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SECOND
SECTION
CASE OF ARAT v. TURKEY
(Application
no. 10309/03)
JUDGMENT
STRASBOURG
10 November 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 Arat v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina Pardalos,
judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10309/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Aladdin Arat
(“the applicant”), on 8 January 2003.
- The
applicant was represented by Mr M. Beştaş and Mrs M.
Beştaş, lawyers practising in Diyarbakır. The Turkish
Government (“the Government”) were represented by
their Agent.
- On
8 January 2008 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaints
concerning a) the applicant's alleged ill-treatment and b) the
alleged breach of his right to a fair trial on account of the failure
to communicate to him the written opinion of the Principal Public
Prosecutor at the Court of Cassation. It 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 1961 and lives in Diyarbakır. He is the
owner of a grocery shop in Diyarbakır which he runs with his
brother.
A. The applicant's arrest and detention in police
custody
- According
to the arrest report, drafted on 15 February 2001 at around 10.45
a.m. and signed by the applicant and his brother, police officers had
received information that shopkeepers on Bal Street were not opening
their shops as a protest to mark the second anniversary of the arrest
of Abdullah Öcalan, the leader of the PKK (the Kurdistan
Workers' Party), an illegal armed organisation. When the officers
arrived at the street in question they asked the applicant and his
brother to open their shop. The applicant and his brother swore at
them and shouted slogans. In the meantime, a small crowd of children
and women had started to throw stones at the police cars. The police
officers requested, via wireless radio, reinforcements from the
police station. Two police officers sustained injuries while trying
to arrest the applicant and his brother. The police officers then
used force to subdue the applicant and his brother before arresting
them for obstructing an official in the course of his duties. It is
also stated that the suspects reached for the gun of one of the
police officers. It appears that five police officers took part in
the applicant and his brother's arrest.
- In
his application form the applicant submitted that, on 15 February
2001, before he had opened the shutters of his shop, a number of
police officers arrived and started smashing the shop shutters and
windows with sledgehammers. When the applicant and his brother
attempted to stop the police officers, they were beaten up, arrested
and subsequently placed in police custody.
- According
to a medical report drawn up at the Diyarbakır branch of the
Forensic Medicine Institute the same day, at 2.20 p.m., there was a
light 4 x 1cm reddish bruise and a traumatic oedema on the front of
the applicant's left arm. There was also another red-coloured bruise,
measuring 15 cm by 3cm, on the outside of his left thigh.
- The
same doctor also found a number of injuries on the applicant's
brother, including a 1 x 1 cm wound on the right parietal region, a 4
x 1 cm bruise on the right side of his neck, a 10 x 3 cm bruise on
the right side of his lower back and left shoulder, slight erosion on
his right wrist and a number of superficial grazes.
- In
the meantime, on the same day, two of the police officers were
examined first at the State Hospital, and later at the Diyarbakır
branch of the Forensic Medicine Institute.
- According
to the medical report drawn up at the State Hospital, at 10.50 a.m.,
police officer M.A.A. had sustained a haematoma on his left eye, had
redness and sensitivity on the right side of his chest, a haematoma
and swelling on his left hand and a swelling and superficial graze on
his right hand. At 1.30 p.m. Mr M.A.A. was examined at the
Forensic Medicine Institute, where the doctor found that the police
officer had sustained a haematoma on his left eye and a traumatic
oedema on his left cheek, pain and sensitivity on his left hand and
the right side of his ribs and that he had slight erosion on the
right hand.
- According
to the medical report drawn up at the State Hospital, at 10.50 a.m.,
police officer H.A.K. had a broad patch of redness on the right side
of his neck and shoulder region. At 1.30 p.m. he was examined at the
Forensic Medicine Institute, where the doctor found that the police
officer had a number of reddish bruises on the right and front of the
neck and felt pain and sensitivity in the right shoulder.
- On
17 February 2001 the prosecutor at the Diyarbakır State Security
Court granted the police authorisation to detain the applicant and
seven other suspects who had been detained for similar acts on that
date for an additional period of two days.
- On
18 February 2001, while he was still being detained in police
custody, the applicant was questioned. In the minutes of the
questioning, the applicant was recorded as having stated that he
sympathised with the policies of the PKK. On 13 February 2001 he had
found a leaflet on the floor outside the shop that had been prepared
and distributed by the PKK, inviting local businesses not to open
their shops on 15 February. Following this invitation, he had
intended not to open his shop until 1.30 p.m. He stated that he had
followed such instructions in the past.
- On
19 February 2001 the applicant was examined by a doctor at Diyarbakır
State Hospital who noted a 5 cm bruise on the front of his right arm,
a 10 cm bruise on the top of his left foot and a 5 cm bruise on his
left thigh.
- The
same day the applicant was brought before the prosecutor at the
Diyarbakır State Security Court and then before the duty judge
at the same court, where he retracted the statement he had made in
police custody and said that he had merely been late in opening his
shop on 15 February because he had guests at his house; he had not
been protesting at all. In the statement taken by the prosecutor, the
applicant was recorded as having said that “he had been beaten
up by the police officers but he did not wish to make a complaint”.
Before the duty judge the applicant claimed that a police officer
named A.K. had hit him with a truncheon when he had tried to prevent
the latter from breaking his door down, and that he had neither hit
any of the police officers nor shouted any slogans. The duty judge
ordered the applicant's remand in custody.
B. The criminal proceedings against the applicant
- On
21 February 2001 the prosecutor at the Diyarbakır State Security
Court filed an indictment charging the applicant and his brother with
the offence of aiding and abetting an illegal organisation, under
Article 169 of the Criminal Code.
- On
26 February 2001 the criminal proceedings before the Diyarbakır
State Security Court (hereinafter “the SSC”) commenced.
- In
the meantime, on 20 February 2001 the applicant submitted a written
petition to the trial court requesting his release. In particular, he
claimed that, during his arrest, the police had beaten him and his
brother with truncheons, but that he was not complaining about any
particular police officer.
- On
26 April 2001 the SSC held its first hearing, when it heard evidence
from the accused, the police officers and defence witnesses. The
applicant claimed, inter alia, that the police officers had
tried to break the shutters of his shop with a sledgehammer and that,
when he had tried to prevent them, by holding the sledgehammer, they
had beaten and arrested him. He also retracted his statements given
to the police on the ground that he had signed them without reading
them. The four defence witnesses heard by the court stated that they
had not seen the applicant shouting, resisting or swearing at the
police or a crowd of people throwing stones at the police. Two of the
four defence witnesses stated that the applicant had been beaten
during his arrest.
- The
police officers who had arrested the applicant reiterated that the
applicant and his brother had refused to open the shutters of their
shop and that when, in accordance with the order from the Governor,
they had tried to break open the shutters, the applicant and his
brother had sworn at them and attacked them. They stated that a crowd
of people had been shouting and swearing and attacking them, but that
by the time the reinforcements arrived they had all dispersed; only
the applicant and his brother had been arrested.
- In
hearings held on 7 and 28 June 2001 both the prosecutor and the
applicant's representative stated that they did not want an
additional investigation. On the latter date the trial court released
the applicant pending trial. It also decided to hear all the
witnesses once again in order to dispel factual contradictions. After
having reheard two of the defence witnesses, one of whom altered his
testimony, on 21 November 2001 the trial court considered that,
although certain inconsistencies remained, the facts had been
sufficiently elucidated.
- On
28 February 2002 the trial court found the applicant guilty as
charged and sentenced him to three years and nine months'
imprisonment. The applicant's brother was acquitted.
- The
applicant appealed and asked the Court of Cassation to hold a
hearing. In his grounds of appeal the applicant claimed, in
particular, that his statements given to the police had been taken
under duress. He reiterated that, during the arrest, he and his
brother had been beaten by the police officers, as attested by
eyewitnesses, whereas there was no evidence that he and his brother
were responsible for the injuries sustained by the police officers.
- In
his written observations submitted to the Court of Cassation, the
prosecutor asked for the conviction to be quashed as the applicant's
guilt had not been proved beyond reasonable doubt.
- On
11 November 2002 the Court of Cassation, observing that the
applicant's lawyer was absent, decided not to hold a hearing and
upheld the applicant's conviction.
- On
26 August 2003 the applicant was released from prison.
- On
16 October 2003, upon a request by the applicant to benefit from Law
no. 4959, the Diyarbakır State Security Court reviewed its
previous decision and found that the applicant's conviction and
sentence met the requirements of this Law.
Accordingly, it “annulled” the applicant's conviction and
sentence. Since no one objected to that decision, it became final on
24 October 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in the Eser Ceylan v. Turkey judgment, (no. 14166/02,
§ 19, 13 December 2007), and the Göç v.
Turkey judgment ([GC], no. 36590/97, § 34, ECHR
2002-V).
- Law
no. 4959
(the Law on Reintegration into Society),
which entered into force on 6 August 2003, provided for amnesties
under certain conditions and reduced sentences for members of
terrorist organisations.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the force used by the police officers
during his arrest had been disproportionate and had caused him to
suffer bodily harm. He further claimed that the police had continued
to exert physical violence on him during his detention in custody.
The applicant relied on 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 maintained under Article 35 § 1 of
the Convention that this part of the application must be rejected for
non exhaustion of domestic remedies or, alternatively, for
failure to comply with the six-month rule. In this regard, they
argued, firstly, that the applicant had failed to
rely on or raise any arguments before the domestic instances in
respect of his allegations before the Court. Secondly, they
maintained that the fact that the authorities would take no
action in respect of his ill-treatment allegation should have become
gradually
apparent to the applicant before
the decision of the Court of Cassation.
- The
applicant did not comment specifically on this point.
- As
regards the applicant's complaint concerning the allegedly excessive
force used against him during his arrest, the Court considers the
Government's above-mentioned objection to be so closely linked to the
substance of the applicant's complaint that it cannot be detached
from it. Therefore, to avoid prejudging the merits of the said
complaint, these questions should be examined together. As the
applicant's complaint is not inadmissible on any other grounds, it
must therefore be declared admissible.
- As
to the applicant's assertion that the police had continued to exert
physical violence on him during his detention in custody, the Court
observes that the medical report established at the end of his
detention in police custody noted a bruise on the applicant's right
arm and on his left foot which were not mentioned in the medical
report established after the applicant's arrest. However, having
regard to the nature of the injuries noted in the medical reports,
the undisputed fact that force was used against the applicant during
his arrest and, more decisively, to the fact that the applicant
failed to set out any details of the alleged ill-treatment either in
his application form or his subsequent submissions before the Court
or before the domestic authorities, the Court finds that the
applicant has not
laid the
basis of an arguable claim that
he was subjected to ill-treatment in custody. For these reasons the
Court considers that this complaint is inadmissible as being
manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
B. Merits
- The Government contested the applicant's allegations
of ill-treatment and claimed that, in the circumstances of the
present case, the force used against him had been proportionate and
strictly necessary, particularly in view of the attitude of the
applicant, his brother and the crowd.
- The
applicant maintained that he had been beaten because he had tried to
stop the police officers from looting his shop and that, when account
was taken of the number and the equipment of the police, the force
used against him had been disproportionate.
- The
Court reiterates 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, among other authorities, Kurnaz and Others v.
Turkey, no. 36672/97, § 52, 24 July 2007, and
the references therein).
- In
the instant case the Court observes that it is undisputed that the
applicant's injuries, as shown by the medical reports contained in
the case file, arose from the force used by the police officers on
that day during the applicant's arrest. However, differing versions
of how the applicant had actually sustained those injuries were put
forward by the parties.
- After
having examined the case file and the contradictory evidence
contained therein, the Court finds that the documentary evidence
submitted by the parties does not permit it to conclude beyond
reasonable doubt that the police used excessive force when they were
confronted in the course of their duties with the applicant's
resistance. In reaching this conclusion the Court has had regard to
the fact that the applicant was injured in the course of a random
operation which gave rise to unexpected developments; that the
injuries sustained by him on the day of his arrest appear to have
been superficial with no lasting consequences (see paragraphs 7 and
14 above); that such findings are insufficient to substantiate or
confirm the applicant's allegation that he had been subject to
beatings when account is taken of the fact that two of the police
officers sustained significant injuries, having regard to their
location (see paragraphs 10 and 11 above); that these findings are
consistent, in the Court's view, that a physical confrontation took
place between the applicant, his brother and the police officers; and
that, irrespective of his reasons, the applicant admitted trying to
prevent or stop the police officers' actions (see paragraphs 15 and
19 above).
- The
Court concludes that there has been no violation of Article 3 of the
Convention under its substantive limb.
- However,
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, Assenov and Others v. Bulgaria, 28
October 1998, §§ 101-02, Reports of Judgments and
Decisions 1998-VIII).
- In
the present case, on account of lack of evidence, the Court has not
found it proved that the police used excessive force when they were
confronted in the course of their duties with the applicant's
resistance. Nevertheless, as it has held in previous cases,
that does not preclude his complaint in relation to Article 3 from
being “arguable” for the purposes of the positive
obligation to investigate (see Böke and Kandemir v. Turkey,
nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009). The
Court considers that the medical evidence and the applicant's
complaints submitted to the competent domestic authorities (see
paragraph 43 below), created at least a reasonable suspicion that his
injuries might have been caused by an excessive use of force. As
such, his complaints constituted an arguable claim in respect of
which the Turkish authorities were under an obligation to conduct an
effective investigation.
- The
Court notes that in the course of the proceedings, including before
the Court of Cassation, the applicant maintained a number of times
that he had been beaten by the police during his arrest (see
paragraphs 15, 18, 19 and 23 above). Although the applicant's medical
examinations of 15 and 19 February 2001 revealed that he had
sustained injuries to various parts of his body, no attempts were
made to investigate the applicant's allegations. The Court observes
that a public prosecutor who is informed by any means whatsoever of a
situation that gives rise to the suspicion that an offence has been
committed is obliged, under Article 153 of the Code of Criminal
Procedure, in force at the material time, to investigate the facts by
conducting the necessary inquiries. In this connection, the Court
considers that once a credible allegation of excessive police force
has been brought to their attention, the national authorities cannot
rely on the purported victim's attitude, such as his wish not to
lodge an official complaint against the police officers, to explain
their failure to take the necessary investigative measures. The Court
concludes therefore that the applicant's allegations of having been
beaten during his arrest were not effectively investigated by the
domestic authorities, as required by Article 3 of the Convention.
- In
view of the above, the Court dismisses the Government's objections on
grounds of failure to exhaust domestic remedies. Reiterating that the
six month time-limit imposed by Article 35 § 1 of the
Convention requires applicants to lodge their complaints within six
months of the final decision in the process of exhaustion of domestic
remedies, the Court further considers that the application lodged on
8 January 2003, within six months of the decision of the Court of
Cassation before which the applicant had raised his claims of having
been beaten by the police during arrest, was introduced in conformity
with the six-month time-limit provided for in Article 35 § 1 of
the Convention. It therefore rejects the Government's objection in
this connection and finds that there has been a violation of Article
3 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the failure to communicate the Principal
Public Prosecutor's written opinion to him infringed his right to a
fair trial in breach of Article 6 of the Convention, which, in so far
as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Court must first ascertain whether the applicant remains a victim of
an alleged violation of Article 6 when account is taken of the fact
that his conviction and sentence have subsequently been annulled. In
this connection the Court reiterates that “a decision or
measure favourable to the applicant is not in principle sufficient to
deprive him of his status as a 'victim' unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention” (see
Dalban v. Romania [GC], no. 28114/95, § 44, ECHR
1999-VI). Only when these conditions are satisfied does the
subsidiary nature of the protective mechanism of the Convention
preclude examination of an application (see, for example, Jensen
and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March
2003).
- The
Court notes that on 28 February 2002 the applicant was convicted by
the Diyarbakır State Security Court. He was sentenced to three
years and nine months' imprisonment. It is true that on 16 October
2003, upon the applicant's request to benefit from Law no. 4959, the
Diyarbakır State Security Court reviewed its previous decision
and annulled the applicant's conviction and
sentence. However, the Court notes that, in the meantime, the
applicant had already served a substantial part of his prison
sentence. In the absence of any submissions by the Government
concerning possible avenues in domestic law for claiming compensation
in respect of such imprisonment, the Court cannot but observe that,
as matters stand, no compensation has been paid to the applicant for
the alleged violation of his rights during the trial. The Court
therefore concludes that the applicant can still be considered a
victim.
- Moreover,
the Court notes that this 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. This
part of the application must therefore be declared admissible.
B. Merits
- The Court notes that it has already examined the same
grievance in the past and has found a violation of Article 6 § 1
of the Convention (see, in particular, Abdullah Aydın v.
Turkey (no. 2), no. 63739/00, § 30, 10 November
2005, Sağır v. Turkey, no. 37562/02, §
26, 19 October 2006, and Ayçoban and Others v. Turkey,
nos. 42208/02, 43491/02 and 43495/02, 22 December 2005).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his application form the applicant raised a number of criticisms as
regards the rules applicable to proceedings before the State Security
Courts and claimed that the fairness of the proceedings had been
undermined by the fact that the prosecutor had been present at the
deliberations of the first-instance court after he had left the
courtroom.
- In
his observations on the merits, dated 1 July 2008, the applicant
raised a number of further criticisms as regards the rules applicable
to proceedings before the State Security Courts and claimed that his
right to be presumed innocent had been infringed since he had been
arrested, detained and convicted on the basis of poor and
contradictory evidence.
- In the light of all the materials in its possession
and even assuming that some of the complaints raised under this head
have not already been declared inadmissible at an earlier stage (see
paragraph 3 above), the Court finds that the applicant's foregoing
complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that they must be declared inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of
the Convention.
IV. 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 14,000 Turkish liras (TRL) (approximately 7,263
euros (EUR)) in respect of pecuniary damage. This sum concerned the
damage incurred as a result of his allegedly unlawful detention and
subsequent imprisonment, as well as the damage incurred to his
property during his arrest. He further requested TRL 30,000
(approximately EUR 15,560) in respect of non-pecuniary damage.
- The
Government contested the amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, 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 TRL 16,850 (approximately EUR 8,742) for
the costs and expenses incurred before the Court. In support of his
claims the applicant submitted the Diyarbakır Bar Association's
scale of fees and a time-sheet prepared by his lawyer.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicant EUR 1,000.
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
1. Decides to join
to the merits the
Government's objection concerning the applicant's failure to exhaust
domestic remedies and to comply with the six month rule in
respect of his complaint pertaining to the excessive force used
against him during his arrest, and rejects it;
- Declares admissible the complaints concerning
the allegedly excessive force used against the applicant during his
arrest and the alleged breach of his right to a fair trial on account
of the failure to communicate the written opinion of the Principal
Public Prosecutor at the Court of Cassation to him;
- Declares the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- Holds that there has been a violation of Article
6 § 1 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
according to Article 44 § 2 of the Convention, the
following amounts to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 10 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
