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FOREWORD
In June 2000 two new judgments were handed down in the series of cases brought to the European Court of Human Rights by the Kurdish Human Rights Project (KHRP) working with the Human Rights Association of Turkey, Diyarbakir branch on behalf of Kurdish applicants. Both Salman v Turkey and Ilhan v Turkey raise the grim reality that public officials carry out torture against detainees in Turkey. The prohibition on torture enshrined in Article 3 of the European Convention on Human Rights is considered to be one of the most fundamental of the rights protected by the Convention. For Agit Salman, the torture was so serious that he died as a result, and the Court held that Turkey had also violated the right to life protected by Article 2 of the Convention, while Abdullatif ilhan has never fully recovered from the injuries inflicted upon him.
The cases of Salman v Turkey and Ilhan v Turkey which are the subject of this Case Report form part of an ongoing litigation project that KHRP began in 1992. Involving the representation of more than 450 applicants so far, this project has resulted in judgment being handed down in 35 KHRP-assisted cases to date.1 Issues raised by these cases include extra-judicial killing, ‘disappearances’, torture, village destruction and restrictions on freedom of expression. For those victims and their families who take their cases to Strasbourg, the outcome provides a measure of redress, but the cases have a far wider impact, helping to raise awareness within Turkey itself and internationally of the ways in which Turkish law and practice fall short of international human rights standards.
The litigation of cases before the European Court of Human Rights requires many years of hard work and commitment by many individuals and organisations in Turkey, the UK and the rest of Europe.1 2 In particular, the close partnership between KHRP and the Diyarbakir branch of the Human Rights Association of Turkey has been crucial.
The litigation project is not KHRP’s only activity. KHRP also works to tackle human rights violations in all the Kurdish regions including not only Turkey but also Syria, Iraq, Iran and parts of the former Soviet Union. We carry out research, conduct fact-finding missions and trial observations and publish reports, all aimed at establishing the facts and raising awareness of human rights violations being perpetrated against Kurds wherever they are. We also carry out a proactive media strategy and produce a regular newsletter, Newsline, and maintain a website.
As one of our activities aimed at raising awareness of Turkey’s violation of its international human rights obligations, our series of Case Reports aims to make the process and outcome of the cases as widely accessible as possible. The Introduction to this Report assesses the legal aspects of the two cases, and sets them in the socio-political context existing in Turkey. The first section outlines the facts as presented by the different parties and the findings of both the Commission (since both cases were brought under the old system that operated before Protocol 11 came into effect, under which the Commission examined the facts) and the Court on the facts. The legal proceedings are then summarised, and finally the applicant’s complaints under the Convention including the legal arguments put forward by all the parties and the Commission and Court’s reasoning and findings. The reports of the Commission and Court are appended, together with a summary guide to the system and procedure under the European
Convention on Human Rights and a list of judgments in KHRP cases to date.
KHRP warmly thanks Gita Parihar, Iris Golden, Stephen Vasil and Clare O’Connell for their contributions towards drafting this report. Thanks are also due to the lawyers in Tin-key and in the UK who represented the applicants before both the Turkish authorities and the European Court of Human Rights. Without the dedication and hard work of these and many others, KHRP’s achievements would not be possible.
Kerim Yildiz
Executive Director
Kurdish Human Rights Project
Introduction
The cases of Salman v Turkey and ilhan v Turkey highlight the prevalence of torture and the serious threats to the right to life that are sadly a phenomenon in Southeast Turkey.
Agit Salman was arrested by police in the early hours of 28 April 1992 and taken to the Adana Security Directorate, a place where he claimed to have been subjected to torture some two months previously. Twenty-four hours after his arrest, he was rushed to hospital and pronounced dead on arrival. Abdullatif ilhan was apprehended by soldiers during a raid on his village, Aytepe, early in the morning of 26 December 1992. Despite being badly bruised and only half conscious after being beaten by soldiers, he was taken to the gendarme station at Mardin where he was tortured. Although his condition deteriorated, he was denied medical treatment and was not released until the following evening, after which he was rushed to hospital and placed in intensive care. A year later, he was still suffering from a 60% loss of function on his left side; nine years later, he is still disabled.
In both cases, the former European Commission of Human Rights had found it necessary to carry out fact finding hearings since the facts were disputed. The Commission took oral evidence from a large number of witnesses including police officers and other officials and also considered medical evidence. In both cases, the Commission concluded that the Government should be held responsible. The Commission was satisfied, beyond a reasonable doubt, that Agit Salman was questioned during the period of his detention and suffered physical ill-treatment of a serious degree prior to his death. In the case of Abdullatif ilhan, the Commission found the Government’s explanations of how the applicant obtained his injuries to be unconvincing, and concluded that there had been a violation of Article 3.
In its judgment, the Court agreed with the Commission that ill-treatment had occurred for which the authorities were responsible, and that therefore a violation of Article 3 of the Convention had occurred. The Court in both cases went on to consider whether the ill-treatment suffered was severe enough to amount to torture, rather than the lesser violation of inhuman or degrading treatment. This was because the Convention intentionally distinguishes between them, in order to attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (the Court cited the case of Ireland v UK). Finding that very serious and cruel suffering had occurred, and also noting a purposive element in the definition of torture as contained in the UN Convention against Torture (which defines torture in terms of intentional infliction of severe pain or. suffering with aims such as obtaining information, inflicting punishment or intimidating), the Court went on to find in both cases that the treatment amounted to torture. In the case of Salman, the Court emphasised in particular the infliction oUfalaka” (beating the soles of the feet) and a blow to the chest, while in ilhan, it highlighted the delay in receiving proper medical treatment. These findings are positive developments which show the Court treating the violations as extremely serious and taking the opportunity to display its disapproval.
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