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15.03.2004 | Volodymir Yavorskiy, Kyiv

The state must investigate the facts of applying torture

   

At the beginning of January the European Court of human rights (Strasbourg) took the decisions on two cases against Turkey connected with torture and cruel treatment of the incarcerated. Ukraine copies the mistakes of her neighbor. Now the decisions concerning the application of torture in Turkey are issued every second week. As to Ukraine, the decisions have been taken only on six such cases, but it seems that the situation will change soon.

In the first case, Sadik Onder vs. Turkey (complaint No. 28520/95), the European Court acknowledged the violation of Article 3 of the European Convention on the protection of human rights and fundamental freedoms (prohibition of torture, inhumane or degrading treatment or punishment) caused by the inefficient investigation of the complaint against cruel treatment.

The complainer was detained in Turkey on the suspicion of membership in an illegal military political unit. He asserted that, during transportation, incarceration and interrogation, he had undergone torture, cruel treatment and numerous offences. After that he was coercively cured during a week in order to conceal the traces of torture. In several days he was examined by a doctor, who could not find any traces of torture or cruel treatment. The victim complained against the police officers, but they were acquitted because of the absence of proofs.

The European Court established that the doubts existed as to the fact of the application of torture or cruel treatment to the complainer. Finally the Court resolved that the case materials did not contain the convincing proofs of such treatment of the plaintiff, so Article 3 of the European Convention had not been violated in that part. Yet, the Court recognized the violation of Article 3 in the fact that the complaint on the application of torture had not been investigated effectively, although the prosecutor’s office had begun to consider the claim at once. It is seen from the materials of the case that the prosecutor grounded his opinion only on the medical conclusion, which denied the fact of applying torture to the claimant in the police precinct or prison. However, it should be noted that the complainer spent 15 days in the prison, and the medical examination was written a month later. So, the prosecutor might not use only this conclusion, he had to get the detailed evidence from the complainer, all policemen and other witnesses, but he did not do that.

So, the European Court did not acknowledge the very fact of applying torture or cruel treatment, but regarded the inefficient investigation of the victim’s complaint as a violation of Article 3 of the European Convention. I believe that this decision is extremely important for the Ukrainian law-enforcing organs and is a certain warning for them.

In another case, Colak and Filizer vs. Turkey (complaints Nos. 32578/96 and 32579/96) the European Court also acknowledged the violation by Turkey of Article 3 of the European Convention. In this case, also concerning the application of torture and cruel treatment, three medical examinations were conducted, and the conclusions of the examinations contradicted each other. The officials could not present the adequate explanations about the haematomas and other physical injuries inflicted to the complainers.

The European Court pointed out that the state must protect the incarcerated, whose status is very vulnerable, and the state must be responsible for the injuries got by the incarcerated during their stay in custody. So, the Court stated that, although the police officers, who had been suspected of cruel treatment, were relieved from responsibility, Turkey is responsible for the violation of Article 3 of the European Convention.

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