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SECOND
SECTION
CASE OF TÜRKAN v. TURKEY
(Application
no. 33086/04)
JUDGMENT
STRASBOURG
18
September 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 Türkan v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33086/04) 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 Mahfuz Türkan
(“the applicant”), on 9 July 2004.
- The
applicant was represented by Ms K. Doğru, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged that he had been subjected to ill-treatment while
in police custody and that there were no effective remedies in
domestic law in respect of his grievances under Articles 3, 6 and 13
of the Convention.
- On
11 September 2007 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
applicant was born in 1968 and lives in Batman.
- At
the material time he was working at a tea shop at the Esenler Bus
Terminal in Istanbul. On 5 July 1998 he was arrested by police
officers for his alleged involvement in a fight and causing a
disturbance while drunk. He was then taken to the police station
inside the terminal building.
- The
police officers allegedly covered the applicant’s head with his
coat and started kicking, punching and beating him. They strangled
him and banged his head against the wall. They also allegedly
threatened the applicant and swore at him.
- The
applicant was released the next day without being brought before the
public prosecutor.
- On
8 July 1998 the applicant applied to the Human Rights Foundation of
Turkey for the treatment of his injuries resulting from his
ill-treatment in police custody. His symptoms included pain in the
left side of the chest and back, and restricted movement of the left
arm.
- On
13 July 1998 the applicant underwent a full bone scintigraphy (scan)
at the Marmara Nuclear Medicine Centre. The scintigraphy report
concluded that there were hyperactive areas in the soft tissue of the
sixth left rib, left shoulder, right knee, ankles and cranium
(occipital
and left temporo-parietal
bones). The report noted that the symptoms were probably the result
of physical trauma.
- On
21 July 1998 the applicant filed a petition with the Eyüp Chief
Public Prosecutor’s Office complaining about the ill treatment
he had suffered at the hands of the police officers at the terminal
building.
- On
22 July 1998 a public prosecutor from the Eyüp Chief Public
Prosecutor’s office took statements from the applicant. The
applicant reiterated his complaints and described the police officers
who had ill treated him. He then asked the public prosecutor to
send him for a forensic medical examination and to bring the police
officers to justice. At the request of the public prosecutor, the
applicant was taken to the Forensic Medicine Institute where an
expert examined the applicant and requested an X-ray as the applicant
complained about pain in his skull and chest.
- On
31 July 1998 the Eyüp Public Prosecutor took statements from the
three police officers who had allegedly ill-treated the applicant.
The police officers denied the allegations made by the applicant and
claimed that the bruising found on his body could have been caused by
other persons with whom he had fought.
- On
7 August 1998 the Eyüp Public Prosecutor instituted criminal
proceedings in the Eyüp Criminal Court pressing charges against
the three police officers for inflicting ill-treatment on the
applicant in violation of Article 245 of the former Criminal Code.
- According
to a report dated 13 October 1998 prepared by doctors from the Human
Rights Foundation, the findings of the above-mentioned medical
examinations were compatible with the applicant’s account of
the use of physical violence against him.
- At
a hearing on 24 November 1998, the Eyüp Criminal Court heard
evidence from the applicant and the accused police officers. Although
the accused denied the allegations of ill-treatment, the applicant
gave a detailed description of the treatment he had suffered while in
their custody. The court then sent the applicant for a medical
examination at the Eyüp Forensic Medicine Institute. After
noting all the findings in the previous reports and radiological
examinations, the institute referred the applicant to the Committee
of Experts of the Forensic Medicine Institute for a complete report.
- On
the same day the applicant filed a petition with the Eyüp
Criminal Court seeking leave to become a third-party intervener in
the criminal proceedings against the police officers who had
ill-treated him.
- On
14 December 1998 the Batman Assize Court heard evidence from the
applicant at the request of the Eyüp Criminal Court. The
applicant reiterated his complaints and asked the judicial
authorities to bring the police officers to justice.
- Meanwhile,
on 9 August 1999 the Istanbul Provincial Police Discipline Board,
composed of the Governor of Istanbul, four senior police directors
and a member of the legal service of the Governor’s office,
decided not to impose any punishment on the three police officers on
the ground that there was insufficient evidence that they had
ill-treated the applicant.
- In
a report dated 22 November 2000, the Nuclear Medicine Department of
the Cerrahpaşa Medical Faculty opined that the findings in the
applicant’s scintigraphy reports were the result of physical
trauma.
- On
20 December 2000 the Committee of Experts of the Forensic Medicine
Institute submitted their report, which confirmed the previous
medical findings that the applicant’s body bore signs of soft
tissue bruising caused by physical trauma. It further stated that the
applicant’s medical condition at the relevant time was
sufficient to render him unfit for work for five days.
- In
her petition dated 26 April 2001, the applicant’s legal
representative asked the Eyüp Criminal Court to characterise the
acts of the accused police officers as torture falling within the
scope of Article 243 of the now defunct Criminal Code
- On
21 December 2000 a law (Law no. 4616) on conditional release was
enacted. This law provided for the suspension of the substantive
proceedings or of the execution of sentences in respect of crimes
committed before 23 April 1999 and for which the maximum penalty did
not exceed ten years’ imprisonment. Section 5 (a) of Law no.
4616 stipulated that the execution of sentences in respect of the
offence proscribed by, inter alia, Article 243 of the former
Criminal Code could not be suspended.
- On
9 October 2001 the Eyüp Criminal Court held that the criminal
proceedings against the police officers should be suspended and
subsequently 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 was notified of this decision
on 29 December 2003.
- On
the same day the applicant challenged the decision before the Eyüp
Assize Court, arguing that the proceedings should be continued and
that the accused police officers’ acts should be characterised
as torture within the meaning of Article 243 of the Criminal Code.
- On
19 January 2004 the Eyüp Assize Court dismissed the applicant’s
appeal and upheld the decision of the criminal court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the former Criminal Code, in force at the time
of the events, read as follows:
Article 243
“Any ... public official who, in order to extract
a confession of guilt in respect of a criminal offence, tortures or
ill-treats any person, engages in inhuman conduct or violates human
dignity, shall be punished by up to five years’ imprisonment
and disqualified from holding public office temporarily or for life.
Where such conduct causes death, the sentence incurred
under Article 452 (...) shall be increased by between one third and
one half.”
Article 245
“Any law enforcement officer ... who, in the
course of 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
three years’ imprisonment and temporarily barred from public
service. ...”
- Article
10 of the Directive on Apprehension, Arrest and Taking of Statements
[from Suspects] (dated 1 October 1998) states that when someone is
placed in custody, or force has been used against that person, a
medical examination must be carried out with a view to determining
the state of health of the individual at the time of arrest.
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). It 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 ARTICLES 3, 6 AND 13 OF THE
CONVENTION
- The
applicant complained that he had been subjected to various forms of
ill-treatment and that there were no effective remedies for his
complaints. He relied on Articles 3, 6 and 13 of the Convention,
which provide, as relevant:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
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. Submissions of the parties
1. The applicant
- The applicant alleged that he had been subjected to
severe ill treatment by the police officers during his detention
at the Esenler bus terminal police station. He claimed that the
officers had kicked, punched and strangled him and banged his head
against the wall. He referred to the findings contained in the
medical reports in support of his allegations.
2. The Government
- The Government contested these claims. They maintained
that the applicant had been arrested because he had been involved in
a fight with other people at the bus terminal. They alleged that the
bruising on his body could have occurred during the fight. They
further submitted that there was no medical evidence proving that he
had been subjected to ill-treatment at the police station and that
therefore his allegations 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 v. Turkey,
cited above, § 61; 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, 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).
- 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
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
- In
the instant case, the Court finds it regrettable that the applicant
was not taken for a medical examination before being taken into
custody at the Esenler bus terminal police station. Such an
examination would have been appropriate, particularly bearing in mind
that the applicant had allegedly been in a fight with other persons.
Such a report could also have provided clarification regarding the
possibility that third parties might have contributed to the
applicant’s condition.
- Furthermore,
in cases of this kind, 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). The Court observes that three months after the
events in the present case, Turkish legislation was aligned with
these CPT standards, when the medical examination of suspects on
being taken into custody became a requirement through the Directive
on Apprehension, Arrest and Taking of Statements dated 1 October 1998
(see paragraph 28 above).
- Accordingly,
in view of the national authorities’ failure to conduct such an
examination before placing the applicant in detention, the Government
cannot rely on that failure in their defence and claim that the
injuries in question pre-dated the applicant’s detention in
police custody. 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).
- That
being so, the Court notes that, following his release from custody,
the applicant sought medical help from the Human Rights Foundation of
Turkey after allegedly being ill-treated by the police officers. He
then underwent four medical examinations by doctors from the Human
Rights Foundation, the Marmara Nuclear Medicine Institute, the
Nuclear Medicine Department of the Cerrahpaşa Medical Faculty
and a Committee of Experts of the Forensic Medicine Institute, who
all concluded that the injuries found on his body had been caused by
physical trauma and were capable of rendering him unfit for work for
five days (see paragraphs 9, 15, 20 and 21 above). In the Court’s
opinion, the findings contained in those reports are consistent with
the applicant’s allegation of having been subjected to
beatings, kicking and punching. These findings are also sufficiently
serious to amount to ill treatment within the meaning of
Article 3 (see, among other authorities, 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).
- It
therefore 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.
- The
Court notes that the Government did not challenge the findings
contained in the above-mentioned medical reports. They claimed,
however, that the physical trauma in question could have occurred
during the fight between the applicant, who was drunk, and other
persons prior to his arrest by the 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 domestic authorities in charge of the disciplinary
investigation (see paragraph 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 this
connection, the Court takes note of the allegation made by the police
officers that the applicant was reckless, drunken and aggressive on
the day of the incident (see paragraph 6 above).
- However,
considering the absence of any arrest protocol indicating the
conditions of the applicant’s arrest and a medical report
showing his state of health at that point, the Court does not find it
convincingly proved that the injuries suffered by the applicant were
inflicted by persons with whom he had allegedly had a fight. In this
context, the Court attaches great importance to the fact that the
applicant, in his statements to the investigating authorities (11,
12, 16, 17, 18 and 25), was unequivocal in his account that he had
been ill treated by police officers while in custody at the
Esenler terminal police station. He gave a detailed account of the
treatment he had suffered and a description of the police officers
who had inflicted the ill treatment (see paragraph 12 above).
Furthermore, the investigating authorities did nothing to determine
the cause of the physical trauma suffered by the applicant. In view
of the police officers’ denials and the defence submissions
that the injuries in question could have been inflicted by the
persons with whom the applicant had allegedly had a fight, the
judicial authorities could have taken statements from those persons
and any possible witnesses at the bus terminal with a view to
verifying such allegations.
- The
Court reiterates that the 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
convincing explanation concerning the origin of the physical trauma
noted in the four medical reports mentioned above, the Court
considers that the Government have failed to provide a plausible
explanation of how the injuries to the applicant were caused. It
therefore concludes that the physical trauma in question was 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
domestic remedies
- The
Court notes that subsequent to the complaints of ill-treatment lodged
by the applicant with the Eyüp Chief Public Prosecutor’s
office (see paragraph 11 above), the authorities commenced an
investigation into his allegations and ultimately pressed charges
against three police officers for inflicting ill-treatment on him.
However, the Eyüp Criminal Court suspended the proceedings by
virtue of Law no. 4616. These proceedings will 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 Eyüp
Assize Court, albeit unsuccessfully (see paragraphs 26 and 27 above).
- The
Court 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
concrete result owing to the qualification of the alleged offence
committed by the police officers as ill treatment, within the
meaning of Article 245 of the Criminal Code, and the suspension of
the criminal proceedings against them in accordance with Law no. 4616
(see paragraphs 14 and 23 above). Thus, the application of the said
law to the present case created virtual impunity for the perpetrators
of the acts of violence, irrespective of 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, 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 to their
punishment in the event of a conviction, the Court does not consider
that the above proceedings can be described as sufficiently thorough
and effective to have met the procedural requirements of Article 3 of
the Convention.
- There
has accordingly been a procedural violation of this provision.
- In
these circumstances, the Court considers that no separate issue
arises under Articles 6 and 13 of the Convention (see Timur v.
Turkey, no. 29100/03, §§ 35 40, 26 June
2007).
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 5,000 euros (EUR) in respect of
pecuniary damage and EUR 10,000 for non-pecuniary damage.
- The
Government contended that the amount claimed was excessive and that
any award to be made under this head 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 4,500 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 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 solely referred to the Istanbul Bar Association’s
scale of fees and 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 application admissible;
- Holds that that there has been a violation of
Article 3 of the Convention both under its substantive and procedural
aspects;
- Holds that there is no need to examine
separately the complaints under Articles 6 and 13 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 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non pecuniary damage, to be converted into Turkish liras 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 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
