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SECOND
SECTION
CASE OF SELVİ v. TURKEY
(Application
no. 5047/02)
JUDGMENT
STRASBOURG
9 December
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 Selvi v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5047/02) 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 Yahya Selvi
(“the applicant”), on 28 November 2001.
- The
applicant was represented by Mr S. Çetinkaya, a lawyer
practising in İzmir. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicant alleged that he had been subjected to ill-treatment during
an unlawful search conducted at his house by police officers and that
he had been denied an effective remedy in domestic law in violation
of Articles 3, 8 and 13 of the Convention.
- On
28 March 2007 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in İzmir.
- On
the night of 31 May 2001, at around midnight, police officers from
the anti terrorist branch of the İzmir police conducted an
operation to arrest a number of persons suspected of participating in
an illegal demonstration. To that end, a group of police officers
arrived at the two-storey house where the applicant and his uncle
Sabri Selvi lived. The police officers were looking for the
applicant's uncle, who was suspected of having been involved in the
aforementioned illegal demonstration.
- According
to the applicant's version of events, the applicant, who lived on the
first floor of the building, heard some noise coming from the second
floor, where his uncle lived. He opened his flat door to see what was
going on. He saw some persons in civilian clothes and asked them who
they were. They asked the applicant to show his identity card. The
applicant showed them his identity card, but when he asked them to
show their identity cards as well the persons concerned, who turned
out to be police officers in civilian clothes, they became angry and
complained of the fact that everyone asked to see their identity
cards. They then chased the applicant into his flat, beat him up and
swore at him. After arresting the applicant, they prepared an arrest
report which they forced him to sign.
- The
arrest and search report dated 31 May 2001, which was signed by six
police officers, a witness, the applicant and his uncle Sabri Selvi,
stated the following:
“...Wearing police identification vests and having
taken security precautions, we knocked on the door of the flat in
question. We told the man who opened the door that we were police
officers and that we wanted to carry out a search of the flat. With
the agreement of the occupant, who said 'You may search', we entered
the flat.
Following the identity check, having realised that the
man [who opened the door] was ... Sabri Selvi, we arrested him. In
his presence, we conducted a search of the [flat] and found no
evidence of involvement in crime. When asked whether any damage was
caused to anything in the flat due to the search, the arrestee said
'None'. As we were about to leave the flat together with the
arrestee, a person called Yahya Selvi... attacked Deputy
Superintendent Ramazan Oral and started hitting him while swearing
and saying things like 'You cannot take anyone away from here; I f..k
your mothers and wives'. We overpowered Yahya Selvi by force,
arrested him and took him with the other person to police
headquarters for investigation...”
- On
31 May 2001 at about 2 a.m. the applicant was taken to the Atatürk
Hospital, where he was examined by a doctor. In his report, the
doctor noted the presence of swelling on the applicant's face. The
same day at 12.30 p.m. a statement was taken from the applicant at
police headquarters. In his statement, the applicant admitted that he
had attacked the police officers while they were conducting a search
of his house. He explained that he had been angered by the fact that
the police officers had arrived to arrest his uncle at night. He also
stated that he had not been subjected to any form of ill treatment
during his detention in police custody and that he had not given his
statement to the police under duress. At about 2 p.m. the applicant
was again taken to the Atatürk Hospital. The doctor who examined
the applicant prepared a report identical to the previous one.
- On
31 May 2001 police officers took statements from Deputy
Superintendent Ramazan Oral, who complained that he had been attacked
by the applicant. He also requested them to institute criminal
proceedings against the applicant. At 2 a.m. on the same day Ramazan
Oral underwent a medical examination at the Atatürk Hospital.
The doctor who examined Mr Oral noted in his report the presence
of a swelling measuring 25 x 35 x 05 mm on the left chin and at ear
level, and hyperaemic scratches measuring 10 x 25 mm on Mr Oral's
left arm. He prescribed three days' sick leave on account of the
injuries.
- The
same day, the applicant's legal representative submitted a request to
the Chief Public Prosecutor's office in Bornova, seeking information
about the whereabouts of the applicant and his uncle and the charges
against them. He also asked the prosecutor's office to grant him
permission to meet with the suspects and, in view of the witness
statements alleging that the applicant had been beaten up during the
arrest, to send the applicant to hospital for a medical examination
and treatment. The representative's request to meet with the
applicant and his uncle was dismissed by the prosecutor's office on
31 May 2001.
- On
1 June 2001 the applicant underwent a further medical examination at
the Bornova State Hospital. The report stated that there were no
signs of physical violence on the applicant's body.
- On
the same day the applicant was brought before the
Bornova Magistrate's Court. Assisted by his lawyer, the
applicant denied the allegation that he had assaulted Ramazan Oral
and alleged that he had been beaten up and insulted by the police
officers who had come to his house the day before. Having regard to
the nature of the crime and the evidence contained in the case file,
the court ordered that the applicant be placed in pre-trial detention
for having obstructed the police officers by using physical violence.
- On
4 June 2001 the public prosecutor initiated criminal proceedings
against the applicant under Article 258 of the Criminal Code for
resisting the police. In his indictment, the public prosecutor stated
that, while the police officers were conducting a search in the
applicant's house, the applicant had assaulted the police officer
Ramazan Oral, who had subsequently been declared unfit for work for
three days due to his injuries.
- On
6 June 2001 the applicant challenged the decision ordering his
pre-trial detention and requested the Bornova Assize Court to
initiate criminal proceedings against the police officers who had
ill-treated him on 31 May 2001.
- On
7 June 2001 the Sixth Chamber of the Assize Court, acting as the
appeal body, refused the applicant's request for release pending
trial, holding that his pre-trial detention was lawful in view of the
evidence contained in the case file.
- On
11 July 2001 the Bornova Assize Court heard oral evidence from the
applicant's uncle Sabri Selvi. The latter stated that his nephew had
not insulted the police officers, but that one of the officers had
slapped him in the face. The court ordered the continued detention of
the applicant.
- On
10 December 2001 the Bornova Assize Court heard evidence from the
applicant's wife, Garip Selvi, and his brother Kazım Selvi, who
lived in the same flat as the applicant. Mrs Selvi stated that her
husband had been beaten up by the police officers when he had asked
them to show their identity cards to prove that they were police
officers, and that he had not resisted his arrest by the police. Mr
Kazım Selvi also claimed that his brother Yahya had been beaten
up and insulted by the police officers and that he had not assaulted
them or resisted arrest.
- On
15 February 2002 the applicant's representative applied to the
Bornova Assize Court requesting it to order a criminal investigation
concerning the police officers whose actions had led to the unjust
detention and trial of the applicant. Relying on the statements given
by the defence witnesses Garip Selvi and Kazım Selvi, the
applicant's representative claimed that, on the night of the incident
in question, the police had insulted and beaten up the applicant
following his request to see their identity cards. He maintained that
the applicant should be considered to be the victim of the events
rather than the accused. He further noted that no statements had been
taken from the police officers by the public prosecutor or the trial
court and that there was no evidence against the applicant apart from
the medical report [concerning Ramazan Oral] which could easily have
been obtained by police officers from the anti-terrorist branch. He
therefore alleged that the police officers in question had unlawfully
arrested and beaten up the applicant in his bedroom in the middle of
the night and had thus violated his right to the protection of his
home.
- On
19 June 2003 the Bornova Assize Court convicted the applicant of
obstructing police officers and sentenced him to two months'
imprisonment. No response was given to the applicant's allegations.
- On
25 October 2005 the Court of Cassation quashed the above judgment in
view of the more favourable provisions of the new Criminal Code dated
1 June 2005.
- Meanwhile,
following the administrative re-organisation of the courts in İzmir,
the applicant's case was taken over by the İzmir Criminal Court.
- On
15 May 2006 the İzmir Criminal Court convicted the applicant of
obstructing police officers in the performance of their duties by
insulting and assaulting an officer. It sentenced the applicant to a
fine of 240 new Turkish liras (TRY). In its judgment, the court
relied on the statements given by Mr Oral, the applicant and
witnesses, as well as documentary evidence such as the arrest and
search report.
- On
15 September 2006 the applicant appealed to the Court of Cassation,
complaining that the first-instance court had convicted him without
conducting an adequate investigation into the events in question. He
claimed that the first-instance court had relied on the investigation
carried out by the police officers who had insulted and beaten him.
- The
proceedings are still pending before the Court of Cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Criminal Code, in force at the material
time, are as follows.
Article 243 § 1
“Any public servant ... who inflicts
torture or cruel, inhuman or degrading treatment on accused parties
to make them confess to their crimes shall be sentenced to up to five
years' imprisonment and temporarily or permanently barred from public
service.”
Article 245
“Any law-enforcement officer ...
who, in the course of his or her duty ... and in circumstances other
than those prescribed by law ..., ill-treats, injures or strikes a
person or does them bodily harm shall be sentenced to between three
months and five years' imprisonment and temporarily barred from
public service. ...”
- Pursuant
to Article 153 of the Code of Criminal Procedure, in force at the
material time, a public prosecutor who was informed by any means
whatsoever of a situation which gave rise to the suspicion that an
offence had been committed, was obliged to investigate the facts in
order to decide whether or not there should be a prosecution.
- Pursuant
to the Trial of Civil Servants Act, in force at the material time, if
the alleged perpetrator of an offence was an agent of the State,
permission to prosecute had to be obtained from the local
administrative council. An appeal against the local council's
decision lay to the Supreme Administrative Court; a refusal to
prosecute was subject to an automatic appeal of this kind.
29. According
to the principles established by the Turkish criminal courts, the
questioning of a suspect is a means of enabling him to defend himself
that should work to his advantage, and not a measure designed to
obtain evidence against him. While statements made during questioning
may be taken into consideration by the judge in his assessment of the
facts of a case, they must nonetheless have been made voluntarily,
and statements obtained through the use of pressure or force are not
admissible in evidence (see Dikme
v. Turkey, no.
20869/2, § 38, ECHR 2000-VIII).
30. Furthermore,
according to Article 247 of the Code of Criminal Procedure in force
at the time of the events, as interpreted by the Court of Cassation,
any confessions made to the police or the public prosecutor's office
must be repeated before the judge if the record of the questioning
containing them is to be admissible as evidence for the prosecution.
If the confessions are not repeated, the records in question are not
allowed to be read out as evidence in court and, consequently, cannot
be relied on to support a conviction. Nevertheless, even a confession
repeated in court cannot on its own be regarded as a decisive piece
of evidence unless supported by additional evidence.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been subjected to ill-treatment by police officers but that
they had not been punished.
- The
Court considers that these complaints should be examined solely from
the standpoint 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. Admissibility
- The
Government argued that the applicant had failed to exhaust the
domestic remedies available to him for the purposes of Article 35 §
1 of the Convention. In this connection, they submitted that the
applicant had failed to raise his complaints of ill-treatment by
lodging a complaint with the local public prosecutor's office.
- The
applicant submitted that he had raised his complaint of ill treatment
before the domestic authorities in the course of the criminal
proceedings against him, but that no action had been taken to
investigate his allegations.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies which are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The existence of the remedies must
be sufficiently certain, in practice as well as in theory, failing
which they will lack the requisite accessibility and effectiveness.
However, Article 35 § 1 does not require that recourse should be
had to remedies which are inadequate or ineffective (see Aksoy v.
Turkey, 18 December 1996, §§ 51-52, Reports
of Judgments and Decisions 1996 VI).
- The
Court notes that, contrary to the Government's assertion, the
applicant can be considered to have brought the substance of his
complaint to the notice of the national authorities when his
representative asked the prosecutor's office to send the applicant to
hospital for a medical examination and treatment, referring to
witness statements alleging that the applicant had been beaten up
during the arrest (see paragraph 11 above). Furthermore, when brought
before the Bornova Magistrate's Court, the applicant alleged that he
had been beaten up and insulted by the police officers who had come
to his house the day before (see paragraph 13 above). Likewise, on 6
June 2001 the applicant requested the Bornova Assize Court to
initiate criminal proceedings against the police officers who had
ill-treated him on 31 May 2001 (see paragraph 15 above). However,
although the aforementioned authorities took note of the applicant's
complaints, they did nothing to follow up the allegation that he had
been subjected to police violence during the arrest (see paragraph 16
above).
- In
the Court's opinion, these allegations should have been sufficient in
themselves to alert the authorities of the need for action,
especially since there was medical evidence indicating swelling to
the applicant's face (see paragraph 9 above). Having regard to these
circumstances, the Court considers that the applicant can be
considered to have done all that could have been expected of him to
bring his complaint to the attention of the authorities with a view
to obtaining an investigation into his allegations. In the light of
the foregoing, the Court dismisses the Government's objection
concerning the admissibility of the complaint under Article 3 of the
Convention. It also considers that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds.
B. Merits
- The
applicant alleged that he had been beaten up by police officers for
having asked to see their identity cards, and that no meaningful
investigation had been carried out into his allegations of
ill-treatment. As regards the injuries suffered by the police officer
Ramazan Oral, the applicant stated that these must have occurred
during his legitimate and lawful attempts to resist arrest.
- The
Government submitted that the police officers had had to resort to
force in order to effect a lawful arrest as a result of the
applicant's violent behaviour. They claimed that the scratches on the
applicant's face might therefore have occurred during his attack on
the police officers who were there to arrest his uncle Sabri Selvi.
The Government maintained that there had been no investigation into
the applicant's allegations of ill-treatment since he had not
formally lodged a criminal complaint with the public prosecutor's
office and that, in any event, there was no evidence on the basis of
which to start an investigation into his allegations.
1. Alleged ill-treatment inflicted on the applicant
- The Court notes at the outset that it 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, among other authorities, 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).
- In
the light of the above principles, the Court notes that it is
undisputed between the parties that a fight broke out between the
applicant and the police officers and that the latter had to resort
to force in order to arrest the applicant. Hence, it appears from the
medical reports dated 31 May 2001 that the applicant suffered
swelling to his face, although no injuries were mentioned in the
medical report dated 1 June 2001 (see paragraphs 9 and 12 above). It
further appears that the police officer Mr Oral suffered more
serious injuries, namely a swelling measuring 25 x 35 x 05 mm on the
left chin and at ear level and hyperaemic scratches measuring 10 x 25
mm on the left arm (see paragraph 10 above). The doctor concluded
that these injuries rendered Mr Oral unfit for work for three days
(ibid.).
- The
parties submitted conflicting versions of the events resulting in the
above-mentioned injuries sustained by the applicant and Mr Oral.
According to the applicant, the police officers beat him up when he
asked to see their identity cards. As regards the injuries suffered
by Mr Oral, the applicant explained that those injuries had occurred
during his “legitimate and lawful” attempts to resist
arrest (see paragraph 38 above). The Government, for their part,
claimed that the police officers had had to resort to force as a
result of the applicant's violent behaviour, as demonstrated by the
injuries suffered by Mr Oral.
- The
Court notes that, according to the arrest and search report dated 31
May 2001, the applicant attacked and insulted the police officers in
order to stop them arresting his uncle. The police officers thus had
to use force in order to pacify the applicant and subsequently took
him to the police station after arresting him (see paragraph 8
above). Although this report was signed by the applicant and his
uncle together with a witness and six police officers, the applicant
denied the content of the report and claimed that he had been forced
to sign it. Furthermore, when questioned at police headquarters, the
applicant admitted that he had attacked the police since he was angry
about his uncle's arrest (see paragraph 9 above). However, in the
course of the criminal proceedings against him, the applicant again
denied the allegations made by the police officers and maintained
that he had been beaten up and insulted (see paragraph 13 above).
Furthermore, the applicant's wife and brother testified in support of
the applicant's allegations (see paragraph 18 above). Nonetheless,
the proceedings in question resulted in the conviction of the
applicant by the domestic courts for resisting arrest and obstructing
police officers in the performance of their duties (see paragraphs 22
and 23 above).
- In
the light of the parties' conflicting submissions as regards the
events in question, and taking into account in particular the nature
and extent of the injuries mentioned in the medical reports issued in
relation to the applicant and Mr Oral, the Court considers that
the material in the case file does not enable it to conclude,
according to the required standard of proof, that there has been a
substantive violation of Article 3 of the Convention as a result of
the treatment allegedly suffered by the applicant.
2. Alleged ineffectiveness of the investigation
- The
Court has not found it established beyond reasonable doubt on the
basis of the evidence before it that the applicant was subjected to
ill treatment by the police officers in the circumstances
described by him.
- However,
it would observe at the same time that the difficulty in determining
whether there was a plausible explanation for the swelling found on
his body or whether there was any substance to his allegations as to
the nature of the treatment he allegedly endured stems from the
failure of the authorities to investigate his complaints.
- In
this connection 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
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, 28 October
1998, § 102, Reports 1998 VIII).
- The
Court notes that, subsequent to the events in question, the applicant
consistently alleged before the judicial authorities that he had been
beaten up and insulted by the police officers and asked the
authorities to initiate criminal proceedings against the police
officers who had ill-treated him (see paragraphs 13, 15, 19 and 24
above). He also complained that none of the police officers who had
beaten him up had been heard by the public prosecutor or the trial
court (see paragraph 19 above). Although the domestic courts took
note of these complaints in the course of the criminal proceedings
against the applicant, they did nothing to follow up the allegation
that he had been subjected to police violence during his arrest.
- In
the Court's opinion, the applicant's insistence on his complaint of
ill treatment, taken together with the medical evidence
indicating swelling to his face and also the submissions by his wife
and other witnesses (see § 18 and 19 above), should have
been sufficient to alert the judicial authorities to the need to
broaden the scope of the investigation. However, no steps were taken
either to obtain further details from the applicant or to question
the police officers who were involved in the arrest of the applicant
about his allegations. The national authorities instead confined the
case to the offence allegedly committed by the applicant and
dismissed his allegations without further enquiry. Nor did the
national courts elaborate on the evidence given by the applicant's
witnesses or give any response to the applicant's allegations (see
paragraphs 19 and 20 above).
- The
Court considers that, in the circumstances, the applicant had laid
the basis of an arguable claim that he had been subjected to police
violence in the course of his arrest. It is to be noted also that the
applicant persisted in his allegations right up to the appeal stage
(see paragraph 24 above). The inertia displayed by the authorities in
response to his allegations was inconsistent with the procedural
obligation which devolves on them under Article 3 of the Convention.
In consequence, the Court finds that there has been a procedural
violation of that provision on account of the failure of the
authorities of the respondent State to investigate the applicant's
complaint of ill-treatment.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the search conducted in his house had been
unlawful and in breach of Article 8 of the Convention, which reads
insofar as relevant as follows:
“1. Everyone has the right to respect
for his private and family life, [and] his home ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society ...
for the prevention of disorder or crime...”
- The
Government argued under Article 35 § 1 of the Convention that
this part of the application must be rejected for non-exhaustion of
domestic remedies. They maintained that the applicant had neither
raised this complaint during the proceedings nor lodged an official
complaint with the public prosecutor.
- The
applicant maintained that he had complained to the Bornova Assize
Court about the fact that he had been chased by the police officers
up to his bedroom and had been beaten by them. However, this
complaint had not produced any result.
- The
Court reiterates that, under the terms of Article 35 § 1 of the
Convention, it may deal with a matter only after all domestic
remedies have been exhausted according to the generally recognised
rules of international law. This condition is not met by the mere
fact that an applicant has submitted his case to the various
competent courts. It is also necessary for the complaint brought
before the Court to have been raised, at least in substance, during
the proceedings in question (see, among other authorities,
Çakar v. Turkey, no. 42741/98, §
30, 23 October 2003).
- In
the instant case, the Court observes that at no time did the
applicant allege that his house had been unlawfully searched in
breach of his right to respect for his private and family life. It
notes that the house search report, which was signed by the applicant
and his uncle together with police officers and a witness, clearly
stated that the applicant's uncle gave his permission for the search
and that the applicant also consented by signing the relevant report
(see paragraph 8 above). Although the applicant complained about the
fact that he had been beaten up in his flat, in breach of his right
to the protection of his home, he did not complain to the judicial
authorities about the conduct of the search or allege that he and his
uncle had been forced to sign the report. Accordingly, the Court
considers that the applicant failed to raise the substance of his
complaints under this head before the domestic bodies (see, in
particular, Rüzgar v. Turkey (dec.), no. 59246/00, 9
November 2004).
- In
these circumstances, the Court accepts the Government's objection
that the applicant failed to exhaust domestic remedies. It follows
that this part of the application must be rejected pursuant to
Article 35 §§ 1 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
applicant claimed 4,000 euros (EUR) in respect of pecuniary damage
and EUR 12,000 for non-pecuniary damage on account of his having been
held in pre-trial detention for two months and of the trauma he had
undergone since the events in question.
- The
Government submitted that the amounts claimed were excessive and
unjustified in the circumstances of the case.
- 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 procedural violation which it has found
of Article 3 of the Convention and ruling on an equitable basis, it
awards the applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,000 for costs and expenses incurred
before the Court.
- The
Government submitted that in the absence of any supporting documents
the claim should be dismissed.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of his 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 Court notes that
the applicant failed to submit any documents in support of his
claims. The Court therefore makes no award under this head (see
Balçık and Others v. Turkey, no. 25/02, § 65,
29 November 2007).
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 complaint under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
- Holds that there has been a procedural violation
of Article 3 of the Convention;
- 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, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage, to be converted into the
national currency of the respondent Government at the rate applicable
at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
