CONSEIL
DE L’EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34382/97
by DENMARK
against TURKEY
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;
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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;
Having deliberated;
Decides as follows:
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THE FACTS
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 illtreatment 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
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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
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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.
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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:
“Summary:
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.
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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.
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.
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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.
Cranial nerves:
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.
Columna cervicalis:
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.
Upper extremities:
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.
Columna thoracolumbalis:
Normal 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
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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.
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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.
Conclusion:
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.
[BR]
Chief Psychiatrist”.
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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.
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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.
[MJ]
Chief neurosurgeon
Dept. of neurosurgery
Rigshospitalet”.
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:
(Translation)
“Office of the Chief Physician
Numune Hospital
Ankara
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.
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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]
Psychiatry Clinic”.
“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
Neurosurgical Clinic”.
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.
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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:
(Translation)
“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:
(Translation)
“... 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.
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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.
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
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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.
(Translation)
“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
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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.
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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:
(Translation)
“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) and built
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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
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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 illtreatment by the police with the public prosecutor on 23 December 1996. The complaint
reads as follows:
(Translation)
“TO THE PUBLIC PROSECUTOR
ANKARA
COMPLAINANT:
Kemal KOÇ, Copenhagen, Denmark
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SUSPECTS:
Their identities are unknown
CRIME:
Torture and maltreatment (the Criminal Code section 243)
EVENTS:
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:
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(Translation)
“INDICTMENT
Ankara Public Prosecutor’s Office
Preliminary file no. 1996/91520
Litigant:
Complainant:
Counsel:
Persons charged:
Charge:
Date of Crime:
Public
Kemal Koç
Leyla Yüksel
1 - Ayhan Akgül, chief police officer
2 - Hidayet Doğan, police officer
Ill-treatment
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.
19.3.1997
[KB]
Public Prosecutor”.
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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:
(Translation)
“...
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
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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
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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.
Consequently:
DECISION:
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.
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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;
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- 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”.
COMPLAINTS
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.
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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.
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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.
As regards 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 present pending
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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.
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34382/97
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.
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THE LAW
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.
II.
III.
The scope of the application;
Compliance with Article 35 § 1 of the Convention in the case of Mr Kemal Koç;
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.
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34382/97
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.
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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
and
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits
of the case.
Michael O’Boyle
Registrar
Elisabeth Palm
President