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SECOND
SECTION
CASE OF KEMAL KAHRAMAN v. TURKEY
(Application
no. 39857/03)
JUDGMENT
STRASBOURG
22 July
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 Kemal Kahraman 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,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 1 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39857/03) 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 two Turkish nationals, Mr Ali Kahraman and
Mr Kemal Kahraman (“the applicants”), on 17 November
2003.
- The
applicants were represented by Mr H. Tuna, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicants alleged under Articles 3 and 6 of the Convention that they
had been subjected to ill-treatment during their detention in police
custody and that they had been denied a fair hearing by the Istanbul
State Security Court, which tried and convicted them.
- On
3 October 2006 the Court declared the application partly
inadmissible, particularly as regards the complaints of the first
applicant, Mr Ali Kahraman, and communicated Mr Kemal Kahraman’s
allegations of ill-treatment to the Government. Hereafter, only Kemal
Kahraman is referred to as the applicant in the case. 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 Kemal Kahraman was born in 1972 and lives in Istanbul.
- On 10 June 1999 the applicant was arrested by police
officers from the Anti-Terrorism Branch of the Istanbul Security
Directorate on suspicion of membership of the IBDA-C (Great
Eastern Islamic Raiders’ Front- İslami
Büyükdoğu Akıncılar Cephesi).
He was believed to have been involved in the bombing of bars and
clubs in Istanbul on three different occasions, which had caused
casualties. The police found instructions on how to make bombs, the
necessary materials and explosives for doing so, as well as
photographs in which the applicant was covered in the organisation’s
flag whilst holding a Kalashnikov-type rifle, at his place of
residence. The applicant claimed that during his questioning by the
police officers he was blindfolded and subjected to various forms of
ill-treatment. In particular, he was suspended by his arms (“reverse
hanging”), hosed with cold water and beaten up by the police
officers. Thereafter the applicant was made to sign statements in
which he admitted the charges against him.
- On 14 June 1999 the applicant was brought before the
public prosecutor at the Istanbul State Security Court, where he
repudiated the content of his police statements, alleging that they
had been extracted from him under torture.
- On the same day, the applicant was examined by a doctor
at the Istanbul Forensic Medicine Institute. The medical report
recorded a bruise of 2 cm on his left upper leg, a bruise of 1.5 cm
on the inner part of his right upper arm, a hyperaemic
area of 2cm on the right elbow, a bruise of 1.5 cm on the inner part
of the left upper arm, a scab-covered lesion of 1 cm on the left
elbow, and a complaint of pain in the back and arms. In her report
the doctor also noted the applicant’s complaints that he had
been suspended by his arms, beaten up and threatened during his
detention in police custody. She thus concluded that the applicant
had been subjected to physical violence which rendered him unfit for
work for two days. The applicant was then brought before the
investigating judge, who ordered his pre-trial detention.
- On 18 September 1999 the Chief Public Prosecutor filed
a bill of indictment with the Istanbul State Security Court, accusing
the applicant of membership of the IBDA-C. The Public Prosecutor
sought the death penalty, under Article 146 § 1 of the Criminal
Code, on account of the applicant’s participation in that
organisation’s activities, and his aim to undermine the
constitutional order of the State and to replace it with a theocratic
regime.
- In the course of the criminal proceedings, the
applicant applied to the Istanbul State Security Court, alleging that
he had been tortured during his detention in police custody. He
protested his innocence and stated that he had been forced under
torture to sign statements which he had not seen, including the
report on the search of his home, and that the materials allegedly
found at his home did not belong to him.
- In his defence submissions dated 21 May 2002, the
applicant’s lawyer referred to the medical report of 14 June
1999 indicating signs of ill-treatment, and asked the Istanbul State
Security Court to acquit his client for lack of evidence.
- On 1 October 2002 the State Security Court found the
applicant guilty as charged. The court relied on the evidence
gathered by the police from the applicant’s place of residence,
such as the photographs showing him wrapped in the IBDA-C banner
whilst holding a gun, materials for making bombs, as verified by a
criminal expert report, and the applicant’s handwriting on some
of the papers, giving instructions on how to make bombs, as well as
the statements made by the applicant’s co-accused. It therefore
convicted the applicant and sentenced him to life imprisonment.
- On 7 November 2002 the applicant’s lawyer lodged
an appeal with the Court of Cassation, arguing that the State
Security Court had disregarded their defence submissions. Relying on
the medical report dated 14 June 1999, he claimed that, in convicting
the applicant, the first-instance court had relied on the statements
which the police had obtained from the applicant under torture and
that no investigation had been carried out into his allegations
before the impugned statements had been included in the case file. He
therefore asked the court to quash the first-instance court’s
judgment and to refer the case back for a new trial.
- On 23 September 2003 the Court of Cassation dismissed
the appeal and upheld the judgment of the Istanbul State Security
Court.
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, ECHR 2004-IV).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to various forms of
torture during his detention in police custody, in violation of
Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
(a) The Government
- The Government submitted that this complaint was
inadmissible for failure to comply with the six-month rule and to
exhaust domestic remedies within the meaning of Article 35 of the
Convention.
- Referring to the Court’s admissibility decision
of 3 October 2006 (paragraph 4 above), in which the first applicant
Ali Kahraman’s complaint under Article 3 of the Convention had
been dismissed for failure to observe the six-month rule, the
Government submitted that the complaints of the present applicant,
Kemal Kahraman, should also be dismissed for non-compliance with the
six-month rule. In this connection, they contended that, even
assuming that there were no remedies to be exhausted, as alleged by
the applicant, he should have understood this, at the latest, by the
time the Istanbul State Security Court had given its judgment on 1
October 2002 and that the application should have been lodged with
the Court not later than 1 April 2003. The applicant had lodged
his complaint on 17 November 2003, clearly outside the six-month
time-limit.
- The Government further claimed that the applicant had
not exhausted domestic remedies since he had failed to avail himself
of the relevant civil and administrative-law remedies. They noted
that the applicant could have brought an action for a full remedy
(tam yargı davası) in the Ankara Administrative
Court against the Ministry of Interior in respect of his allegations
of ill-treatment.
(b) The applicant
- The
applicant claimed that he had complied with the six-month and
exhaustion of domestic remedies rules under Article 35 § 1 of
the Convention. He noted that he had brought his allegations of
torture to the attention of the national authorities, namely before
the State Security Court and the Court of Cassation, but that no
action had been taken to investigate those allegations. He therefore
maintained that he had lodged his application following the appeal
court’s judgment, and therefore after the exhaustion of all
remedies and within the six-month time-limit.
2. The Court’s assessment
- As regards the first limb of the Government’s
objections, the Court notes that it indeed dismissed Ali Kahraman’s
complaints under Article 3 of the Convention for failure to observe
the six-month rule and decided to communicate Kemal Kahraman’s
complaints to the respondent Government. As explained in its decision
dated 3 October 2006, Ali Kahraman’s failure to pursue his
complaints of ill-treatment during the proceedings before the
first-instance court and the Court of Cassation grounded the Court’s
considerations that, even assuming that Ali Kahraman was right in his
assertion that the domestic remedies were ineffective, he must have
become aware of the ineffectiveness of those remedies by the date on
which the Istanbul State Security Court gave judgment. Accordingly,
in Ali Kahraman’s case, the six-month period started to run
from the date of the Istanbul State Security Court’s judgment
because he did not raise his complaints, alleging ill-treatment, in
his appeal and the Court of Cassation therefore did not deal with
them.
- However, the present applicant, Kemal Kahraman,
repeatedly asked the judicial authorities to take action against the
police officers who had allegedly ill treated him and to
disregard the statements which the police had obtained from him
thereby (see paragraphs 7, 10 and 11 above). He also reiterated his
complaints before the Court of Cassation and lodged his application
within six months of the latter’s decision (see paragraph 13
above). In these circumstances, the Court considers that Kemal
Kahraman complied with the six-month time-limit under Article 35 §
1 of the Convention.
- As regard the second limb of the objections, namely
the alleged non exhaustion of civil and administrative-law
remedies, the Court reiterates that it has already examined and
dismissed the Government’s preliminary objections in similar
cases (see, in particular, Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004, and Aksoy v. Turkey,
judgment of 18 December 1996, Reports of Judgments and Decisions
1996 VI, §§ 51-52). It finds no particular
circumstances in the instant case that require it to depart from its
findings in the foregoing applications.
- In these circumstances, the Court dismisses the
Government’s preliminary objections.
- The Court notes that the application 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. It must therefore be declared admissible.
B. Merits
- The
applicant alleged that he had been suspended by his arms (“reverse
hanging”), hosed with cold water and beaten up during his
detention in police custody.
- The
Government submitted that the applicant’s complaints were
unsubstantiated.
- The
Court notes at the outset that Article 3 enshrines one of the most
fundamental values of democratic societies, making no provision for
exceptions and with no derogation from it being permissible, as
provided by Article 15 § 2 (see Selmouni v. France [GC],
no. 25803/94, § 95, ECHR 1999-V, and Assenov and Others
v. Bulgaria, judgment of 28 October 1998, Reports
1998-VIII, p. 3288, § 93).
- It
also 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 victim’s allegations, particularly if those allegations
were corroborated by medical reports, failing which a clear issue
arises under Article 3 of the Convention (see Selmouni, cited
above, § 87, ECHR 1999 V, and Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, p. 26, § 34).
- Furthermore,
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). Moreover,
where allegations are made under Article 3 of the Convention, the
Court must make a particularly thorough scrutiny (see, mutatis
mutandis, Ribitsch, cited above, § 32).
- In
the instant case, following his release from police custody, the
applicant was examined by a doctor from the Istanbul Forensic
Institute. In her report, the doctor noted the applicant’s
complaints and found numerous injuries on his body, in particular
hyperaemia, bruising and a scab covered lesion, as well as pain
in his arms. She concluded that the applicant had been subjected to
physical violence which rendered him unfit for work for two days (see
paragraph 8 above). In the Court’s opinion, these injuries are
consistent with the applicant’s allegations of having been
suspended by his arms and beaten up by the police officers. They are
therefore sufficiently serious to fall within the scope of Article 3
(see Ireland v.
the United Kingdom, judgment of 18
January 1978, Series A no. 25, p. 65, § 162).
- The
Government did not offer any explanation for the injuries observed on
the applicant’s body. Nor did they challenge the medical report
in question or allege that those injuries dated from the period prior
to the applicant’s arrest.
- As to the seriousness of the treatment in question,
the Court reiterates that, in accordance with its case-law in this
sphere (see, among other authorities, Selmouni, cited above,
§§ 96-97), in order to determine whether a particular form
of ill-treatment should be qualified as torture, it must have regard
to the distinction, embodied in Article 3, between this notion and
that of inhuman or degrading treatment. It appears that it was
intended that the Convention should, by means of this distinction,
attach a special stigma to deliberate inhuman treatment causing very
serious and cruel suffering.
- In this connection, the Court considers that the
treatment complained of was inflicted on the applicant intentionally
by the police officers for the purpose of extracting confessions from
him. In these circumstances, the Court finds that this act was
particularly serious and cruel, and capable of causing severe pain
and suffering. It therefore concludes that this sort of ill-treatment
can only be described as torture within the meaning of Article 3 of
the Convention (see Aksoy, cited above, § 64, and Koçak
v. Turkey, no. 32581/96, § 48, 3 May 2007).
- Considering
the circumstances of the case as a whole, and the absence of a
plausible explanation from the Government as to the cause of the
injuries sustained by the applicant while in custody, the Court finds
that these injuries were the result of torture for which the
Government bore responsibility.
- It
follows that there has been a violation of Article 3 of the
Convention.
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.”
A. Damage
- Without
specifying an amount, the applicant asked the Court to make an award
for non-pecuniary damage. He also claimed 2,000 Turkish liras (TRY –
approximately 1,000 euros (EUR)) in respect of pecuniary damage
incurred during the domestic proceedings.
- The
Government submitted that no award should be made, given the
applicant’s failure to claim a specific amount for
non-pecuniary damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
However, having regard to the extremely serious violation of Article
3 suffered by the applicant and ruling on an equitable basis, it
awards him EUR 15,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 5,500 for legal fees incurred by him and
Ali Kahraman for their representation before the Court. In this
connection, he submitted a time-schedule indicating 12.5 hours’
legal work carried out by his legal representative and a table of
costs and expenditures. The applicant also claimed TRY 394
(approximately EUR 200) for stationery, postage and translation fees.
- The
Government claimed that the amount claimed was not justified and had
not been 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
finds it reasonable to award the sum of EUR 1,500 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;
- Holds
(a) that
the respondent State is to pay the applicant, Kemal Kahraman, 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
15,000 (fifteen thousand euros), plus any tax that may be
chargeable,
in respect of non pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
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 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 22 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally
Dollé Françoise Tulkens
Registrar President
