AS TO THE ADMISSIBILITY OF
Application no. 34382/97
The European Court of Human Rights (First Section) sitting on 8 June 1999 as a Chamber composed of
Mrs E. Palm, President,
Mr J. Casadevall,
Mr Gaukur Jörundsson,
Mr C. Bîrsan,
Mr P. Lorenzen,
Mr R. Maruste, Judges,
Mr F. Gölcüklü, ad hoc Judge,
with Mr M. O’Boyle, Section Registrar;
Having regard to Article 33 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 January 1997 by the Government of Denmark against the Government of Turkey and registered on 8 January 1997 under file no. 34382/97;
Having regard to the reports provided for in Rule 48 § 1 of the Rules of Court;
Having regard to the observations on the admissibility of the application submitted by the respondent Government on 20 March and 17 April 1997;
Having regard to the observations in reply submitted by the applicant Government on 12 June 1997;
Having regard to the additional observations and documentary material submitted by the respondent Government on 27 June and 29 September 1997, 16 April and 10 September 1998 and 23 February 1999 and by the applicant Government on 29 June 1998 and 24 and 26 March 1999;
Having regard to the parties’ oral submissions at the hearing on 27 April 1999;
Decides as follows:
On 7 January 1997 the applicant Government submitted the application to the European Commission of Human Rights. It contained the following requests:
“The Government of Denmark requests the Commission to examine the treatment by Turkish authorities of a Danish citizen, Mr Kemal Koç, during the period of 8 July 1996 to 16 August 1996, when he was detained in Turkey, and in particular the treatment Mr Koç was subjected to on 8 and 9 July 1996.
Furthermore, the Government of Denmark requests the Commission to examine whether the interrogation techniques applied to Mr Kemal Koç are applied in Turkey as a widespread practice designed to extract under severe pain and suffering confessions and other statements, whether incriminating or not, whether true or false.”
The allegations of Mr Kemal Koç
The facts relating to Mr Koç’s stay in Turkey in July and August 1996 are in dispute between the parties. The applicant Government rely primarily on Mr Koç’s own explanations which are summarised below. The respondent Government have not, in their observations on the admissibility of the application, expressed themselves in this respect, but have formally stated that “subject to the fact of the custody and detention period of Mr Koç ... it does not agree with any of the allegations made by the [applicant] Government with respect to ill-treatment of Mr Koç while in Turkey in July/August 1996.” The respondent Government have reserved their right to discuss the allegations made at a later stage.
Mr Koç was born on 10 January 1957 in Turkey. He moved with his parents to Denmark on 6 May 1972 and has since lived in Denmark. Mr Koç acquired Danish citizenship on 10 February 1992 by naturalisation. He is married and has two children. The family resides in Copenhagen. Mr Koç is active in the Danish-Turkish community and is currently a board member of Fey-Kurd (the Union of Kurdish Associations in Denmark (KOMAL)). He is also a member of the Danish political party Enhedslisten.
On 3 July 1996 Mr Koç’s brother was killed in a traffic accident
in Turkey. When the family in Denmark was informed thereof it
was agreed that, together with three brothers, Mr Koç should attend
the funeral in Turkey on 6 July. Together with one of his brothers,
Mr Koç left Copenhagen for Ankara, via Istanbul, on 5 July. However,
problems arose at the airport in Istanbul where a data screen showed
that he was wanted by the Turkish authorities. An employee at
the airport advised him to continue to Ankara in the hope that the matter
would be clarified there. Upon arrival at the airport in Ankara,
he was told once more that he was wanted, and he was detained at the
airport for 16 hours. Over a mobile telephone he succeeded in
informing the Danish Embassy in Ankara about the detention. While
he was staying at the airport, he heard other persons being beaten and
crying for help, and therefore got increasingly worried about what was
going on. After the 16 hours had elapsed, he was allowed to leave
the airport, because a relative of his, who is a lawyer, had made an
enquiry and guaranteed his stay. However, Mr Koç’s passport
was confiscated before he could leave the airport. Due to the
detention, he never managed to attend the funeral, but instead, he
stayed with his mother until 8 July. On that day, he went to the local police station which he had been told to do. There he was fetched by three civilian police officers who drove him to the police headquarters in Ankara.
Outside the police headquarters he was blindfolded and taken to an underground car park. He was led up a staircase into a cool room where he was ordered to sit down. His hands were tied behind the back of the chair. A voice said: “Welcome to Paradise, here is neither a God nor a prophet, we are the ones who decide”. He was interrogated about his connection to the PKK and stated that he was not a member of the PKK, but worked for a Kurdish cultural organisation which was legal in Denmark. He added that had he been a member of the PKK, he would not have travelled to Turkey. He was interrogated about his family and asked to give the names and professions of persons living in Copenhagen. Subsequently, he was taken to another room and ordered to take off his clothes. At first he refused to do so, but was then undressed by some other persons. Standing naked, with his hands tied behind his back, he was suddenly and unexpectedly hit by a very cold and vigorous jet of water. Very soon he lost his sense of time, but assumes that he was exposed to the jet of water for about 10-15 minutes. Thereafter he was taken to another room where a very forceful jet of hot air was directed against his naked body. He could hear a machine, probably a ventilator. The heat affected his body in a very unpleasant way and at the end he got a feeling of his skin melting. He was subsequently dressed and placed in another room for further interrogation.
Still blindfolded, Mr Koç heard various voices. One of them said to him: “You are a good person, think of your wife and your shop, just say that you are a member of the PKK”. He denied that and explained that he was a member of a Danish political party. Shortly afterwards he was placed in another room and felt that he stepped on a soft, rubber-like mat. A voice ordered him to stand still, after which he heard a slight whistling noise and was at the same time hit from behind and flung against something soft and rubber-like, which he thinks was a wall clad with rubber. He fell a couple of times, was ordered to stand up, and the treatment was repeated. Slowly he forgot time and got confused. He cannot remember exactly how many times he was hit by the heavy object on his back and his neck.
Mr Koç was then returned to an interrogation room, and a voice said: “You must accept to be good, then we shall behave nicely”. He answered that he would not accept any false statements. He felt a metal object against his right temple, there was a click, as if a gun was triggered. A voice said: “If you are wise, you will accept our accusations”. He did not reply and felt again a metal-like object against his temple. A voice said: “We give you one last chance; if you don’t accept that, you will be thrown out from a building, and your relatives will be told that you have committed suicide”. One of the persons present said: “We will give you a set of headphones, and you are to repeat what is being said”. Due to the situation he accepted to repeat what was said in the headphones. He heard a slightly husky voice and repeated the statements.
Subsequently, he was asked why he did not have a double citizenship and why he had not done his military service in Turkey. A voice calmed him by saying: “It is not serious, we shall release you”.
He was thereafter taken down a staircase with a guard at his side.
The guard asked him what he had done. He did not reply, but said
that he could not see. The person let go of him, and shortly afterwards
he felt a heavy kick that made him fall down the staircase, and he
hit his right arm. He was led around a basement and had a feeling of walking in a labyrinth before he came to a cell. After some time in this cell, he was taken to a floor higher up in the building. A voice ordered him to sign some papers, after which he would be released. At first Mr Koç refused to sign the papers saying that he could not read them, but he was told that if he refused, he would undergo more interrogations. He then signed the papers, about 10 sheets of paper. When the cloth over his eyes was removed enough for him to sign, he saw on a police officer’s watch that the time was 6.30, and thereby estimated that around 12 hours had elapsed since his arrival at the police station. During the whole course of interrogation he was blindfolded and had his hands tied behind his back. He could hear sounds as if start buttons of tape recorders or video recorders were pushed and, he believes, that the interrogations were taped.
Back in his cell he received a visit by a tall, well-dressed person who said to him that he would be released the same day because he had done nothing illegal. At the same time this person said to him that he would be offered substantial financial support. In return, he should assist in giving information on Kurdish activists in Denmark. He refused to accept the offer, but the person said to him that even a little information was of great importance to the Turkish State. He suggested that they met in a café when Mr Koç had been released. The person said that he represented the Turkish secret service.
After having had his fingerprints and photo taken, he was brought by car to a court building where at first he had to wait in a basement. A doctor checked him and asked if he had been exposed to torture. He refrained from telling about it. The doctor issued a medical certificate which certified that the medical examination of Mr Koç revealed no traces of violence or force on his body. Mr Koç met a representative from the Danish Embassy who asked him how he had been treated. He said that he was feeling bad, and that the representative surely knew about the conditions in Turkey. Thereafter, he was brought before the public prosecutor where he had his confession read out, upon which he was taken outside the room and waited for a few minutes. A judge checked his identity following which he was told that he was to be remanded in custody and was subsequently taken to an ordinary prison.
The remand in custody lasted from 9 July until 15 August 1996. He spent the first two days in the prison in a small cell measuring 6-8m2. There were two other inmates and an open toilet in the cell, which smelt so horrible that he threw up when entering. The food was inedible. He had the impression that the other inmates were ordinary criminals. They advised him to ask to be taken to a larger cell in the prison. His wish was complied with and he was moved to a large cell with about 80 inmates.
Fifteen of the prisoners in the cell were on a hunger strike and while Mr Koç stayed there, one of them died. On that occasion he noted that the prison guard did not open the door of the cell until five hours later for the corpse to be removed. The food was edible, because the prisoners made it themselves. The light was on day and night, and in the evening the inmates found some old rags to cover their eyes so that they could sleep. The cell was constantly surveilled by soldiers with machine guns. The bed linen was infested with vermin, and the prisoners’ skin was swollen after insect bites. It was difficult to sleep at night, because some prisoners cried out for help, some of them in severe pain who, according to Mr Koç’s impression, had also become mentally ill.
Following a court session on 15 August 1996 during which it was decided not to prolong the detention on remand of Mr Koç (see below) he was returned to the prison together with other prisoners. A few hours later he was told that he would be released. He was brought to the prison governor, and a civilian police officer came to fetch him. At first the civilian police officer refused to sign a receipt for having fetched him, but when the governor insisted, the receipt was signed. The civilian police officer took him out through a back door, while Mr Koç’s relatives and a representative from the Danish Embassy were waiting at the main entrance. Two civilian police officers drove him out through a back entrance of the prison and drove around for about an hour in a part of the city which Mr Koç did not know. On the way he heard them discuss that the press should not receive any information, and that they had a friend in the neighbourhood whom they might visit. After some time the police officers were ordered back to the police headquarters via their walkie-talkie, and they returned to the parking lot in the basement where Mr Koç had been taken after his arrest. He went up several stairs in the building, and as he saw signs in English, he assumed that this was the security department. A police officer asked him again why he had not done his military service in Turkey. After a while he was brought to a room with 15 other persons. Nearly all of them were Turkish. They told him that some of them had been there for 8 to 14 days, and that their relatives did not know where they were.
The next morning he was brought to another room, where his lawyer was present, informing him that he would leave for Denmark the same day. He would be fetched by a car from the Embassy and driven to the airport. However, 5 to 6 hours later he was told by an inspector that he would be sent to Denmark, and that the authorities would drive him to the airport. At the same time, the inspector added that if he said negative things about Turkey, it would be dangerous for him. Shortly afterwards, three civilian police officers drove him in a civilian car to the airport, where he had the possibility to talk briefly with his family, before he was taken to the plane.
The medical examinations and reports
Upon Mr Koç’s return to Denmark on 16 August 1996 the Danish Ministry for Foreign Affairs, on 20 August 1996, contacted the Rehabilitation Research Centre for Torture Victims in Copenhagen (hereinafter called the RCT). With the consent of Mr Koç he underwent an examination there. From 20 August until 26 September 1996 he had six sessions with the chief psychiatrist. Furthermore, he was examined by the RCT’s general practitioner and chief physiotherapist. Subsequently, Mr Koç was referred for examination by the chief neurosurgeon at the State Hospital in Copenhagen.
The medical report of the RCT of 11 October 1996 reads as follows:
Today, when Kemal Koç recollects the interrogations and the imprisonment, there are especially three situations which he recalls as being extra frightening, because he felt he was in danger of his life:
1: When he was threatened to be thrown out of a window in a tall building.
2: When a pistol-like object was pressed against his temple.
3: The hour after release, during which he was driven around in an unknown part of town, and when the two accompanying police officers talked about visiting a friend.
Moreover during the period of time from the release and until he was on the plane, he felt that anything might happen to him.
Kemal Koç’s present physical complaints:
After Kemal Koç returned to Denmark, he has had a number of mental as well as physical complaints.
He has suffered from a constant headache of the same intensity during the whole period of time.
For the same period of time he has had symptoms from the back and extremities, which were very pronounced immediately after the torture, but the symptoms diminished spontaneously with time. Within the last two weeks prior to the examination, these symptoms have however become gradually worse again. The symptoms are as follows:
1: Constant pain in the back of the neck and back, which on both sides spreads out over his shoulders and further out along the back and outer side of the upper arm and forearm and diffusely down into all fingers. The symptoms are mostly pronounced on the right side, and furthermore he has a pain in his right elbow which he relates to falling where he got a direct blow to the elbow in connection with the torture. He has also a feeling of lesser and more diffuse strength in his arms than before, and sometimes things have slipped out of his hands.
2: Constant pain in the back, from the small of the back down to the sacrum. The pain is located near the midline and radiates down over both buttocks, along the back of the thighs to knee-level. No pain from knee-level downwards.
3: Constant headache, which increases in intensity during the day and is worse late afternoon/in the evening. The headache may be accompanied by periodical dizziness and a feeling of insecurity, which, however, never resulted in his falling over. Moreover, he has a constant murmuring noise in the middle of his head, which can be drowned when there are other noises around him. Thus, he is mostly aware of it, when everything is quiet. He has not noticed any hearing disability.
4: Contrary to before, his eyes get tired when he is reading. If he reads more than 3 to 4 pages, his eyes get irritated and suffused with tears, and he feels that he has to strain his eyes very much in order to [look fixedly at] the text.
5: Limitations in daily functions: Before, he was able to manage his small shop by himself. Now, he can no longer carry the boxes with beers and sodas and has therefore had to employ an assistant in the shop. He can only stand up for a maximum of 15 minutes at a time, and he must lie down - which he does several times a day - because of a pain in his back and back of the head. He has practically never used analgesics or any other kind of medicine, but has now to take Kodimagnyl tablets 3 to 4 times every day in order to keep the pain down.
Objective physical findings:
Chief Neurosurgeon [MJ], who on 27 September 1996 made a neurosurgical examination, [made] the following objective findings:
‘General appearance: healthy and in accordance with his age. He cooperates well when taking the anamnesis and during the objective examination. He describes his symptoms in a reliable and subdued way.
Normal findings as regards visual field, mobility of the eyes, sensorial and motor function of the face. Normal function of tongue and soft palate. Speech normal, without dysartry.
Slightly antroflect, forced posture of the head. Flexion reduced with appr. 25%, provoking a tiring pain in the back of the neck. Considerably reduced of bending backwards. Rotation of the head is only reduced with slightly 1/3, which results in less pain than during flexion/extension. Upon palpation there is soreness of the muscle insertions at the cranio-cervical border, at the insertion of the sternocleid on the mastoid, bilaterally of the paraspinal muscles, going out to the edges of the trapezius muscles. Forced foramen compression-test is negative.
Can barely get the arms vertically up above the head, because that accentuates the pain in the back of the neck. There is a normal and symmetrical muscle-relief of both arms, and the muscle-tonus is equal and normal in both upper extremities. Diminished force, symmetrically in both arms because of pain, but no pareses. Deep reflexes weak and equal. The patient states decreased tactile sense of the upper arm, the dorsal side of the forearm, the whole of the hand and in all five fingers on the right side. The decreased tactile sense only relates to when touched, as there is normal thermal sense and vibration sense. The deep reflexes are very weak, but equal on both sides. The right elbow is found to be with a normal contour, with normal active and passive joint motility; however causing pain.
curvatures in the saggital plane. Motility in flexion reduced
with about 50%, in accordance with distance fingers-floor only to the
knees. Bending backwards considerably reduced. Rotation
to both sides nearly to normal. Palpatorical soreness to the erector
spinae musculature on both sides. Ordinary
walking slightly impaired because of pain but otherwise normal. Walking on heels and toes is not possible because of pain in the back and buttocks. When examining the patient on the couch, he can lift his legs with the knees stretched until 10-15 degrees, but that causes pain in the lumbar-gluteal region. Manipulation of the legs on the bent knees and hips also causes considerable pain. A normal and symmetrical muscular relief is felt in both legs. The patellar reflexes are weak, however equal on both sides. The Achilles reflexes are normal and symmetrical. The force of the muscles varies due to pain reaction from the back and buttocks. However, full force can be demonstrated symmetrically for a short time, thus there are no pareses. On the left side, the patient states decreased tactile sense on the outer side of the thigh, the inner and outer side of the leg and on most of the foot, except on the outer side of the edge of the foot.
X-ray examination of the cervical, thoracical and lumbar vertebral column and of the right elbow demonstrates no fractures or sequelae to any trauma. Practically no changes due to spondylosis are found.’
Kemal Koç’s present psychological complaints:
At the first conversation on 20 August 1996, Kemal Koç’s wife described how she found that her husband had changed mentally: he talks more slowly than before, and furthermore he sleeps poorly at night.
Kemal Koç states himself the following mental complaints, which have remained unchanged during the period of examination:
1: Forgetfulness, the result of which is that he has to work more slowly in his shop. Thus, contrary to before, he can no longer remember more than one thing at a time, and therefore has to serve the customers more slowly.
2: He suffers from nightmares every night, in which he dreams that he is being suffocated. After such nightmares he wakes up bathed in sweat and sometimes screaming. When he falls asleep again, he has a nightmare again, during which he thinks that he is not going to survive. He therefore has a poorer sleep than before, and he does not feel rested when the following day starts.
3: Reduced ability to concentrate which influences his ability to carry out daily functions. Moreover, he is not able to read papers to the same extent as he did before.
4: He thinks and talks more slowly than before, and now often has to search for Danish words, despite the fact that he has lived in Denmark for 24 years and has spoken Danish very well, and even during a period of time been a teacher of the Danish language.
5: He gets very tired very quickly and can therefore only manage to work less and has to rest frequently.
6: Kemal Koç says that he has a changed personality. The greatest change is that he frequently, i.e. at least once a day, is disturbed by reviving torture episodes. He especially has frequent re-activations of the moments during which he thought that he would not get out of the prison alive. This is especially the case with the situation, in which he was threatened to be thrown out of a window, and then to have a pistol-like object against his temple, and furthermore the hour after his release when he was driven around an unknown area of the town and was frightened of being killed. He moreover suffers from a feeling of not being able to manage things. He is also afraid of the threats the Turkish police made to him if he told anybody about what had happened, that these threats should be carried out. Furthermore, he feels that he does not function so well in the family as he did before, among other things he does not feel like talking with the family members about every day events.
Objective psychological examination, performed by the signee:
Kemal Koç does not present any signs of mental illness. He dresses normally, has normal body weight and seems well-trained, but has a slightly stooping posture. He seems to have normal intellect and is subdued, but yet shocked by the things he has been exposed to and by the things the co-prisoners described about the treatment they had had by the Turkish police when in custody. It is evident that he has to concentrate a lot to remember the events, and in between he has to search for words which he remembered easily before.
Kemal Koç’s description of what happened during the imprisonment and the interrogations has been constant from one conversation to the next, and there has not been any contradictory information.
His description of the physical and psychological torture methods he has been exposed to and the objective physical and psychological findings are in accordance.
His mental and physical sequelae after torture are totally in accordance with the torture sequelae described in the literature and with the sequelae found in other clients at the Rehabilitation Centre for Torture Victims who have been exposed to similar assaults.
I am therefore able to state with great certainty that he has been exposed to physical and mental torture while in the custody of the Turkish police.
After the examination, Kemal Koç now receives treatment at the Rehabilitation Centre for Torture Victims.
The neurosurgical medical statement of 23 October 1996 from Chief Neurosurgeon MJ of the State Hospital in Copenhagen reads as follows:
“Upon request by the Rehabilitation Centre for Torture Victims (RCT) I hereby forward a neurosurgical medical statement for the above-mentioned in order to evaluate the extent of the sequelae after imprisonment and torture in July/August 1996.
I know Kemal Koç (KK) from the medical examination performed at the out-patient neurosurgical clinic at Rigshospitalet on 27 September 1996 at which KK was examined with a view to the neurosurgical and conservative treatment possibilities of his condition. At the examination I found pain in the musculature and joint structures in the back of the neck and shoulders, right elbow and lumbar region and buttocks, resulting in reduction of motility and impaired functioning. There were no signs of damage of the central nervous system, nerve roots or peripheral nerves. His condition could therefore not be relieved by any neurosurgical treatment, and conservative treatment was recommended.
A specific evaluation has now been requested of the connection between the torture exposure described, KK’s symptoms and the objective findings at the neurosurgical examination. The torture exposure has been described in detail elsewhere in the case. In summary, the torture exposure comprises the following categories:
1: Thermal exposure to both cold and heat.
2: Mechanical affect of the vertebral column, especially focused to the back of the neck and small of the back with acceleration/deceleration components in the form of repeated beatings, kicks, forced falling and being flung around by heavy objects, especially directed against the cervical and lumbar part of the vertebral column. A fall episode caused direct traumatisation of the right elbow in the form of twisting/blow.
3: Forced, severe deterioration of general life conditions during imprisonment in the form of being locked up in cramped surroundings, insufficient and inedible food, reduced possibility to sleep and rest, including exposure to electrical light day and night, and severely deteriorated general hygienic conditions.
4: Psychological torture, both direct threats and mock execution in the form of mental sequelae to the somatic torture described.
At the neurosurgical examination of KK on 27 September 1996 the symptoms and the objective findings were consistent with a syndrome of muscular and joint overloading, by far related to the axial part of the locomotor apparatus around the cervical vertebral column and the lumbar and gluteal regions. The symptoms and the findings are consistent with the mechanical acceleration/deceleration affects focused against the vertebral column described in the above point 2. I have not found any competitive reasons for his condition except the torture described.
I have not at the examination been able to find somatical sequelae to the thermal torture and deteriorated general conditions described (points 1 and 3). The evaluation of the mental sequelae after the torture described lies outside my expert field.
Dept. of neurosurgery
On 13 November 1996 the Danish authorities sent a copy of the RCT report to the Turkish authorities with a request for a reaction thereto. On 20 December 1996 the Turkish authorities expressed doubts as to the conclusions drawn and referred to two medical opinions obtained for the purpose from the Numune Hospital. The opinions, of 28 November 1996, read as follows:
“Office of the Chief Physician
Your letter dated 26 November 1996, No. 5390 enclosing the letter of External Relations Department of the Ministry of Health dated 15 November 1996, No. UK/15A/4737 and its annexes have been examined. My comments are resumed as follows:
1: In the report of the Forensic Medical Institute dated 9 July 1996 with ref. no. A-9713, it is acknowledged that the medical examination of Kemal Koç revealed no traces of violence or force externally applied to his body.
2: It is understood that in the medical examination performed between the dates of 20 August and 26 September 1996 by the Rehabilitation and Research Center for Torture Victims, the physical complaints between the said dates were headache and a pain in the back and extremities diminishing spontaneously with time.
The symptoms found were:
- pain in the back of the neck spreading over to the back and further to the forearm and upper arm to diffuse into fingers, particularly intense on the right side; weakness in the arms;
- pain in the back that spreads from back to the sacrum;
- headache that worsens towards the evening;
- exhaustion in the eyes;
- limitations to daily functions.
3: No fractures or sequelae of torture were spotted in the cervical, thoracical and lumbar area in the x-ray examination.
4: In the psychological examination performed, subjective findings have been discovered entirely based on the patient’s statements such as forgetfulness, nightmares and hence a poorer sleep and rest, difficulty in concentration, decelerated talking and thinking ability, quick exhaustion, diminished performance and fears related to threats. In this examination no findings have been stated, to lead to a diagnosis of a psychological illness to develop as a result of a trauma (post-traumatic stress disorder) such as a behavioural disorder, if there are any, or the psychological state of the patient (depressed or anxious). The symptoms detected in this patient may also be some depressive complaints (with considerable possibility that the life time probability for the occurrence of such symptoms is 20-30%, with a peak average of 13-20%) which may occur due to some important events in his life (i.e. a loss of brother, wife and parents or job or a divorce). It is not possible to prove that these symptoms, based on subjective complaints of the patient, occurred directly due to alleged exposure to torture. It is also another important finding that as a result of the objective psychological examination no psychological disorder was found in the patient other than the said symptoms.
I conclude that all these symptoms based on the statements of the patient are non-specific and do not prove that they were caused by a physical and mental torture.
For your information, Sincerely,
Assoc. Prof. Dr. [ND]
“R E P O R T
It is understood from your letter and its enclosure that Mr Kemal Koç, a Danish citizen of Turkish origin, was held in custody by police in Turkey between the dates of 8 July 1996 and 15 August 1996, and was examined by Dr MJ on 27 September 1996, after returning to his country.
There are no objective findings to suggest a neurotrauma neither radiologically nor clinically. Also, the examination by Dr J on 23 October 1996 reaffirmed that no findings have been detected to necessitate a neurosurgical treatment. It is understood that the examination by Dr J was performed 43 days later. Sincerely,
Assoc. Prof. Dr [MFE]
Assistant Chief of
Having regard to the above the Turkish authorities found it appropriate to await the outcome of the trial against Mr Koç. It was furthermore suggested that Mr Koç could address himself to the public prosecutor in Ankara.
The criminal proceedings against Mr Koç
In a formal indictment presented by the public prosecutor on 11 July 1996, i.e. while Mr Koç was still detained on remand in Turkey, he was charged before the State Security Court of Ankara with giving assistance to members of the PKK contrary to Section 169 of the Turkish Criminal Code which reads as follows:
“Whoever, in circumstances other than prescribed in Sections 64 and 65, knowingly gives shelter, assistance, provisions, arms or ammunition to such society or band, or facilitates their actions, shall be punished with heavy imprisonment for three to five years.”
Mr Koç was accused of having donated more than 16,000 DKK to the PKK and of having attended PKK meetings in Denmark, Germany and the Netherlands, thereby assisting the PKK organisation.
On 15 August a court session was held in the State Security Court of Ankara. Mr Koç was present and assisted by counsel. He was asked to present his views on the charges made. He denied having made donations to the PKK or having participated in the PKK meetings in Germany or the Netherlands. He maintained furthermore that he had only participated in cultural events in Denmark arranged by legally established Kurdish cultural associations. As regards the police interrogations the court transcript contains the following:
“... Due to my brother’s death I tried to enter Turkey. At the Esenboğa airport I was told that the computer indicated that I was wanted and therefore I was detained and later interrogated. I was blindfolded and they asked me various questions. As I was under psychological pressure I answered these questions along the lines they wanted me to answer. Afterwards, I signed what they had taken down, again blindfolded. For this reason I reject the testimony I gave to the police. I have not committed any of the crimes I am accused of. I request my acquittal.
Counsel for the defence wanted added to the records that during the interrogation by the police his client was told that he had done nothing important and that he was told that he would be released. With this in mind he was relaxed when he came to the State Security Court. The defendant had also informed counsel that he thought that if he objected he would not be released.
The preliminary testimony taken by the police was read out to the defendant.
The defendant said that he signed the papers blindfolded thinking they were the ones for his release. It is not a statement made voluntarily.
The testimony taken in the presence of the public prosecutor was read out to the defendant.
The defendant said that he also rejected this testimony as he was not asked any questions, he was merely made to sign.
The testimony taken in the presence of the substitute judge of the State Security Court was read out to the defendant.
The defendant said that the substitute judge only checked his identity and did not ask any questions. Therefore he does not accept that testimony either.
Counsel for the defence stated that with reference to Section 135 of the Code of Criminal Procedure his client was not interrogated in accordance with international law. Furthermore, the interrogation did not rest on the facts. He was made to believe that he would be released and with this in mind he was made to sign the prepared document, the same testimony was repeated in the presence of the public prosecutor and the judge. However, nothing was founded on concrete evidence. It was evident that the reason for his coming to Turkey was the death of his brother and not the participation in the work of an association. Verification of the crime his client was accused of was impossible. It was highly probable that he would be acquitted. For this reason he requested that the defendant be released.
The prosecution stated on the basis of the nature of the crime and the available evidence, the defendant should be kept under arrest.
The Court gave the following decision.
It was decided unanimously that
1. through the Ministry of Justice, it should be inquired from the Ministry of Foreign Affairs whether or not the Kurdish Cultural Center in Copenhagen, Denmark, to which the defendant Kemal Koç is affiliated, is a legal association;
2. as the defendant Kemal Koç has stated that he took part in the Kurdish National Assembly in Germany in 1992 as a delegate, it should be determined whether this is true or not, the information and documents, if available, particularly from the point of view of the defendant’s participation at the meeting, should be requested from the Ministry of Foreign Affairs through the Ministry of Justice;
3. taking into consideration the nature of the crime of which the defendant
Kemal Koç is accused and considering the possibility of the changes
that may take place in the evidence, and provided that the defendant
is not convicted or
arrested for another crime, he should be released promptly; and a letter to this effect should be sent to the Prosecution of the State Security Court; (For this item only Judge Captain Tanju Güvendiren has expressed his opposition.)
4. for these reasons, and taking into consideration the letters to be written and for their replies, the case was adjourned until 19 September 1996, at 11:00.”
As set out above Mr Koç returned to Denmark on 16 August 1996. In the criminal case against him further court sessions were held, in his absence, on 19 September, 22 October, 28 November and 19 December 1996. The trial was on each occasion adjourned, primarily to allow the Turkish authorities to conduct certain investigations. By judgment of 12 June 1997 the State Security Court of Ankara found the applicant guilty of the charges brought against him and sentenced him to 4½ years’ imprisonment. The judgment reads, inter alia, as follows.
“It transpires from the record of incident (in Dz. 8) that the defendant Kemal KOÇ was one of the passengers on a Turkish Airlines flight to Ankara on 06.07.1996 and that when he went through passport control on arrival it was found that the Prosecution Department of the Ankara State Security Court had issued an apprehension order, whereupon he was detained.
The following transpires on examination of the text contained in the file (Dz. 170-177) entitled ‘Kurdistan Report’ of January 1993, which was endorsed in Copenhagen on 19.03.1997 and is certified as being a faithful translation of the English version of an interview published in the magazine ‘Kurdistan Rapport’ (Dz. 178-179) (this document was forwarded at the request of our court by the Consulate of the Copenhagen Embassy and is certified by the 3rd clerk as being a true copy of the original along with the certified photocopy of the Danish original and the certified English translation, also in the files of the Embassy in Copenhagen).
The article in the magazine relates to an interview held with two
representatives who were elected in the elections for the Kurdish National
Parliament and covered an interview with two of the three candidates,
elected to the Kurdish National Parliament - persons by the name of
Kemal and Akif. It is explained in the article that there had been a
total of seven candidates standing for election in Denmark and that
Zeynel ÇELİK and Akif BAŞARAN were two of the three Kurdish representatives
elected in Denmark in addition to Kemal KOÇ, and it transpires in the
article reporting on an interview with Kemal KOÇ that he said that
in the course of 1984 he had fought for independence in the PKK’s
Eruh and Şemdinli raids as the result of which the national awareness
of the people was aroused and developed; he said the PKK used very fair
methods in its work with the people: whenever they planned attacks they
used good tactics and told the people that if they supported them they
would be able to fight the enemy successfully; but the Kurdish people
were paying dearly for that fight - winning independence was a costly
business. He stated further that the elections for the Kurdish National
Parliament would make the enemy take the issue seriously and would demonstrate
the importance the Kurds attached to their own standards. And he went
on to say
that with the establishment of the Kurdish National Parliament there would be a change to a democratic society. In reply to a further question he said that there was no difference between the PKK and the national parliament. The fact that PKK developments had become more focused had prepared the way for the establishment of a parliament of the Kurdish people of that nature; the national parliament was formed on a broad base and was not against the PKK, but an independent and free Kurdistan was open to everyone and to all Kurds who embraced that idea. He stated openly that the task of the national parliament was to lay down a constitution and carry out diplomatic activities and that it was the supreme body of the Kurdish people. He described the role of the PKK in what he called the war for the independence of the Kurdish people as well as the organisation’s connection with the national parliament. He concluded the interview with the statement that the national parliament was open to everyone who wanted a free Kurdistan and to all Kurds who advocated that idea. As for the ERNK’s activities, he said that the armed forces would be placed under the national parliament.
Although, ... counsel for the defence have submitted in connection with this document, which has been added to the case file, that this press interview has nothing to do with the case or the imputed allegations and that it must be regarded as an event occurring after the indictment was drawn up and the prosecution instigated and cannot be taken into account in the trial, the fact that the magazine ‘Kurdistan Rapport’, a photocopy of which is contained in the file and is certified as a true copy of the original, bears the date of January 1993 or, in other words, the fact that it contains an article which was written before the defendant was apprehended and also, as regards the place where the magazine was published, the fact that the photocopy has been certified by the Turkish Embassy as a true copy of the original, proves that that magazine was indeed published. Consequently, that point in the defence pleading has been disregarded.
Furthermore, the argument submitted by counsel for the defence in connection with Section 4 of the Turkish Criminal Code to the effect that the phrase ‘crimes to the detriment of the security of Turkey’ must, in respect of foreigners, be understood and interpreted to mean acts which are committed to the detriment of the security of Turkey and which are considered to be criminal offences under international law cannot possibly be understood as argued with regard to the type of offence referred to in Section 4 of the Code. Consequently, that view has also been disregarded.
It is stated in the letters of the General Police Headquarters dated 02.03.1993 (Dz. 115), which are contained in the case file, in connection with the elections for delegates and members of the ‘Kurdistan National Parliament’, which the separatist terrorist organisation PKK held in November and December 1992 with a view to giving the PKK a political identity and legal status in European countries, the names of the persons standing as candidates in Germany and Denmark are listed as well as the names of the persons elected as delegates in Denmark, and in that context Kemal KOÇ’s name is quoted clearly together with Zeynel ÇELİK and Akif BAŞARAN as several of the identifiable delegates elected in Denmark.
Having considered the fact that both the letter of the Ministry of the Interior and the documents appended to it as described above and the content of parts of the newspaper article on the interview with the defendant Kemal KOÇ which was published in the 1993 issue of the magazine ‘Kurdistan Rapport’ as well as the statements which the defendant made to the police and the State Security Court public prosecutor and the evidence he gave when questioned by the substitute judge all tally and are complementary, and when those statements are assessed together with the evidence set out above, this court has reached the reasonable conviction that the defendant knowingly and deliberately provided material aid within the State of the Republic of Turkey with a view to strengthening the PKK terrorist organisation, which enters into armed combat with the Turkish armed forces and in particular with the Turkish security forces and carries out terrorist activities against the innocent population, took part in demonstrations held in Denmark, was elected as the Denmark delegate to attend the KUM assembly to be held in Germany, and then took part in that assembly together with the other delegates from Europe. Since it is considered to have been established that the defendant aided and harboured members of an illegal armed organisation, this court rules that he shall be sentenced pursuant to Section 169 of the Turkish Criminal Code, which applies to his acts, and imposes the sentence pursuant to the mandatory provision of Section 5 of Act no. 3713. ...”
On 25 March 1998 the judgment was upheld on appeal by the Court of Cassation. The court stated, inter alia, as follows:
“The facts involved in the action
The action concerned the fact that the defendant had been a Danish citizen since 1992, had been running a grocery shop in Copenhagen since that date, had spread PKK propaganda, had assisted the organisation financially by donating 2000 Danish crowns in 1992, 4000 crowns in 1993, 5000 crowns in 1994 and 5000 crowns in 1996, had frequently visited the Kurdistan Cultural Centre in Copenhagen, which is known in short as ‘Komal’, had taken part in unauthorised demonstrations held in Denmark, had attended the assembly of the KUM (Kurdistan National Parliament) held in Germany in 1992 as the delegate for Denmark and had thus assisted members of the PKK, which was set up with the objective of separating territory under the sovereignty of the State and which is considered to be an armed guerrilla group.
The organisation which the defendant assisted:
The following was established: that organisation
was set up by Abdullah Öcalan and his associates in 1975 and from 1977
onwards it frequently engaged in armed action. Aiming to organise
a centre from 1978 onwards, it assumed the name of ‘Kurdistan
Workers’ Party’, and Abdullah Öcalan was appointed General Secretary.
On 15 August 1994 it relaunched actions under the name of HRK (Heren
Rısgarıye Kurdistan - Kurdistan Liberation Alliance), and the ERNK
(Kurdistan National Liberation Front) was established on 21 March 1985.
The organisation started publishing a newspaper called Serxwebun (Revival)
up financial resources with funds obtained by robbery, usurpation and trafficking in contraband and from the aid and subscriptions of sympathisers, its goal being to found a State of Kurdistan by separating part of the territory under the sovereignty of the State of the Republic of Turkey from the administration of that State through armed combat. It planned a strategy for achieving its fundamental goal by initially raising the awareness of the people through propaganda and weakening the authority of the State through armed actions and subsequently setting up guerrilla units and organising armed attacks and sabotage on the police and the army as well as economic targets and then evolving into a regular army.
The defendant’s position in the organisation:
(It was established that) the defendant adopted the views of the PKK as the result of its propaganda and aided and harboured its members:
The defendant’s actions:
(It was established that) the defendant
- assisted the illegal organisation financially;
- attended the assembly of the KUM held in Germany as a delegate representing Denmark;
- took part in demonstrations held in Denmark.
The trial proceedings:
The charge: a public prosecution was instigated against the defendant on the basis of the indictment of the Ankara State Security Court public prosecutor dated 11.7.1996, in which he was charged with assisting members of an armed guerrilla group and it was requested that he be sentenced pursuant to Section 169 of the Turkish Criminal Code, Section 5 of Act no. 3713 and Sections 31 and 40 of the Turkish Criminal Code.
The defence pleading: in the statements he made in the course of the preliminary investigation, the defendant stated that he had been a Danish citizen since 1992, that he had opened a grocery shop in Copenhagen, that PKK-ERNK leaders - one of whom used the assumed name of Şiar - had started coming to the shop and then asked him for financial support, whereupon he had agreed and had made donations every two months. He had then become a PKK sympathiser, had started going to the Kurdish Cultural Centre, had participated in the assembly of the KUM which was held in Germany, but had not had an official activity in the PKK:
The evidence: the sincere statements made and explanations given by the defendant to the police, the public prosecutor and the judge of the criminal court of first instance.
Admission and assessment by the court: considering that the
defendant knowingly and deliberately provided financial assistance designed
to strengthen the PKK terrorist organisation, which is an armed guerrilla
group, that he took part in demonstrations held by that organisation
in Denmark, that he was elected
to attend the KUM assembly in Germany and that he attended that assembly, the court decided to sentence the defendant pursuant to Sections 169, 31 and 40 of the Turkish Criminal Code and Section 5 of Act no. 3713, but ruled that with regard to the tendency to commit offences, the manner in which the offence was committed and the frequency of such offences there was no reason to apply Section 59 of the Turkish Criminal Code.
Result and opinion
According to what is provided in Section 4 of the Turkish Criminal Code it is obvious that where a Turkish citizen or foreigner commits a criminal act in a foreign country against the status of the Turkish State which is punishable under the Turkish Criminal Code that person can be tried and sentenced in Turkey, and it is further obvious that the offence of assisting an illegal organisation falls within the scope of an offence against the status of the Turkish State.
Pursuant to the provisions of Section 169 of the Turkish Criminal Code, the sentence must be increased by half under Section 5 of Act no. 3713, since the act of affording assistance when aware of the circumstances and position of the organisation is considered to fall within the scope of Section 169 of the Criminal Code.
As was explained when the decision was delivered, this court has reached the conviction that it was not inappropriate for the court to rule that the defendant’s action fell within the scope of Section 169 of the Turkish Criminal Code and Section 5 of Act no. 3713 since it considered that he had provided financial assistance for an illegal organisation when aware of the circumstances and position of that organisation and had taken part in demonstrations and attended KUM assemblies; the court furthermore considers it appropriate that Article 59 of the Turkish Criminal Code concerning a defendant’s tendency to commit offences and the frequency of such offences was not applied.
Consequently, this court has decided unanimously to dismiss the objections submitted in the petition of appeal as well as those put forward during the examination at the hearing and to uphold the decision to convict Kemal KOÇ ...”
The criminal proceedings against the Turkish police officers
While the criminal proceedings against Mr Koç were pending his Turkish lawyer filed, on the instructions of the Danish Embassy in Ankara, a formal written complaint of ill-treatment by the police with the public prosecutor on 23 December 1996. The complaint reads as follows:
“TO THE PUBLIC PROSECUTOR
COMPLAINANT: Kemal KOÇ, Copenhagen, Denmark
SUSPECTS: Their identities are unknown
CRIME: Torture and maltreatment (the Criminal Code section 243)
1) My client Kemal Koç, a Danish citizen, was taken into custody by the Police at 02.00 hours on 06.07.1996 when he arrived in Turkey at Esenboğa airport to attend his brother’s funeral. First he was questioned by the Çubuk police, then upon a letter by the Çubuk public prosecutor he was taken to the Ankara Security Department and was handed over to them at 17.35 hours on 08.07.1996.
2) My client was questioned all night and until 15.00 hours the next day (09.07.1996) by the police and was arrested by the substitute judge of the Ankara State Security Court in the evening of the same day.
3) During his trial at the Ankara State Security Court (File No: 1996/74) both my client and myself, as counsel, mentioned that my client was subjected to pressure, violence and threats during the interrogation.
The court decided to release K. Koç after the first hearing. My client was released out of prison the same day but was taken into custody by the police again and the next day deported from Esenboğa airport.
4) Upon his return to Denmark, Mr Koç applied to the Rehabilitation and Research Center for Torture Victims located in Copenhagen. After a full examination and check-up at this center, it was found that K. KOÇ was tortured during his interrogation by the police in Turkey. Enclosed please find an English version and a Turkish translation of the report.
5) The said report proves scientifically that my client KOÇ was subjected to torture during the police interrogation. Under these circumstances in order to have an investigation carried out against the police officers and their superiors in view of the Criminal Code, this petition is hereby made.
EVIDENCE: File no. 1996/74 of Ankara DGM, attached reports and other legal evidence.
CONCLUSION AND REQUEST: For the above reasons I hereby request you to open an investigation and punish the police officers on duty and their superiors, who committed the torture and maltreatment during the interrogation of my client, Mr Koç”
Following an investigation by the Ankara public prosecutor an indictment of 19 March 1997 was served on two police officers charging them with violations of section 245 of the Criminal Code. The indictment reads as follows:
Ankara Public Prosecutor’s Office
Preliminary file no. 1996/91520
Complainant: Kemal Koç
Counsel: Leyla Yüksel
Persons charged: 1 - Ayhan Akgül, chief police officer
2 - Hidayet Doğan, police officer
Date of Crime: Between 8.7.1996 - 9.7.1996
The documents collected as a result of the preliminary investigation have been examined:
The complainant Kemal Koç alleged that he was taken into custody from Esenboğa airport by the officers from the Anti-Terror Department of the Police Headquarters of Ankara when he arrived in Ankara in order to join the funeral of his brother, however, kept in custody for one night and during his interrogation he was ill-treated by the accused persons.
Following the interrogation made by the accused persons Kemal Koç was brought before the State Security Court.
In order to determine whether the complainant had been ill-treated during the interrogation, he was sent to the Ankara Office of Forensic Medicine by the Anti-Terror Department of the Police Headquarters of Ankara and according to the report of Forensic Medicine dated 9.7.1996 with no. A-9713, there was no mark of any kind of ill-treatment.
When the complainant returned to Denmark he obtained a report from the International Centre of Rehabilitation for Torture Victims, which was drawn up by Dr [BR] on 11 October 1996 stating that he was tortured during the custody period.
In his statement taken by the competent judge of the Ankara State Security Court, Kemal Koç said that he was not ill-treated during his custody at the police station.
Taking into consideration the complainant’s allegation and the report from the Danish International Rehabilitation Center, without any prejudice to the evaluation of the evidence by the court, it is requested that the persons charged should be tried and punished according to Section 245 of the Turkish Criminal Code.
The trial against the two police officers commenced before the Ankara Criminal Court of First Instance on 17 September 1997. Further court sessions were held on 13 October and 5 November 1997 and on 21 January 1998. On 11 February 1998 the Ankara Criminal Court decided to relinquish jurisdiction and the case was sent to the Ankara High Criminal Court for adjudication.
Court sessions were held in the High Criminal Court on 21 May, 14 July, 8 October and 16 December 1998. One of the accused, Mr Doğan, was present on 21 May 1998 whereas none of the accused was present during the other court sessions.
On 30 December 1998 the High Criminal Court pronounced judgment in the case. The judgment reads as follows:
At the conclusion of the trial held in the prosecution instigated in the 6th Ankara Criminal Court on the basis of indictment no 5941 of 19.03.1997, in which the Ankara chief public prosecutor charged the two defendants with subjecting the complainant to ill-treatment and torture, the court decided to withdraw jurisdiction, since the offence of which the defendants stood accused was one where ‘an officer tortures suspects in order to force them to admit their guilt’, and the case was referred to our court.
The complainant Kemal Koç was taken from the airport at 17.30 hrs on 08.07.1996 for questioning and at the end of the journey, which took at least one hour, was taken to the Ankara Police Headquarters. After being interrogated there the suspect was first taken to the State Department of Forensic Medicine, where the officers had an examination carried out to determine whether he had been tortured and a medical certificate was issued, and he was then transferred to the Ankara State Security Court, where he was questioned by the public prosecutor and subsequently also by the judge on duty and subsequently remanded in custody. All of these procedures were carried out and completed within 24 hours.
In the statement he made to the police on 09.07.1996, the complainant
Kemal Koç gave information which the police officers carrying out the
interrogation could not possibly have known and which only he himself
could have stated. During the medical examination carried out
the same day by doctors at the State Department of Forensic Medicine,
whom the PKK has said it holds in high esteem and who, according to
that organisation, respect human rights, he not only did not mention
having been tortured, but the doctors carrying out the examination did
not detect any such findings either. Furthermore, when brought
before the public prosecutor and judge the same day the complainant
Kemal Koç repeated the statement he had made to the police and did
not mention having been tortured. When he testified before the
judge that day, and the question was put to him because of the allegations
that those persons were subsequently tortured, the complainant Kemal Koç
even replied, ‘I was not tortured. They just blindfolded
me.’ And again in the statement he made before the court on
15.08.1996 the complainant
Kemal Koç refuted their statements saying, ‘I was blindfold. I was asked various questions, and, since I was under psychological pressure, I gave them the answers they wanted to hear.’
Throughout the hearings the complainant Kemal Koç never mentioned that he had been tortured. He merely mentioned having been under psychological pressure. Actually the only person who claimed at the hearings that he had been tortured and put under pressure when with the police was the lawyer representing Kemal Koç, who was the defendant in that case. That is to say, the statements made by the complainant Kemal Koç and those made by his lawyer are even contradictory. In the statements which Kemal Koç’s lawyer prepared in indisputable type-written form before entering the courtroom on 15.08.1996, he stated that his client had made the statement recorded at the police headquarters as the result of threats and violence by armed persons. Whereas, contrary to those statements, which his representative had drawn up beforehand, Kemal Koç did not state at that hearing that he had been threatened or subjected to violence by armed persons; he merely said that he had been under psychological pressure. And there is no doubt that Kemal Koç had never made any statement to the police previously. It is quite normal that anyone will experience psychological distress when making a statement for the first time. But the distress which a person experiences when making a statement for the first time cannot possibly be regarded as ‘psychological torture’. Otherwise, since many people who make statements are making them for the first time, it would not be possible to take statements from anybody.
In the certificate issued by the State Department of Forensic Medicine on 23.2.1997, it is stated that if the statements made by the injured party in Denmark are true the findings reported could have been caused by torture but that they could also have had other causes. One member even expressed a dissenting opinion in the report to the effect that ‘The findings not only cannot possibly have been caused by the torture reported by the injured party, but concrete findings are bound to be detected on a person who has been subjected to torture; yet no such findings were established on the person in question. The injured party therefore was not subjected to torture’.
All of the arguments submitted by the complainant to the effect that the findings of doctors and panels of doctors in Turkey cannot be credited also apply to doctors and panels of doctors in Europe. Conversely, all of the complainant’s arguments to the effect that it is imperative to credit the findings of doctors and panels of doctors in Europe likewise apply to doctors and panels of doctors in Turkey. Moreover, the certificate issued by the State Department of Forensic Medicine is detailed and convincing.
Furthermore, Kemal Koç states that he heard the screams of people who were being tortured at the airport, though it is impossible to explain how torture could have been inflicted so openly.
Kemal Koç stated clearly at the hearing that he refuted the statement
taken at the police headquarters and he said that he was not tortured.
It is inconceivable that he was unable to say even in court that he
had been tortured because of his fear of
the police. For if that were the case, he would have been bound to accept the statement he had made to the police rather than deny it.
And there is a further point which is incomprehensible: the fact that the physical symptoms on the complainant’s body caused by the torture were not seen by the forensic doctor, public prosecutor or judge, to whom he was taken immediately afterwards. This circumstance is an allegation which accuses forensic doctors, public prosecutors and judges. If it is alleged that the symptoms disappeared immediately afterwards and then manifested themselves again three months later, such an allegation is irrational.
Even if it were accepted for one moment that the findings on the intervening party are true, then one would have to consider that the acts in question took place after the court session on 15.8.1996, contrary to the statements he made at the hearing. And consequently, since the acts were not carried out by the defendants, it is inconceivable that they should be convicted for the acts of others.
Furthermore, when one examines the judgment convicting Kemal Koç, it transpires that he was not an important person for the PKK. What is more, it was of no importance whatever for Turkey to convict him. Consequently, although torture, for whatever reason, is (always) a crime against humanity (and we do not condone it), there was no logical reason for extracting any admission of guilt from him by torture.
Again, when one reads the statements made by Kemal Koç to the police and before the public prosecutor and judge, it transpires that he was undoubtedly afraid of the PKK. In view of the evidence, the conclusion has been reached that Kemal Koç was not subjected to use of violence at the police headquarters which he mentioned, but that after his return to Denmark he was enjoined to make that allegation in line with the campaign carried out systematically by the PKK to blacken Turkey.
And when one examines the entire file it is beyond all doubt that the offence of which the defendants stand accused does not go further than a suspicion. As is the case in European countries, in Turkish legislation a suspicion is assessed to the advantage of the defendant.
the court decided unanimously, in line with the public prosecutor’s opinion:
- that the defendants should be acquitted of the offence of which they stand accused, and
- that there was no reason to charge the court costs to the defendants.
On 4 January 1999 Mr Koç’s lawyer lodged an appeal against the above judgment with the Court of Cassation. The case is still pending.
The allegation of a widespread practice inconsistent with Article 3 of the Convention
In respect of the applicant Government’s request for an examination as to whether “the interrogation techniques applied to Mr Kemal Koç are applied in Turkey as a widespread practice ...” the applicant Government have submitted the following documents:
- the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’s public statement on Turkey, issued on 6 December 1996;
- the UN Committee on Torture’s 1994 report to the UN General Assembly;
- extracts from the UN Special Rapporteur on Torture’s 1995 report to the UN Commission on Human Rights;
- extracts from the UN Special Rapporteur on Torture’s 1996 report to the UN Commission on Human Rights;
- extracts from Amnesty International’s report of October 1996: “Turkey: No security without human rights”;
- the section regarding Turkey in “World Report 1997”, published by Human Rights Watch, December 1996;
- the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’s public statement of 15 December 1992;
- the United States Department of State’s Country Reports on Human Rights Practices for 1996 p. 1153-1173, section regarding Turkey;
- extracts from the statement made by the United Nations Special Rapporteur on Torture to the United Nations Human Rights Commission in its 1997 session in Geneva;
- press releases dated 10 December 1992 and 8 November 1994 from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment concerning its visits to Turkey in 1992 and 1994;
- the Turkish Prime Minister and Minister of Foreign Affairs Professor Dr. Tansu Çiller’s statement to the press at a conference in London on 5 December 1996;
- extracts from Physicians for Human Rights report, “Torture in Turkey & its unwilling accomplices;
- unofficial English translation of articles in the Turkish newspapers “Cumhuriyet” and “Turhan Atav” on 31 October 1996;
- information concerning general measures provided by Turkey to the Committee of Ministers of the Council of Europe;
- extracts from Amnesty International’s report of 1998;
- extracts from the Human Rights Foundation of Turkey’s report of 1998;
- extracts from Amnesty International’s report of 1997;
- extracts from the Human Rights Watch’s “World Report 1998”;
- extracts from the 1998 report by the Turkish non-governmental association “Human Rights Associations”;
- the report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 5 to 17 October 1997;
- the EU-Commission’s 1998 report on Turkey’s progress towards accession;
- the report of the UN Special Rapporteur on his visit to Turkey from 9 to 19 November 1998;
- the United States Department of State’s Country Reports on Human Rights Practices for 1998, section regarding Turkey;
- the Human Rights Watch report from 1997: “Turkey, torture and mistreatment in pre-trial detention by anti-terror police”;
- the Human Rights Watch’s “World Report 1999”;
- the Medical Foundation for the Care of Victims of Torture’s 1999 report: “Staying alive by accident: Torture Survivors from Turkey in the UK”.
The information available so far regarding the treatment of Mr Kemal Koç has led the applicant Government to the conclusion that a violation of Article 3 has been committed during his detention period in the summer of 1996. They consider that the treatment Mr Koç was subjected to during his detention is well above the threshold regarding severity established for the application of Article 3 of the Convention.
Furthermore, the applicant Government maintain that the ill-treatment of Mr Koç does not appear to be an isolated incident, but rather just one example of a widespread unacceptable practice in Turkey, inconsistent with Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION AND COURT
The application was introduced by the applicant Government on 7 January 1997. It was registered on 8 January 1997.
On 9 January 1997, the President of the Commission decided, pursuant to Rule 45 § 1 of the Commission’s Rules of Procedure, that notice should be given to the respondent Government and they were invited to submit observations on the admissibility of the application. The respondent Government submitted their observations, with annexes, on 20 March 1997.
On 25 March 1997 the applicant Government were invited to submit their observations in reply. Following one extension of the time-limit fixed for this purpose, the applicant Government submitted their observations, with annexes, on 12 June 1997.
The respondent Government submitted further observations on 27 June 1997.
The Commission considered the state of proceedings on 10 July 1997 and decided to invite the respondent Government to submit additional observations on the admissibility. The respondent Government submitted the additional observations, with annexes, on 29 September 1997. Further observations were submitted on 16 April 1998.
On 28 April 1998 the applicant Government were invited to submit their observations or comments in reply. The applicant Government submitted such observations, with annexes, on 29 June 1998.
On 10 September 1998 the respondent Government submitted further comments and observations.
The Commission considered the state of proceedings on 17 September 1998 and decided not to take any further procedural steps in the case.
By virtue of Article 5 § 2 of Protocol No. 11 to the Convention the application was transmitted to the European Court of Human Rights on the entry into force of that Protocol.
The Court (First Section) considered the state of proceedings on 19 January 1999 and decided to obtain the parties’ oral submissions on the admissibility of the application. The hearing was subsequently fixed for 27 April 1999.
In preparation for the hearing the applicant Government submitted additional material on 24 and 26 March 1999.
At the hearing on 27 April 1999, the parties were represented as follows:
The applicant Government
Mr Hans KLINGENBERG, Agent
Mr Tyge TRIER, counsel
Mr Arnold SKIBSTED,
Mr Danny ANNAN, advisers.
The respondent Government
Prof. Suat BILGE, Agent
Mr Müncı ÖZMEN, Co-agent
Mrs Deniz AKÇAY, Co-agent
Prof. Heribert GOLSONG, counsel
Mrs Zergün KORUTÜK,
Mr Abdülkadır KAYA,
Mr Birol AYDIN,
Mrs Yaprak KAYAALP,
Ms Alev GÜNYAKTI, advisers.
SUBMISSIONS OF THE PARTIES
The respondent Government
The respondent Government emphasise that the present application does not seem to be in line with the purpose of Article 33 of the Convention but rather has a political dimension. They consider it noteworthy to point out that Mr Koç, in their opinion, is an activist for the PKK, the terrorist nature of which has been openly recognised. Mr Koç has supported the PKK politically and financially and is an active member. Moreover, he has been involved in cases of ransom, embezzlement and assault and has been remanded in police custody in Denmark on more than one occasion, most recently on 16 February 1999. In this context the respondent Government wish to recall that Denmark has undertaken under international agreements not to encourage or support terrorism.
The respondent Government stress that the issue before the Court is the case of Mr Koç and, thus, whether the complaints made on his behalf should be declared admissible. The respondent Government consider that the “invitation” to examine “whether the interrogation techniques applied by the Turkish police to Mr Kemal Koç are applied in Turkey as a widespread practice” is merely a broader political exercise added in order to amplify the situation of Mr Koç, and not a request for an examination of a State practice in general. Accordingly, the respondent Government are of the opinion that a logical reading of the case leads to the conclusion that “the appendix” to the Koç case can only be considered once it has been positively established that Turkey has violated Article 3 of the Convention vis-à-vis Mr Koç. Consequently, the respondent Government have not examined the admissibility criteria of the general aspect, as submitted by the applicant Government, which they consider falls outside the application.
the complaints relating to Mr Koç the respondent Government maintain
that the rule of exhaustion of domestic remedies as required by Article
35 § 1 of the Convention has not been fulfilled. They consider
that the decisive moment for applying the rule of exhaustion of local
remedies is the date of filing the application which in the present
case was 7 January 1997. At that moment in time, however, the
respondent Government point out that proceedings had already commenced
in Turkey in order to have established whether Turkish police officers
had committed crimes against Mr Koç. A judgment of the first
instance court was pronounced on 30 December 1998 and an appeal is at
before the Court of Cassation which has full jurisdiction on both facts and points of law. Thus, regardless of any disagreement as to the date on which the requirements of Article 35 § 1 have to be respected, the domestic remedies have not been exhausted.
Allegations that the above court proceedings would be “less than genuine” or initiated for the purpose of countering the present application have no basis in fact. The Danish Government have themselves recognised in a previous inter-State case against Turkey that in general Turkish courts are acting impartially and independently, and even if the proceedings were considered to be a reaction to the present application, Turkey would merely have acted within the framework of the principle of subsidiarity of the control mechanisms of the Convention.
Finally, the respondent Government point out that nothing has emerged which could lead to the conclusion that the appeal now before the Court of Cassation would be ineffective. If, in such circumstances, the requirements of Article 35 of the Convention were to be disregarded - in this case to the detriment of Turkish justice - that would amount to a breach of the subsidiarity principles of the Convention’s supervisory system, setting national courts aside with the risk of weakening of the protection machinery and application of the Convention with all the dire consequences which would follow therefrom.
The respondent Government conclude, therefore, that the application should be declared inadmissible for non-compliance with the requirement of exhaustion of domestic remedies.
The applicant Government
The applicant Government underline that they do not exercise a right of action for the purpose of safeguarding any rights of their own, but for the purpose of contributing to upholding the rule of law in Europe. As the contacts between the Governments did not clarify the events related to Mr Koç, the applicant Government decided to have the facts of the case fully established by submitting the application. The invitation to the Court to examine whether interrogation techniques involving torture and ill-treatment are in fact widely applied in Turkey stems from a general and grave concern regarding the use of such methods as an administrative practice in Turkey, based inter alia on an extensive volume of international reports by several institutions. The application contains two distinctive elements: the Kemal Koç aspect and the general concern of an administrative practice in Turkey. The applicant Government point out that Article 33 of the Convention does not contain any specific requirements for introducing an inter-State application and the fact that it is formulated as an invitation to the Court to examine the facts should not, in the applicant Government’s view, hinder this from being an application under the Convention.
As regards the issues concerning Mr Koç the applicant Government agree that Article 35 § 1 of the Convention requires the prior exhaustion of domestic remedies. They stress, however, that remedies which do not offer a possibility of redressing the alleged injury or damage cannot be regarded as effective or sufficient and need not, therefore, be exhausted.
In the present case the applicant Government note that two remedies have been referred to. First, the criminal proceedings against Mr Koç before the State Security Court and the Court of Cassation and, second, the criminal proceedings against the two police officers which are at present pending.
The applicant Government maintain that the relevant date for considering the admissibility issue is the date of the hearing before the Court and not when the application was filed. Thus, as regards the criminal case against Mr Koç this remedy has been exhausted now as the final judgment was pronounced by the Court of Cassation on 25 March 1998. Nevertheless, the applicant Government find it noteworthy that at no time during the hearings did the State Security Court or the Court of Cassation show any inclination to investigate further into the question of torture and ill-treatment of Mr Koç. Nor did the public prosecutor make any investigations in this respect. Thus, the applicant Government consider that it has not been demonstrated that a thorough and effective interrogation, capable of leading to a prompt and impartial examination of the alleged torture took place. This remedy is therefore not, in the applicant Government’s view, a remedy to be considered for the purpose of Article 35 of the Convention.
As regards the criminal proceedings against the two police officers which is at present pending in Turkey the applicant Government note that they appear to have been opened only to counter the admissibility of the present case. The first instance court judgment furthermore shows that the outcome was not based on a proper investigation or a serious assessment of Mr Koç’s allegations of torture. In such circumstances this remedy could neither be regarded as effective nor sufficient for which reason the applicant Government do not find reason to await the outcome of the proceedings.
As regards the invitation to the Court to examine whether interrogation techniques involving torture and ill-treatment are in fact widely applied in Turkey the applicant Government contend that the requirement of exhaustion of domestic remedies does not apply where an applicant State complains of a practice as such, with the aim of preventing its continuation or recurrence, but does not ask the Court to give a decision on each of the cases put forward as proof or illustration of that practice.
As regards the proof of the existence of such an administrative practice the applicant Government refer to the international reports about torture or other forms of ill-treatment in Turkey which have been submitted. These reports, so the applicant Government contend, are evidence of an accumulation of cases of torture or ill-treatment in connection with interrogation. The cases are identical or parallel and their number is sufficiently high and interconnected to amount not merely to isolated incidents or exceptions, but to a widespread practice which is officially tolerated in Turkey. The applicant Government furthermore find that the public statements by senior political figures in Turkey to end the practice of torture and ill-treatment are in themselves evidence of an existing practice which the Turkish authorities have not effectively brought to an end.
The applicant Government also consider that there are ample grounds for serious concern about the use of torture in Turkey when considering the significant number of cases heard and pending before the European Commission and Court of Human Rights.
In these circumstances the applicant Government conclude that the application is admissible in its entirety and requests the Court to undertake an investigation pursuant to Article 38 of the Convention which, in respect of the general aspects of the case, should cover the period from 1 January 1996 until today.
The respondent Government have in their submissions to the Court raised a number of objections to the admissibility of the application. The Court will examine the objections under the following headings:
I. The scope of the application;
II. Compliance with Article 35 § 1 of the Convention in the case of Mr Kemal Koç;
III. Compliance with Article 35 § 1 of the Convention in respect of the issue of an administrative practice.
I. The scope of the application
The respondent Government maintain that the “invitation” of the applicant Government in respect of interrogation techniques in Turkey is not the object of the complaint and thus falls outside the scope of the application. The applicant Government dispute this.
The Court recalls that under Article 33 of the Convention any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party. The Court observes that the applicant Government complain that the ill-treatment of Mr Koç does not appear to be an isolated incident, but rather just one example of a widespread unacceptable practice in Turkey, inconsistent with Article 3 of the Convention and invite the Court to examine whether this is in fact the case. The Court finds that the contents of the application and the written and oral submissions are sufficiently clear and precise for a judicial examination under the Convention also on this point. Accordingly, the Court considers that the application concerns not only the specific situation of Mr Koç but also, as an additional and separate complaint, the allegation of a widespread unacceptable practice in Turkey.
II. Compliance with Article 35 § 1 of the Convention in the case of Mr Kemal Koç.
The Court recalls Article 35 § 1 of the Convention which reads as follows:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The rule of exhaustion of domestic remedies, embodied in the above provision, applies to State applications (Article 33) in the same way as it does to “individual” applications (Article 34), when the applicant State does no more than denounce a violation or violations allegedly suffered by individuals whose place is taken by the State (cf. e.g. the Ireland v. the United Kingdom judgment of 18 January 1978, Series of no. 25, p. 64, §159). Accordingly, in order to examine the complaints made on behalf of Mr Koç, the Court must in principle first examine whether the rule as to the exhaustion of domestic remedies has been complied with.
The Court agrees with the respondent Government that the rule of exhaustion
of domestic remedies obliges those seeking to bring their case against
the State before an international judicial organ to use first the remedies
provided by the national legal system.
This is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. However, there is no obligation to have recourse to remedies which are inadequate or ineffective. This is, inter alia, the case where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance thereof by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (ibid.).
In the area of the exhaustion of domestic remedies there is furthermore a distribution of the burden of proof. It is incumbent on the respondent Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time. However, once this burden of proof has been satisfied it falls to the applicant - in the specific case the applicant Government - to establish that the remedy advanced was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (see e.g. the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 68).
In the present case the Court recalls that the respondent Government maintain that the rule of exhaustion of domestic remedies has not been complied with, in particular since criminal proceedings are at present pending before the Court of Cassation where the allegations made by Mr Koç will be examined and, if necessary, redressed. The applicant Government maintain, however, that this remedy is inadequate and ineffective, in particular since the allegations concern an administrative practice of ill-treatment of persons in police custody.
The Court finds that the question of whether the requirement of the exhaustion of domestic remedies applies or has been satisfied in the present case raises issues which are so closely related to the question of the existence of an administrative practice that, to avoid prejudging the latter, both issues should be examined together. It recalls, however, that at the stage of admissibility, in inter-State cases, it is not the Court’s task to carry out a preliminary examination of the merits, since the provisions of Article 35 - empowering it to declare inadmissible petitions which it considers either incompatible with the provisions of the Convention or manifestly ill-founded - apply only to individual applications under Article 34. Consequently, any examination of the merits of the application must in such cases be reserved for the post-admissibility stage.
Accordingly, the Court considers that the final determination of the issue concerning the exhaustion of domestic remedies in respect of Mr Koç should be joined to the merits and reserved for later consideration.
III. Compliance with Article 35 § 1 of the Convention in respect of the issue of an administrative practice
The Court recalls that, invoking Article 3 of the Convention, the applicant Government complain of an alleged practice of ill-treatment. They submit that persons in police custody have been tortured or subjected to inhuman or degrading treatment. They have adduced evidence to show that, during the period covered by this application, torture or ill-treatment are not merely isolated incidents or exceptions, but so widespread and applied in such a systematic manner as to constitute an administrative practice in the meaning of the case-law of the Court. The applicant Government maintain that the rule of the exhaustion of domestic remedies does not apply to this part of the application.
While generally stating that the facts are not admitted, the respondent Government have not offered any counter-evidence or made comments on the material presented by the applicant Government.
The Court recalls that in principle the rule as to the exhaustion of domestic remedies does not apply where the applicant State complains of a practice as such, with the aim of preventing its continuation or recurrence (see the Ireland v. the United Kingdom judgment cited above, p. 64, § 159). The Court notes that in respect of this part of the application, leaving aside the particular situation of Mr Koç as set out above, the applicant Government have not asked the Court to give a decision on any individual case and it follows therefore that the rule as to the exhaustion of domestic remedies does not apply to this part of the application. In addition, the Court finds from the evidence submitted that the allegation made by the applicant Government is not wholly unsubstantiated or otherwise, as set out above, lacking the requirements of a genuine allegation in the sense of Article 33 of the Convention. The further examination, however, of all other questions regarding the existence and extent of such an administrative practice and its consistency with the provisions of the Convention relate to the merits and cannot, therefore, be considered by the Court at the stage of admissibility.
Finally the Court notes that the applicant Government have requested the Court to examine the period from 1 January 1996 until today.
The Court considers that an issue may arise as to whether it can examine a period which goes back further than six months from the date of introduction of the application. However, as the questions relating to the six-month rule in the present circumstances are also closely linked to the questions concerning the existence and extent of the alleged administrative practice, the answers thereto would again imply a preliminary examination of the merits of the case. The Court therefore reserves these questions for later consideration.
It follows that the applicant Government’s complaints under Article 3 of the Convention cannot be declared inadmissible under Article 35 § 1 and Article 35 § 4 of the Convention.
For these reasons, the Court, by a majority,
JOINS TO THE MERITS, the questions relating to the exhaustion of domestic remedies in respect of Mr Koç and the six-month rule
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
O’Boyle Elisabeth Palm
34382/97 - -
- - 34382/97