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SECOND
SECTION
CASE OF NAFİYE ÇETİN AND OTHERS v. TURKEY
(Application
no. 19180/03)
JUDGMENT
STRASBOURG
7 April
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 Nafiye Çetin
and Others 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 17 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19180/03) 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 six Turkish nationals, Mrs Nafiye Çetin,
Mr Necat Çetin, Mr Nezir Çetin, Mr Adnan Çetin,
Mrs Nuriye Kaymış and Leman Ekingen (“the
applicants”), on 30 April 2003.
- The
applicants were represented by Mr S. Korkmaz, Mr A. Süer and
Ms I. Midyat, lawyers practising in Diyarbakır. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
5 November 2007 the President of the Second Section decided to give
notice of the application. 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 1929, 1972, 1956, 1966, 1963 and 1953
respectively, and live in Mersin except for the third and the fourth
applicants who reside in Diyarbakır and Şanlıurfa
respectively.
- The
first applicant's son and the other applicants' brother, Harun Çetin,
was a student at the Istanbul University at the time of the events.
- On
15 March 1993 Harun Çetin was arrested and taken into police
custody, together with his friend Mr Ö.Yüce, at the Avcılar
Campus of Istanbul University. They had Molotov cocktails in their
possession.
- On
16 March 1993, while in detention, Harun Çetin's health
deteriorated and he was admitted to Şişli Etfal Hospital.
On the same day, he was transferred to Cerrahpaşa hospital.
On his arrival, Harun Çetin was unconscious and had slight
bruises and abrasions on various parts of his body. A brain scan
revealed a subdural haematoma in the right fronto-temporo parietal
region. He was immediately operated on and remained in the hospital's
intensive care unit until 9 June 1993, without, it appears, regaining
consciousness. Harun Çetin was later transferred, first to
Bakırköy Reanimation Center and later to Taksim Hospital
where he died on 5 September 1993. He was twenty years old.
- On
8 September 1993, upon the request of the Beyoğlu public
prosecutor, an autopsy was carried out on Harun Çetin at the
Cerrahpaşa Medical Faculty. According to the autopsy report,
drawn up on 22 December 1993, the cause of death was attributed
to pneumonia related respiratory insufficiency which had developed as
a result of his transition from active to passive, following the
subdural brain haemorrhage suffered from a head trauma.
- In
the meantime, on 16 March 1993 Mr Yüce gave a statement to the
police in which he claimed, inter alia, that he and Harun
Çetin had been beaten both by the police officers who had
arrested them and by the police officers at the Avcılar police
station where they were interrogated, and that Harun Çetin's
poor health might have resulted from these beatings.
- Between
3 September 1993 and 4 October 1993, a prosecutor took the statements
of eleven police officers who were working either at the Avcılar
police station or the anti-terror branch of the Security Directorate.
- In
an indictment dated 31 December 1993, the public prosecutor at the
Bakırköy Assize Court accused Mr U.A., the police chief at
the anti-terror branch of the Avcılar Security Directorate and
Mr I.H., a police officer in the same department, of causing Harun
Çetin's death, unintentionally, as a result of ill treatment.
They were also accused of ill-treating Mr Yüce. The charges were
brought under Articles 452 § 1, 243 §§ 1 and 2 of
the Criminal Code.
- On
5 January 1994 the criminal proceedings against the accused police
officers began before the Bakırköy Assize Court. The first
hearing was fixed for 8 April 1994.
- Between
8 April 1994 and 24 February 2006 the court held thirty three
hearings, during which it mainly took numerous procedural decisions
in order to establish the whereabouts of Mr Yüce, without
success.
- In
the hearing held on 8 April 1994 the applicants, except for
Mrs Nuriye Kaymış, joined the proceedings as civil
parties (müdahil).
- The
court heard the police officers, who denied the accusations against
them at the hearing held on 1 July 1994.
- In
a petition dated 28 October 1994, the civil parties requested the
court to conduct an additional investigation. In this connection,
they asked the court to request the medical records of the deceased
and to hear a number of witnesses, including the doctors who had
treated Harun Çetin and the police officers whose names
featured in the official documents in respect of Harun Çetin's
arrest and detention.
- In
the hearing held on 16 May 1995, the court dismissed these requests
as being irrelevant to the outcome of the case.
- On
26 October 2001 the court decided not to hear Mr Yüce since he
could not be found. However, at the next hearing on 31 May 2002, the
prosecutor argued that, since no detailed statement had been obtained
from Mr Yüce at the investigative stage, it was important
for the court to hear him. In this connection, the prosecutor noted
that Mr Yüce had claimed to have been beaten on arrest and at
the police station, and that the Avcılar central police station
and the anti-terror branch were in the same building. The court
agreed.
- On
12 October 2005 the court, once again, decided not to hear Mr Yüce
since he could not be found. On that date, the prosecutor submitted
his observations on the merits.
- On
24 February 2006 the Bakırköy Assize Court held that the
accused had ill-treated Harun Çetin with a view to extracting
a confession of guilt and had caused his death. The police officers
were sentenced to six years and six months' imprisonment pursuant to
Articles 452 § 1 and 59 § 2 of the Criminal Code.
The court decided to discontinue the proceedings regarding the
ill-treatment of Mr Yüce as that prosecution had become
time-barred (zamanaşımı).
- The
police officers appealed.
- The
applicants submitted that, since they feared that a further
prolongation in the case would result in its dismissal for being
time-barred, they did not appeal against this decision.
- On
26 February 2007 the principal public prosecutor at the Court of
Cassation submitted his written opinion, mentioning the approaching
time-bar.
- On
9 May 2007 the Court of Cassation quashed the judgment of the
first-instance court on account of an insufficient investigation into
the events in question. In this connection, it considered that the
first-instance court should have heard Mr Yüce and the
witnesses mentioned in the applicants' petition of 28 October
1994.
- The
case was remitted to the Bakırköy Assize Court on 20 June
2007. In the hearing held on 21 November 2007, the court decided to
obtain the medical records of the deceased and to hear two persons
cited by the applicants in their petition of 28 October 1994.
- The
proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force, at the time of the death
of Harun Çetin, are outlined in the following judgments: Ali
and Ayşe Duran v. Turkey (no. 42942/02, § 45, 8
April 2008), and Batı and Others v. Turkey (nos.
33097/96 and 57834/00, §§ 96-99, ECHR 2004 IV
(extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicants complained that the authorities had failed to carry out an
effective investigation into the circumstances regarding the death of
Harun Çetin, as the criminal proceedings brought against the
police officers who had tortured him to death had not been concluded
within a reasonable time. The applicants relied on Articles 6 and 13
of the Convention.
- The Court considers that the applicants' complaint
falls to be examined under the procedural aspect of Articles 2
and 3 of the Convention, which read, in so far as relevant, as
follows:
Article 2
“Everyone's right to life shall be protected by
law...”
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The Government maintained that the applicants had
failed to exhaust the domestic remedies available to them, as
required by Article 35 § 1 of the Convention. In
this connection, they argued that the criminal proceedings against
the accused police officers were still pending before the domestic
courts.
- The applicants disputed this argument.
- The Court observes that the criminal proceedings
against the accused police officers commenced in 1993 and were still
pending when the applicants filed their complaints with the Court on
30 April 2003, arguing, inter alia, that the said proceedings
were of excessive length and therefore ineffective.
- The Court finds that the Government's objection raises
issues concerning the effectiveness of the investigation which are
closely linked to the merits of the applicants' complaint. Therefore,
to avoid prejudging the latter, these questions should be examined
together. Accordingly, the Court holds that the question of
exhaustion of domestic remedies should be joined to the merits.
- Moreover, the applicants' complaint under this head is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. The Court notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government, referring to the Court's case law, submitted that the
investigation conducted at the domestic level met the requirements of
the Convention. They maintained in that connection that an autopsy
had been conducted and the statements of witnesses had been taken by
the prosecutor. They further submitted that, subsequently, criminal
proceedings had been instigated against the accused police officers.
In this connection, they noted that, despite all efforts, the
first-instance court had been unable to hear a key witness, which
resulted in delays in the proceedings.
- The
applicants maintained their allegations.
2. The Court's assessment
- The
Court reiterates the basic principles laid down in its judgments
concerning a State's procedural obligations under Articles 2 and 3 of
the Convention (see, in particular, Ali and Ayşe Duran
v. Turkey, cited above, §§ 59-64, Angelova and
Iliev v. Bulgaria, no. 55523/00, §§ 91-98, ECHR
2007 ..., Ramsahai and Others v. the Netherlands,
GC, no. 52391/99, § 321, ECHR 2007-..., McKerr v. the
United Kingdom, no. 28883/95, §§ 108-15, ECHR
2001-III, K.Ö. v. Turkey, no. 71795/01, § 43,
11 December 2007, Çamdereli v. Turkey, no.
28433/02, § 36, 17 July 2008, and Dölek v. Turkey,
no. 39541/98, §§ 70-75, 2 October 2007). It will examine
the present case in the light of those principles.
- In
the instant case, the Court observes that an investigation into the
ill-treatment and death of Harun Çetin was initiated by the
public prosecutor's office. This investigation led to the committal
for trial of two police officers for causing unintentional death as a
result of ill-treatment. The proceedings are still pending before the
first-instance court. However, after having examined the documents
submitted by the parties, the Court finds that there were important
shortcomings in the manner in which the investigation was conducted
by the national authorities into the alleged ill treatment and
subsequent death of Mr Harun Çetin.
- Among
these deficiencies, the Court is particularly struck by the fact that
the prosecutor in charge at the pre-trial stage failed to secure
essential evidence for the establishment of the facts of the case. In
this connection, the Court notes that the prosecutor failed to take a
detailed statement from Mr Ö.Yüce, an eye-witness and
an alleged victim of ill-treatment. Nor was this person ever asked to
identify the alleged perpetrators by using photographs, an
identification parade or the like. Moreover, despite Mr Yüce's
statement to the police that he and Mr Çetin had both been
beaten up during their arrest, no criminal investigation appears to
have been made concerning the arresting officers. Finally, the
prosecutor never sought to secure the testimonies of any other
potential witnesses, such as other civilians or detainees present
during the arrest or at the police station at the time of the events,
in order to establish the exact circumstances in which Harun Çetin
had received his injuries, particularly the head trauma noted in the
autopsy report. In fact, it appears from the case file that the
investigation undertaken by the prosecutor did not go beyond ordering
an autopsy and taking the statements of certain other police
officers. The Court is of the opinion that the above elements
disclose significant defects in the reliability and thoroughness of
this part of the investigation.
- In
the Court's view, the defects at the pre-trial investigation were not
remedied by the investigation conducted by the assize court during
the criminal proceedings, before whom, after almost fifteen years,
the proceedings are still pending. The Court accepts that part of the
delay in the proceedings stemmed from the absence of Mr Yüce,
both a witness and complainant in the procedure. However, it cannot
be said that this in itself justified the overall protracted nature
of the proceedings before the national authorities. Rather, it was
the Bakırköy Assize Court's failure to act with the
necessary diligence in conducting the proceedings, coupled with the
shortcomings in the pre-trial investigation, that unnecessarily
prolonged the case. In this connection, the Court observes that
during the thirty three hearings, held at irregular intervals
with substantial delays, between 8 April 1994 and 24 February 2006,
the first-instance court only focused on obtaining Mr Yüce's
testimony and undertook no other investigative measures to elucidate
the facts of the case. During this time the accused police officers
were only heard once (see paragraph 15 above). It was not until the
case was quashed by the Court of Cassation, within a reasonable time,
for insufficient investigation and remitted, that the assize court
decided on 21 November 2007 to request the medical records of the
deceased and hear some other persons as witnesses, i.e. more than
fourteen years after the events. In such circumstances, it cannot be
held that the assize court has acted with sufficient promptness and
reasonable expedition in a case where a person died after receiving a
life threatening head trauma while in police custody.
- In addition, the Court notes that no information was
submitted by the Government to demonstrate that the accused police
officers were suspended from duty while being investigated or tried.
On this point, the Court underlines the importance of suspension from
duty of the agent under investigation in order to prevent any
appearance of collusion in or tolerance of unlawful acts (see
Abdülsamet Yaman v. Turkey, no. 32446/96, § 55,
2 November 2004).
- Having
regard to the above background and noting that, after almost fifteen
years, the criminal proceedings instituted in order to elucidate the
facts and identify and punish those responsible for the alleged
severe ill-treatment sustained by Harun Çetin in detention are
still pending, the Court cannot accept that they constituted an
effective examination into the cause of and responsibility for the
alleged ill-treatment and his subsequent death. In these
circumstances, the Court concludes that there has been a procedural
violation of Articles 2 and 3 of the Convention. It follows that the
Government's preliminary objection (see paragraph 33 above) must be
dismissed.
II. 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, costs and expenses
- In
their observations dated 20 May 2008, the applicants, without
specifying any sums, asked the Court to award them pecuniary and
non pecuniary damages. In respect of pecuniary damages, the
applicants referred, in particular, to hospital expenses, travelling
and living costs incurred during Harun Çetin's
hospitalisation, the loss of future financial support from Harun
Çetin and legal costs and expenses.
- The
Government asked the Court to dismiss the applicants' claim for
damages.
- As
regards the alleged pecuniary damage sustained by the applicants, the
Court does not discern any causal link between the violations found
and the unsubstantiated pecuniary damage claimed in respect of
alleged medical expenses, travelling and living costs or a loss of
future financial support. Moreover, in the absence of any
qualification and supporting evidence, the Court finds the
applicants' claim in respect of costs and expenses unsubstantiated.
It accordingly dismisses them.
- As
to non-pecuniary damage sustained by the applicants, the Court notes
that it has found a violation of Articles 2 and 3 of the Convention
under their procedural limb. Having regard to the circumstances of
the case and ruling on an equitable basis, the Court awards EUR
10,000 to Nafiye Çetin and EUR 5,000 to each of the other
applicants.
B. 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
- Joins to the merits the Government's objection
concerning the exhaustion of domestic remedies and dismisses
it;
- Declares the application admissible;
- Holds that there has been a violation of
Articles 2 and 3 of the Convention, under their procedural limb;
- Holds
(a) that
the respondent State is to pay the applicants, 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
10,000 (ten thousand euros) to Nafiye Çetin and EUR 5,000
(five thousand euros) to each of the other applicants in respect of
non pecuniary damage;
(ii) any
tax that may be chargeable on the above amounts;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 7 April 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
