Complaints of Ill-Treatment in Custody Must be Promptly Investigated and Plausibly Explained

Yilmaz v Turkey [2007] ECHR 17721/02 (5 June 2007)

The European Court of Human Rights has held that serious allegations of torture or other cruel, inhuman or degrading treatment or punishment must be the subject of expeditious, effective and independent investigation. It has further held that evidence of ill-treatment, particularly of persons in custody, will give rise to a rebuttable presumption that the ill-treatment occurred and shift the burden to the state to provide a ‘plausible explanation’ as to the injuries.


The applicant, Mr Hürriyet Yilmaz, was arrested by police in September 1996. He alleged that, at the time of his arrest, he was severely beaten on his neck and back. He further alleged that, during interrogation in custody, he was stripped, punched, beaten with a truncheon and had his testicles squeezed. The Turkish Government maintained that Mr Yilmaz’s interrogation occurred in the presence of his lawyer and that the report of a medical examination conducted on his last day in custody concluded that there were no signs of ill-treatment. However, subsequent medical investigations indicated that the applicant had suffered injuries consistent with the allegation that his neck was beaten at the time of his arrest. His first allegation was also corroborated by the testimony of his two children, who witnessed the arrest. The authorities provided no explanation for the applicant's injuries. In response to complaints by Mr Yilmaz, the public prosecutor began investigating the allegations in late 1996. The process was subject to lengthy delays. In September 2000, the Đstanbul Assize Court acquitted the police officers, on the grounds that there was insufficient evidence.


The applicant argued that the Turkish Government breached its obligations under art 3 of the European Convention, which provides that ‘[n]o-one shall be subject to torture or to inhuman or degrading treatment or punishment.’ He contended that the alleged ill-treatment constituted a substantive violation of art 3, and that the domestic authorities’ failure to effectively investigate those allegations amounted to a procedural violation.

The Court dismissed the allegation as to ill-treatment in custody on the basis of Mr Yilmaz’s failure to raise the allegation before domestic authorities, and the lack of supporting evidence.

The Court then turned to the applicant's allegation as to ill-treatment at the time of arrest. The Court held that the applicant needed to prove his allegations beyond reasonable doubt, but noted that ‘proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact’. In the case of a person injured while in police custody, ‘any such injury will give rise to a strong presumption that the person was subjected to ill-treatment’. The onus was on the Turkish Government to provide a ‘plausible explanation’ for Mr Yilmaz’s injuries, which they failed to do. On the facts, the Court found that there had been a substantive violation of art 3.

The Court also found that there had been a procedural violation of that provision, arising from the Turkish Government's failure to expeditiously investigate the applicant’s allegations. The Court held that a state's obligations under art 3, read together with the general duty under art 1 (to ‘secure to everyone within their jurisdiction the rights and freedoms defined in… [the] Convention’) gives rise to an implied requirement ‘that there should be an effective official investigation.’ The investigation should be ‘capable of leading to the identification and punishment of those responsible’ and ‘must be independent, impartial and subject to public scrutiny’. In addition, ‘the competent authorities must act with exemplary diligence and promptness’. In this case, the Turkish authorities’ investigations did not meet the Court’s standards because of lengthy delays.

Implications for the Victorian Charter

Pursuant to s 32(2) of the Victorian Charter, Victorian Courts are permitted to consider the judgments of foreign or international courts when interpreting statutory provisions. The European Court's judgment may be relevant in the application of s 10 of the Charter (which provides for protection from torture and cruel, inhuman or degrading treatment) as well as s 22 (humane treatment when deprived of liberty).

Victorian courts may look to Yilmaz v Turkey (and related cases) for guidance about the standard and burden of proof in cases concerning allegations of torture and cruel, inhuman or degrading treatment. In particular, courts may adopt the principle that, if a person sustains injuries pursuant to arrest or while in detention or custody, this gives rise to a refutable presumption that he or she was subjected to ill-treatment. With regard to procedural rights, it is desirable that, as has occurred in the UK under the Human Rights Act 1998, the courts will imply an obligation to conduct an effective, expeditious, independent and impartial investigation in respect of allegations of torture and ill-treatment.

Jess Moir is a member of the Corporate Responsibility Group at Allens Arthur Robinson