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SECOND
SECTION
CASE OF K.Ö. v. TURKEY
(Application
no. 71795/01)
JUDGMENT
STRASBOURG
11
December 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of K.Ö. v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F.
Tulkens, President,
Mr A.B.
Baka,
Mr R.
Türmen,
Mr M.
Ugrekhelidze,
Mr V.
Zagrebelsky,
Mrs D.
Jočienė,
Mr D.
Popović, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 71795/01) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, K.Ö. (“the
applicant”), on 23 February 2001.
- The
applicant was represented by Mrs E. Keskin and Mrs F.Karakaş,
lawyers practising in Istanbul. The Turkish Government
(“the Government”) did not designate an Agent for
the purposes of the proceedings before the Court.
- On
21 March 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Adana.
A. The events of 19 and 28 November 1999 and the
medical certificates concerning the alleged ill-treatment of the
applicant
- In
1995 the applicant's daughter joined the PKK (the Kurdistan Workers'
Party), an illegal organisation. The applicant alleges that, since
then, the police have raided her house and harassed and threatened
her many times.
- The
applicant claims that on 19 November 1999, around midnight, three
persons who introduced themselves as police officers from the
anti terrorism branch of the Adana Security Directorate had
entered her house, stuffed her scarf in her mouth and beaten,
threatened and sexually harassed her. She alleges that the officers
had finally raped her by inserting a truncheon in her vagina and that
she had passed out following the rape.
- On
22 November 1999 the applicant went to the Human Rights Foundation of
Turkey (hereinafter “the foundation”) where she gave a
description of the ill-treatment she had received at the hands of the
police officers and complained in particular of pain in the genital
area and vaginal bleeding. However, as the obstetrician was
unavailable at the time, the applicant was given an appointment for
30 November 1999. She was nonetheless examined by a doctor who noted
that there was a severe sensitivity on the applicant's abdomen.
- The
applicant claimed that on 28 November 1999 her house was raided again
by police officers. She was told that they would kill her and her
children if she were to lodge an official complaint about the
previous incident. They then allegedly broke the picture frame in
which the applicant kept her daughter's photograph and one of them
had put a gun to the applicant's head and had taken her money.
- On
30 November 1999 and 2 December 1999 the applicant was examined by Dr
A.Ö. (the obstetrician) at the foundation. The doctor observed a
perineal hernia and cysto rectocele on the applicant's
genital organs. She further observed that the applicant's uterus was
bigger and harder than normal. The doctor noted that, given the lapse
of time, it would not be possible to see any marks of rape on the
body. She also noted that, indeed, there were no such traces.
- On
30 November 1999 the applicant was examined by a psychiatrist at the
foundation who diagnosed that she was suffering from an acute stress
syndrome and major depression. The doctor opined that the applicant's
psychological problems were linked to the trauma she had allegedly
experienced.
B. The investigation instigated into the applicant's
alleged ill-treatment
- On
3 December 1999 the applicant lodged a complaint with the public
prosecutor's office in Adana, requesting the prosecution of the three
plain-clothed police officers at the anti-terrorism branch of the
Adana Security Directorate. The applicant gave a description of the
events of 19 and 28 November 1999 which she claimed had been
perpetrated by the same three police officers. As regards the
details, the applicant submitted that one of them had spoken to her
in Kurdish only and had said that he was from Urfa. The applicant
further noted that the police officer who had pointed a gun at her
stomach was tall, thin and had thinning hair. Finally, the applicant
maintained that she had been harassed by police officers since 1995,
but she had been too afraid to lodge an official complaint.
- On
the same day, the Adana public prosecutor took statements from the
applicant in which she reiterated her allegations of ill-treatment
and complained about the police officers from the anti-terrorism
branch.
- On
7 December 1999 the applicant was examined by three doctors from the
Department of Gynaecology and Obstetrics at Çukurova
University Hospital in Adana, who noted that her genital organs did
not bear any injury resulting from physical violence.
- On
8 December 1999 a senior official of the anti-terrorism branch of the
Adana Security Directorate took a statement from the applicant.
- On
9 December 1999 the applicant was examined by Dr B.S. at the Adana
Forensic Medicine Institute. The doctor noted that the applicant had
prolapsus uteri and a few old tears in the hymen. However, he
found no fresh traumatic lesions on the applicant's genital organs.
- On
27 December 1999 the applicant applied to the Adana Security
Directorate where she gave a statement with the help of her son, who
acted as her interpreter. In her statement the applicant claimed that
two persons claiming to be policemen - one with a walkie-talkie, the
other with a rifle – had came to her house at around 6 p.m. and
told her that they knew she had complained about them. She stated
that she had never seen them before. They had entered her house,
ripped up her medical reports, broken the framed picture of her
daughter and destroyed her “green card”.
They had then threatened her and beat her up. The applicant indicated
that none of the photographs shown to her by the police were the
perpetrators. In addition, the applicant gave a short description of
the two men and stated that they both had beards. One of the men had
spoken Kurdish to her and she thought he might be from Urfa. Finally,
the applicant submitted that these persons had not shown her their
identification and that she was suspicious as to whether they really
were policemen. She requested that these men be found.
- On
3 February 2000 the applicant made statements before the Adana public
prosecutor with the help of her lawyer, who acted as an interpreter.
The applicant stated that, prior to the events in November 1999, the
police officers who used to come to her house and ask about her
daughter had never resorted to physical force, but that they had
always given her misleading information about her daughter. As
regards the impugned events, the applicant stated, inter
alia, the following:
“On the night of 19 November 1999, I was tricked
into opening the door as they said that they were Osman and Şefik,
my brothers-in-law. The three people who entered the house said they
were from the anti-terrorism branch and they pulled my headscarf over
my mouth. They were carrying Kalashnikovs. They asked for my daughter
and said they were going to kill me and my children...One of them
spoke Kurdish and said that he was from Urfa. The one who was tall
and thin, with white skin and black hair, strangled me with an iron
cord. One of them, who I cannot describe, took off my baggy trousers
and pants. I fainted from shame and fear when the other inserted a
truncheon into my sexual organ... When I woke up they were searching
the house. They found money underneath the bed and took it with
them... When my son arrived he took me to a private doctor. This
doctor did not draw up a report but gave me medicine and an
injection. As I was not getting better he took me to the doctors at
the Human Rights [foundation]... These same three people came to my
house on 27 December 1999 and said that it was not good that I
had complained about them...they called their superior and a police
patrol came to pick us up. My son Teyfik was next to me... At the
police station, an officer named Erkan was nice to us... I was sent
to the hospital. The doctor said, without examining me, that there
was nothing wrong with me. After this date I was not harassed.”
- Between
21 and 22 February 2000, the prosecutor questioned two senior police
officers at the anti-terrorism branch of the Security Directorate and
a policeman who had taken the applicant's statement on 27 December
1999. The senior police officers denied the accusations regarding the
anti terrorism branch and affirmed that their personnel were
ready to proceed with an identification procedure.
- On
31 March 2000 the applicant was invited to the Adana Security
Directorate to take part in the identification procedure. 108 police
officers from the anti-terrorism branch of the Adana Security
Directorate entered the identification room in groups of ten. The
public prosecutor, the applicant and her son, the applicant's lawyer,
a senior police officer, a paralegal and a police officer, Mr M.R.C.,
who was sworn in as the official interpreter, were present. According
to the identification protocol the applicant and her son identified
Mr R.G. as one of the people who had entered their house. However, at
this point the prosecutor decided that the applicant's son should be
taken out of the identification room since he was acting in an
agitated manner. The applicant once again stated to the prosecutor
that R.G. was one of the persons who had entered her house on 28
November 1999. She said that, as R.G. and the two others had claimed
to be journalists, she had opened her door. She further stated that
she had seen R.G. but had not seen the others' faces. She maintained
that R.G. took the money under her mattress. When asked about the
contradictions with her previous submissions, the applicant stated
that she might have been confused. She reiterated that R.G. had
stolen her money on 28 November 1999, but he had not ill-treated her
at all.
- On
3 April 2000 the Adana public prosecutor sent a letter to the
Istanbul University Hospital, requesting information regarding the
applicant's state of health.
- On
7 April 2000 the prosecutor questioned Mr R.G., the identified police
officer, who denied the accusations against him. In particular, he
stated that he did not know the applicant or her house, and that he
had seen her for the first time during the identification procedure.
He pointed out that the applicant's son had told her to identify him.
In this respect, Mr R.G. stated that he understood a little bit of
Kurdish. G. stated He suggested that, since he had arrested the
applicant's son six months ago, he might have told his mother to
identify him to revenge a grudge. He further noted that he had worked
in the neighbourhood for the past three and a half years and that not
everyone liked him. Finally, he referred to the fact that the
applicant's statements during the identification contradicted her
earlier submissions.
- On
17 April 2000 Dr Ş.Y., the director of the Psychiatry Department
of the Faculty of Medicine at Istanbul University, informed the
Directorate of the Faculty of Medicine that the applicant had been
seen on 26 February and 24 March 2000. She was diagnosed as
suffering from a post traumatic stress syndrome and she was
undergoing treatment. Dr Ş.Y. also submitted the protocol
established in this connection.
- On
25 April 2000 the deputy director of the Faculty of Medicine
forwarded the letter of 17 April 2000 to the Adana public prosecutor.
- On
23 May 2000 the Adana public prosecutor issued a decision of
non prosecution concerning Officer R.G. In his decision, the
prosecutor noted, in particular, that the applicant's allegations and
version of events were inconsistent and contradictory. He further
noted that the medical reports did not record any traces of
ill treatment on the applicant's body. Finally, it found that
the applicant had been under the influence of her son in the course
of the identity parade on 31 March 2000.
- The
applicant objected to the aforementioned decision of the prosecutor.
- On
3 July 2000 the Tarsus Assize Court dismissed the applicant's
objection. This decision was served on the applicant on 31 August
2000.
C. Subsequent events
- The
applicant claimed that she continued to be harassed by police
officers at her house. In this respect, the applicant alleged that
she was beaten and threatened on 26 May 2000, 1 April 2001 and 10
June 2001. As regards the first incident, the applicant lodged a
complaint with the prosecutor who decided on 27 February 2001 not to
initiate criminal proceedings on the ground that the applicant's
allegations were unsubstantiated. The prosecutor noted that the
applicant repeatedly refused to see a doctor. As to the second
incident, the applicant applied to the foundation and the doctor who
had examined her found that her physical pains were psychosomatic and
referred her to a psychiatrist, who prescribed antidepressants. As
regards the last incident, the applicant applied both to the
foundation and a State hospital. The medical reports issued by these
institutions noted various bruises on the applicant's body and stated
that she was still suffering from an acute post-traumatic stress
syndrome and that this diagnosis was consistent with the applicant's
allegations of ill treatment and torture.
- On
29 April 2003 the applicant petitioned the Adana public prosecutor's
office, complaining that she had been harassed by the police. She
claimed that on 23 April 2003 a number of police officers had entered
her house and threatened to kill her if she did not withdraw her
application to the European Court of Human Rights. She submitted that
she had been beaten up when she refused to sign a document. The
applicant also maintained that on 28 April 2003 a number of police
officers had taken her for a car ride which lasted two hours, during
which time she was told to withdraw her application to the Court.
- On
3 January 2005 the applicant was arrested and taken into police
custody on suspicion of aiding and abetting an illegal armed
organisation. On 5 January 2005 she was remanded in custody. On 14
January 2005 the criminal proceedings against the applicant
commenced. On 7 March 2005 the court ordered the applicant's
release pending trial. On an unspecified date the Adana Assize
Court convicted the applicant of aiding and abetting an illegal armed
organisation and sentenced her to three years and nine months'
imprisonment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Batı and Others v. Turkey (nos. 33097/96 and
57834/00, §§ 96 100, 3 June 2004).
THE LAW
I. ADMISSIBILITY
- The
Court considers that the application raises serious issues of fact
and law under the Convention, the determination of which requires an
examination of the merits. It concludes therefore that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. No other ground for declaring
it inadmissible has been established. It must therefore be declared
admissible.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that she was subjected to torture by police
officers. In this respect, she maintained that she had been beaten,
strangled, threatened and raped with a truncheon, in violation of
Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government, referring to the conclusions of the various medical
reports, the inconsistencies noted in the applicant's declarations
and the fact that she was unable to identify her perpetrators,
maintained that the applicant's allegations were unsubstantiated. In
this connection, they pointed out that the public prosecutor had
conducted a meticulous investigation into the applicant's complaints.
- The
applicant maintained that the prosecutor had failed to take into
account the medical reports of the Human Rights Foundation of Turkey
and that of the Istanbul Medicine Faculty. She claimed that she was
still undergoing treatment. The applicant implied that it was
inconceivable for an elderly woman brought up with feudal values to
make up a rape claim.
B. The Court's assessment
1. The applicant's alleged ill-treatment
- The
Court reiterates that Article 3 enshrines one of the most fundamental
values of democratic societies. Even in the most difficult
circumstances, such as the fight against terrorism and organised
crime, the Convention prohibits in absolute terms torture and inhuman
or degrading treatment or punishment. Unlike most of the substantive
clauses of the Convention and of Protocols Nos. 1 and 4, Article 3
makes no provision for exceptions and no derogation from it is
permissible under Article 15 § 2 even in the
event of a public emergency threatening the life of the nation (see
Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V,
and Assenov and Others v. Bulgaria, judgment of 28 October
1998, Reports of Judgments and Decisions 1998-VIII, p. 3288,
§ 93).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see, for example, Avşar
v. Turkey, no. 25657/94, § 282, ECHR 2001-VII,
extracts, and Talat Tepe v. Turkey, no. 31247/96,
§ 48, 21 December 2004). Such proof may, however, follow
from the coexistence of sufficiently strong, clear and concordant
inferences or similar unrebutted presumptions of fact (see
Labita v. Italy [GC], no. 26772/95, § 121, ECHR
2000-IV).
- The
Court is sensitive to the subsidiary nature of its task and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95,
4 April 2000). Nonetheless, where allegations are made under
Article 3 of the Convention, as in the present case, the Court
must apply a particularly thorough scrutiny (see, mutatis
mutandis, Ribitsch v. Austria, judgment of 4
December 1995, Series A no. 336, § 32, and Avşar,
cited above, § 283).
- At
the outset the Court observes that the documentary evidence submitted
by the parties does not allow it to conclude beyond reasonable doubt
that, prior to or after the incidents in November 1999, the applicant
was subjected to the kind of severe ill-treatment, at the hands of
State agents, which fell within the proscribed scope of Article 3.
Nor is there sufficient evidence to support for the applicant's
allegations of having been subjected to constant harassment in this
connection.
- In
the instant case, the applicant, in the initial application form,
complained of having been beaten, strangled, threatened and raped
with a truncheon at her house on 19 November 1999 by three persons
whom she alleged to have been police officers. The applicant further
stated that on 28 November 1999 her house had been raided again
by police officers who had broken a picture frame, stolen her money
and put a gun to her head.
- The
Court notes, however, that the applicant has not produced any
conclusive or convincing evidence in support of these allegations. It
observes that any ill-treatment inflicted in the way alleged by the
applicant on 19 November 1999 would have left marks on her body which
would have been seen by the doctor who had examined her on
22 November 1999, three days later (see paragraph 7 above). The
indications noted in this medical report are insufficient to
substantiate the ill-treatment described by the applicant. In the
light of the foregoing, the Court considers that there is
insufficient evidence to support the view that the findings of
psychological problems described in the medical reports of 30
November 1999 and 17 April 2000 were the consequences of the
treatment, in particular, the rape, to which the applicant was
allegedly subjected on 19 November 1999 by three police
officers.
- In
addition, as regards the second incident on 28 November 1999,
even assuming that there was some factual basis to the applicant's
claims, leaving her with feelings of apprehension or disquiet, the
Court recalls that such feelings would not be enough in themselves to
amount to degrading treatment within the meaning of Article 3 (see,
in particular, Hüsniye Tekin v. Turkey, no.
50971/99, § 48, 25 October 2005, and Çevik v.
Turkey (dec.), no. 57406/00, 10 October 2006).
- In
conclusion, the material submitted by the applicant is not sufficient
to enable the Court to find beyond reasonable doubt that the
applicant was subjected to treatment which amounted to a breach of
Article 3 of the Convention on 22 and 29 November 1999 at the
hands of State agents.
Consequently,
no violation of Article 3 has been proven in its substantive limb.
2. The lack of an effective investigation
- The Court reiterates that Article 3 of the Convention
also requires the authorities to investigate allegations of
ill-treatment when they are “arguable” and “raise a
reasonable suspicion”, even if such treatment is administered
by private individuals (see, in particular, Ay v. Turkey,
no. 30951/96, §§ 59-60, 22 March 2005). The minimum
standards applicable, as defined by the Court's case-law, include the
requirements that the investigation be independent, impartial and
subject to public scrutiny, and that the competent authorities act
with exemplary diligence and promptness (see, for example, Çelik
and İmret v. Turkey, no. 44093/98, § 55, 26
October 2004). In addition, for an investigation to be considered
effective, the authorities must take whatever reasonable steps they
can to secure the evidence concerning the incident, including, inter
alia, a detailed statement concerning the allegations from the
alleged victim, eyewitness testimony, forensic evidence and, where
appropriate, additional medical reports (see, in particular, Batı
and Others, cited above, § 134).
- The
Court considers that the applicant's testimony, the seriousness of
her allegations, her age and the medical reports attesting to her
mental health together raise a reasonable suspicion that the
applicant could have been the subject of ill-treatment, irrespective
of the status of the alleged perpetrator(s). An investigation was
therefore required.
- In
the instant case, the Court observes that an investigation into the
allegations of the applicant was initiated promptly by the public
prosecutor's office. This investigation ended when the Assize Court
upheld the decision of the public prosecutor not to prosecute Mr
R.G., the police officer identified by the applicant as one of those
who had entered her house on 28 November 1999. In the course of the
investigation the prosecutor heard evidence from the applicant and
additional medical reports were sought to establish the veracity of
her allegations. The prosecutor, with exemplary diligence, involved
the applicant in the preliminary investigation by asking her to
identify the alleged perpetrators first by checking police records
and later via an identification procedure.
- Nonetheless,
the Court observes that there were shortcomings in the way the
investigation was conducted by the prosecutor which had repercussions
on its effectiveness. In this connection, the Court observes,
firstly, that the prosecutor never sought to secure the testimonies
of potential witnesses, such as neighbours or relatives, in order to
establish the veracity of the allegations of the applicant regarding
the incidents. Secondly, the applicant was questioned twice without
the assistance of a third person who could act as an official
translator. Instead her lawyer and son had to take on that role (see
paragraphs 16 and 17 above). The prosecutor never took into account
the possibility that some of the inconsistencies in her story, in
addition to the poor state of the applicant's mental health, might
have been the result of inadequate translation. Thirdly, there is no
explanation as to why the applicant's son was present during the
identification procedure and whether he had been duly warned that any
interference on his part in that process could have adverse
consequences for the investigation. Finally, the Court notes that the
prosecutor's investigation into the applicant's allegations remained
fairly limited, in that no consideration was given to the possibility
that the applicant might have been ill-treated by persons simply
claiming to be police officers, and thus expanding the investigation
in that light.
- In the light of the foregoing the Court finds that the
investigation carried out into the applicant's
arguable allegations of ill-treatment was inadequate and,
therefore, in breach of the State's procedural obligations under
Article 3 of the Convention.
- It
follows that there has been a violation of Article 3 under its
procedural limb.
III. ALLEGED VIOLATION OF ARTICLES 8, 14 AND 34 OF THE
CONVENTION
- The
applicant complained that the police raid at her house constituted an
unjustified interference with her right to respect for her private
life and her home. She submitted that the police had entered her
house, stolen her money and thrown her daughter's picture on the
floor. In addition, the applicant complained that she had been
discriminated against on account of her ethnic origin, in breach of
Article 14 of the Convention. Finally, the applicant complained that
her constant harassment by police officers and the criminal
proceedings instigated against her constituted pressure on her to
withdraw her application and an interference with the exercise of the
right of individual petition.
- Having
regard to the facts of the case, the submissions of the parties and
its finding of a violation under Article 3 under its procedural limb
above, the Court considers that it has examined the main legal
question raised in the present application. It concludes therefore
that there is no need to give a separate ruling on the applicant's
remaining complaints under Articles 8, 14 and 34 of the Convention
(see, for example, Mehmet and Suna Yiğit v. Turkey,
no. 52658/99, § 43, 17 July 2007, and Uzun v. Turkey,
no. 37410/97, § 64, 10 May 2007).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
Court points out that, under Rule 60 of the Rules of Court, any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part.”
- In
the instant case, on 29 September 2005 the Court invited the
applicant to submit her claims for just satisfaction by 10 November
2005. However, she did not submit any such claims within the
specified time limit.
- In
view of the above, the Court makes no award under Article 41 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no substantive
violation of Article 3 of the Convention on account of the
applicant's alleged ill treatment by State agents;
- Holds that there has been a procedural violation
of Article 3 of the Convention on account of the lack of an effective
investigation into the applicant's allegations of ill-treatment;
- Holds that there is no need to examine
separately the complaints under Articles 8, 14 and 34 of the
Convention.
Done in English, and notified in writing on 11 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F.
Tulkens
Registrar President
