ECtHR passes important judgment on torture

On 17 March 2009 the European Court of Human Rights (ECtHR) delivered its judgment on the case of SALMANOĞLU AND POLATTAŞ v. TURKEY (Application no. 15828/03). The Court found a violation of Article 3 of the European Convention of Human Rights (ECnHR). Article 3 prohibits the use of torture. Four judges voted in favour of a violation, but three judges voted against that decision, because no medical reports certifying visible traces of torture existed. Here you find passages from the judgment and sources for further reading.

The Circumstances of the Case

On 6 March 1999 at 2 a.m. Nazime Ceren Salmanoğlu, born 1983, was taken into custody by police officers from the Anti-Terrorist Branch of the İskenderun police headquarters on suspicion of membership of the PKKKurdish Workers' Party (the Workers' Party of Kurdistan, an illegal organisation).

On 8 March 1999 at 11.30 a.m. Fatma Deniz Polattaş was arrested by police officers from the Anti-Terrorist Branch of the İskenderun police headquarters, pursuant to an arrest warrant issued against her within the context of a police operation conducted against the PKK.

The applicants allege that they were subjected to ill-treatment while in police custody. In particular, Nazime Ceren Salmanoğlu was blindfolded, forced to stand for a long time, and deprived of food, water and sleep. She was also insulted and threatened with death and the torture of other members of her family. She was sexually harassed and beaten. Fatma Deniz Polattaş was blindfolded, insulted and beaten. The police officers also inserted a truncheon into her anus, which caused bleeding. A female police officer asked her family to provide clean underwear, which the applicant changed into. The applicants were both stripped naked by this female police officer, A.Y.

The Medical Reports

On 9 March 1999 at 12.35 a.m. the applicants and two other detainees were examined by a medical expert, B.I.K., at the İskenderun State Hospital. The doctor observed no sign of physical violence on the applicants' persons.

On 12 March 1999 the applicants and two other persons were examined by a general practitioner, A.A., in a health clinic, who noted that there was no sign of physical violence on the detainees' bodies in the letter which had actually been sent to him by the police.

On the same day the applicants were brought before a judge, who remanded them in custody. They were then placed in Adana prison. Subsequently, criminal proceedings were brought against them before the Adana State Security Court.

On 26 March 1999 Fatma Deniz Polattaş filed a complaint about torture. On 6 April 1999 she was examined by a doctor, B.K., at the İskenderun State Hospital. Following a digital rectal examination, the doctor noted that there was no sign of intercourse in the anal region.

Report of the Medical Association of Turkey

On 19 July 1999 the Turkish Medical Association (TMA) issued an opinion on the applicants' previous medical examinations, without examining the applicants. On Fatma Deniz Polattaş the doctors of the Association considered that the applicant's complaints about her anal region were consistent with the allegation of rape. They also considered that her other complaints, such as pain in the lumbar region and in the legs, as well as difficulty in respiration, matched her allegations of ill-treatment.

Nazime Ceren Salmanoğlu alleged that her ill-treatment had included threats, sexual abuse and beatings to numerous parts of her body, in particular to her head, legs, genitals and anal region. She complained of pain in her teeth, heart, head, neck, back, shoulders, arms and hands, and difficulty in respiration. She also stated that she had sleep and memory problems. The doctors of the TMA considered that Nazime Ceren Salmanoğlu's complaints matched the applicant's allegations of ill-treatment.

The doctors from the Turkish Medical Association further considered that the applicants should undergo several medical examinations. They noted in respect of both applicants that the medical examinations which they had undergone following their release from police custody were not capable of establishing whether the applicants had actually been subjected to ill-treatment as alleged. The experts considered that these examinations were not “medically valid” as they did not comply with the standards established by the Ministry of Health and the Turkish Medical Association.

Report of the Forensic Institute in Adana

On 24 November 1999 the applicants were examined by a doctor from the Adana Forensic Medicine Institute. The report concerning Fatma Deniz Polattaş referred to the latter's complaints of pain in the anal region while sitting and on defecation. The doctor observed that one of her teeth was broken and concluded that she was unfit for work for ten days. As regards Nazime Ceren Salmanoğlu, the doctor observed a bruise of 1.5 cm. on her back and considered that she was unfit for work for three days.

Reports of the Psychosocial Trauma Centre at Istanbul University

Between 2 June and 28 September 2000, Nazime Ceren Salmanoğlu and Fatma Deniz Polattaş were examined eight and nine times respectively by three experts from the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University. After referring to the psychological findings in two reports dated 23 October 2000, the experts diagnosed the applicants as suffering from post-traumatic stress disorder.

Bone scintigraphy tests

On 25 September 2000 the applicants were further subjected to bone scintigraphy tests. According to the relevant report, all values were normal in respect of both applicants.

Reports of the Forensic Medicine Institute in respect of Nazime Ceren Salmanoğlu

The report submitted to the assize court on 22 April 2003 (hearing the case against the police officers), drawn up by the 6th Section of Expertise (İhtisas Kurulu) on 9 December 2002 stated that there was no evidence demonstrating that the applicant had been subjected to physical violence. The 6th Section took into consideration the reports issued in respect of the first applicant during and after her police custody when rendering this decision. It further noted that the bruise recorded in the report of 24 November 1999 (see paragraph 25 above) was three to five days old. The 6th Section considered that Nazime Ceren Salmanoğlu should be subjected to an examination by the 4th Section of Expertise in relation to the diagnosis of post-traumatic stress disorder.

The second report submitted to the first-instance court, dated 5 March 2003, was drawn up by the 4th Section of Expertise. According to this report, the first applicant did not show any sign of post-traumatic stress disorder on the day of her examination on 8 November 2002. However, the Section considered that the applicant had suffered from this disorder due to the trauma which she had experienced when she was detained in police custody, and that she had recovered as a result of the psychiatric treatment which she had received at the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University.

Reports of the Forensic Medicine Institute in respect of Fatma Deniz Polattaş

In its report of 15 October 2003 the 2nd Section considered that there was no evidence demonstrating that Fatma Deniz Polattaş had been subjected to physical violence. The 2nd Section took into consideration the reports issued in respect of the applicant during and after her police custody when rendering this decision. It also opined that the date on which the applicant's tooth had been broken could not be determined.

The report of the 6th Section dated 20 August 2004 stated that the veracity of the second applicant's allegations of anal rape could not be assessed, since the rectal examination had been conducted long after the alleged sexual assault.

In its report of 25 August 2004, the 4th Section of Expertise considered that Fatma Deniz Polattaş had suffered, like Nazime Ceren Salmanoğlu, from post-traumatic stress disorder and also from major depressive disorder, but had recovered as a result of the treatment which she had undergone. The Section noted that Fatma Deniz Polattaş had experienced a traumatising event prior to her medical examinations between 2 June and 28 September 2000.

Reports of the Plenary Assembly of the Forensic Medicine Institute

According to the reports dated 13 January 2005 the majority of the Plenary Assembly (fifteen members) considered that the applicants were not suffering from post traumatic stress disorder. The Assembly considered that there were no physical findings in support of the diagnosis of the doctors from the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University. Noting that the only basis for this diagnosis had been the applicants' statements, the Assembly considered that the reports issued by the doctors from the Istanbul University had not been objective.

Attached to the opinion of the majority of the Plenary Assembly, the Forensic Medicine Institute also submitted dissenting opinions. One member of the Plenary Assembly considered that, on the basis of the file, it could not be determined whether or not the applicants were suffering from any psychological disorder. Fourteen of the members considered that the applicants were suffering from post-traumatic stress disorder. However, the date on which the traumatic experience had occurred could not be determined. Another member opined that no decision could be made, since there were contradictions in the file. Finally, eight members of the Plenary Assembly opined that the reports of 4th Section of Expertise stating that the applicants were suffering from post-traumatic stress disorder were accurate.

The Court's assessment

The Court reiterates that, in assessing evidence in this field, it applies the standard of proof "beyond reasonable doubt". However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

In the instant case, the Court observes that both parties submitted several medical reports as evidence in support of their submissions to the Court. The reports relied on by the applicants demonstrate that the applicants were suffering at least from psychological disorders as a result of traumatic experiences which had occurred during their detention in police custody, whereas the reports issued on the applicants' release from detention indicate no sign of ill treatment on their persons.

The Court considers that the consistency of the applicants' submissions, the seriousness of their allegations, their ages at the time of the events and the medical reports issued by the Turkish Medical Association, the Istanbul University and the 4th Section of the Forensic Medicine Institute together raise a reasonable suspicion that the applicants could have been the subject of ill-treatment, as alleged.

...the Court's first task is to determine whether, in the circumstances of the present case, the national authorities ensured the effective functioning of the system of medical examination of persons in police custody.

The Court has already reaffirmed the European Committee for the Prevention of Torture's ("CPT") standards on the medical examination of persons in police custody and the guidelines set out in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, "Istanbul Protocol", (submitted to the United Nations High Commissioner for Human Rights, 9 August 1999). The ECtHR referred to standards such as

• all medical examinations should be conducted out of the hearing, and preferably out of the sight, of police officers
• every detained person should be examined on his or her own and the results of that examination, as well as relevant statements by the detainee and the doctor's conclusions, should be formally recorded by the doctor
• an opinion by medical experts on a possible relationship between physical findings and ill treatment is required

At the time the Directive on Apprehension, Arrest and Taking of Statements dated 1 October 1998 was in force in Turkey. Article 10 (6) stipulated that the doctor and the detainee should be left alone during the examination, "in cases where there is no restriction with regard to the investigation and to security considerations"...

Turning to the particular circumstances of the present case, the Court is unable to verify the allegations (that a police officer was present) in respect of all examinations, it notes that on at least one occasion, on 12 March 1999, the applicants were examined at the same time in the same room while police officers could hear the conversations between them and the doctor and could see the examination room if they wished, in clear breach of the aforementioned CPT standards.

The Court further notes that pursuant to the Ministry of Health Circulars of 1995, at the relevant time doctors designated to perform forensic tasks were requested to use standard medical forms which contained distinct sections for the detainee's statements, the doctor's findings and the doctor's conclusions (see, for a copy of the standard forensic medical form, CPT/Inf (99) 3,).

The Court observes that the doctors who conducted the applicants' medical examinations during their police custody failed did not record the detainees' statements and their conclusions. The Court is particularly struck by the fact that the doctors merely recorded their findings on the letters which had been sent to them by the police headquarters requesting the medical examination of the applicants and other arrestees.

Having regard to the above, the Court finds that the applicants' medical examinations between 6 and 12 March 1999, as well as the examination of 6 April 1999, fell short of the aforementioned CPT standards and the principles enunciated in the Istanbul Protocol. It concludes that in the present case the national authorities failed to ensure the effective functioning of the system of medical examinations of persons in police custody. Therefore, these examinations could not produce reliable evidence. Consequently, the Court attaches no weight to the findings of the reports of 6, 8, 9 and 12 March and 6 April 1999.

The Court will now proceed to examine the other reports (shortened to headlines).

1. Reports of the Turkish Medical Association and Plenary Assembly of the Forensic Medicine Institute no evidence, since no medical examination of the applicants was conducted
2. Reports issued by 2nd, 4th and 6th Sections of Expertise of the Forensic Medicine Institute and the bone scintigraphy test were based on medical examinations of the applicants
3. However, they were carried out eight months to five years after the applicant's detention in police custody
4. With the passage of time, any physical scar of ill-treatment would either disappear or it would become impossible to determine the date on which the injury had been sustained
5. Consequently, the Court cannot take these reports into account as evidence to prove or disprove the applicants' allegations.

It remains to be ascertained what weight is to be attached to the reports of the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University of 23 October 2000 and of the 4th Section of Expertise of the Forensic Medicine Institute.

The Court observes that the reports of 23 October 2000 were drafted following very detailed medical examinations of the applicants conducted over three months. The reports included the applicants' statements regarding the traumatic experiences which they had allegedly suffered, the doctors' observations and their conclusions. The doctors considered that the applicants were suffering from post-traumatic stress disorders due to traumatic experiences some one and half years prior to the examinations, i.e. their ill-treatment in police custody. Furthermore, following this diagnosis, the applicants underwent psychotherapy. Fatma Deniz Polattaş also underwent drug therapy. The psychological findings of the reports of 23 October 2000 were further supported by the reports of the 4th Section of Expertise of the Forensic Medicine Institute. The 4th Section noted that the applicants were not suffering from any psychological disorder at the time of their examinations in 2002 and 2004. However, it took into consideration that the applicants had undergone psychotherapy, and the second applicant drug therapy. It concluded that the applicants had recovered as a result of that medical treatment.

In the light of the above considerations, the Court finds the reports of 23 October 2000, 5 March 2003 and 25 August 2004 to be conclusive evidence in the applicants' favour. In this connection, the Court observes that the Government did not challenge the accuracy of these medical reports. Nor did they provide a plausible explanation for the psychological findings contained in the report of 23 October 2000.

In the light of its preceding considerations (paragraphs 94-96 above), the Court concludes that there has been a breach of Article 3 of the Convention under its substantive limb.

Further reading

• Report of Amnesty International The Entrenched Culture of Impunity Must End
• Report of Amnesty International Justice denied to tortured teenage girls
• Medical letter writing action of AI USA
• Reuters on the judgement of the ECtHR

Footnotes

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