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SECOND
SECTION
CASE OF DÖNDÜ ERDOĞAN v. TURKEY
(Application
no. 32505/02)
JUDGMENT
STRASBOURG
23
March 2010
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 Döndü Erdoğan
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32505/02) 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, Ms Döndü Erdoğan
(“the applicant”), on 2 August 2002.
- The
applicant was represented by Mr A. Yazıcıoğlu and Ms
K. Doğru, lawyers practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
- On
15 January 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).
- On
25 June 2008 the Government filed observations on the admissibility
and merits of the applicant's complaints. The applicant did not file
any observations on the admissibility and merits, nor did she make
any claim for just satisfaction.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1986 and lives in Istanbul.
A. Events relating to the applicant's arrest and her
subsequent detention
1. Facts as presented by the applicant
- On
29 April 2001 at approximately 2.30 p.m. the applicant was
apprehended by a large group of police officers in Istanbul while she
was walking to her sister's house. She did not have her identity
papers at the time of her apprehension.
- She
was subsequently handcuffed and taken to the Bahçelievler
police headquarters, where she was questioned for an hour. She was
allegedly subjected to inhuman treatment during the questioning,
which involved being beaten with a truncheon, hosed down with cold
water and banged against walls. She remained handcuffed and
blindfolded throughout.
- At
approximately 9.30 p.m. the applicant's family contacted the local
police station to report her missing. The police identified the
missing person as the applicant from the descriptions provided and
referred her family to the anti-terrorist branch, located on the
second floor of the Bahçelievler police headquarters.
- The
applicant's family were subsequently taken to the interview room
where the applicant was being held. They found the applicant in a
hysterical state, screaming and cursing the police officers, hurling
herself against the walls and attempting to throw herself out of the
window. The applicant also had bruises and scratch marks on her head
and wrists, which she claimed were caused by the handcuffs. When they
asked why the applicant, who was only 15 at the material time, had
been apprehended, the police informed the family that the applicant
was a suspected terrorist and that she had not given them her name or
age. The police further told them that the applicant had refused to
talk despite the treatment through which they had put her.
- The
applicant, however, had informed the authorities of both her and her
father's name and her identity and age could be readily discovered
from the diary which was in her bag. Moreover, her age had been
changed from 14 to 19 in the diary by the police officers.
- The
applicant's handcuffs were subsequently removed pending the
verification of her identity information and she was given a glass of
water. The applicant, however, broke this glass and cut her wrists.
She was thereupon taken to Yenibosna Hospital by the police for
treatment.
- After
her treatment, at approximately 1.00 a.m., the police took the
applicant to her house, where she again became hysterical. When the
applicant refused to talk to her family about the treatment she had
undergone at the police station, she was sent to her sister's house
where she felt more at ease. Once at her sister's house, which was on
the fourth floor, the applicant attempted to commit suicide by
jumping out of the window.
- The
applicant spent the following fourteen days in the intensive care
unit at Istanbul University Hospital and was, allegedly, still
undergoing psychological treatment at the Human Rights Foundation of
Turkey at the time this application was lodged.
- During
her stay at the hospital, officers from the Bahçelievler
police headquarters, including the chief constable, came to visit her
regularly and asked her family not to lodge a criminal complaint or
inform the press of the incident. They explained that they had only
apprehended the applicant because they had received a tip-off about
her, which they now believed to have been made by the applicant
herself. They then had the applicant's father listen to a recording
of the tip-off call. The applicant's father claimed that the voice
and accent on the tape did not belong to his daughter.
2. Facts as presented by the Government
- On
29 April 2001, at approximately 2 p.m., an anonymous tip-off call was
received through the police helpline reporting a woman carrying
illegal documents in her bag. The anonymous caller provided a
detailed description of the suspect, along with her exact
whereabouts, specifying that the woman was standing in front of a
certain callshop in the Bahçelievler district of Istanbul. The
police dispatched a patrol to the indicated location and arrested the
applicant, who matched the suspect's description. The applicant had
no proof of identification with her at the time of her apprehension
and refused to reveal her age or identity to the police. It appears
from the official records submitted by the Government that her age
was estimated to be 19 at the time.
- At
around 4 p.m. the applicant was brought to the Bahçelievler
police headquarters. She was questioned about her identity, family
and address in the office of the superintendent of the anti-terrorist
branch for approximately one hour, in the presence of the chief
constable of the Bahçelievler police headquarters and the
superintendent of the branch. Upon her refusal to provide any
information, the applicant was further questioned for almost an hour
by expert police officers from the anti-terrorist branch, where she
maintained her silence.
- It
was ultimately concluded that the applicant had no affiliations with
any illegal organisations. She could not, however, be released as her
identity remained unestablished and the police had come to believe by
that point that the applicant was “mentally unstable”. It
was, therefore, decided to keep her there under missing person status
pending the investigation into her identity and address. In the
meantime, the police units in the area were instructed to contact the
Bahçelievler police headquarters regarding any reports of
missing persons.
- At
approximately 10.30 p.m. the applicant's sisters and uncles contacted
Yenibosna police station to report her missing. They were directly
referred to the Bahçelievler police headquarters where the
applicant was being held. Upon seeing her family, the applicant
immediately started acting in a disorderly manner, whereas up until
that point she had been quite calm. The applicant subsequently
attempted to jump out of the window in her frenzy and thus had to be
handcuffed to a chair for her own safety. In the meantime, one of her
sisters, G.E., told the police that the applicant suffered from a
mental illness and that she had attempted to run away from home on
previous occasions.
- Some
time later, after she had become relatively calm, the handcuffs were
removed and the applicant was given a glass of water at her request.
The applicant, however, broke this glass and cut her wrists. She was
immediately taken to Yenibosna Hospital by the police. According to
the records submitted by the Government, the applicant had old scars
on her arms and wrists, which suggested that she had also cut herself
in the past.
- At
approximately 12.10 a.m. the applicant was released from the hospital
and accompanied by police to her address as she refused to go home
with her family. When they arrived at the applicant's house, she went
berserk and violently refused to enter her house, screaming that she
did not want to see her father. She was accordingly taken to her
sister's house, where she subsequently attempted to commit suicide by
jumping out of the window at approximately 1.10 a.m.
B. The criminal investigation of the applicant's
complaint of ill treatment
- On
3 May 2001 the applicant's father filed a criminal complaint with the
Bakırköy Public Prosecutor against the police officers at
the Bahçelievler police headquarters. The applicant's father
submitted that the police officers who had caused his daughter's
mental suffering ought to be held responsible for the applicant's
suicide attempt.
- On
15 May 2001 the Bakırköy Public Prosecutor referred the
file to the Bahçelievler District Administrative Council and
requested authorisation to prosecute the accused police officers in
accordance with Law no. 4483 on the Trial of State
Employees and other Civil Servants.
- The
applicant alleges that, in the meantime, on 13 May 2001 eight police
officers came to her sister T.Ç.'s house. They told T.Ç.
that there were certain documents at the police headquarters which
required their signatures and that their failure to sign these
documents would result in their permanent detention in police
custody.
- On
29 June 2001 two police inspectors were appointed to carry out a
preliminary investigation on behalf of the Bahçelievler
District Administrative Council into the allegations of the
applicant's father. The inspectors took statements from the police
officers concerned, the applicant's relatives and other witnesses for
the purposes of the investigation. They did not, however, take a
statement from the applicant, as she had not fully regained her
health at that point.
1. The statements found in the investigation report
- C.A.
and D.A., the employees of the callshop in front of which the
applicant had been apprehended, were asked to provide information as
witnesses during the preliminary investigation. C.A. and D.A. claimed
in their statement that, on the day of the incident, a woman had come
into the shop to make a telephone call. She had then dialled 155, the
police helpline, from the booth allocated to her. Approximately ten
to fifteen minutes after the woman had completed her call, she was
taken away by a police car outside their shop. C.A. and D.A. stated
that the woman had not been handcuffed by the police. This was
verified in the statements of the police officers who had arrested
the applicant.
- According
to the statement of G.Ç., one of the applicant's sisters, and
D.E., an uncle, the applicant had marks on her wrists when they first
saw her at the police headquarters, which had allegedly been caused
by handcuffs. They did not mention any other marks or bruises on the
applicant's body in their statement. Nor did they mention any
complaints made to them by the applicant regarding any adverse
treatment she had received while in police custody. The other sisters
and uncle, on the other hand, stated that they had observed no marks
on the applicant, not even on her wrists.
-
Another sister of the applicant, G.E., submitted in her statement
that when she was taken to the applicant at the police headquarters,
the applicant had started having a violent outbreak, hitting her head
against the walls. G.E. stated that her sister had only been
handcuffed for a short while during that outbreak and that she had
not mentioned being handcuffed at any other time.
- The
applicant's father maintained in his statement that the applicant had
been detained at the police headquarters for seven or eight hours,
during which time she had been questioned under duress. He further
stated that his daughter was normally a lively person. G.E., however,
claimed that the applicant was a very reserved girl who avoided
social interaction, that she had suffered from meningitis five years
previously and that they had expected her to have a permanent
physical or mental disability as a result of that illness.
- According
to the preliminary investigation report, the paramedic who treated
the applicant at Yenibosna Hospital for the cuts on her wrists had
expressed in his statement that he had seen no other blemishes on the
applicant's wrists, such as handcuff marks.
2. Decision of the Bahçelievler District
Administrative Council
- On
24 July 2001 the Bahçelievler District Administrative Council
(“the District Administrative Council”) declined to grant
the required authorisation to prosecute the accused police officers
owing to a lack of sufficient evidence. The decision was mainly based
on the investigation report submitted by the two police inspectors
and the statements contained therein. The District Administrative
Council held that it was believed to have been the applicant who had
reported herself to the police for reasons unknown to them. Moreover,
although she had remained calm and silent throughout her detention at
the police headquarters, she had attempted to hurt herself severely
on three separate occasions upon being confronted with her family.
The conclusion was therefore drawn that the applicant's suicide
attempt could not be related to her detention and that the
applicant's relatives had done no more than provide conflicting
statements without bringing forth any evidence or witnesses in
support of their allegations.
- On
23 August 2001, within the statutory time-limit, the applicant's
father submitted an objection to the District Administrative
Council's decision, complaining in particular of the administrative
nature of the decision making body.
- On
7 December 2001 the Istanbul Regional Administrative Court upheld the
District Administrative Council's decision. This decision was served
on the applicant on 8 February 2002.
- In
the meantime, disciplinary proceedings were also initiated against
the accused police officers. On 11 October 2001 the disciplinary
board of the police headquarters decided that no negligence could be
established on the part of these officers in respect of the
applicant's attempted suicide. No disciplinary action was therefore
taken against them.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law and practice at the material
time can be found in Satık and Others v. Turkey (no.
31866/96, §§ 34-40, 10 October 2000).
- According
to Article 5(b)(4) of the Regulations on Apprehension, Custody and
Taking of Statements dated 1 October 1998 in force at the material
time, security forces were entitled to apprehend, take into custody
or detain persons who could not prove their identities with a
document or through the witnessing of persons recognised by the
security forces or other reliable persons. They could also apprehend
those who presented dubious documents. Such detention could last for
a maximum period of twenty-four hours until the discovery of their
identity or the determination of whether they were wanted by the
police.
-
Article 10 of the aforementioned Regulations stipulates that, before
a person is placed in custody, a medical examination must be carried
out with a view to determining the state of health of the individual
at the time of apprehension. A further medical examination is
likewise required prior to that person's release.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that she had
been ill-treated while in police custody. She alleged that she had
been beaten with a truncheon, hosed down with cold water and banged
against walls, which had brought about intense mental suffering
leading to a suicide attempt, considering in particular her age at
the material time. The applicant also maintained under Articles 6 §
1 and 13 of the Convention that the respondent State had failed to
conduct an effective investigation into her allegations of
ill-treatment as her request to initiate criminal proceedings against
the accused police officers had not been dealt with by an independent
and impartial tribunal.
- The
Court considers at the outset that these complaints should be
examined from the standpoint of Article 3 of the Convention alone.
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust the
domestic remedies available to her, as required by Article 35 §
1 of the Convention. In this connection, they maintained that the
applicant had not availed herself of the civil and administrative law
remedies which could have provided reparation for the harm she had
allegedly suffered. They further maintained that, if the applicant
had considered that there were no effective remedies in respect of
her allegations of ill-treatment, she should have lodged her
application with the Court before 2 August 2002, that is to say,
within six months of the date of the alleged incidents. In the latter
context, the Government concluded that the applicant had failed to
comply with the six-month rule fixed by Article 35 § 1.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objection regarding the non-exhaustion of
domestic remedies in similar applications (see, in particular,
Karayiğit v. Turkey (dec.), no. 63181/00, 5 October
2004). It finds no particular circumstances in the present
application which would require it to depart from its findings in
such cases. It therefore rejects the Government's preliminary
objection under this head.
- The
Court further reiterates that the six-month time-limit imposed by
Article 35 § 1 of the Convention requires applicants to lodge
their applications within six months of the final decision in the
process of exhaustion of domestic remedies, and that, where an
applicant is entitled to be served automatically 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 amongst many examples Salmanoğlu and Polattaş
v. Turkey, no. 15828/03, § 72,
17 March 2009). The Court notes that the final effective decision
concerning the complaint under Article 3 of the Convention, which was
the decision of the Istanbul Regional Court of 7 December 2001,
was served on the applicant's lawyer on 8 February 2002. The
Court therefore considers that the application lodged on 2 August
2002 complied with the six-month time-limit under Article 35 § 1
of the Convention. It thus likewise dismisses the Government's
preliminary objection in this connection.
- 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
- The
Government first noted that the applicant had not been arrested and
taken into custody, but merely kept under police surveillance in
accordance with Article 5(b)(4) of the Regulations on Apprehension,
Custody and Taking of Statements in force at the material time on
account of her refusal to disclose her identity. Secondly, they
maintained that the applicant had failed to submit any concrete
evidence to suggest that she had been ill-treated or even handcuffed
at any point during her detention at the Bahçelievler police
headquarters. The Government stressed in this regard that, upon her
release from police custody, the applicant's family had not even
attempted to obtain a medical report in support of her allegations of
ill-treatment. The Government further argued that the applicant had
been extremely calm and quiet during the period she had spent under
police surveillance and only started acting in a disorderly manner
upon seeing her family at the police station. The applicant's family
had already acknowledged that she had psychological problems and that
this was not her first attempt to run away from home. In these
circumstances, the State authorities could not be held accountable
for the applicant's self-destructive actions, especially her suicide
attempt after she was handed over to her family. The Government
lastly contended that an effective investigation had been immediately
carried out in respect of the applicant's allegations.
- The
applicant did not respond to any of these arguments.
- Firstly,
the Court notes that it cannot attach any weight to the distinction
drawn by the respondent Government between “being taken into
custody” and “being taken under surveillance” (see,
mutatis mutandis, Çiçek v. Turkey,
no. 25704/94, § 137, 27 February 2001). Regardless of the
classification of her status under the domestic law, the Court
considers that for the purposes of Article 3 of the Convention, the
applicant's well-being was the responsibility of the State
authorities from the moment she was under police control.
- The
Court reiterates in this connection that allegations of ill treatment
must be supported by appropriate evidence. To assess this evidence,
it has generally applied the standard of proof “beyond
reasonable doubt” (see, among many others, Talat Tepe v.
Turkey, no. 31247/96, § 48, 21 December 2004). Such proof
may, however, follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact (see Labita v. Italy [GC], no. 26772/95, § 121,
ECHR 2000 IV). The Court further reiterates that ill-treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum is relative.
It depends on all the circumstances of the case, such as the duration
of the treatment, its physical or mental effects and, in some
instances, the sex, age and state of health of the victim.
- The
Court notes at the outset that the State cannot, prima facie, be
deemed responsible for the applicant's suicide attempt at her
sister's house when this incident is viewed in isolation, as it
occurred after the applicant was handed over to her family, that is,
when she was no longer under the control of the police. The State's
responsibility, however, may be invoked if it can be proven, beyond
reasonable doubt, that the applicant's self destructive
behaviour was a direct result of adverse treatment she had received
while in police custody, which was sufficiently severe to drive her
to take her own life. It remains to be considered whether this causal
link can be established.
- Turning
to the applicant's allegations, the Court notes that she alleged to
have been beaten with a truncheon, hosed with cold water and banged
against walls during her detention in police custody. There is,
however, no shred of evidence in the case file, such as medical
reports, corroborating her claims. The parties, moreover, make
entirely conflicting submissions on the events in question without
presenting satisfactory documentary evidence, which severely hampers
the Court's ability to make an assessment of the facts. In these
circumstances the Court cannot but conclude that there is an
insufficient factual and evidentiary basis on which to find “beyond
reasonable doubt” that the applicant was ill treated in
police custody. This finding moreover precludes the Court from making
any assessment as to whether the State authorities could be held
accountable for the applicant's subsequent suicide attempt.
- The
Court therefore finds no violation of Article 3 of the Convention
under its substantive limb.
- The
Court, however, also notes that the absence of evidence in support of
the applicant's allegations of ill-treatment stems to a large extent
from the respondent Government's disregard for their procedural
obligations under Article 3 of the Convention.
- The
Court first notes that the medical examination of persons in police
custody constitutes one of the most essential safeguards against
ill treatment (see Algür v. Turkey, no. 32574/96,
§ 44, 22 October 2002, and Türkan v. Turkey,
no. 33086/04, § 42, 18 September 2008) and the results of
such examinations play a crucial role in cases where the detainees
raise allegations of ill-treatment. It further notes that, at the
time of the events giving rise to this application, the medical
examination of persons taken into police custody was a requirement to
be fulfilled by the State authorities under Turkish law (see
paragraph 36 above), and not the responsibility of the applicant as
argued by the Government. Despite the foregoing, the Court observes
that the applicant underwent a medical examination neither before
being taken into custody at the Bahçelievler police
headquarters, nor after her release from detention. In the Court's
opinion, this procedural shortcoming reduced the possibility of a
meaningful examination in respect of the State authorities'
substantive obligations under Article 3 of the Convention (see
paragraph 48 above).
- Secondly,
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”.
The minimum standards applicable, as defined by the Court's case-law,
include the requirement that the investigation be independent and
impartial. In addition, for an investigation to be considered
effective, the authorities must take whatever reasonable steps they
can to secure the evidence concerning the incident, including, inter
alia, a detailed statement concerning the allegations from the
victim (see, for example, Mehmet Ümit Erdem v.
Turkey, no. 42234/02, § 26, 17 July 2008).
- The
Court considers that the worrisome nature of the applicant's
allegations, the lengthy period of time she spent in police custody
and, in particular, her age and apparently fragile mental condition
at the material time, raise a reasonable suspicion that she could
have been subjected to ill treatment. An investigation was
therefore required in respect of her allegations.
- The
Court notes that, in the instant case, the investigation file
initiated by the public prosecutor was transferred to the
Bahçelievler District Administrative Council for authorisation
in accordance with the provisions of Law No. 4483. A preliminary
investigation was carried out by two police inspectors. Subsequently,
the District Administrative Council, on the basis of the information
gathered during the preliminary investigation, decided that no
prosecution should be brought against the accused police officers
(see paragraph 30 above).
- The
Court reiterates its earlier finding in a number of cases that
investigations carried out by administrative entities such as the
District Administrative Council cannot be regarded as independent
since they are chaired by district governors who are themselves
responsible for the security forces, and it is the security forces
whose conduct is presently at issue. Furthermore, the investigations
which they instigate are often carried out by security forces linked
hierarchically to the units concerned in the relevant incidents (see,
among other authorities, Kurnaz and Others v. Turkey, no.
36672/97, § 62, 24 July 2007, and the cases referred to
therein). The Court finds no reason to reach a different conclusion
in the present case.
- Lastly,
the Court notes that the applicant was at no point asked to provide a
statement regarding her allegations of ill-treatment during the
preliminary investigation, not even after she was released from
intensive care. In the absence of a satisfactory justification by the
Government, the Court concludes that this omission likewise seriously
prejudiced the effectiveness of the investigation.
- In
the light of the foregoing, the Court concludes that the domestic
authorities failed to conduct an effective investigation into the
applicant's allegations of ill-treatment.
- There
has therefore been a violation of Article 3 of the Convention under
its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Article 5 § 1 of the Convention that
there had been no reasonable suspicion to justify her detention,
particularly having regard to her age at the material time.
- The
Court notes that the applicant was released from detention on
30 April 2001. The application, however, was not lodged until
2 August 2002, that is, more than six months later.
- It
follows that this complaint was lodged out of time and must be
rejected under Article 35 §§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 3 of the
Convention admissible and 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.
Done in English, and notified in writing on 23 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
