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SECOND
SECTION
CASE OF TERZİ AND ERKMEN v. TURKEY
(Application
no. 31300/05)
JUDGMENT
STRASBOURG
28 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 Terzi and Erkmen 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 Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31300/05) 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 two Turkish nationals, Mr Abdulvahap Terzi and
Mr Recahi Erkmen (“the applicants”), on 23 August
2005.
- The
applicants were represented by Mr S. Ulufer, a lawyer practising in
Adana. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicants alleged that they had been subjected to torture during
their detention in the custody of security forces and that the
national authorities had failed to establish the criminal and
administrative responsibilities of the accused police officers. This
had consequently allowed the police officers to enjoy impunity. The
applicants relied on Articles 3, 5, 6 and 13 of the Convention.
- On
15 May 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
applicants were born in 1969 and 1971 and live in Malatya and Sivas
respectively.
- On
21 May 1997, at about midnight, the applicants were taken into police
custody at the Mersin Security Headquarters for car theft. They were
allegedly ill-treated by police officers, who stripped them naked,
beat them and subjected them to electric shocks.
- On
23 May 1997, at about 9.35 a.m., the applicants were brought before a
forensic doctor (S.T.) who reported that there were no traces of
ill treatment on their bodies.
- The
applicants were released the same day (23 May), following which they
lodged a complaint with the public prosecutor against the police
officers (S.D. and I.A.) who had interrogated them and against the
doctor (S.T.) who had drawn up their medical report.
- The
public prosecutor referred the applicants to a forensic doctor who
reported the same day (23 May) that the first applicant had red marks
of various sizes on both the scapula and the thorax, a 2 cm wide
bruise on the lower right lip and an 0.5 cm wide ecchymosis
on his right eye. Moreover, it was noted that the second applicant
had a red 1 x 1 cm skin wound on his groin. The report stated that
the marks and bruises on their bodies did not render the applicants
unfit for work.
- By
an indictment filed on 27 November 1997, the public prosecutor
instituted criminal proceedings against S.D. and I.A. for having
insulted and tortured the applicants, and against S.T. for
professional misconduct.
- On
13 December 1999 the Mersin Assize Court delivered its judgment.
Referring to the second medical report, which noted the presence of
marks on the applicants’ bodies, the court found S.D.
and I.A. guilty of ill-treatment during the performance of
their duties under Article 245 of the former Criminal Code, and
sentenced them to imprisonment, which was converted to a fine. The
court added that for treatment to be qualified as torture under
domestic law, the victims needed to have been charged with a
particular crime, whereas in the present case the applicants had only
been suspects and were later released without charge. Therefore the
officers’ acts could not be qualified as torture under Article
243 of the Criminal Code, but as ill-treatment under Article 245. The
court acquitted S.T., however. It noted that, although S.T. had not
examined the applicants, he had simply written down what they had
said and had therefore had no criminal intention.
- On
31 January 2001 the Court of Cassation quashed the judgment on the
ground that the provisions applicable to the police officers and the
doctor were contained in Articles 243 and 230 of the Criminal Code
which concerned the offences of torture and negligence in the
performance of public duties respectively. The Court of Cassation
added that S.D. had previously been convicted of the same offence;
therefore the prison sentence should not have been converted to a
fine.
- On
30 January 2002 the Mersin Assize Court persisted in its earlier
judgment on the same grounds.
- By
a decision of 15 November 2002, the Joint Criminal Chambers of the
Plenary Court of Cassation (Criminal Divisions) (Yargıtay
Ceza Genel Kurulu) quashed the Mersin Assize Court’s
judgment and held that the evidence in the case file showed that the
applicants had been subjected to torture by S.D.
and I.A., who had intentionally inflicted ill-treatment in
order to extract confessions; their acts therefore fell under Article
243 of the Criminal Code. As for S.T., he had drawn up the
applicants’ medical report in the presence of police officers
without examining the applicants, and had thus committed an offence
under Article 230 of the Criminal Code.
- On
16 January 2004 the Mersin Assize Court held that the prosecution was
time-barred in respect of S.T. However, it convicted and sentenced
S.D. to two years and two days’ imprisonment and I.A. to two
years’ imprisonment. S.D. and I.A.
were further prohibited from holding public office for a period of
six months. S.D. and I.A. appealed.
- On
24 June and 15 October 2004 the applicants’ representatives
asked the Court of Cassation to expedite the proceedings, as there
was a danger that the prosecution of the offences would also become
time-barred in respect of the accused police officers.
- On
15 December 2004 the Court of Cassation held that the prosecution was
indeed time-barred and dismissed the criminal proceedings under the
statute of limitations. The decision was deposited with the
first-instance court’s registry on 24 February 2005.
- On
11 August 2005 the applicants requested the Ministry of Justice to
identify the judges involved in the proceedings and to hold them
responsible for not having shown due diligence and for ultimately
having allowed the proceedings to become time-barred.
- On
16 December 2005 the Court of Cassation, and on 13 March 2006 the
Ministry of Justice, replied in respect of the judges who had sat on
the bench of the Court of Cassation and the Mersin Assize Court
respectively. It notified the applicants that no proceedings or
investigations were to be instituted against the judges since the
complaint concerned the use of judicial power.
- S.D.
was still on duty at the Organised Crime and Trafficking Branch of
the Muğla Security Headquarters at the time the application was
lodged with the Court.
II. RELEVANT DOMESTIC LAW
- 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, ECHR 2004 IV) and Zeynep Özcan v.
Turkey (no. 45906/99, 20 February 2007).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3, 6 and 13 OF THE
CONVENTION
- The
applicants complained under Article 3 of the Convention that they had
been subjected to torture whilst in police custody. Relying on
Articles 6 and 13, they further alleged that the criminal and
administrative responsibilities of the accused police officers had
not been established as the criminal proceedings had not been
concluded within a reasonable time, so had ultimately become
time-barred. They had therefore not been fair. The police officers
had also not been suspended from duty, which had allowed them to
enjoy impunity during the criminal proceedings.
- 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 applicants had failed to exhaust the
domestic remedies available to them within the meaning of Article 35
§ 1 of the Convention. In this connection, they submitted that
the applicants had not availed themselves of the civil and
administrative-law remedies which could have provided reparation for
the harm which they had allegedly sustained.
- The
Court reiterates that it has already examined and rejected the
Government’s preliminary objections in similar cases (see, in
particular, Ataş and Seven v. Turkey, no. 26893/02, §
29, 16 December 2008). The Court finds no particular circumstances in
the instant case which would require it to depart from its previous
findings. It therefore rejects the Government’s preliminary
objection.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The responsibility of the respondent State in the
light of the substantive aspect of Article 3 of the Convention
- The
Government maintained that the medical reports drawn up in respect of
the applicants indicated that the bruises and marks on their bodies
had not rendered them unfit for work. Accordingly, the treatment of
the police officers had not attained the level of severity proscribed
by Article 3.
- The Court reiterates the basic principles laid down in
its judgments concerning Article 3 (see, in particular, Ivan
Vasilev v. Bulgaria, no. 48130/99, § 62, 12 April 2007;
Yavuz v. Turkey, no. 67137/01, § 38, 10 January
2006; Emirhan Yıldız and Others v. Turkey,
no. 61898/00, §§ 41-42, 5 December 2006; Diri v.
Turkey, no. 68351/01, §§ 35-39, 31 July 2007).
It will examine the present case in the light of these principles.
- The
Court observes that, after acquainting itself with the evidence and
examining the facts of the case, the Plenary Court of Cassation
(Criminal Divisions) (Yargıtay Ceza Genel Kurulu), in its
decision of 15 November 2002, found that the applicants had been
subjected to torture by S.D. and I.A. In establishing that the
treatment by the police officers fell under Article 243 of the
Criminal Code, the Plenary Court of Cassation further found that they
had inflicted this treatment intentionally in order to extract
confessions (see paragraph 14 above). The Court further notes that
the applicants’ allegations included the administration of
electric shocks and beatings. These allegations are partly
corroborated by the medical reports, as confirmed by the domestic
court judgment. In these circumstances, the Court concludes that the
injuries observed on the applicants must be attributable to a form of
ill-treatment for which the authorities bore responsibility.
- As
to the seriousness of the treatment in question, the Court reiterates
that, according to its case-law in this sphere (see, among other
authorities, Selmouni v. France [GC], no. 5803/94, §§
96-97, ECHR 1999 V), 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 the intention 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 agrees with the domestic court’s
findings and considers that the treatment complained of was inflicted
intentionally by the police officers for the purpose of extracting
confessions. In these circumstances, the Court finds that these acts
were particularly serious and cruel, capable of causing severe pain
and suffering. It therefore concludes that this ill-treatment
amounted to torture within the meaning of Article 3 of the
Convention.
- Consequently,
there has been a substantive violation of Article 3 of the
Convention.
2. The responsibility and positive obligation of the
State in the light of the procedural aspect of Article 3
- The Court reaffirms that when an agent of the State is
accused of crimes that violate Article 3, the criminal proceedings
and sentencing must not be time-barred and the granting of an amnesty
or pardon should not be permissible (see Erdoğan Yılmaz
and Others v. Turkey, no. 19374/03, § 56, 14 October
2008). The Court further reiterates that where a State agent has been
charged with crimes involving torture or ill-treatment, it is of the
utmost importance that he or she be suspended from duty during the
investigation and trial, and should be dismissed if convicted (see
Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2
November 2004).
- The
Court notes in the instant case that the case against the police
officers was dropped on 15 December 2004 as the statutory time-limit
had elapsed. Furthermore, the two police officers were not suspended
from duty at any time. In this context the Court reiterates its
earlier finding in a number of cases that the Turkish criminal-law
system, as applied, can prove to be far from rigorous and have no
dissuasive effect capable of ensuring the effective prevention of
unlawful acts perpetrated by State agents if criminal proceedings
brought against the latter become time-barred (see, among other
authorities, Yeşil and Sevim, cited above, § 42, and
Hüseyin Esen v. Turkey, no. 49048/99, § 63, 8
August 2006). The Court finds no reason to reach a different
conclusion in the present case.
- In
the light of the foregoing, the Court finds that the criminal
proceedings brought against the police officers were inadequate, and
therefore in breach of the State’s procedural obligations under
Article 3 of the Convention.
- It
follows that there has been a violation of Article 3 under its
procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants relied on Article 5 of the Convention, complaining that
they had been taken into police custody
without any reasonable suspicion against them. Moreover, they had not
been permitted to inform a relative of their custody. The
Government contested these arguments.
- The Court observes that the applicants were taken into
police custody on 21 May 1997 and that their detention in police
custody ended on 23 May 1997, when the judge released them.
However, the applicants only introduced their application with the
Court on 23 August 2005, that is, more than six months later (see
Arslan v. Turkey (dec.), no. 31320/02, 1 June 2006). It
follows that the applicants’ complaints under Article 5 of the
Convention have been lodged out of time and must be declared
inadmissible for non-compliance with the six-month rule laid down in
Article 35 § 1 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.”
- The
applicants claimed 500,000 euros (EUR) and EUR 350,000 respectively
in respect of non-pecuniary damage and EUR 4,845 for the costs and
expenses incurred before the Court. They did not request any
pecuniary damages. The Government submitted that the amounts claimed
were excessive and unjustified.
- The
Court has found violations of Article 3 of the Convention under its
substantive and procedural limbs. In view of their gravity, the Court
considers that the applicants have suffered pain and distress which
cannot be compensated solely by such findings. Making its assessment
on an equitable basis, the Court awards the applicants EUR 15,000
each in respect of non-pecuniary damage.
- 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 observes
that the applicants did not produce any document in support of their
claims, which the Court accordingly dismisses.
- 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 inadmissible the applicants’
complaints under Article 5 of the Convention;
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
3 of the Convention under both its substantive and procedural limbs;
- Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, which sum is 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 28 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
