Aydin v. Turkey (57/1996/676/866) 25 September 1997: The remedy required by Article 13 must be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State

Turkey-alleged rape and ill-treatment of a female detainee and failure of authorities to conduct an effective investigation into her complaint that she was tortured in this way

III. ARTICLE 6 § 1 OF THE CONVENTION

Applicant’s complaint that the failure of the authorities to conduct an effective investigation into her alleged suffering while in detention resulted in her being denied access to a court to seek compensation – essence of complaint concerns inadequacy of official investigation - Court considers it appropriate therefore to examine complaint at issue under Article 13.

Conclusion: not necessary to consider complaint (twenty votes to one).

IV. ARTICLE 13 OF THE CONVENTION

Reaffirmation of Court’s case-law that where an individual has an arguable claim that he has been tortured by agents of the State, notion of an effective remedy entails, in addition to payment of compensation where appropriate, the conduct of a thorough and effective investigation capable of leading to identification and punishment of culprits – in instant case authorities only carried out an incomplete enquiry – no meaningful measures taken to establish veracity of allegations – corroborating evidence not sought – medical reports perfunctory and not focused on whether applicant had in fact been raped – a thorough and effective investigation into an allegation of rape in custody implies also that victim be examined by competent, independent medical professionals - requirement not satisfied in instant case.

Conclusion: violation (sixteen votes to five).

B. Article 13 of the Convention

103. The Court recalls at the outset that Article 13 guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy judgment cited above, p. 26, § 95).

Furthermore, the nature of the right safeguarded under Article 3 of the Convention has implications for Article 13. Given the fundamental importance of the prohibition of torture and the especially vulnerable position of torture victims (see paragraphs 81 and 83 above), Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.

Accordingly, where an individual has an arguable claim that he or she has been tortured by agents of the State, the notion of an "effective remedy" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a "prompt and impartial" investigation whenever there is a reasonable ground to believe that an act of torture has been committed (see paragraph 48 above). However, such a requirement is implicit in the notion of an "effective remedy" under Article 13 (see the Aksoy judgment cited above, p. ..., § 98).

104. Having regard to these principles, the Court notes that the applicant was entirely reliant on the Public Prosecutor and the police acting on his instructions to assemble the evidence necessary for corroborating her complaint. The Public Prosecutor had the legal powers to interview members of the security forces at the Derik gendarmerie headquarters, summon witnesses, visit the scene of the incident, collect forensic evidence and take all other crucial steps for establishing the truth of her account. His role was critical not only to the pursuit of criminal proceedings against the perpetrators of the offences but also to the pursuit by the applicant of other remedies to redress the harm she suffered. The ultimate effectiveness of those remedies depended on the proper discharge by the Public Prosecutor of his functions.

105. The applicant, her father and her sister-in-law complained to the Public Prosecutor about the treatment they suffered while in custody. In her statement she specifically referred to the fact that she was raped and tortured at the Derik gendarmerie headquarters (see paragraph 23 above). Although she may not have displayed any visible signs of torture, the Public Prosecutor could reasonably have been expected to appreciate the seriousness of her allegations bearing in mind also the accounts which the other members of her family gave about the treatment which they alleged they suffered. In such circumstances he should have been alert to the need to conduct promptly a thorough and effective investigation capable of establishing the truth of her complaint and leading to the identification and punishment of those responsible.

106. The provisions of the Turkish Code of Criminal Procedure taken together with the Criminal Code impose clear obligations on the Public Prosecutor to investigate allegations of torture, rape and ill-treatment (see paragraphs 41-43 above). Notwithstanding, he only carried out an incomplete enquiry to determine the veracity of the applicant’s statement and to secure the prosecution and conviction of the culprits. While he may not have been provided with the names of villagers who may have seen the Aydin family being taken into custody on 29 June 1993, he could have been expected to take steps of his own initiative to ascertain possible eyewitnesses. It would appear that he did not even visit Tasit to familiarise himself with the scene of the incident which occurred on that date and whether the locations were consistent with those mentioned by the applicant or the other members of the family in their statements. Furthermore, he took no meaningful measures to determine whether the Aydin family were held at Derik gendarmerie headquarters as alleged. No officers were questioned in the critical initial stages of the investigation. The Public Prosecutor was content to conduct this part of the enquiry by correspondence with officials at the headquarters (see paragraphs 27 and 28 above). He accepted too readily their denial that the Aydin family had been detained and was prepared to accept at face value the reliability of the entries in the custody register. Had he been more diligent, he would have been led to explore further the reasons for the low level of entries for the year 1993 given the security situation in the region (see paragraphs 27 and 28 above). His failure to look for corroborating evidence at the headquarters and his deferential attitude to the members of the security forces must be considered to be a particularly serious short-coming in the investigation.

107. It would appear that his primary concern in ordering three medical examinations in rapid succession was to establish whether the applicant had lost her virginity. The focus of the examinations should really have been on whether the applicant was a rape victim, which was the very essence of her complaint. In this respect it is to be noted that neither Dr Akkus nor Dr Çetin had any particular experience of dealing with rape victims (see paragraphs 24 and 25 above). No reference is made in either of the rather summary reports drawn up by these doctors as to whether the applicant was asked to explain what had happened to her or to account for the bruising on her thighs. Neither doctor volunteered an opinion on whether the bruising was consistent with an allegation of involuntary sexual intercourse (see paragraphs 24 and 25 above). Further, no attempt was made to evaluate, psychologically, whether her attitude and behaviour conformed to those of a rape victim.

The Court notes that the requirement of a thorough and effective investigation into an allegation of rape in custody at the hands of a State official also implies that the victim be examined, with all appropriate sensitivity, by medical professionals with particular competence in this area and whose independence is not circumscribed by instructions given by the prosecuting authority as to the scope of the examination. It cannot be concluded that the medical examinations ordered by the Public Prosecutor fulfilled this requirement.

108. It has been contended that the investigation is still being conducted and that the applicant’s absence from the vicinity of Derik impeded the investigation for a certain period (see paragraph 96 above). She has also refused to undergo a further examination involving psychological testing (see paragraph 96 above). In the view of the Court, this cannot justify the serious defects and inertia which characterised the crucial phase immediately following receipt of the complaint. The Public Prosecutor had at that stage the legal means to act promptly and gather all necessary evidence including, as appropriate, psychological and behavioural evidence; nor can the decision to suspend the investigation on account of the applicant’s absence be justified given the gravity of the offence under investigation.

109. In the light of the above considerations, it must be concluded that no thorough and effective investigation was conducted into the applicant’s allegations and that this failure undermined the effectiveness of any other remedies which may have existed given the centrality of the Public Prosecutor’s role to the system of remedies as a whole, including the pursuit of compensation.

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

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