Publication: Title:

1996-VII, no. 50

Aydin v. Turkey

Application No: 23178/94 Respondent: Referred by: Turkey Commission 15-04-1996

Date of reference by Commission: Date of reference by State: Date of Judgment: Articles: 6-1 13 25-1 28-1-a 53 50 Conclusion: 3 25-09-1997

Violation of article 3

Not necessary to examine article 6-1 Violation of article 13 No violation of article 25-1 Not necessary to examine article 28-1-a Not necessary to examine article 53 Compensation under article 50 awarded Keywords: INHUMAN TREATMENT OR PUNISHMENT / DEGRADING TREATMENT OR PUNISHMENT / TORTURE / EFFECTIVE REMEDY

Summary: This case concerns the alleged torture and rape of the applicant while in the custody of the State security forces. According to the applicant, she was arrested together with her father and her sister-in-law. They were taken by village guards and gendarme officers to the gendarmerie headquarters. During her detention the applicant was blindfolded. She was beaten, stripped naked, placed in a tyre and hosed with pressurised water. She was then taken to another room where she was stripped and raped by a member of the security forces. She and the other members of her family were released after three days. According to the Government the applicant and the other members of her family were never

held in custody. Furthermore, intelligence reports and other evidence revealed that the applicant had had intimate relations with two members of the PKK. The applicant, her father and her sister-in-law complained about their treatment in custody. The Public Prosecutor took their statements and sent them to the State hospital for a medical examination. A report on each person was issued on the same day. Two further reports were issued on the applicant and stated that the applicant and the other members of her family had never been in custody. Thereupon, the Public Prosecutor reported to the Principal State Counsel that there was no evidence to support the applicant's complaints but the investigation was continuing. The applicant alleges a violation of Article 3 ECHR, and also complains that she had no access to a court or effective remedy in this respect (Articles 6(1) and 13 ECHR). She further claims that she has been subjected to harassment by the security forces since lodging her application. With respect to the Government's preliminary objections the Court held that the Government had failed to raise these objections at the admissibility stage of the proceedings before the Commission. Therefore they were estopped by raising them at this stage of the proceedings. The objection had to be dismissed. With respect to Article 3 the Court reiterated its case-law on the role assigned to Commission in regard to the establishment of facts. The Court accepted the facts as established by the Commission having regard to its own careful examination of the evidence on which Commission based its findings. The Commission was justified in concluding that the evidence proved beyond reasonable doubt that the applicant was detained by the security forces and had been raped and ill-treated while in detention. The rape of a detainee by an official of the State is an especially grave and abhorrent form of ill-treatment. The applicant was 17 years old at the time and had also been subjected to other forms of physical and mental suffering. These terrifying and humiliating experiences and the accumulation of acts of violence, especially the act of rape, amounted to torture. The Court would have reached this conclusion on either ground taken separately. There had been a violation. The applicant's complaint that the failure of the authorities to conduct an effective investigation into her alleged suffering while in detention resulted in her being denied access to a court to seek compensation. The Court held that the essence of the complaint concerned the inadequacy of official investigation. The Court considered it appropriate therefore to examine the complaint at issue under Article 13. The Court reaffirmed its case-law that where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an effective remedy entails, in addition to payment of compensation where appropriate, the conduct of a thorough and effective investigation capable of leading to identification and punishment of the culprits. In the instant case the authorities only carried out an incomplete enquiry. There had been no meaningful measures taken to establish the veracity of the allegations. The corroborating evidence had not been sought and the medical reports were perfunctory and not focused on the question whether applicant had in fact been raped. A thorough and effective investigation into an allegation of rape in custody implies also that victim be examined by the competent, independent medical professionals. These requirements were not satisfied in the instant case. There had been a violation. With respect to the alleged intimidation and harassment of the applicant and her family in connection with her proceedings before the Convention institutions the Court reaffirmed the importance of ensuring that applicants and potential applicants are able to exercise their right of individual petition without being subject to any form of pressure from authorities to withdraw or modify their complaints. However, in the case at issue there was insufficient factual basis to conclude that the applicant or members of her family had been intimidated or harassed. There had been no violation in that respect.