Aydin v Turkey (Application 23178/94) [1997] ECHR 75

A 17-year-old Kurdish woman alleged she was raped and tortured while detained by Turkish security forces. The European Court of Human Rights found Turkey violated Article 3 (prohibition of torture) and Article 13 (right to effective remedy), holding that rape by a state official constitutes torture and that Turkey failed to conduct an effective investigation.

Facts

The applicant, Mrs Sükran Aydin, was a 17-year-old Turkish citizen of Kurdish origin living in the village of Tasit in south-east Turkey. On 29 June 1993, she, her father, and her sister-in-law were allegedly taken from their village by village guards and a gendarme to Derik gendarmerie headquarters. The applicant claimed that during her three-day detention she was blindfolded, stripped, beaten, placed in a tyre and spun around while being sprayed with high-pressure water, and raped by an individual in military clothing.

On 8 July 1993, the applicant lodged a complaint with the public prosecutor in Derik. Medical examinations confirmed her hymen was torn and bruising was present on her inner thighs, but the examinations were inadequate to conclusively date or establish the circumstances of defloration. The Government denied the detention occurred and pointed to the absence of entries in the custody register.

Issues

The Court considered the following key issues:

Article 3 – Prohibition of Torture

Whether the treatment alleged by the applicant amounted to torture within the meaning of Article 3 of the Convention.

Article 13 – Right to an Effective Remedy

Whether the authorities conducted a thorough and effective investigation into the applicant’s complaint of rape and ill-treatment.

Article 25 § 1 – Right of Individual Petition

Whether the applicant and her family were subjected to intimidation and harassment in connection with her application to the Convention institutions.

Judgment

Preliminary Objections

The Government’s preliminary objections concerning non-exhaustion of domestic remedies and abuse of process were dismissed. The Court held the Government was estopped from raising these objections as they had failed to do so at the admissibility stage before the Commission.

Article 3 Violation

The Court accepted the Commission’s findings of fact, concluding that the applicant was detained and subjected to rape and ill-treatment while in custody. The Court stated:

“Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim.”

The Court further held:

“Against this background the Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention. Indeed the Court would have reached this conclusion on either of these grounds taken separately.”

The Court found a violation of Article 3 by fourteen votes to seven.

Article 13 Violation

The Court found the investigation conducted by the public prosecutor was seriously deficient. The Court observed:

“Where an individual has an arguable claim that he or she has been tortured by agents of the State, the notion of an ‘effective remedy’ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure.”

The investigation failed to question gendarmes, seek corroborating evidence, or conduct appropriate medical examinations focused on whether the applicant was a rape victim. The Court found a violation of Article 13 by sixteen votes to five.

Article 25 § 1

The Court found insufficient factual basis to conclude that the authorities intimidated or harassed the applicant or her family. No violation was found unanimously.

Implications

This judgment established significant principles in international human rights law:

• Rape committed by a state official against a detainee constitutes torture under Article 3 of the Convention
• States must conduct thorough and effective investigations into allegations of torture, including ensuring victims are examined by competent, independent medical professionals
• The prohibition against torture is absolute and admits no exceptions, even in the context of combating terrorism

The Court awarded the applicant £25,000 in non-pecuniary damages and costs.

Verdict: The Court held by fourteen votes to seven that there was a violation of Article 3 (torture); by sixteen votes to five that there was a violation of Article 13 (right to effective remedy); unanimously that there was no violation of Article 25 § 1 (right of individual petition). Turkey was ordered to pay £25,000 in non-pecuniary damages plus costs and expenses.

Source: Aydin v Turkey (Application 23178/94) [1997] ECHR 75