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THIRD
SECTION
CASE OF ÇAĞLAYAN v. TURKEY
(Application
no. 30461/02)
JUDGMENT
STRASBOURG
21 October
2008
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 Çağlayan v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Işıl
Karakaş,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30461/02) 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 Erol Çağlayan
(“the applicant”), on 10 June 2002.
- The
applicant was represented by Ms H. Demir, a lawyer practising in
Muğla. The Turkish Government (“the Government”)
were represented by their Agent.
- The
applicant alleged that he had been subjected to ill-treatment during
his detention in police custody and that there were no effective
domestic remedies in respect of his grievances. He also raised
complaints under Articles 6 and 11 of the Convention and Article 1 of
Protocol No. 1.
- On
30 August 2007 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the alleged
ill-treatment and ineffectiveness of the domestic remedies 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 1961 and lives in Muğla.
- The
applicant is a member of the Haber-Sen, a trade union formed by
public employees. He is also a member of the Confederation of Public
Employees' Trade Unions (Kamu Emekçileri Konfederasyonu –
“KESK”).
- On
29 October 1997 the applicant was arrested in Muğla and taken to
the Anti-Terrorism Branch of the Muğla Security Directorate on
charges of having insulted a police officer. He had allegedly
attempted to resist arrest. During his detention in police custody,
the applicant was allegedly beaten up, slapped and threatened with
death by the police officers.
- On
the same day, the applicant was taken to the Emergency Service of
Muğla State Hospital, where he was examined by a doctor. In his
report, the doctor indicated the presence of hyperaemia on the
applicant's cheeks and another red mark measuring 10 cm x 10 cm on
his back. The doctor concluded that the injuries in question
(hyperaemia) would heal in three days and would not render the
applicant unfit for work.
- On
30 October 1997 the applicant was brought before the Muğla
Public Prosecutor and the Muğla Magistrates' Court respectively,
where he complained that he had been beaten up and threatened with
death during his detention in police custody. He was subsequently
placed in pre-trial detention.
- On
11 November 1997 the applicant underwent a new medical examination at
Muğla State Hospital by a surgeon, who stated in her report that
there were healing wounds and haematoma caused by a blunt object on
the applicant's shoulder blades.
- On
12 November 1997 another doctor at the Muğla State Hospital
examined the applicant and stated in his medical report that there
was no sign of physical violence on his body.
- On
25 November 1997 the applicant filed a complaint against the police
officers who had allegedly ill-treated and insulted him.
- According
to a photo identification report dated 12 January 1998, the applicant
was shown photos of forty-five police officers from the
Anti Terrorism Branch of the Muğla Security Directorate and
identified the six police officers who had ill-treated and threatened
him.
- Between
14 and 19 January 1998 senior police officers, who had been appointed
as investigators, took statements from the six police officers who
had allegedly ill-treated the applicant. The police officers all
denied the applicant's allegations of ill-treatment. They claimed
that the applicant had made slanderous allegations in an attempt to
waste their time and to demean the police force. The applicant also
made statements to the senior police officers and claimed that he had
been slapped, insulted and threatened with death by six police
officers.
- On
2 March 1998 the Muğla Chief Public Prosecutor delivered a
decision of non-prosecution in respect of the applicant's allegations
that he had been insulted and threatened while in police custody. On
the same day, the public prosecutor filed an indictment with the
Muğla Criminal Court against six police officers, accusing them
of ill-treatment under Article 245 of the Criminal Code.
- On
10 March 1999, the Muğla Criminal Court decided to stay the
proceedings against the accused police officers and transferred the
case file to the Muğla Provincial Administrative Council to
obtain authorisation to bring criminal proceedings against the
officers pursuant to the provisions of the Law on the prosecution of
civil servants.
- On
10 February 2000 the Muğla Provincial Administrative Council
decided not to authorise prosecution on the ground that there was
insufficient evidence to indicate that the police officers had
inflicted ill treatment on the applicant.
- On
3 March 2000 the applicant appealed against the Muğla Provincial
Administrative Council's decision. He argued that the conclusion that
there was no evidence proving ill-treatment was ill-founded and
unjust in view of the medical reports, which clearly indicated that
he had been beaten up during his detention in police custody.
- Meanwhile,
a disciplinary investigation was also conducted against the six
police officers in question. However, on 2 May 2000, relying on the
conclusion reached by the Provincial Administrative Council, the
Police Disciplinary Board of the Muğla Governorship decided to
terminate the investigation against the accused police officers.
- On
21 December 2000 a law (Law no. 4616) on conditional release was
enacted. This law provided for the suspension of proceedings or
execution of sentences in respect of crimes committed before 23 April
1999 and for which the maximum penalty did not exceed ten years'
imprisonment.
- On
10 February 2000 the Supreme Administrative Council decided to
suspend the criminal proceedings against the accused police officers
pursuant to Law no. 4616. The applicant appealed against this
decision.
- On
15 January 2002 the Supreme Administrative Court upheld the Supreme
Administrative Council's decision.
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
Government argued that the applicant had failed to exhaust the
domestic remedies available to him within the meaning of Article 35 §
1 of the Convention. In this connection, they submitted that the
applicant had not availed himself of the civil and administrative law
remedies which could have provided reparation for the harm he had
allegedly suffered.
- 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). The Court finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned case. It therefore
rejects the Government's preliminary objection.
- The
Court notes that the application 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.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to various forms of
ill-treatment and that the domestic authorities had failed to carry
out an effective investigation into his complaints. He relied on
Article 3, which provides:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions of the parties
1. The applicant
- The
applicant alleged that he had been beaten up by the police officers
during his detention and that the domestic remedies had proved to be
ineffective.
2. The Government
- The
Government submitted that the police officers had had to use
reasonable force against the applicant in order to effect a lawful
arrest and to take him to the police station, because he had insulted
them and resisted arrest. Furthermore the applicant's allegations
were ill-founded, given that the findings contained in the medical
report dated 29 October 1997 were inconsistent with his allegations.
In the Government's opinion, had the applicant been beaten up by six
police officers, as he alleged, he would have sustained serious
injuries. Finally, they claimed that an effective investigation did
not necessarily mean a favourable outcome for the applicant.
Nonetheless, the authorities had carried out an effective
investigation into the applicant's allegations and had concluded that
they were unsubstantiated.
B. The Court's assessment
1. General Principles
- The
Court reiterates that Article 3 of the Convention ranks as one of the
most fundamental provisions in the Convention, from which no
derogation is permitted. It also enshrines one of the basic values of
the democratic societies making up the Council of Europe. The object
and purpose of the Convention as an instrument for the protection of
individual human rights requires that these provisions be interpreted
and applied so as to make its safeguards practical and effective (see
Avşar v. Turkey, no. 25657/94, § 390, ECHR
2001-VII (extracts)).
- The
Court further reiterates that, where an individual is taken into
custody in good health but is found to be injured at 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 veracity of the victim's allegations,
particularly if those allegations are backed up by medical reports.
Failing this, a clear issue arises under Article 3 of the Convention
(see Çolak and Filizer v. Turkey, nos. 32578/96 and
32579/96, § 30, 8 January 2004; Selmouni v. France
[GC], no. 25803/94, § 87, ECHR 1999-V; Aksoy, cited
above, § 61; and Ribitsch v. Austria, judgment of 4
December 1995, Series A no. 336, p. 26, § 34).
- The Court is sensitive to the subsidiary nature of its
role 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). However, where allegations are made under Article 3 of
the Convention, the Court must conduct a particularly thorough
scrutiny (see Ülkü Ekinci v. Turkey, no.
27602/95, § 135, 16 July 2002) and will do so on the basis
of all the material submitted by the parties.
- In
assessing evidence, the Court has adopted the standard of proof
“beyond reasonable doubt” (see Orhan v. Turkey,
no. 25656/94, § 264, 18 June 2002, and Avşar,
cited above, § 282). Such proof may, however, follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Ülkü
Ekinci, cited above, § 142).
- Furthermore,
where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within 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).
- Lastly,
the Court reiterates that where an individual raises an arguable
claim that he has been seriously ill-treated by the police or other
such agents of the State unlawfully and 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, as with that
under Article 2, should be capable of leading to the identification
and punishment of those responsible. If this were not the case, the
general legal prohibition of torture and inhuman and degrading
treatment and punishment, despite its fundamental importance, would
be ineffective in practice and it would be possible in some cases for
agents of the State to abuse the rights of those within their control
with virtual impunity (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, § 102).
2. Application of the above principles to the
circumstances of the present case
a. Alleged ill-treatment suffered by the
applicant
- The
Court notes that the applicant underwent three medical examinations
following his release from the custody of the police officers.
Although the first two medical reports, dated 29 October 1997 and
11 November 1997, indicated the presence of hyperaemia and
wounds on the applicant's body, the third medical report, dated 12
November 1997, stated that there was no sign of physical violence on
his body (see paragraphs, 8, 10 and 11 above).
- The
Court considers that the injuries described in the first two medical
reports (see paragraphs 8 and 10) are consistent with the applicant's
allegation that he had been beaten up by the police officers,
particularly having regard to the finding in the medical report of 11
November 1997 that the wounds and haematoma observed on the
applicant's back had been caused by a blunt object. It also observes
that the hyperaemia (reddening of the skin) noted in the medical
report dated 29 October 1997 could have been the result of the
slapping alleged by the applicant. In view of the foregoing, the
Court is of the opinion that the injuries suffered by the applicant
are sufficiently serious to amount to ill-treatment within the scope
of Article 3 (see, for example, A. v. the United Kingdom,
judgment of 23 September 1998, Reports 1998-VI, p. 2699,
§ 21, and Ribitsch, cited above, pp. 9 and 26, §§ 13
and 39). The Court attaches no weight to the third medical
report dated 12 November 1997, which is unaccountably inconsistent
with the findings contained in the first two reports.
- In
view of the above, it needs to be ascertained whether the Government
have provided a plausible explanation of how those injuries were
caused and produced evidence casting doubt on the veracity of the
victim's allegations.
- In
response to the applicant's allegations, the Government argued that
the police officers had used reasonable force in order to arrest him
and that more serious injuries would have occurred had he been beaten
up by six police officers. They also submitted that the applicant's
allegations had not been corroborated by any evidence. Similar
conclusions had also been reached by the local authorities in charge
of the investigation (see paragraphs 17 and 19 above).
- The
Court reiterates that, in respect of a person deprived of liberty,
recourse to physical force which has not been made strictly necessary
by the individual's own conduct diminishes human dignity and is in
principle an infringement of the right set forth in Article 3 (see
Ribitsch, cited above, § 38). Furthermore, the use
of force in the context of an arrest, even if it entails injury, may
fall outside Article 3, particularly in circumstances resulting from
an applicant's own conduct (see Berliński v. Poland,
nos. 27715/95 and 30209/96, § 64, 20 June 2002).
- In
the instant case, it does not appear from the documents contained in
the case file that the injuries found on the applicant's body had
been sustained prior to his detention in police custody. In this
connection, the Court notes that the applicant was not examined by a
doctor following his arrest. Such an examination would have been the
appropriate step for the authorities to have taken, bearing in mind
particularly the Government's allegation that the applicant had
resisted arrest. Moreover, there is no arrest report which describes
the reasons for and conditions of the applicant's arrest. Such a
report could also have shed light on the acts of the parties which
might have caused the injuries found on his body.
- Furthermore,
in cases of this kind where force had to be used to effect a lawful
arrest, it is all the more important that the arrested person is
medically examined before being placed in police custody. This would
not only ensure that the person is fit to be questioned in police
custody but would also enable the respondent Government to discharge
their burden of providing a plausible explanation for those injuries.
In this connection, the Court notes that a medical examination,
together with the right of access to a lawyer and the right to inform
a third party of the detention, constitute fundamental safeguards
against the ill-treatment of detained persons which should apply as
from the very outset of deprivation of liberty, regardless of how it
may be described under the legal system concerned (apprehension,
arrest, etc.) (see the 2nd General Report of the European
Committee for Prevention of Torture, CPT/Inf/E (2002) 1 - Rev. 2006,
§ 36).
- Accordingly,
in view of the national authorities' failure to conduct a medical
examination before placing the applicant in detention, the Government
cannot rely on that failure in their defence and claim that the
injuries in question resulted from the applicant's own conduct. The
Court may thus assume that the applicant was in good health prior to
his being taken into custody (see, mutatis mutandis, Abdulsamet
Yaman v. Turkey, no. 32446/96, § 45, 2 November 2004).
- As
regards the Government's contention that more serious injuries would
have occurred had the applicant been beaten up by six police
officers, the Court observes that, as noted earlier, the injuries
described in the medical reports are already serious enough to exceed
the threshold of minimum level of severity and are capable of falling
within the scope of Article 3 of the Convention.
- As
to the Government's submission that the applicant's allegations had
not been corroborated by any evidence, the Court notes that the two
medical reports issued by Muğla State Hospital clearly indicate
the presence of injuries on the applicant's body, which had been
caused by a blunt object (see paragraphs 8 and 10 above). In these
circumstances, the Court cannot accept the submission of the
Government, whose authorities did nothing to establish the cause of
the injuries described in the medical reports mentioned above.
- In
light of the foregoing, the Court reiterates that a State is
responsible for the welfare of all persons held in detention. Such
persons are in a vulnerable situation and the authorities have a duty
to protect them. Bearing in mind the authorities' obligation to
account for injuries caused to persons within their control in
custody and in the absence of any explanation concerning the injuries
noted in the two medical reports mentioned above, the Court considers
that the Government have failed to provide a plausible explanation of
how the injuries were caused. It therefore concludes that the
injuries in question were the result of treatment for which the
Government bore responsibility.
- There
has accordingly been a substantive violation of Article 3 of the
Convention.
b. Alleged ineffectiveness of the
investigation
- The
Court notes that subsequent to the complaints of ill-treatment lodged
by the applicant with the Muğla Chief Public Prosecutor's office
(see paragraph 12 above), the authorities commenced an investigation
into his allegations and ultimately pressed charges against six
police officers for inflicting ill-treatment on him (see paragraph 15
above). However, the Muğla Criminal Court stayed the criminal
proceedings in order to obtain authorisation for prosecution and
referred the case to the Muğla Provincial Administrative
Council. That body first denied authorisation for the prosecution of
the police officers and ultimately, following the applicant's appeal,
suspended the criminal proceedings by virtue of Law no. 4616 (see
paragraphs 18 and 20 above). Those proceedings would subsequently be
discontinued if no offence of the same or a more serious kind was
committed by the offenders within a five-year period, in accordance
with that law. The applicant challenged that decision before the
Supreme Administrative Court, albeit unsuccessfully (see paragraphs
21 and 22 above).
- The
Court reiterates its previous findings in cases against Turkey that
bodies like the Provincial Administrative Council and Police
Disciplinary Board attached to the Muğla Governor's office in
the present case, which are in charge of investigations concerning
similar allegations directed against security forces, cannot be
regarded as independent, as they are made up of civil servants
hierarchically dependent on the governor, an executive officer linked
to the very security forces under investigation (see, among others,
Ipek v. Turkey, no. 25764/94, § 174, 17 February 2004).
It considers that, in the circumstances of the present case, the
aforementioned bodies' appointment of senior police officers as
investigators was inappropriate, given that the allegations were
directed against the police force of which they are members. In this
regard, the willingness of the investigators to give credence to the
accounts put forward by their colleagues and the conclusions reached
by them confirm the Court's previous findings (see paragraphs 14, 17
and 19 above).
- The
Court further reiterates that the rights enshrined in the Convention
are practical and effective, and not theoretical and illusory.
Therefore, investigations of the present kind must be able to lead to
the identification and punishment of those responsible. In the
instant case, however, the proceedings in question did not produce
any result due to the application of Law no. 4616, which created
virtual impunity for the perpetrators of the acts of violence,
despite the evidence against them (see, mutatis mutandis, Batı
and Others v. Turkey, nos. 33097/96 and 57834/00, § 147,
ECHR 2004 IV, and Abdülsamet Yaman v. Turkey, cited
above, § 59).
- Consequently,
the Court considers that the criminal-law system, as applied in the
applicant's case, has proved to be far from rigorous and has had no
dissuasive effect capable of ensuring the effective prevention of
unlawful acts such as those complained of by the applicant (see,
mutatis mutandis, Okkalı v. Turkey, no. 52067/99,
§ 78, ECHR 2006 ...).
- In
the light of the foregoing and given the authorities' failure to
pursue the criminal proceedings against the police officers leading
to the determination of their responsibility and punishment, the
Court does not consider that the above proceedings can be described
as thorough and effective so as to meet the procedural requirements
of Article 3 of the Convention.
- There
has accordingly been a procedural violation of this provision.
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
applicant claimed 3,480 euros (EUR) in respect of pecuniary damage
and EUR 20,000 for non-pecuniary damage.
- The
Government contended that the amount claimed was excessive and that
any award to be made under this heading should not lead to unjust
enrichment.
- 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 violation found and ruling on an
equitable basis, it awards the applicant EUR 5,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,868 for the costs and expenses incurred
before the Court (EUR 1,739 for legal fees and EUR 129 for postage
and stationary fees). In this connection, he submitted a contract
signed with his legal representative stipulating a fee of 3,000 new
Turkish liras (approximately EUR 1,580) for the presentation of his
application before the Court.
- The
Government maintained that the amount claimed was not justified or
actually and necessarily incurred.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,700 for the
proceedings before it.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural aspects;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
i) EUR
5,000 (five thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
ii) EUR
1,700 (one thousand and seven hundred euros), plus any tax that may
chargeable to the applicant, for costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
