CASES UPDATE: AYDIN V.TURKEY/GUNDEM V. TURKEY/UNITED COMMUNIST PARTY OF TURKEY AND OTHERS V.TURKEY
Press Release: 25 September 1997 Cases Update
Judgement in the case of Aydin v.Turkey Final hearing of Gundem v. Turkey Case of the United Communist Party of Turkey and Others v.Turkey
AYDIN v. TURKEY
In a judgement delivered in Strasbourg on 25 September 1997 in the case of Aydin v. Turkey, the European Court of Human Rights held that the applicant had been subjected to torture through being raped and otherwise ill-treated, contrary to Article 3 - torture, inhuman or degrading treatment or punishment - (14 votes to 7); that she had not been afforded an effective remedy contrary to Article 13 (16 votes to 5) that it was not neccessary to consider her complaint that she had been denied access to a court under Article 6.1(20 votes to 1); that no violation of Article 25.1 had been established i.e. right to petition the Commission without hindrance (unanimous), that it was not necessary to consider Article 28.1(a) and 53 - undertaking to abide by the decision of the Court - (unanimously). The European Court of Human Rights also dismissed the Government's preliminary objections concerning the exhaustion of domestic remedies under Article 26 of the Convention(18 votes to 3) and abuse of process (unanimously).
The Court held that Turkey should pay compensation (18 votes to 3) and awarded her a major part of the legal costs and expenses claimed (16 votes to 5).
The case concerns allegations of physical and mental violence and rape whilst in custody. The applicant, aged 21 and currently residing in Derik in South East Turkey was arrested on 29 June 1993 with her father and sister-in-law by village guards and gendarmes. Whilst in custody, she was blindfolded, beaten, stripped naked, placed in a tyre and hosed with pressurised water. She was then raped by a member of the security forces and released three days later with her family.
According to the Government, the applicant and the other members of her family were never arrested nor detained and the Government maintained that her allegations were entirely unsubstantiated.
The case was declared admissable by the Commission on 28 November 1994 ( the full text of the decision is in Volume 1 of KHRP Reports on Cases) and investigation hearings were held in Ankara in July 1995 and in Strasbourg in October 1995. The Commission's report on 7 March 1996 established the facts and expressed the opinion that there had been a violation of Articles 3 and (6.1) and that no separate issues arose under Article 13. It also concluded that Turkey had failed to comply with its obligations under Article 25 (right to petition the Commission without hindrance) The Court stressed that rape of a detainee by an official of the State must be considered to be an " especially grave and abhorrent form of ill-treatment...which 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 Court was satisfied that the accumulation of mental and physical violence and the act of rape amounted to torture in breach of Article 3.
The Court also concluded that the investigation was seriously deficient and undermined the effectiveness of any other remedies available to the applicant - a violation of Article 13 -as the authorities neither "carried out an incomplete inquiry...",failed to seek out possible eye-witnesses, nor did they take any "meaningful measures to determine whether any family members were held at the gendarmerie headquarters as alleged".
The Court dismissed Turkey's objections that the applicant had not exhausted remedies available under domestic law and that the allegations were fabricated for political purposes on the basis that the objections had not been raised at the admissability stage of the hearings.
In view of the extremely serious violation of the Convention and the consequent enduring psychological harm suffered by the applicant on account of the rape the Court awarded her £25,000.
GUNDEM v. TURKEY
By report of the European Commission of Human Rights, adopted on 3 September 1996, the Commission concluded no violation of Articles 3,5.1 and 8 of the Convention and Article 1 of Protocol No.1 (28 votes to1); that there had been a violation of Article 6.1 of the Convention (26 votes to 3); that no separate issue arose with regard to Article 13 (26 votes to 3);and that there had been no violation of Article 18 of the Convention (28 votes to 1).
The case concerns allegations that on 7 January and 13 February 1993 the applicant's home and possessions were severely damaged in Sarierik village, district of Hazro, province of Diyarbakir in attacks by soldiers and village guards. In the first incident, villagers were beaten, property and household goods destroyed, winter provisions spoilt and houses sprayed with bullets. In February , the houses were shot at for twenty minutes.
The Government's version of events were that security forces were operating in the area, at the time of the incidents to protect villagers and their property from PKK activities, and that the applicant's home and possessions were destroyed in a terrorist attack.
The applicant claimed violations of the Convention due to the damage to his home(Art 8 and Art 1 of Protocol 1), inhumane and degrading treatment and lack of security and liberty because he was forced to move(Arts.3 and 5) and lack of effective remedies and misuse of power by the state (Arts.6, 13 and 18).
The case was declared Admissable by the Commission in January 1995 (the full text of the decisions is in Volume 1 of KHRP Reports on Cases) and Investigation Hearings were held in Turkey in November 1995, when witnesses were called to give evidence. As the applicant himself did not appear, the Commission ruled that it had insufficient factual basis on which to reach a conclusion in relation to violations of Articles 3,5,8 or Article 1 of Protocol 1.
In relation to Article 6.1 the Commission found "... the evidence taken in the present case, which shows that no investigation into the events was undertaken until after the Commission had communicaated the application to the Turkish Government...and the subsequent investigations...cannot be considered to have been conducted in any efficient way".
UNITED COMMUNIST PARTY OF TURKEY AND OTHERS V.TURKEY
On 6 December 1994 the Commission declared admissable the complaints under Articles 9, 10 and 11 of the Convention together with Articles 14 and 18, and under Articles 1and 3 of Protocol No.1. The Commission's report on 3 September 1997 established the facts and expressed the unanimous opinion that there had been a violation of Article 11 and it was unnecessary to consider the other complaints.
The case is brought by Mr. Nihat Sargin and Mr. Nabi
Yagci, the Chairman and General-Secretary of the United Communist Party of
Turkey("TBKP") and concerns the dissolution of the TBKP on 16 July
1991, which entailed its liquidation and transfer of its assets to the state
Treasury, which the applicants submit as an infringement of their rights to
freedom of thought, expression and association and of their rights to peaceful
enjoyment of their property and to free elections.
The Kurdish Human Rights Project (KHRP) has assisted these applicants in
bringing their case before the European Commission of Human Rights in Strasbourg.
For further information please contact: Kerim Yildiz, Executive Director / Fiona McKay, Deputy Director / Sally Eberhardt, Public Relations Officer Kurdish Human Rights Project on the address below.
Please e-mail KHRP at khrp@khrp.org, to be placed on our Press Release mailing list.
