AKSOY v. TURKEY (100/1995/606/694) 18 December 1996: alleged torture in South-East Turkey; Court considers that where individual is taken into police custody in good health but found to be injured on release, incumbent on State to provide plausible explanation. Ill-treatment was of such a serious and cruel nature that it can only be described as torture.

Turkey - alleged torture in South-East Turkey

I. Court's assessment of the facts

Court, in line with constant case-law, accepts facts as found by Commission - finds it established that applicant, having been detained incommunicado for at least fourteen days, appeared before Public Prosecutor with visible injuries to arms.

III. Merits

A. Article 3 of the Convention

Applicant complained he had been suspended from his arms ("Palestinian hanging") causing paralysis of both arms.

Court considers that where individual is taken into police custody in good health but found to be injured on release, incumbent on State to provide plausible explanation.

Ill-treatment was of such a serious and cruel nature that it can only be described as torture.

Conclusion: violation (eight votes to one).

2. Article 13 of the Convention

Where individual has arguable claim to have been tortured by agents of State, notion of "effective remedy" entails, in addition to payment of compensation where appropriate, thorough and effective investigation capable of leading to identification and punishment of those responsible.

Conclusion: violation (eight votes to one).

2. Article 13 of the Convention

95. The Court observes that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see the Chahal judgment cited in paragraph 62 above, pp. 1867-1868, 145). The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1868-1869, 150-151). Nevertheless, the remedy required by Article 13 must be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.

96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South East Turkey (see mutatis mutandis the Akdivar and Others judgment cited in paragraph 38 above, pp. 1213-1214, 77).

97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired.

98. The nature of the right safeguarded under Article 3 of the Convention has implications for Article 13. Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.

Accordingly, as regards Article 13, 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 the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a "prompt and impartial" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court's view, such a requirement is implicit in the notion of an "effective remedy" under Article 13 (see mutatis mutandis the Soering judgment cited in paragraph 62 above, pp. 34-35, 88).

99. Indeed, under Turkish law the Prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the Prosecutor's awareness of the applicant's injuries.

Moreover, in the Court's view, in the circumstances of Mr Aksoy's case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed.

100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture.

In conclusion, there has been a violation of Article 13 of the Convention.

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