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SECOND
SECTION
CASE OF YANANER v. TURKEY
(Application
no. 6291/05)
JUDGMENT
STRASBOURG
16 July
2009
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 Yananer 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,
Nona Tsotsoria,
Işıl Karakaş,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 23 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6291/05) 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 Bülent Yananer
(“the applicant”), on 13 January 2005.
- The
applicant was represented by Mr M. İşeri, a lawyer
practising in İzmir. The Turkish Government (“the
Government”) were represented by their Agent.
- On
2 April 2008 the President of the Second Section decided to give
notice of the application to the Government. It was 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 1976 and lives in Bodrum. He was the manager of
a hotel at the time of the events.
- On
an unspecified date, a number of persons complained to the police
that the applicant, together with other persons, was extorting money
and threatening them.
- On
24 July 2004 the applicant, together with three other persons, was
arrested and taken into custody by police officers from the organised
crime unit of the Bodrum District Security Directorate. A certain
amount of heroin was also found in the car driven by the applicant
during arrest.
- According
to the rights of the suspected accused form (şüpheli
sanık hakları formu) signed by the applicant, on the
same day, at about 8 a.m., the latter was informed of his rights,
including the right to legal assistance and to remain silent, both of
which he waived.
- On
the same day, at 8.30 p.m., when interviewed by two police officers
he denied the accusations against him.
- In
the application form the applicant complained, without any details,
that he had been subjected to torture, during interrogation, by two
police chiefs, named Mehmet and Soner.
- On
28 April 2005 the applicant, at the Registry’s specific
request, submitted a letter running to approximately eleven pages in
which he set out in detail the various forms of ill treatment he
had been allegedly subjected to at the hands of various police
officers in custody. In particular, these treatments included a
violent punch on his chest during arrest; being blindfolded,
handcuffed, made to lie down on the floor face down and told to raise
his legs and receiving kicks to his buttocks and a blow to his head
when he lowered his legs after his arrival at the police station;
having one officer pulling his right leg while at the same time
another pressed down on his back during interrogation. During this
time, his testicles were squeezed and he received kicks and pressure
to his back. A few hours before he was to be brought before the
prosecutor, the applicant was told that chief Soner was going to come
and he was made to wait while sitting in an uncomfortable position
for hours. This person punched the applicant’s face and his
chin and kicked him on his knees. The applicant submitted that those
responsible for his alleged ill-treatment were Soner, Mehmet, Bayram,
Osman, Tolga and three other police officers.
- On
25 July 2004 the applicant was examined by Dr Ü.E. at the State
hospital who found no signs of injury on his person.
- On
the same day, the applicant was brought before the public prosecutor
and a judge at the Bodrum Magistrates’ Court. The latter
ordered his remand in detention.
- On
26 July 2004 the applicant’s lawyer submitted an official
complaint to the Bodrum public prosecutor claiming that the applicant
had been subjected to severe torture while he was held in police
custody and requested the prosecution of the police officers who had
taken part in the applicant’s interrogation. The lawyer stated
that the applicant had bruises under his right eye and on his back
and asked that the applicant be urgently referred to a hospital for a
medical examination, including a psychiatric evaluation. However, the
petition did not include any details as regards the alleged
ill treatment.
- On
27 July 2004 the applicant was examined by two doctors at the Bodrum
State hospital. Dr M.A. noted that the applicant had five or six
longitudinally bruised areas on his lower back, which rendered him
unfit for work for three days. In his report, Dr M.A. noted, with a
question mark, that the applicant had complained of torture. On the
same day, the applicant was examined by Dr E.T., an
ophthalmologist,
who found that
he had a bruise under his right eye
which rendered the applicant unfit for work for three days.
- On
13 August 2004 the prosecutor heard evidence from two police officers
who had interrogated the applicant. In their submission, these
officers admitted that other colleagues had been present during the
applicant’s interrogation. However, they denied wrongdoing by
any officer.
- On
16 August 2004 the prosecutor heard evidence from the applicant.
The latter submitted that, during interrogation, the head of the
organised crime unit, Mehmet K., made him kneel and hit him while he
was blindfolded and in handcuffs. Mr K. also threatened him and
refused to provide him with a lawyer despite his request for one. The
applicant stated that the police officers who had officially
interviewed him had not ill treated him and that he was
ill-treated by Mehmet K. and a chief named Soner. Moreover, he
claimed that since he was accompanied by two police officers when he
was taken for a medical examination, he had been scared and had
misled the doctor by stating that he did not have any injuries.
- On
18 August 2004 the prosecutor heard evidence from the accused police
officer, Mehmet K., who rejected the allegations against him. In
particular, he submitted that he was the head of the organised crime
unit and that he knew the applicant on account of various
investigations conducted against him. The accused further maintained
that the only police officer called Soner was the head of the unit at
the Provincial Security Directorate and that he was not in the police
station in question at the time of the alleged incident.
- On
the same day, the prosecutor heard evidence from the doctors who had
examined the applicant.
- Dr
Ü.E. stated, inter alia, that when he had examined the
applicant on 25 July 2004 there were no signs of ill-treatment on his
person and that the applicant had told him that he had no complaints.
The doctor further stated that since they did not have a separate
room at the emergency service where he had examined the applicant,
the police officers, who were not present during the examination,
could see them. However, he claimed that he did not have the
impression that the applicant had any fears or uneasiness about this
fact.
- Dr
M.A. submitted, inter alia, that the applicant had complained
of ill-treatment and showed the bruises on his back but that they
could not conclude whether they were the result of ill-treatment and
that therefore he had put a question mark next to the applicant’s
complaint.
- Dr
E.T. maintained, inter alia, that the applicant’s
general disposition was fine and that he heard the gendarmes saying
that he was hitting himself left and right before coming to the
examination. He stated that the applicant had a light bruise under
his right eye but no swelling. In this connection, the doctor
maintained that he could not know when this bruise happened because
bruising could last around ten days and could be self inflicted.
- In
the meantime, on the same day, the applicant’s lawyer
petitioned the public prosecutor asking him to find the police
officers who had ill-treated the applicant. In this petition, the
lawyer claimed that the applicant had been subjected to torture by
two police officers named Soner, a police chief who had worked in
Mersin Security Directorate before, and Mehmet, whose surname could
be Kuzu. These officers had indiscriminately punched the applicant’s
head and body. During the interrogation seven police officers had
laid the applicant on the floor, kicked his back and waist and
climbed on the applicant’s back wearing sports shoes. In
addition, the applicant had been sworn at and blindfolded. The
applicant’s lawyer further requested the transfer of the
applicant, who had become withdrawn and fearful, to a hospital for a
psychiatric evaluation.
- On
19 August 2004 the prosecutor, taking into account the applicant’s
submissions, decided not to prosecute Ms S.A and Mr S.G., the police
officers who had interviewed the applicant. As regards Mr Mehmet K.,
the head of the organised crime unit, the prosecutor, taking into
account particularly the applicant’s conflicting submissions
and attitude before and after his remand in custody and the testimony
of the doctors, considered that there was no evidence to demonstrate
that the findings of the additional medical reports were the result
of ill-treatment for which Mr Mehmet K. was responsible. He
therefore decided not to prosecute Mehmet K.
- On
1 September 2004 the applicant objected to the prosecutor’s
decision. He submitted, inter alia, that two police officers,
namely Mehmet and Soner, had tortured him and had punched his head
and body indiscriminately. Afterwards, seven other police officers
had laid the applicant on the floor and kicked his back and waist.
- On
16 September 2004 the Aydın Assize Court dismissed the
applicant’s objection.
- In
the meantime the applicant unsuccessfully asked for disciplinary
proceedings to be brought against police officers at Bodrum District
Security Directorate.
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 (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to ill-treatment
while he was held in police custody and that the authorities had
failed to conduct an effective investigation into his complaints, in
breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government asked the Court to dismiss the application for failure to
comply with the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention. They argued that the applicant
could have sought reparation for the harm he had allegedly suffered
by instituting an action in the civil or administrative courts.
- The
Court reiterates that it has already examined and rejected the same
argument by the Government in previous cases (see, for example,
Nevruz Koç v. Turkey, no. 18207/03, § 31, 12 June
2007, and Eser Ceylan v. Turkey, no. 14166/02, §
23, 13 December 2007). The Court finds no particular circumstances in
the present application which would require it to depart from that
conclusion. Consequently, the Court rejects the Government’s
preliminary objection.
- Moreover,
the Court finds that the applicant’s 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. It must therefore be declared admissible.
B. Merits
- The
Government maintained that the applicant’s allegations of
ill treatment were not substantiated and, referring to the
various actions undertaken by the domestic authorities, they
considered that an effective investigation had been conducted in the
instant case.
- The
applicant maintained his allegations.
- The
Court reiterates that where an individual is taken into custody in
good health but is found to be injured by the time of release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused and to produce evidence casting doubt on
the victim’s allegations, particularly if those allegations
were corroborated by medical reports, failing which a clear issue
arises under Article 3 of the Convention (see Selmouni v.
France [GC], no. 25803/94, § 87, ECHR 1999-V, Aksoy
v. Turkey, § 62, 18 December 1996, Reports of
Judgments and Decisions 1996-VI, Tomasi v. France, §§
108-111, 27 August 1992, Series A
no. 241-A, and Ribitsch v.
Austria, § 34, 4 December 1995, Series A no. 336).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Avşar v.
Turkey, no. 25657/94, § 282, ECHR 2001). Such
proof may, however, follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, § 161 18 January 1978, Series A no. 25).
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).
- In
the instant case, the Court observes that the applicant was not
examined medically following his arrest. It further notes that the
medical report drawn up at the end of his stay in police custody does
not contain any indication that the applicant was ill-treated during
that time. However, the Court observes that, upon the applicant’s
specific request to see another doctor, he was examined, two days
after the end of his police custody, and the doctors who had examined
him made certain physical findings which, although the report fails
to indicate details such as colour and size of the bruises, are
consistent at the very least with applicant’s allegations of
having received kicks on his back and a blow to his face.
- In
this connection, the Court observes that the Government failed to
provide an explanation as to the manner in which the injuries noted
in the medical report of 27 July 2004 were sustained by the
applicant. 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 to the applicant, who was throughout this whole
time under the control of the State authorities, the Court finds that
these injuries were the result of treatment for which the Government
bore responsibility.
- The Court reiterates that Article 3 of the Convention
also requires the authorities to investigate allegations of
ill-treatment when they are “arguable” and “raise a
reasonable suspicion” (see, in particular, Ay v. Turkey,
no. 30951/96, §§ 59-60, 22 March 2005). The minimum
standards as to effectiveness defined by the Court’s case-law
include the requirements that the investigation be independent,
impartial and subject to public scrutiny, and that the competent
authorities act with exemplary diligence and promptness (see, for
example, Çelik and İmret v. Turkey,
no. 44093/98, § 55, 26 October 2004). In addition, the
Court recalls that the rights enshrined in the Convention are
practical and effective, and not theoretical or illusory. Therefore,
in such cases, an effective investigation must be able to lead to the
identification and punishment of those responsible (see Orhan Kur
v. Turkey, no. 32577/02, § 46, 3 June 2008).
- The
Court has found above that the respondent State was responsible,
under Article 3 of the Convention, for the injuries sustained by the
applicant. An effective investigation was therefore required.
-
In the instant case, the Court observes that an investigation into
the allegations of the applicant was initiated promptly by the public
prosecutor’s office. This investigation ended when the Assize
Court upheld the decision of the public prosecutor not to prosecute
Ms S.A, Mr S.G. and Mr Mehmet K. In the course of the
investigation additional medical reports were sought to establish the
veracity of the applicant’s allegations and the prosecutor
heard evidence from the applicant, the accused officers and the
doctors who had examined the applicant.
- Nonetheless, the Court observes that there were
shortcomings in the way the investigation was conducted by the
prosecutor which had repercussions on its effectiveness. Firstly, the
Court reaffirms that evidence obtained during forensic examinations
plays a crucial role during investigations conducted against
detainees and in cases where the latter raise allegations of
ill-treatment (see Salmanoğlu and Polattaş v. Turkey,
no. 15828/03, § 79, 17 March
2009).
In this connection, the Court cannot but note that all these medical
reports submitted to the Court lack detail and fall significantly
short of both the standards recommended by the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), which are regularly taken into account by the Court
in its examination of cases concerning ill-treatment (see, inter
alia, Akkoç v. Turkey,
nos. 22947/93 and 22948/93, § 118, ECHR 2000 X), and
the guidelines set out in the Manual on the Effective Investigation
and Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, “the Istanbul Protocol”,
submitted to the United Nations High Commissioner for Human
Rights (see Batı and Others, § 100, cited
above). The Court recalls the CPT’s standard that all medical
examinations should be conducted out of the hearing, and preferably
out of the sight, of police officers. Further, every detained person
should be examined on his or her own and the results of that
examination, as well as relevant statements by the detainee and the
doctor’s conclusions, should be formally recorded by the doctor
(see Akkoç, § 118, cited above, and Mehmet Eren
v. Turkey, no. 32347/02, § 40, 14 October 2008). Moreover,
an opinion by medical experts on a possible relationship between
physical findings and ill-treatment was found to be a requirement by
the Court (see Mehmet Emin Yüksel v. Turkey, no.
40154/98, § 29, 20 July 2004). In the instant case, the
medical reports were drafted in cursory manner, for example, without
any mention as regards size, colour or possible relationship between
the physical findings and the applicant’s statements. Moreover,
at least on one occasion, the applicant was examined in circumstances
where police officers could see the examination room if they wished
(see paragraph 19 above), in clear breach of the aforementioned CPT
standards.
- Secondly, the Court notes that the applicant was never
requested to identify the alleged perpetrators either by way of
checking police photographs or an identification parade. There was no
serious attempt to elucidate the identities of the persons referred
to as Mehmet and Soner by the applicant or the veracity of his claims
as regards their respective rank and presence in the police station
at the time of the events. Thirdly, the prosecutor failed to secure
the testimonies of the other police officers on duty that day, those
that accompanied the applicant to the medical examinations as well as
those of potential eye-witnesses, such as the persons arrested
together with the applicant or others present at the police station
on the day of the events. In the absence of conclusive medical
evidence in the case file, these testimonies would have provided, in
the Court’s opinion, important information capable of casting
light on the origins of the injuries noted on the applicant’s
medical reports dated 27 July 2004 and of proving or disproving the
applicant’s allegations.
- In
the light of the above, the Court does not find that the above
investigation can be described meeting the requirements of
thoroughness and effectiveness under Article 3 of the Convention.
- There
has therefore been both a substantive and a procedural violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant further complained under Articles 6 and 13 of the
Convention that the authorities’ failure to conduct an
effective investigation into his complaints of ill-treatment had
rendered impossible the punishment of the persons responsible for the
ill treatment inflicted on him or the initiation of civil
proceedings against them.
- The
Court notes that these complaints are linked to the ones examined
above and must likewise be declared admissible.
- However, having regard to the facts of the case, the
submissions of the parties and its finding of a violation of Article
3 under its procedural limb above, the Court considers that it has
examined the main legal question raised in the present application.
It concludes, therefore, that there is no need to give a separate
ruling on the applicant’s remaining complaints under Articles 6
and 13 of the Convention (see, for example, Kamil Uzun
v. Turkey, no. 37410/97, § 64, 10 May 2007; K.Ö.
v. Turkey, no. 71795/01, § 50, 11 December 2007;
Juhnke v. Turkey, no. 52515/99, § 99, 13 May 2008;
and Mehmet Eren, § 59, cited above).
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.”
- The
applicant claimed 15,000 euros (EUR) in respect of non pecuniary
damage. Referring to the Turkish Bar Association’s scale of
fees, he further claimed EUR 1,000 in respect of costs and expenses
incurred before the Court.
- The
Government contested the amounts.
- As
regards the applicant’s claims regarding non-pecuniary damage,
the Court finds that the applicant must have suffered pain and
distress which cannot be compensated solely by the Court’s
finding of a violation. Having regard to the nature of the violation
found in the present case and ruling on an equitable basis, the Court
awards the applicant EUR 10,000 for non-pecuniary damage.
- As to the claims concerning costs and expenses, the
Court finds that since the applicant submitted no relevant
justification regarding costs and expenses, as required by Rule 60 of
the Rules of Court, it makes no award under this head.
- Finally,
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 there has been both a substantive and
procedural violation of Article 3 of the Convention;
- 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 10,000 (ten 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 16 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
