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SECOND
SECTION
CASE OF SAMÜT KARABULUT v. TURKEY
(Application
no. 16999/04)
JUDGMENT
STRASBOURG
27 January
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 Samüt Karabulut
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 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16999/04) 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 Samüt
Karabulut (“the applicant”), on 29 March 2004.
- The
applicant was represented by Ms Y. Yeşilyurt and Mr A.T. Ocak,
lawyers practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
- On
14 February 2007 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 1964 and lives in Istanbul. He is a member of
the Human Rights Association in Turkey.
- According
to the official police documents, drafted on 8 April 2002, at
9.15 and 9.30 p.m., the security forces received information that the
Human Rights Association would hold an unauthorised demonstration and
press release concerning Israel's operations against Palestine, at
Tünel Square, on that day. The police took the necessary
precautions in the area as of 7 p.m. At 8 p.m., around 30-35 persons
gathered at the square holding candles, photos and banners which
stated, inter alia, “All the world is Palestine, all of
us are Palestinians”, “an end to the occupation, freedom
to Palestine” and “Wanted Ariel Sharon war criminal”.
They sat down on the street. The police chief warned the
demonstrators, many times, to disperse and a passage was opened by
the police for the demonstrators to leave. The group started to
disperse; however, two persons, including the applicant, despite
warnings, continued to sit and shout slogans. The police used force
to arrest them.
- The
applicant submitted, in the application form, that, on 8 April
2002, he had arrived to Tünel Square in order to participate in
the Human Rights Association's press release on Israel's invasion of
Palestine. However, the police intercepted the group and told them
that they would not permit such a demonstration. As a result, the
organisers decided to disperse and told the group to disband. While
the group was dispersing, the applicant saw that the police were
trying to arrest Ms M.A., a fellow demonstrator. When he intervened
and asked why they were arresting her, the police chief got angry. He
and 5 or 6 other police officers beat him up. They then arrested him
and Ms M.A. In this connection, the applicant claimed to have
received punches and kicks, and to have been hit by truncheon on
various parts of his body, including his head and his back.
- The
applicant and Ms M.A. were brought to the Beyoğlu police
station. They were released 1,5 hours later. The applicant was asked
to give a statement to the prosecutor's office the next day.
- In
the meantime, the police took the applicant for a medical examination
to Taksim Hospital where the doctor who examined him noted a swelling
and ecchimosis of 2 cm on the applicant's head in the frontal region.
In the report it is mentioned that the applicant had complained of a
headache and of difficulty in breathing.
- On
9 April 2002 the applicant was heard by Mr Y.A., a prosecutor at the
Beyoğlu public prosecutor's office. In his deposition the
applicant complained, inter alia, about the manner in which he
had been arrested and requested that those who had committed these
offences be punished.
- On
the same day, the applicant was examined by a doctor at the Beyoğlu
Forensic Medicine Department who noted a swelling of 2 cm on his head
in the frontal region. In addition, the doctor noted that the
applicant had sensitivity to the right of his chest.
- On
10 June 2002 an Istanbul deputy police chief was appointed to carry
out a preliminary investigation on behalf of the governor of the
allegations of ill-treatment made by the applicant and Ms M.A.
- On
an unspecified date the deputy police chief prepared his report and
submitted it to the governor's office. It recommended that
authorisation for the prosecution of Mr Ş.P., the police chief
on duty that day, should be declined since the complaints were
ill-founded.
- On
4 July 2002 the Istanbul Deputy Governor, on the basis of the
information contained in the deputy police chief's report and
statements, refused authorisation for Mr Ş.P.'s prosecution.
- On
12 August 2002 the applicant lodged an objection to the governor's
decision with the Regional Administrative Court. He submitted, in
particular, that his complaint of ill-treatment not only concerned
the police chief but also all those officers who had carried out his
order to beat him.
- On
26 November 2002 the Istanbul Regional Administrative Court upheld
the applicant's objection on account of an insufficient
investigation, notably regarding the other police officers.
- On
an unspecified date the same deputy police chief prepared his second
report in which he reiterated his previous findings and submitted it
to the governor's office.
- On
7 March 2003 the Istanbul Governor, on the basis of the information
contained in this second report and statements, declined
authorisation for the police officers' prosecution.
- On
4 July 2003 the Istanbul Regional Administrative Court, upon the
objection of Ms M.A., transferred the case to the Beyoğlu public
prosecutor's office on the ground that the complainant's accusations
concerned allegations of ill-treatment under Article 245 and that,
pursuant to amendments to the criminal law and code on criminal
procedure, authorisation was no longer a prerequisite to prosecute
the accused police officers.
- In
the meantime, on 7 August 2003 the Beyoğlu public prosecutor
decided not to prosecute the accused police officers. In this
connection, he noted that about 30-35 persons had gathered, with
candles and banners, at Tünel in Beyoğlu in order to
protest Israel's invasion of Palestine but that, following warnings
from the police, they had started to disperse. However, the
complainants had continued to sit down and shout slogans and, as a
result, the police had had to use force and arrest them. The
prosecutor considered therefore that the force used by the security
forces was in line with Article 24 of the Assemblies and Marches Act
(Law no. 2911).
- On
26 August 2003 the applicant filed an objection with the Beyoğlu
public prosecutor's office, to be referred to the assize court,
against the decision of 7 August 2003. In his petition the applicant
complained that his right to freedom of expression and peaceful
assembly had been infringed by his unlawful arrest and ill-treatment.
- On
9 September 2003 the Istanbul Assize Court dismissed the applicant's
objection. This decision was notified to the applicant's legal
representative on 27 October 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Mehmet Ümit Erdem v. Turkey, no.
42234/02, § 19, 17 July 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 10 AND 11 OF THE
CONVENTION
- The
applicant complained that the police intervention in the
demonstration and the force used during his arrest infringed his
rights to freedom of expression and peaceful assembly, and amounted
to inhuman and degrading treatment. The applicant relied on Articles
3, 10 and 11 of the Convention.
- The
Court considers that the applicant's complaints should be examined
under Articles 3 and 11 of the Convention alone, which, in so far as
relevant, provide as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 11
“1. Everyone has the right to freedom
of peaceful assembly...
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of ... public
safety, [or] for the prevention of disorder or crime....”
A. Admissibility
- The Government asked the Court to dismiss the
application as being inadmissible for failure to comply with the
six-month rule on the ground that the applicant had not lodged his
application within six months of the date on which the final decision
was rendered, namely 9 September 2003.
- The
Court reiterates that, where an applicant is entitled to be served
ex officio with a written copy of the final domestic
decision, the object and purpose of Article 35 § 1 of the
Convention are best served by counting the six-month period as
running from the date of service of the written judgment (see Mahmut
Aslan v. Turkey, no. 74507/01, § 16, 2 October
2007). In the instant case, the final decision in question was
delivered on 9 September 2003 by the Istanbul Assize Court. This
decision was served on the applicant's legal representative on 27
October 2003. As the application was lodged with the Court on 29
March 2004, the applicant's above complaints were introduced with the
Court within the six-month time limit. It therefore rejects the
Government's objection under this head.
- Moreover,
the Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring it inadmissible have been
established. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government maintained that there had been no interference with the
exercise of the applicant's right to freedom of assembly. They
further submitted that, even assuming that there had been
interference, it was prescribed by law and pursued the legitimate
aims of preventing disorder and protecting public safety. They
further claimed that the measure imposed by the security forces
should be regarded as answering a pressing social need and was
proportionate to the legitimate aims pursued. In this connection, the
Government dismissed the applicant's allegations of ill treatment
and claimed that, in the circumstances of the present case, the force
used on the applicant had been proportionate to the aims pursued.
- The
applicant submitted that the interference with his right to peaceful
assembly had been unjustified. He noted that the police had
unlawfully prevented the reading out of the press release prepared by
the Human Rights Association and had used disproportionate force to
arrest him and a fellow demonstrator. In this connection, the
applicant maintained that he had been beaten by the police because he
had taken part in a demonstration and had intervened when a fellow
demonstrator was being arrested. He further claimed that, despite a
cursory examination, the medical report still noted his head injury,
which demonstrated in itself that he had been subjected to torture
and inhuman treatment.
2. The Court's assessment
- The
Court will first determine whether the police intervention to the
demonstration in question infringed the applicant's right to peaceful
assembly, in breach of Article 11 of the Convention. It will then
consider, under Article 3 of the Convention, the manner in which the
applicant was arrested.
a) Article 11
- The
Court considers that the police intervention and the subsequent
arrest of the applicant constituted, in itself, an interference with
the applicant's rights under Article 11 of the Convention (see Saya
and Others v. Turkey, no. 4327/02,
§ 39, 7 October 2008).
- The
Court reiterates that an interference will constitute a breach of
Article 11 unless it is “prescribed by law”, pursues
one or more legitimate aims under paragraph 2 and is “necessary
in a democratic society” for the achievement of those aims. For
the purposes of the present case and the reasons stated below (see
paragraph 34), the Court is satisfied that the interference in the
present case had a legal basis, namely Article 24 of the Assemblies
and Marches Act (Law no. 2911), and was thus “prescribed by
law” within the meaning of Article 11 § 2 of the
Convention and pursued the legitimate aims of preventing disorder and
protecting public safety.
- Turning
to the question of whether the interference was “necessary in a
democratic society, the Court refers in the first place to the
fundamental principles underlying its judgments relating to Article
11 (see, in particular, Oya Ataman v. Turkey, no. 74552/01,
§§ 35-37, ECHR 2006 ..., and Éva
Molnár v. Hungary, no.
10346/05, §§ 35-38, 7 October 2008).
- In
the instant case the Court observes that the Government failed to
elaborate on the exact grounds why the demonstration organised by the
Human Rights Association was unlawful. In this regard, the Court
notes that the official documents submitted by the parties refer to
the absence of authorisation, which is not a requisite under Turkish
law, and not to the absence of any prior notification. However, the
applicant has neither argued that a prior notification had been given
to the authorities, in accordance with Article 10 of Law no.
2911, nor that the situation in Palestine called for a spontaneous
demonstration overriding this obligation (see, for example, Bukta
and Others v. Hungary, no. 25691/04, § 36, ECHR
2007 ...). In such circumstances, the Court will presume that
the reference to the absence of authorisation in the official
documents implied the absence of prior notification.
- The
Court considers that, in the absence of notification, the
demonstration was unlawful. In this connection, the Court reiterates
that any demonstration in a public place may cause a certain level of
disruption to ordinary life and encounter hostility. Therefore, in
order to enable the domestic authorities to take the necessary
preventive security measures, associations and others organising
demonstrations, as actors in the democratic process, should respect
the rules governing that process by complying with the regulations in
force (see Oya Ataman, cited above, §§ 38 and
39, and Balçık and Others v. Turkey, no. 25/02,
§ 49, 29 November 2007). However, it also points out
that an unlawful situation does not justify an infringement of
freedom of assembly and that regulations of this nature should not
represent a hidden obstacle to freedom of peaceful assembly as
protected by the Convention (ibid).
- In
the instant case, the Court observes that the group in question
concerned around 30-35 people. It appears that they were carrying
banners and candles and that they wanted to read out a press
statement regarding Israel's actions against Palestine, a topical
issue, at Tünnel square. In this connection, the Government gave
no particular reasons, such as the specificities of the location of
the demonstration, to show that this group represented a danger to
public order or public safety. The Court finds no such evidence on
its own motion.
- Moreover,
the Court reiterates that, where demonstrators do not engage in acts
of violence, it is important for the public authorities to show a
certain degree of tolerance towards peaceful gatherings if the
freedom of assembly guaranteed by Article 11 of the Convention is not
to be deprived of all substance (see Nurettin Aldemir and Others
v. Turkey, nos. 32124/02, 32126/02, 32129/02, 32132/02,
32133/02, 32137/02 and 32138/02, § 46, 18 December
2007). According to the incident report in the present case, drafted
at 9.15 p.m., the demonstration began at 8 p.m. It appears that the
demonstrators decided to disband the demonstration after the police
had ordered them, several times, to disperse. As to whether police
intervention was immediate or after a certain period of time, the
Court notes that the applicant claimed that the police intervention
was immediate, a fact not disputed by the Government. In these
circumstances and taking into account that the police had already
returned to the Beyoğlu police station by 9.15 p.m., the Court
considers that the dispersal was quite prompt. Consequently, it is
not satisfied that the applicant had sufficient time - together with
his fellow demonstrators - to manifest his views (see Oya Ataman,
§§ 41-42; Balçık and Others, §
51, and a contrario, Ẻva Molnár,
§§ 42-43, all cited above).
- Accordingly,
the Court considers that in the instant case the police intervention
against the demonstration was disproportionate and was not necessary
for preventing disorder and protecting public safety within the
meaning of the second paragraph of Article 11 of the Convention.
- There
has accordingly been a violation of that provision.
b) Article 3
- As
to the manner in which the applicant was arrested, the Court finds,
at the outset and having regard to the documentary evidence,
particularly to the medical reports, the applicant's version of
events, namely a gratuitous, excessively brutal attack on his person
by several police officers, to be unsubstantiated. Any ill treatment
inflicted in the way alleged by the applicant would have left several
distinctive marks on his body which would have been seen by the
doctors who examined him the very same day and the day after (see
Tanrıkulu and Others v. Turkey (dec.), nos. 29918/96,
29919/96 and 30169/96, 24 February 2005). Although the applicant
challenged the veracity of the medical reports established in his
respect, the Court considers that, since the applicant had been
released from detention the day of the incident, he had the
possibility to obtain an alternative medical report from a doctor of
his choice in order to support his allegations.
- However,
the findings of the medical reports, in the Court's opinion, match at
least the applicant's allegations of having received a blow on the
head. It finds this injury, particularly because of its location,
sufficiently serious to bring it within the scope of Article 3. The
Government have not denied that the applicant's injury resulted from
the use of force by the State authorities in the performance of their
duties. They have, however, stressed the mitigating circumstances
surrounding the incident.
- The
Court notes that Article 3 does not prohibit the use of force in
certain well-defined circumstances, such as to effect an arrest.
However, such force may be used only if indispensable and must not be
excessive (see, in particular, Kurnaz and Others v. Turkey,
no. 36672/97, § 52, 24 July 2007, and the
references therein). The Court considers that, since it is not
disputed between the parties that the applicant's head injury
resulted from the use of force by the security forces in the
performance of their duties, the burden rests on the Government to
demonstrate with convincing arguments that the force used was
indispensable and not excessive (see Balçık and
Others, cited above, § 31).
- However,
the Government did no more than claim that the applicant had
sustained injuries as a result of having resisted arrest by the
police, without providing any explanation or documentation which
could shed light on the exact circumstances which led the police to
use force on the applicant and the nature of the force inflicted on
him. In this connection, the Court observes that, although no prior
notification was given to the authorities about the meeting, the
police had received information that there would be a gathering on
that date. The security forces were thus able to take more
appropriate measures. As a result, in the particular circumstances of
the present case, it cannot be said that the security forces were
called upon to react without prior preparation. The Court further
observes that, after warnings, the group decided to disband and
started to disperse, on its own accord, without a forceful
intervention on the part of the police. Having regard to the
documentary evidence, the Court finds credible the Government's
assertion that the applicant, despite the warnings and the dispersal
of the crowd, continued to demonstrate and, as a result, was
arrested. However, there is nothing in the case file to suggest that
the police had encountered any violent or active physical resistance
on the part of the applicant during the arrest which would explain
the injury which he sustained and, particularly, its location. In
these circumstances, the Court finds that the Government have failed
to furnish convincing or credible arguments which would provide a
basis to explain or to justify the head injury sustained by the
applicant during his arrest, at the end of a peaceful demonstration.
- In
light of the above, the Court concludes that the force used against
the applicant during his arrest was excessive. Consequently, the
State is responsible, under Article 3 of the Convention, for the
injury sustained by him on that date. It follows that there has been
a violation of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 5 of the Convention that
his arrest and subsequent detention in police custody for 1,5 hours
was unlawful.
- However,
an examination by the Court of the material submitted to it does not
disclose any appearance of a violation of this provision
(see Nurettin Aldemir and Others, § 57, and
Saya and Others, § 50, both cited above). It follows
that this part of the application is manifestly ill founded and
must be declared inadmissible pursuant to Article 35 §§ 3
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, in total, 7,500 euros (EUR) in respect of
pecuniary and non-pecuniary damage. He requested the reimbursement of
legal costs and expenses incurred during the domestic proceedings and
medical costs.
- The
Government contested the amounts.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court considers that he has failed to substantiate this claim
properly. The Court accordingly dismisses it.
- As
regards non-pecuniary damage, the Court considers that the
applicant is sufficiently compensated by the finding of a violation
of Article 11 of the Convention (see Oya Ataman, cited
above, § 48). However, 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 of Article 3.
Having regard to the nature of this violation and ruling on an
equitable basis, it awards the applicant EUR 3,000 in respect of
non pecuniary damage (see Balçık and Others,
cited above, § 62).
B. Costs and expenses
- The
applicant also claimed EUR 13,094.79 for the costs and expenses
incurred before the Court. In respect of his claims, the applicant
referred to the Istanbul Bar Association's scale of fees.
- The
Government contested the amount.
- 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 are
reasonable as to quantum. In the present case, the applicant has not
substantiated that he had actually incurred the costs claimed.
Accordingly, it makes no award under this head.
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
- Declares unanimously the applicant's complaints
under Articles 3 and 11 of the Convention admissible and the
remainder of the application inadmissible;
- Holds by 5 votes to 2 that there has been a
violation of Article 3 of the Convention;
- Holds unanimously that there has been a
violation of Article 11 of the Convention;
4. Holds by 5 votes to 2
(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 new 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 27 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following partly separate opinion
is annexed to this judgment:
Partly
dissenting opinion of Judges Vladimiro Zagrebelsky and András
Sajó;
F.T.
S.D.
PARTLY DISSENTING OPINION OF JUDGES VLADIMIRO
ZAGREBELSKY AND ANDRÁS SAJÓ
While
sharing the opinion that in the instant case there has been a
violation of Article 11 of the Convention, which is in our view the
main point of interest in the case, we were not able to follow the
majority in finding also a violation of Article 3.
In
the majority's view the applicant's version of his arrest, “namely
a gratuitous, excessively brutal attack on his person by several
police officers” is unsubstantiated (paragraph 40). However,
the majority take account of the traces of a blow on the frontal
region of the applicant's head and finds “this injury,
particularly because of its location, sufficiently serious to bring
it within the scope of Article 3” (paragraph 41). As to the
origin of the injury the applicant suffered, the majority acknowledge
that he continued to demonstrate despite the police warnings and the
dispersal of the crowd. It is in that context that the applicant was
arrested and was injured.
The
majority find a violation of Article 3 because “the Government
have failed to furnish convincing or credible arguments which would
provide a basis to explain or to justify the head injury sustained by
the applicant during his arrest, at the end of a peaceful
demonstration” (paragraph 43). In our view, the peaceful nature
of the demonstration has no bearing on the circumstances of the
applicant's arrest, because the key factor was his own attitude when
he refused to disperse and intervened when the police were arresting
a fellow demonstrator (paragraph 6).
When
an applicant suffers injuries while in custody and thus in the hands
of the authorities, the Court rightly ask the Government to provide
convincing reasons and explanations. If such explanations are not
offered by the Government, a kind of presumption of the authorities'
responsibility often operates (Anguelova v. Bulgaria, judgment
of 13 June 2002, § 110, and Ipek v. Turkey, judgment
of 17 February 2004, § 165) But in totally different
circumstances like the present ones, where investigations and
judicial decisions took place at national level and excluded any
police responsibility (paragraph 11-21), the reversal of the burden
of proof appears to us unjustified. In fact the majority's reasoning
contradicts the conclusions of the national judge without finding any
procedural violation of Article 3 and compels the Government to
provide a probatio diabolica in the procedure before the
Court.
