Aksoy v. Turkey, No. 21987/93, ECtHR (Chamber), 18 December 1996

Proportionality of derogating measures from the European Convention on Human Rights in time of emergency. Detention of alleged terrorists without a prompt judicial intervention. Margin of appreciation of Contracting States in derogating from the Convention. Illegitimate derogation from Art. 3 ECHR in time of emergency.

Art. 15 ECHR
Art. 5 ECHR
Art. 3 ECHR

1. The detention of an alleged member of the PKK (Kurdistan Workers' Party) for fourteen days without judicial intervention breaches Article 5, para. 3 ECHR, regardless of the notice of derogation issued by Turkey pursuant to Article 15 ECHR. Although the Court recognizes that the activity of the PKK in South-East Turkey represented a public emergency threatening the life of the nation at that time, it states that the impugned measure was not strictly required by the exigencies of the crisis.

2. Contracting States have a wide margin of appreciation both as regards the decision to call a state of emergency pursuant to Article 15 ECHR and as regards the choice of the measures needed to face it. However, national authorities do not enjoy unlimited power in this respect. It is for the Court to rule whether the measures adopted have gone beyond the extent strictly required by the exigencies of the situation and if adequate safeguards have been provided against potential abuses. In doing so, the Court must take into consideration the nature of the rights affected by the derogation, the circumstances leading to the emergency and its duration.

3. The so called “Palestinian hanging” practice used to interrogate the applicant breaches Article 3 ECHR. The suffering inflicted was of such a serious and cruel nature that it can only be described as torture, not as inhuman or degrading treatment. Article 3 ECHR makes no provision for exceptions and no derogation from it is permissible under Article 15 ECHR, even in the event of a public emergency threatening the life of the nation.