BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF ONAY v. TURKEY
(Application
no. 31553/02)
JUDGMENT
STRASBOURG
20 September 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 Onay 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 I. Cabral Barreto,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mr D. Popović, judges,
and Mrs
S. Dollé, Section Registrar,
Having
deliberated in private on 30 August 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31553/02) 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 Turkish nationals, Mr Sıddık Onay and
Mrs Zinnet Onay, on 27 June 2002.
- The
applicants were represented by Mr M Beştaş, Mr S Karadayı
and Mrs M Beştaş, lawyers practising in Diyarbakır.
The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- On
12 July 2006 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
applicants, Sıddık Onay and Zinnet Onay, were born in 1985
and 1948 respectively and live in Diyarbakır. The second
applicant is the mother of the former.
- When
the first applicant (“the applicant”) was 17 years old,
on 25 May 2002 at about 2 p.m. he was arrested at his home by
police officers from the Department of Peace and Order attached to
the Diyarbakır Security Directorate, on suspicion of involvement
in various incidents of bag snatching in Diyarbakır.
- According
to the report drafted by the police, the arrest took place on 26 May
2002 at 9.50 p.m. on the street outside his residence. The report
stated that the police had acted upon the information of a certain
M.D., a fellow detainee, who had cited the applicant's name during
his interrogation in relation to the bag snatching in Diyarbakır.
The report also stated that the applicant's mother had been informed
of the arrest and detention.
- On
26 May 2002 the applicant was given a medical examination at the
Forensic Medicine Institute. A subsequent medical report revealed
that there were some blade cuts on his left arm which were three or
four days old but, apart from those injuries, no signs of possible
ill-treatment were noted. The applicant was then taken into custody
at the Peace and Order Department.
- On
27 May 2002 at 3.30, 4.15, 4.45, 5.10, 5.35 and 6 p.m., the applicant
and M.D. were taken to on-site inspections. A lawyer assigned by the
Diyarbakır Bar Association was present during these inspections,
when the applicant gave detailed statements as to how he and M.D. had
planned and committed the offences.
- Around
6.15 p.m. the same day, he was again given a medical examination. The
medical report drafted on that occasion recorded no signs of beatings
or the use of physical force on the applicant's body. The same day,
at the request of the police, the public prosecutor, without seeing
the applicant, extended his custody period by two more days under
Article 128 § 2 of the former Code of Criminal
Procedure. According to the report drafted by the police at 6.25 p.m.
on that day, the applicant was handed over to the Juvenile Department
of the Security Directorate.
- On
28 May 2002 at 10.30 a.m., the applicant was brought for a further
medical examination. The medical report prepared on that day noted
two bruises of 10 x 2 cm on his right upper arm and a bruise of 5 x 1
cm on his left upper arm just below his shoulder, which were
estimated to be two or three days old; some old cutting scars on his
arms and chest were also noted. The applicant was given a second
medical examination at 4.15 p.m. on the same day. The second
medical report confirmed the findings of the first report. These
reports both stated that the medical examinations had been performed
upon the request of the Peace and Order Department.
- On
29 May 2002 the Juvenile Police took the applicant for a medical
examination. The forensic medical report prepared on that occasion
recorded the old cutting scars on the applicant's body, but no signs
of the use of recent physical force were noted.
- On
the same day the applicant was brought before the public prosecutor.
In his statement to the public prosecutor, made in the presence of
another duty lawyer, the applicant denied the charges against him.
The lawyer claimed that the applicant had been ill-treated whilst in
police custody and that he still bore the signs of that treatment. He
requested that the applicant be referred to the forensic medicine
institute for a complete medical report.
- Later
the same day, the applicant repeated his allegations of ill-treatment
before the investigating judge. He alleged that, after the police
officers had apprehended him, they blindfolded him; electric shocks
were administered to his body; he was beaten with truncheons and
forced to admit to the charges. He showed the marks on his body to
the judge. The judge noted a bruise of 7 cm about the thickness of a
little finger on the applicant's right upper arm, a bruise of 3 cm
the thickness of a little finger just under his left shoulder, a
scab-covered lesion under his left kneecap, a swelling on his left
ankle and some old blade cuts. The applicant was then remanded in
custody.
- On
30 May 2002 the applicant's lawyer filed a complaint with the
Diyarbakır Public Prosecutor's Office, requesting the public
prosecutor to bring criminal proceedings against the police officers
who had been on duty when the applicant was in their custody. He also
repeated that the applicant should be referred for a full medical
examination. Subsequently, the public prosecutor launched an
investigation into the applicant's complaint of ill-treatment.
- On
the same day, the public prosecutor took a detailed statement from
the applicant, in which he complained about the police officers and
repeated almost the same submissions he had made to the investigating
judge, adding that he had not been subjected to further ill-treatment
after he had been handed over to the Juvenile Police. He also
admitted that the scars on his upper and lower arms as well as his
wrist were self-inflicted with metal wire, which he had torn off the
cell window, as he could not bear the pain of ill-treatment. After
taking the applicant's statement, the public prosecutor issued a
letter to the Forensic Medicine Institute, asking for a detailed
medical report on the applicant, including an explanation as to the
nature and cause of his injuries.
- A
report submitted by the Forensic Medicine Institute on 30 May
2002 made reference to the previous medical reports dated 26, 27 and
28 May 2002, and drew its own conclusions after the applicant
had been examined. It noted that the applicant had a bruise of 5 x
0.5 cm of which the outer line was a green-yellow colour and the
centre was purple-dark blue, on the right upper arm, estimated to be
three or four days old, and an old scar of 3 x 1 cm on his left
kneecap. The bruising was deemed to have been caused by blunt force
trauma. The applicant's injures were not regarded as life threatening
but classified as sufficient to render him unfit for a day.
- On
18 November 2004 the public prosecutor decided not to prosecute the
police officers concerned. Referring to all the medical reports, this
decision concluded briefly that the lesions had occurred prior to the
applicant's arrest and that the scars on his body and arms had been
self-inflicted, as he admitted in his statement of 30 May 2002. The
applicant challenged this decision before the Siverek Assize Court.
- On
19 January 2005 the Assize Court rejected the applicant's objection.
II. RELEVANT DOMESTIC LAW
- Section
18 (b) of the Regulations on Apprehension, Detention and
Interrogation (1 October 1998, as amended on 13 August 1999)
provides:
“Anyone who has reached the age of eleven, but is
no more than eighteen, may be arrested. The parents and a lawyer
shall be informed of the arrest and the minor shall be brought
promptly before the public prosecutor. In these cases, the
preliminary investigation shall be conducted personally by the
Principal Public Prosecutor or by a public prosecutor to whom the
former delegates that duty...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
first applicant complained that he had been ill-treated whilst in
police custody. In particular, he submitted that he had been beaten;
water had been poured on him, followed by electric shocks. The second
applicant also claimed that she had suffered on account of the
emotional distress on hearing of her son's isolated detention and
ill-treatment. The first applicant further alleged that he had not
had an effective remedy before the national authorities for his
complaint of ill-treatment.
- They
relied on Articles 3 and 13 of the Convention, which provide as
follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government argued that the second applicant, Zinnet Onay, who is the
mother of the first, was not a victim of the alleged violation of
Article 3 of the Convention. They contended that it was clear
from the documents of apprehension and detention that the young man's
parents had not made any attempt to visit him or challenge his
detention, although they had been promptly informed of his arrest.
- The Court notes that, in the present case, the anguish
suffered by the second applicant cannot be regarded as being of a
dimension or character distinct from the emotional stress which may
be regarded as inevitably caused to relatives of victims of alleged
human-rights violations (see Nesibe Haran v. Turkey, no.
28299/95, § 84, 6 October 2005, and, a contrario, İpek
v. Turkey, no. 25760/94, § 183, ECHR 2004 II).
- In these circumstances, the Court considers that the
second applicant cannot claim to be a victim of a violation of
Article 3 of the Convention in terms of Article 34. It follows that
this part of the application is incompatible ratione personae
with the provisions of the Convention and must be rejected pursuant
to Article 35 §§ 3 and 4.
- The
Court further notes that the first applicant's complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The alleged ill-treatment of the first applicant
- The
first applicant submitted that he had been subjected to ill-treatment
in police custody. He relied on his medical reports in support of the
allegation.
- The
Government maintained that the allegation of ill-treatment was
ill-founded. They referred to the findings in the applicant's medical
reports and contended that the lesions on his upper arms had occurred
before or on 26 May 2002 (the day of the arrest) at the latest.
Moreover, the size and nature of the bruises were not sufficient to
substantiate the alleged ill-treatment, such as the administration of
electric shocks or beatings by truncheons. They further stated that,
even assuming that the bruises on the applicant's arms had occurred
at the time of the arrest on 26 May 2002, which may have been due to
the police grasping him by his arms to prevent him fleeing.
They
also alleged that the bruises which were deemed to be caused by blunt
trauma may also have been self-inflicted by the applicant. In any
case, the applicant's injuries were not regarded as life threatening
in any medical report. Had the applicant been beaten with truncheons,
the lesions would have been larger and more serious. Thus, it was not
clear beyond reasonable doubt that the bruises had occurred during
police custody.
- The
Court reiterates that where an individual is taken into custody in
good health, but is found to be injured by the time of release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused and to produce evidence casting doubt on
the victim's allegations, particularly if those allegations were
corroborated by medical reports. Otherwise, a clear issue will arise
under Article 3 of the Convention (see Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999 V; Aksoy v. Turkey,
judgment of 18 December 1996, Reports of Judgments and Decisions
1996 VI, p. 2278, § 62; Tomasi v. France, judgment
of 27 August 1992, Series A no. 241-A, pp. 40 41, §§
108 111; Ribitsch v. Austria, judgment of 4 December
1995, Series A no. 336, p. 26, § 34).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Avşar v.
Turkey, no. 25657/94, § 282, ECHR 2001 VII).
Such proof may, however, follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64 65,
§ 161). Where the events in issue lie wholly, or in large part,
within the exclusive knowledge of the authorities, as in the case of
persons under their control in custody, strong presumptions of fact
will arise in respect of injuries occurring during detention. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 VII).
- In
the instant case, the Court observes that the applicant was medically
examined at the time of his arrest and just before he was taken into
police custody on 26 May 2002. This report noted no signs of
ill-treatment on his body, but only some old blade cuts. The
Government contended that the applicant had been handed over to the
Juvenile Police Department on 27 May 2002. The Court notes that
he was taken for a further medical examination on 28 May 2002. The
two medical reports drafted on that day showed that the applicant
bore bruises of 10 x 2 cm and 5 x 1 cm on both his
arms. However, they recorded that the requests for medical
examinations were made by police officers from the Peace and Order
Department instead of the Juvenile Police. In this respect, the Court
notes the inconsistency between the documents provided by the
domestic authorities. On 29 May 2002 the applicant was taken for
another medical examination by the Juvenile Police. That medical
report recorded the old cutting scars but no signs of recent physical
force. However, the bruises were again shown in the report of 30 May
2002 provided by the Forensic Medicine Institute.
- The
Court finds it striking that the lesions which were noted in the
report of 28 May 2002 had disappeared on 29 May 2002 and then
reappeared in the report of 30 May 2002. Therefore, it attaches no
weight to the findings of the report of 29 May 2002, in which no
signs of violence were found on the applicant's person.
- The
Court further observes that the applicant, whilst complaining in
detail about the ill-treatment to the public prosecutor and the
investigating judge, had only admitted at the beginning of his
detention that the cutting scars were self-inflicted (paragraph 15
above).
- In
these circumstances, the Court is not satisfied with the Government's
explanations as to the manner in which the bruises found during and
after the custody period were sustained by the applicant.
- There
has accordingly been a substantive violation of Article 3 of the
Convention.
2. The alleged lack of effective investigation
- The
applicant maintained that the authorities had not conducted an
adequate investigation into his allegation of ill-treatment.
- The
Government submitted that, upon the applicant's petition concerning
the allegation of ill-treatment, the public prosecutor took a
detailed statement from him, and asked the Forensic Medicine
Institute for a complete medical report, including an explanation as
to the nature and cause of the injuries found on his body.
Subsequently, on 18 November 2004 he decided not to prosecute the
police officers concerned. Referring to all the medical reports, this
decision concluded that the applicant's lesions had occurred prior to
his arrest and that the scars on his body and arms had been
self-inflicted.
- The
Court reiterates that 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; Labita
v. Italy [GC], no. 26772/95, § 131, ECHR 2000 IV).
- In
the present case, the Court notes that the public prosecutor
initiated an investigation as soon as the applicant's lawyer filed a
petition concerning the ill-treatment. However, it appears from the
case file that the prosecutor only relied on the applicant's
statement of 30 May 2002, in which he admitted that the old cutting
scars had been self-inflicted, when he decided not to prosecute the
police officers (paragraph 17 above). He did not make any inquiry
into the blunt trauma lesions noted in the medical report of 30 May
2002, which were estimated to be three or four days old, and thus
falling within the custody period. The Court further notes that the
public prosecutor disregarded the inconsistency between the
applicant's medical reports. Nor, did the Siverek Assize Court, which
had dealt with the case on appeal, take account of the preceding
elements. Moreover, the case file does not disclose any information
as to whether the prosecutor or the Assize Court took testimony from
the accused police officers.
- In
the light of the above, the Court concludes that the applicant's
claim that he had been ill-treated at the hands of the police 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 this provision.
- In
these circumstances, the Court considers that no separate issue
arises under Article 13 of the Convention (see Timur v. Turkey,
no. 29100/03, §§ 35 40, 26 June 2007).
II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1, 3 AND
4 OF THE CONVENTION
- The
applicant alleged, first, that the domestic law required that minors
be brought promptly before a public prosecutor, on apprehension, and
that it was for the prosecutor to conduct the investigation in
person. However, in his case, the police officers were in charge of
the investigation, and the public prosecutor was not involved.
Secondly, he maintained that his detention in police custody had been
excessive. He relied on Article 5 §§ 1 (c)
and 3 of the Convention.
- Thirdly,
the applicant submitted that he had been unable to challenge the
lawfulness of his detention as he had had no legal representation
during the police custody and that the presence of his lawyer during
the on-site investigations had been limited to witnessing the events.
He invoked Article 13 of the Convention in this respect.
However, the Court finds it appropriate to examine this complaint
under Article 5 § 4 of the Convention.
- The
relevant part of Article 5 of the Convention provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power ...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
- The
Government argued that the applicant had failed to exhaust the
domestic remedies available to him, as required by Article 35 §
1 of the Convention. In this connection, they submitted that,
according to Article 128 § 4 of the former Code of Criminal
Procedure, the applicant's parents or his representative could apply
for his release. However, they did not pursue habeas corpus
proceedings before the domestic courts.
- The
Government further submitted that, as the applicant had been
acquitted, he was entitled to have access to the remedy provided for
by the Compensation Law (No. 466) which was in force at the material
time. Under Article 2 of that Act, persons who had been subjected to
unlawful arrest or detention could apply to the nearest Assize Court
within three months from the date of the competent authority's
decision and claim compensation for any kind of loss which they may
have sustained.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges the
applicants first to use remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. It also requires that the
complaints intended to be brought subsequently before the Court
should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements laid down in
domestic law (see Aksoy, cited above, §§ 51 52;
Akdivar and Others v. Turkey, judgment of 16 September
1996, Reports 1996 IV, §§ 65 67).
- The
Court notes that, in the present case, the applicant complained of
the circumstances of his detention which allegedly did not comply
with the requirements of domestic law, and which had therefore been
unlawful. The Court observes that the applicant's detention may have
breached certain requirements of Section 18 (b) of the relevant
regulations (paragraph 19 above). However, the Court cannot
overlook the fact that the applicant was arrested at his home in the
presence of his mother. The arrest report drafted by the police on 26
May 2002 (paragraph 6 above) confirmed that the applicant's mother
had been informed of his arrest and detention. Furthermore, the
applicant was assisted by two different duty lawyers during and after
the police custody period (paragraphs 8 and 12 above). Although he
claims that the first lawyer had only witnessed the events during the
on-site inspections and had not provided him with sufficient legal
assistance, the second lawyer had lodged a complaint concerning the
ill-treatment before the public prosecutor (paragraph 14 above).
However, that petition did not include any submission in relation to
the alleged unlawfulness of the detention. Nor, were there any other
authorities whom his mother or lawyers approached on his behalf
concerning his Article 5 grievances.
- In
the light of the foregoing, it would be reasonable to expect from the
applicant that he had brought these complaints before the national
authorities prior to his application to the Court, which has a role
that is subsidiary to the national systems safeguarding human rights.
- It
follows, that this part of the application must be rejected for
non-compliance with the requirement of exhaustion of domestic
remedies pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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.”
A. Damage
- The
first applicant claimed 1,500 new Turkish liras (YTL) (approximately
838 euros (EUR)) in respect of pecuniary damage and YTL 100,000,000
(approximately EUR 55,796) for non-pecuniary damage.
- The
Government contested these claims as being unsubstantiated and
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, having regard to the violations found and ruling on an
equitable basis, it awards the first applicant EUR 5,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
first applicant also claimed YTL 11,200 (approximately EUR 6,247)
for the costs and expenses incurred before the Court. In support of
his claim, he submitted the Diyarbakır Bar Association's
recommended scale of fees for 2006.
- The
Government disputed the amount claimed.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the applicant has not substantiated
that has actually incurred the costs so claimed. Accordingly, it
makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the first applicant's complaint
concerning ill-treatment in police custody admissible and the
remainder of the application inadmissible;
- Holds that there has been a substantive
violation of Article 3 of the Convention as regards the complaint of
ill-treatment;
- Holds that there has been a procedural violation
of Article 3 of the Convention on account of the authorities' failure
to conduct an effective investigation into the allegations of
ill-treatment;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 5,000
(five thousand euros) in respect of non-pecuniary damage, plus any
tax that may be chargeable, which sums are to be converted into new
Turkish liras at the rate applicable at the date of the settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 20 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
