Aydin v. Turkey

App. No. 23178/94, 25 Eur. H.R. Rep. 251 (1998).
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The applicant was a 17-year old Turkish national of Kurdish origin girl who lived with her parents in a village in south-east Turkey. Since 1985 serious disturbances had raged in this part of the country between the security forces and the members of a Kurdish separatist party. Turkey claimed that these had resulted in the deaths of over 4,000 civilians and nearly that number of members of the security forces.

A claimed that on 29 June 1993 village guards and a gendarme officer arrived in her village and four of them came to her home. They questioned her family about recent visits to the house by representatives of the separatists. The family were threatened, subjected to insults and then taken to the village square to join other villagers forcibly taken from their homes. A, her father (S) and her sister-in-law (F) were singled out, blindfolded and taken to the neighbouring town’s gendarmerie headquarters.

On arrival A claimed she was taken to a room, stripped of her clothes, put in a car tyre and spun round and round. Then, after being beaten and sprayed with cold water from high pressure jets, she was taken clothed but blindfolded to an interrogation room where an individual in military clothing forcibly removed her clothes and raped her. When he was finished she was in severe pain and covered in blood.

She was then ordered to get dressed and taken to another room but later brought back to the interrogation room and beaten for about an hour by persons who warned her not to report what they had done to her. On or about 2 July A, F and S were taken by security forces to the mountains, questioned about the location of separatist shelters. They were subsequently released separately and A made her own way back to her village.

On 8 July A, F and S went to the prosecutor’s office to lodge complaints about their treatment during detention. A alleged that she had been tortured by being beaten and raped and both F and S alleged that they had been tortured. The prosecutor initiated an investigation but gave significant deference to the security forces and sent A to a hospital to see whether she was still a virgin rather than to provide evidence of a rape. The investigation did not lead to any prosecution.

The applicant complained of violations of Article 3 (Prohibition of torture), Article 6 (Right to a fair trial), and Article 13 (Right to an effective remedy) under the European Convention on Human Rights because she was tortured, denied access to court, and offered no legal remedy for her damages.

A complained about her physical ill-treatment and rape, the denial of access to a court and the absence of an effective remedy. She also alleged that she and her family had been subjected to intimidation and harassment following the communication of her application by the ECmHR to Turkey and particularly after she was invited to give oral evidence. A claimed that (a) S was repeatedly asked A’s address by the prosecutor and, on occasion, by the police, (b) she and her husband were repeatedly called to the police station for no apparent reason, (c) their house had been searched three times, (d) they had been questioned about her application to the ECmHR, (e) she had been made to sign a statement of whose contents she was ignorant, (f) her husband was taken into custody twice in December 1995, being severely beaten on both occasions by the same three officers, (g) she, S, her husband and father-in-law were sent by the police to the prosecutor in January 1996 and questioned about a statement made by her husband and (h) there were incidents of harassment, including the stoning of her father-in-law’s house which neighbors attributed to the security forces.

The Commission established the facts on the basis of (a) written an oral submissions on admissibility and the merits, (b) oral evidence of eight witnesses taken by three delegates in Turkey, (c) A’s oral evidence taken by those delegates in Strasbourg, (d) the three medical reports, a medical report by an English doctor and a report by Turkish professors disputing the findings of the English doctor and (e) documents and statements from A and witnesses, plans as well as film of the gendarmerie headquarters and the original 1993 custody record.

[Adapted from INTERIGHTS summary, with permission]

The Court was satisfied with the factual record established by the Commission and found a violation of articles 3 and 13 but not 25(1).

The Court held that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 (Prohibition of torture) of the Convention. The Court stressed the special considerations of her sex and youth and the circumstances under which she was held.

Further, the Court found that the failure of the public prosecutor to conduct a thorough and effective investigation into the applicant’s allegations undermined the effectiveness of any available remedies, violating Article 13 (Right to an effective remedy) of the Convention. The fact that the applicant had not sought compensation in civil or administrative courts does not negate the prosecutor's failure to conduct a thorough investigation nor her ability to seek compensation in this court as she was entirely reliant on the prosecutor to assemble the evidence.

The Court found that because there was insufficient evidence that authorities intimated and harassed applicant and her family for launching the present complaint the applicant’s right of individual petition under Article 25 § 1 (Plenary Court) of the Convention was not violated. In light of this, the Court considered it unnecessary to examine the applicant’s complaints under Articles 28 § 1 (a) (Competence of Committees, unanimous vote to declare a case inadmissible without further examination) and 53 (Safeguard for existing human rights).

Finally, the evidence established by the Commission was insufficient to reach a conclusion concerning the existence of any administrative practice of the violation of Arts 3, 6(1), 13 and 25.

"83. While being held in detention the applicant was raped by a person whose identity has still to be determined. Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally."

"86. Against this background the Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention. Indeed the Court would have reached this conclusion on either of these grounds taken separately."

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