted the Commission’s findings of fact, a clear issue arose under Art 3 where a State failed to provide a plausible explanation where an individual is taken into police custody in good health but is found to be injured at the time of release;

(6) that, having regard to the fact that (a) the Palestinian hanging could only have been deliberately inflicted and required a certain amount of preparation and exertion to carry it out, (b) it appeared to have been administered with the aim of obtaining admissions or information from A and (c) the medical evidence showed that it led to a paralysis of both arms lasting for some time in addition to the severe pain which it must have caused at the time, this treatment was of such a serious and cruel nature that it could only be described as torture;

(7) that, given the gravity of this conclusion, it was not necessary to examine A’s complaints of other forms of ill-treatment;

(8) (8-1) that there was, therefore, a violation of Art 3;

(9) that the period of fourteen or more days during which A was detained without being brought before a judge or other judicial officer clearly did not satisfy the requirement of ‘promptness’ in Art 5(3);

(10) that the particular extent and impact of the PKK terrorist activity in South East Turkey had undoubtedly created, in the region concerned, a ‘public emergency threatening the life of the nation’;

(11) that, although the investigation of terrorist activities undoubtedly presented the authorities with special problems, it could not accept that it was necessary to hold a suspect for fourteen days without judicial intervention since (a) this period was exceptionally long, (b) it left A vulnerable not only to arbitrary interference with his right to liberty but also to torture and (c) no detailed reasons had been adduced as to why the fight against terrorism in this region rendered judicial intervention impracticable;

(12) that, given (a) the denial of access to a lawyer, doctor or friend and (b) the absence of any realistic possibility of being brought before a court to test the legality of the detention, there were insufficient safeguards available to A and he was left completely at the mercy of those holding him;

(13) that, notwithstanding the unquestionably serious problem of terrorism and the difficulties faced by Turkey in taking effective measures against it, the exigencies of the situation did not necessitate the holding of A on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer;

(14) that, in view of this holding, it was unnecessary to rule on whether the notice of derogation contained sufficient information about the measure allowing A’s detention to satisfy the requirements of Art 15(3);

(15) (8-1) that there was, therefore, a violation of Art 5(3);

(16) that the right of access to a court under Art 6(1) applied to a civil claim for compensation in respect of ill-treatment by State agents;

(17) that, as A did not even attempt to bring civil proceedings for damages in respect of his ill-treatment, it was not possible to determine whether or not the civil courts would have been able to deal with his claim had he brought it before them;

(18) that, given (a) the previous finding, (b) the fact that the crux of A’s complaint concerned the prosecutor’s failure to mount a criminal investigation and (c) A’s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress, it was more appropriate to consider the complaint about access to a court in relation to the more general obligation under Art 13;

(19) that the finding that there were special circumstances absolving A from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South East Turkey;

(20) that judicial notice should be taken of (a) the fact that allegations of torture are extremely difficult to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence and (b) the fact that an individual will often have had his capacity or will to pursue a complaint impaired after having been ill-treated in this way;

(21) that, where an individual has an arguable claim that he has been tortured by State agents, the notion of an effective remedy 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 to the investigatory procedure;

(22) that, having regard to the fact that (a) the prosecutor ignored the visible evidence before him that A had been tortured, (b) no evidence had been adduced of any other action being taken despite the prosecutor’s awareness of A’s injuries and (c) such an attitude from a State official in the circumstances of A’s case was tantamount to undermining the effectiveness of any other remedies that might have existed, the lack of an investigation meant that A was denied an effective remedy in respect of his torture allegation;

(23) (8-1) that there was, therefore, a violation of Art 13;

(24) that, although it was of the utmost importance for the effective operation of the individual petition system instituted by Art 25 that applicants or potential applicants can communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints, the Commission was unable to find any evidence that A’s death was connected with his application or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Art 25(1) and no new evidence in this connection was presented to the Court;

(25) that it could not find, therefore, that there had been a violation of Art 25(1);

(26) that the evidence established by the Commission was insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of Arts 3,5(3),6(1),13 and 25(1);

(27) (8-1) that, in view of the extremely serious violations of the ECHR suffered by A and the anxiety and distress undoubtedly caused to his father, he should be awarded the full amounts of compensation sought, namely TL 16,635,000 for medical expenses, GBP 40 for loss of earnings and GBP 50,000 for non-pecuniary loss;

(28) (8-1) that he should also be awarded his costs and expenses less any amounts received by way of legal aid from the CoE not taken into account in his claim; and

(29) (8-1) that, in respect of the sums payable in Turkish lira and sterling, the statutory rates of interest applicable in Turkey and England and Wales respectively are 30% and 8% per annum.


[Adapted from INTERIGHTS summary, with permission]

INTERIGHTS Comment: As in Akdivar v Turkey (Home, supra), the Court declined to conclude that there was an administrative practice which would excuse the non-exhaustion of domestic remedies but there can be little doubt that A’s situation did constitute special circumstances having the same effect. Judge Gölcüklü dissented on this point as he did in Akdivar. The conclusion that Turkey was responsible for A’s injuries inevitably followed from the Court’s rulings in Tomasi v France ((1994) 8 Interights Bulletin 13) and Ribitsch v Austria ((1996) 10 Interights Bulletin 144) and the means by which they were inflicted could not be regarded as anything but torture. The violation of Art 5(3) is an important reminder that even in an emergency there are limits to the time in which detention is not subject to judicial supervision; with this ruling and that in Brannigan and McBride v United Kingdom ((1995) 9 Interights Bulletin 56) it is clear that this is likely to be nearer one week rather than two. It is improbable that, even if there had been appropriate safeguards in this, the latter limit would have been accepted. The Court understandably read the obligation to investigate torture allegations found in UNCAT Art 12 into Art 3 of the ECHR; it is consonant with the strict scrutiny required where torture is involved (see Chahal, supra) and is an essential prerequisite to an effective remedy under Art 13. The lack of response to clear evidence of torture justified the finding that Art 13 had been violated and the Court was (as Judge De Meyer’s observed) unduly reticent on the Art 6 complaint; the finding on Art 26 demonstrated that access to a court for A was improbable. As the Akdivar case indicated, the facts surrounding alleged violations of Art 25(1) will be contentious but the circumstances in this case were less compelling, not least given the absence of independent evidence. The formulation of the compensation damages goes close to recognising the concept of exemplary damages