I Council of Europe
| Published date | 01 December 1997 |
| Author | Leo Zwaak |
| Date | 01 December 1997 |
| DOI | 10.1177/092405199701500405 |
| Subject Matter | Article |
Part B: Human Rights News
ICOUNCIL OF EUROPE
Leo Zwaak
Prohibition to hinder the right of petition.
25 September 1997, Aydin (Turkey). This case concerns the alleged torture and rape
of
the
applicant while in the custody
of
the State security forces. According to the applicant, she
Was
arrested together with her father and her sister-in-law. They were taken by village
guards and gendarme officers to the gendarmerie headquarters. During her detention the
applicant was blindfolded. She was beaten, stripped naked, placed in a tyre and hosed with
pressurised water. She was then taken to another room where she was stripped and raped
by a member
of
the security forces. She and the other members
of
her family were
released after three days. According to the Government the applicant and the other
members
of
her family were never held in custody. Furthermore, intelligence reports and
other evidence revealed that the applicant had had intimate relations with two members
of
the PKK. The applicant, her father and her sister-in-law complained about their
treatment in custody. The Public Prosecutor took their statements and sent them to the
State hospital for a medical examination. A report on each person was issued on the same
day. Two further reports were issued on the applicant and stated that the applicant and the
other members
of
her family had never been in custody. Thereupon, the Public Prosecutor
reported to the Principal State Counsel that there was no evidence to support the
applicant's complaints but the investigation was continuing. The applicant alleges a
violation
of
effective remedy in this respect (Articles 6(1) and
13
ECHR). She further claims that she
has been subjected to harassment by the security forces since lodging her application. With
respect to the Government's preliminary objections the Court held that the Government
had failed to raise these objections at the admissibility stage
of
the proceedings before the
Commission. Therefore they were estopped by raising them at this stage
of
the
proceedings. The objection had to be dismissed. With respect to Article 3 the Court
reiterated its case-law on the role assigned to Commission in regard to the establishment
of
facts. The Court accepted the facts as established by the Commission having regard to
its own careful examination
of
the evidence on which Commission based its findings. The
Commission wasjustified in concluding that the evidence proved beyond reasonable doubt
that the applicant was detained by the security forces and had been raped and ill-treated
while in detention. The rape
of
a detainee by an official
of
the State is an especially grave
and abhorrent form
of
ill-treatment. The applicant was 17 years old at the time and had
also been subjected to other forms of physical and mental suffering. These terrifying and
humiliating experiences and the accumulation
of
acts
of
violence, especially the act
of
rape, amounted to torture. The Court would have reached this conclusion on either ground
taken separately. There had been a violation. The 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. The Court
held that the essence
of
the complaint concerned the inadequacy
of
official investigation.
The Court considered it appropriate therefore to examine the complaint at issue under
Article 13. The Court reaffirmed its case-law that where an individual has an arguable
Netherlands Quarterly
of
Human Rights, Vol. /5/4, 495-528, /997.
©Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 495
NQHR
4//997
claim that he has been tortured by agents of the State, the 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
the culprits. In the instant case the authorities only carried out an incomplete enquiry.
There had been no meaningful measures taken to establish the veracity
of
the allegations.
The corroborating evidence had not been sought and the medical reports were perfunctory
and not focused on the question 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 the competent, independent medical professionals. These requirements were
not satisfied in the instant case. There had been a violation. With respect to the alleged
intimidation and harassment of the applicant and her family in connection with her
proceedings before the Convention institutions the Court reaffirmed the importance
of
ensuring that applicants and potential applicants are able to exercise their right
of
individual petition without being subject to any form of pressure from authorities to
withdraw or modify their complaints. However, in the case at issue there was insufficient
factual basis to conclude that the applicant or members
of
her family had been intimidated
or harassed. There had been no violation in that respect.
Article 5(1)(c)
ECHR:
Lawfulness of detention.
IJuly 1997, Manzoni (Italy). The applicant maintained that as the public prosecutor's
office had not envisaged applying to the judge for a preventive measure (her detention in
prison) at the hearing to confirm the arrest, it should have ordered her release as soon as
the police informed it
of
her arrest. She relied on Article 121
of
the implementing
provisions
of
the New Code
of
Criminal Procedure. The Court noted that there was a
disagreement between the parties as to the legal classification of detention at home. The
measure was classified as a preventive measure by the New Code
of
Criminal Procedure.
The Court held that although preventive measures are
of
varying degrees
of
severity, they
all restrict individual liberty to greater or lesser extent. In the instant case the public
prosecutor's office acted in accordance with legislation in force. There had been no
violation. With respect to the release following the judgment the applicant maintained that
she had been unlawfully detained for seven hours between the end of the trial in the Rome
District Court and her release from prison. The Court reiterated that the list of exceptions
to the right to liberty secured in Article 5(1) is an exhaustive one and only a narrow
interpretation
of
those exceptions is consistent with the aim
of
that provision, namely to
ensure that no one is arbitrarily deprived
of
his or her liberty. As the Court did not have
any details concerning the circumstances of the applicant's imprisonment, it merely noted
that the applicant was taken to Rebibbia prison more than an hour and a
half
after the end
of
her trial and that the record of the hearing was served on her shortly after her arrival
there; that procedure must be regarded as a first step towards complying with the Rome
District Court's judgment. Admittedly, the administrative formalities mentioned by the
Government could have been carried out more swiftly, but that is not a ground for finding
that there has been a breach
of
the Convention; some delay in carrying out a decision to
release a detainee is often inevitable, although it must be kept to a minimum. In
conclusion, there has been no violation
of
Article 5(1)(c) in this respect either.
496
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