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SECOND
SECTION
CASE OF HÜRRİYET YILMAZ v. TURKEY
(Application
no. 17721/02)
JUDGMENT
STRASBOURG
5
June 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 Hürriyet Yılmaz 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,
Ms D. Jočienė,
Mr D. Popović,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17721/02) 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, Mr Hürriyet Yılmaz
(“the applicant”), on 8 January 2002.
- The
applicant, who had been granted legal aid, was represented by
Mr Hancıoğlu, a lawyer practising in İstanbul.
The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- The
applicant alleged that he had been ill-treated by the police and that
the investigation into his allegations of ill-treatment had not been
effective. He relied on Article 3 of the Convention.
- On
6 October 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960. He is currently detained in Isparta
Prison.
- The
applicant was suspected of being involved in an armed robbery. On 1
August 1996 police officers from the organised crime unit of the
İstanbul Security Directorate conducted an operation and the
applicant was arrested. At the time of his arrest, the applicant was
at a real estate office, owned by one of his relatives. Many of his
relatives, including his children, were in this office at the
relevant time. The applicant was allegedly beaten severely on his
neck and back during his arrest. He was subsequently taken to the
Security Directorate Building in Gayrettepe, without having a medical
examination.
- The
applicant was allegedly blindfolded and interrogated in the security
directorate building. During his interrogation, it is alleged that
the applicant was stripped naked, punched, beaten with a truncheon,
and had his testicles squeezed. However, the Government maintained
that the applicant's statement was taken in the presence of his
lawyer, Mr Gürkan Atabay.
- On
3 August 1996 the applicant was taken to Haydarpaşa Hospital
where he was examined by a doctor. According to his report, the
doctor found no signs of injury on the applicant's body. The same
day, he was placed in detention on remand.
- In
September 1996, complaining of a stiff neck and facial paralysis, the
applicant went to see the prison doctor. The doctor transferred him
to Kartal Hospital.
- On
16 September 1996 the applicant filed a complaint with the public
prosecutor and maintained that he had been severely beaten during his
arrest.
- Following
certain medical tests, on 15 October 1996 the Kartal Hospital
delivered its report, in which it was stated that the applicant was
suffering from post-traumatic vertebral disorders and that he had an
old fracture on his C6 vertebrae.
- On
27 November 1996 the applicant gave a statement to the public
prosecutor, and repeated his allegations. He maintained that he had
been severely beaten on his neck during his arrest.
- The
public prosecutor took statements from the eye-witnesses to the
applicant's arrest and the four police officers involved. In their
statements taken on 8 January 1997, the applicant's son A.Y., his
daughter E.Y, his brother-in-law N.Y. and sister-in-law H.S.
explained to the prosecutor that they had seen the police officers
beat the applicant heavily on the neck. On 23 June 1997 the
prosecutor took statements from two officers, M.B. and M.K., who had
been involved in the applicant's arrest. The officers denied the
accusations. Subsequently, on 17 July 1997 and 26 August 1997,
respectively, O.K. and M.K., the two other police officers involved
in the applicant's arrest, gave identical statements to the public
prosecutor and denied the allegations.
- Upon
the request of the public prosecutor, the İstanbul Forensic
Medical Institution prepared a final report concerning the
applicant's injuries. In its report dated 23 March 1998, the Forensic
Medicine Institute concluded that, although the applicant's injuries
did not constitute a danger to his life, he was unfit to work for
twenty five days. The fracture on the applicant's C6 vertebrae and
the disorders on his vertebras were estimated to be at least three
weeks old on 15 October 1996. It was also indicated that it had not
been medically possible to determine the exact date of the incident.
While drafting this report, the İstanbul Forensic Medicine
Institute based itself solely on the report of the Kartal Hospital,
dated 15 October 1996.
- On
3 June 1998 the public prosecutor filed an indictment with the
İstanbul Criminal Court and initiated criminal proceedings
against the four police officers for ill-treatment.
- In
a hearing held before the İstanbul Criminal Court on
15 September 1998, the accused police officers M.B. and M.T.
appeared before the court and denied the accusations. Neither the
applicant nor his witnesses were present at this hearing.
- On
9 February 1999 the applicant's children A.Y. and E.Y. appeared
before the court. They explained that they had seen the police
officers beat their father on the back and particularly on his neck.
They told the court that they could identify the police officers who
had beaten him if they met them face to face. The accused police
officers were not present at this hearing.
- On
9 March 1999 the applicant's statement was taken by the Isparta
Criminal Court. He repeated his allegations of ill-treatment.
- On
23 February 1999 the accused police officer O.K.'s statement was
taken on commission before the Samsun Criminal Court. He denied the
accusations.
- On
29 December 1999 the İstanbul Criminal Court decided that it
lacked jurisdiction and transferred the case file to the İstanbul
Assize Court.
- On
18 January 2000 the proceedings against the four accused police
officers were resumed before the İstanbul Assize Court.
- On
23 February 2000 the applicant's statement was taken once again
before the Isparta Assize Court.
- On
1 March 2000 the Samsun Assize Court took the statement of O.K. on
commission.
- On
10 March 2000 the İstanbul Assize Court heard the statements of
the two accused officers, M.B. and M.T.
- On
30 May 2000 the applicant's children A.Y. and E.Y. testified once
again that that they had seen their father being beaten during his
arrest. However, they explained that, as a long time had passed, they
would no longer be able to recognise the police officers.
- On
14 September 2000 the Assize Court took a statement from M.K., the
fourth accused police officer. Before the court, M.K. denied the
allegations. On the same day, the court delivered its judgment and
acquitted the police officers of the charges against them on account
of a lack of evidence.
- On
3 July 2002 the Court of Cassation rejected the applicant's appeal
request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been subjected to ill-treatment during his arrest and subsequently
during his custody at the Security Directorate Building. He also
alleged that the domestic authorities had failed to carry out an
effective investigation capable of leading to the punishment of the
police officers responsible for the treatment. Article 3 of the
Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested these arguments.
A. Alleged ill-treatment of the applicant during his
police custody
- The
applicant maintained that he had been subjected to various forms of
ill-treatment during his police custody at the Gayrettepe Security
Directorate Building. In this connection, he stated that he had been
stripped naked, punched, beaten with a truncheon, and his testicles
had been squeezed.
- The
Government did not make any comments about this part of the
application.
- The
Court notes in the first place that the applicant failed to submit
this part of his allegation, either in form or in substance, before
the national authorities. Secondly, it recalls that allegations of
ill-treatment must be supported by appropriate evidence. To assess
this evidence, the Court has generally applied the standard of proof
“beyond reasonable doubt” (see, 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 of similar unrebutted presumptions of
fact (see, Labita v. Italy [GC], no. 26772/95, § 121,
ECHR 2000 IV).
- In
the instant case, the applicant complained that, during his
interrogation at the Security Directorate Building, he had been
stripped naked, punched, beaten by a truncheon, and his testicles had
been squeezed. Nonetheless, several elements cast doubt on the
veracity of the applicant's claims. The Court observes that on the
last day of his police custody, the applicant was examined by a
doctor at the Haydarpaşa Hospital. According to this report,
there were no signs of ill-treatment on his body (see paragraph 8
above). The Court is aware of the lack of details in this report.
However, the applicant has not adduced any material which could add
probative weight to his allegations. Furthermore, from the
Government's observations, it appears that the applicant's police
statement was taken in the presence of his lawyer, Mr Gürkan
Atabay (see paragraph 7 above). The Court therefore considers that
there is nothing in the case file to show that the applicant was
ill-treated as alleged during his police custody.
- In
view of the above, the Court concludes that the applicant has not
laid the basis of an arguable claim and this part of the application
should therefore be declared inadmissible as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
the Convention.
B. Alleged ill-treatment of the applicant during his
arrest
1. Admissibility
- The Government asked the Court to dismiss the
application as being inadmissible for failure to comply with the
requirement of exhaustion of domestic remedies under Article 35 § 1
of the Convention. They argued that the applicant could have sought
reparation for the harm he had allegedly suffered by instituting an
action in the civil or administrative courts.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objections in similar cases (see, in
particular, Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004). It finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned application.
Consequently, it rejects the Government's preliminary objection.
- The
Court considers that the applicant's complaint 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.
2. Merits
a) Concerning the alleged ill-treatment
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. To assess this evidence, the Court adopts
the standard of proof “beyond reasonable doubt”, but
notes that such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (Labita, cited above, § 121). The
Court has held on many occasions that, where a person is injured
while in detention or otherwise under the control of the police, any
such injury will give rise to a strong presumption that the person
was subjected to ill-treatment (Matko v. Slovenia, no.
43393/98, § 99, 2 November 2006, and Bakbak v. Turkey,
no. 39812/98, § 47, 1 July 2004). It is incumbent on
the State to provide a plausible explanation of how the injuries were
caused, failing which a clear issue arises under Article 3 of the
Convention (Selmouni v. France [GC], no. 25803/94, § 87,
ECHR 1999 V, and Ribitsch v. Austria, judgment of 4
December 1995, Series A no. 336, p. 26, § 34).
- The
Court notes, in the first place, that the medical certificates dated
15 October 1996 and 23 March 1998 showed that the applicant
suffered from post-traumatic vertebral disorders and had an old
fracture on his C6 vertebrae. It was also established that these
injuries had been sustained at least three weeks prior to 15 October
1996. The Court notes that this corresponds to the date of the
applicant's arrest.
- Furthermore,
the applicant's allegations submitted in his petition to the
prosecutor and his subsequent statements before the Isparta Criminal
Court and the Isparta Assize Court are consistent. His submissions
are corroborated by witness statements and more importantly the
findings in the medical reports match, in the Court's opinion, his
allegation that he was beaten severely on his back and neck at the
time of his arrest.
- The
Court further observes that the Government failed to provide an
explanation as to the manner in which the injuries noted in the
applicant's medical reports were sustained.
- Considering
the circumstances of the case as a whole, and in the absence of a
plausible explanation from the Government as to the cause of the
injuries sustained by the applicant, the Court finds that the
applicant's injuries were the result of treatment for which the State
bore responsibility.
- It follows that there has been a substantive violation
of Article 3 of the Convention in this respect.
b) Concerning the alleged lack of
effective investigation
- The
applicant further maintained, under Article 3, that the authorities
had not conducted an adequate investigation into his complaints of
ill-treatment.
- The
Government denied the allegations. They stated that the domestic
authorities had conducted a serious investigation into the
applicant's allegations.
- Where an individual raises an arguable claim that he
or she has been seriously ill-treated by the police in breach of
Article 3, that provision, read in conjunction with the State's
general duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation. This investigation
should be capable of leading to the identification and punishment of
those responsible (see Assenov and Others, judgment of 28
October 1998, Reports 1998-VIII, p. 3290, § 102, and
Labita, cited above, § 131). The minimum standards as to
effectiveness defined by the Court's case-law also include the
requirements that the investigation must be independent, impartial
and subject to public scrutiny, and that the competent authorities
must act with exemplary diligence and promptness (see, for example,
Çelik and İmret v. Turkey, no. 44093/98, § 55,
26 October 2004).
- Turning
to the present case, the Court notes in the first place that the
applicant complained before the domestic authorities that he had been
severely beaten on his neck during his arrest. He had submitted a
medical report which, and the names of witnesses who supported his
allegations. Against this background, the Court considers that the
medical evidence and the applicant's complaint together raised a
reasonable suspicion that his injuries could have been caused by the
police. The competent authorities were therefore under an obligation
to conduct an effective investigation satisfying the above
requirements of Article 3 of the Convention.
- The
Court notes that, following the applicant's complaint dated
16 September 1996, the İstanbul Public Prosecutor started
an investigation into his allegations. However, it is not persuaded
that this investigation was conducted diligently, or, in other words,
that it was “effective”.
- The
Court finds it striking that, despite the seriousness of the
allegations, the judicial authorities failed to conduct the
investigation in a prompt manner. In this connection, it is observed
that the public prosecutor took statements from the eye-witnesses to
the applicant's arrest for the first time in January 1997. In their
statements the witnesses explained that they had seen the police
officers who had beaten the applicant on 1 August 1996 and would
be able to identify them if they met face to face. The Court further
finds it remarkable that it was not until 23 March 1998, i.e.
eighteen months after the alleged incident, that the İstanbul
Forensic Medicine Institute delivered its final report. At this
point, it is important to note that when preparing this report, the
Forensic Medicine Institute based itself solely on the medical report
of 15 October 1996 given by the Kartal Hospital. Subsequently, while
the public prosecutor initiated criminal proceedings against the four
police officers, this was on 3 June 1998, almost two years after the
incident. The witnesses were heard again by the İstanbul
Criminal Court on 9 February 1999 but neither the applicant nor the
witnesses were given an opportunity to confront the accused officers
in person. When the criminal court gave a decision of
non-jurisdiction on 29 December 1999, the proceedings had
already been pending for more than three years. In the resumed
proceedings before the İstanbul Assize Court in January 2000,
the same witnesses and the accused police officers were once again
heard before the Assize Court. However, this time the witnesses
explained that, although at the time of the events they had seen the
police officers who had beaten the applicant, as a considerable time
had passed they no longer felt that they would be able to recognise
the officers, even if they met them in person. Having regard to all
these facts, the Court cannot but conclude that the authorities
failed to conduct the investigation with due expedition. Because of
this delay, the applicant and his witnesses were deprived of the
opportunity to meet the accused police officers face to face and
identify them.
- The
Court further notes with concern that at no stage of the proceedings
was a statement taken from the doctor who drafted the medical report
dated 1 August 1996 or from the applicant's lawyer, Mr Gürkan
Atabay, who had given legal assistance to the applicant during his
police custody. It also appears from the investigation file that
neither the prosecution authorities nor the domestic courts tried to
provide an explanation as to how the applicant's vertebral disorders
and the fracture on his C6 vertebrae were sustained.
- In
the light of the above, the Court concludes that the applicant's
claim that he was ill-treated during his arrest was not subject to an
effective investigation by the domestic authorities as required by
Article 3 of the Convention.
- There
has therefore been a procedural violation of Article 3 on this
regard.
II. 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
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
ill-treatment of the applicant during his arrest and the failure of
the authorities to conduct an effective investigation into this claim
admissible, and the remainder inadmissible;
- Holds that there has been a substantive
violation of Article 3 of the Convention on account of the treatment
he suffered during his arrest;
- Holds that there has been a procedural violation
of Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant's allegations that he was ill-treated by the police.
Done in English, and notified in writing on 5 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F.
Tulkens
Registrar President
