Bewusteloze hongerstakers vastgeketend aan ziekenhuisbedden van penitentiaire inrichting - Mensenrechtenhof veroordeelt Turkije (en)
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Avci and Others v. Turkey (application no. 70417/01).
The Court held unanimously
· that there had been a violation of Article 3 of the European Convention on Human Rights (prohibition of inhuman treatment) on account of the fact that the applicants had been chained to their hospital beds;
· that there had been a violation of Article 13 (right to an effective remedy).
Under Article 41 of the Convention (just satisfaction), the Court awarded Mesut Avci and Ümit Kanl?, and the heirs of Kenan Korkankorkmaz and Berna Sayg?l? Ünsal, 1,000 euros (EUR) each for non-pecuniary damage, and EUR 1,000 jointly for costs and expenses, less the EUR 630 already received from the Council of Europe in legal aid. (The judgment is available only in French.)
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1.Principal facts
Mesut Avci, Ümit Kanl?, Kenan Korkankorkmaz and Berna Sayg?l? Ünsal are four Turkish nationals who were born in 1967, 1969, 1973 and 1971 respectively. Mr Korkankorkmaz and Mrs Sayg?l? Ünsal died in June 2005.
In September 2000 the applicants, all of whom were serving prison sentences, embarked on a hunger strike as part of a protest campaign against plans for F-type prisons.
Initially admitted to hospital in the prison unit of Atatürk Hospital in ?zmir, the applicants were transferred in April 2001 to the hospital’s intensive-care unit. During their stay in the unit, the applicants were restrained by having one ankle tied to the bedpost by means of a metre-long chain. The applicants’ lawyers lodged a complaint with the ?zmir public prosecutor’s office against the prison authorities and the doctors treating the hunger strikers, arguing that the chaining of the prisoners while they were unconscious constituted treatment contrary to Article 3 of the Convention.
On 31 May 2001 a decision was taken in the cases of Mr Avci, Mr Kanl? and Mr Korkankorkmaz to apply Article 399 of the Code of Criminal Procedure, which provides for a stay of execution of the sentences of convicted persons who are ill. ?zmir State Security Court stayed execution of their sentences for six months and ordered their release. The same measure was applied to Mrs Sayg?l? Ünsal on 4 June 2001, and she was released the same day.
On 13 June 2001 Buca District Governor found that it was unnecessary to open an investigation into the conduct of the gendarmes from the prison. In June 2003 the ?zmir public prosecutor’s office requested the opening of an investigation in respect of the gendarmes concerned, alleging ill-treatment on account of the misuse of restraints under Article 245 of the Criminal Code. The European Court of Human Rights has not been informed of the outcome of that investigation.
Mr Korkankorkmaz, who continued his hunger strike at home after his release, died on 4 June 2005. Mrs Sayg?l? Ünsal was killed on 14 June 2005 during a military operation against PKK (Workers’ Party of Kurdistan) terrorists in the Mercan valley in Tunceli.
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2.Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 24 May 2001 and declared admissible on 2 December 2003.
Judgment was given by a Chamber of seven judges, composed as follows:
Jean-Paul Costa (French), President,
András Baka (Hungarian),
Riza Türmen (Turkish),
Mindia Ugrekhelidze (Georgian),
Elisabet Fura-Sandström (Swedish),
Danut? Jo?ien? (Lithuanian),
Dragoljub Popovi? (Serbian), judges,
and also Stanley Naismith, Deputy Section Registrar.
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3.Summary of the judgment2
Complaints The applicants alleged that the fact that they had been chained to their hospital beds, while they were on hunger strike and unconscious, constituted treatment contrary to Article 3. They further alleged, relying on Article 13, that no action had been taken in response to their complaint. Decision of the Court Article 3
The Court reiterated that the use of restraints did not normally give rise to an issue under Article 3 of the Convention where the measure had been imposed in connection with a lawful detention and did not entail the use of force, or public exposure, exceeding what was reasonably considered necessary. However, it was important to consider whether there was a danger that the person concerned might abscond or cause injury or damage, and the particular circumstances of a transfer to hospital for medical treatment.
The Court noted that the applicants had been attached to their beds by the ankle during their stay in the hospital’s intensive-care department, although it was clear from the medical reports submitted by the Turkish Government that they were all indisputably in a state of coma and in danger of dying. The Court was not satisfied, therefore, that the applicants would have been able to abscond in view of their condition, particularly since there were gendarmes on guard outside the door of the room.
In view of the state of health of the applicants and the lack of any real risk of their absconding, the Court considered that the restraint measure had been disproportionate to the security requirements. It therefore held that the restraining of the applicants had constituted inhuman treatment amounting to a violation of Article 3.
Article 13
The Court noted that, under the Turkish legislation and the regulations governing the gendarmerie, the Buca District Governor had decided not to open an investigation into the conduct of the gendarmes. In the circumstances, the applicants had not had an effective remedy within the meaning of Article 13.
Furthermore, the outcome of the investigation opened by the ?zmir public prosecutor’s office in respect of the gendarmes concerned remained unknown.
In the circumstances, the Court considered that the remedies available under Turkish law could not be considered to be effective. Accordingly, it found that there had been a violation of Article 13.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
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