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SECOND
SECTION
CASE OF
GÜLER AND ÖNGEL v. TURKEY
(Applications
nos. 29612/05 and 30668/05)
JUDGMENT
STRASBOURG
4 October
2011
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 Güler and Öngel v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 14 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 29612/05 and 30668/05)
against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Turkish nationals, Mr
Serdar Güler and Mr Savaş Kurtuluş Öngel (“the
applicants”), on 3 August 2005.
- The
applicants were represented by Mrs Y. Yeşilyurt, a lawyer
practising in İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
15 September 2009 the President of the Second Section decided to give
notice of the applications to the Government. It was also decided to
rule on the admissibility and merits of the applications at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1977 and 1979 respectively.
- On
29 June 2004 a large group of demonstrators, including the
applicants, gathered in Istiklal Street in front of the Galatasaray
High School in Istanbul to attend the reading out of a statement to
the press in protest against the NATO summit which was being held in
Istanbul on 28-29 June 2004. The demonstration was organised by KESK
(Kamu Emekçileri Sendikaları Konfederasyonu –
The Confederation of Public Employees’ Trade Unions). A
large group of police officers, all wearing helmets and gas masks and
equipped with the necessary material, was also deployed to the area.
Nearly 500 demonstrators took part in the demonstration and
slogans were chanted against NATO. After the statement was read out
by the representative of KESK, the demonstrators started to disperse.
A small group of demonstrators, carrying the flags of their
non-governmental organisation Halkevleri Derneği (Peoples’
Houses), walked towards the police officers who had blocked
Istiklal Street to prevent the group from approaching Taksim Square.
The demonstrators attacked the police officers with sticks and stones
and the police officers used tear gas and truncheons to disperse the
group. Some of the nearby shops and vehicles were damaged during the
incident. According to the incident report, six police officers were
wounded during the incident.
- The
applicants, who had listened to the press statement, were arrested
during this incident. According to the applicants, they were beaten
and insulted during and after their arrest. The same day, they were
taken to the Bayrampaşa Health Clinic for a medical examination.
According to the applicants, the doctor examined them in the presence
of the police officers. A copy of the medical report is not included
in the case file.
- On
30 June 2004 the applicants were taken to the Beyoğlu Forensic
Medicine Institute for a further medical examination. The doctor who
examined the applicants concluded that both of them were unfit to
work for seven days. The following findings were noted in the medical
report:
– Serdar
Güler: Large bruises on the back of the upper left arm,
bruises on the back, bruises on the shoulders and on the waist,
bruises on the right shoulder, bruises on the left gluteal region,
tenderness of the left leg.
– Savaş
Kurtuluş Öngel: Several bruises on the back of the left
shoulder, bruise on the upper side of the right shoulder blade,
bruises on the left and right sides of the back, a bleeding wound on
the left elbow, a bruise on the right knee, bruises on the left knee.
The doctor also noted that the applicant had a nose bleed.
- The
same day, the applicants were released upon the order of the Beyoğlu
Public Prosecutor.
- On
18 July 2004 the applicants filed a petition with the Beyoğlu
public prosecutor against the police officers who had carried out
their arrest. In their petition, the applicants complained, inter
alia, that their arrest had been unlawful and that the police
officers had used excessive force during and after the arrest.
- On
2 November 2004 the Beyoğlu public prosecutor issued a decision
of non-prosecution in respect of the police officers who had been on
duty at the relevant time. In his decision, the public prosecutor
considered that the force used by the security forces had been in
line with Article 16 of Law no. 2559 on the Duties and
Powers of the Police and had not been excessive. In the public
prosecutor’s opinion, the injuries sustained by the applicants
had been caused by a use of force which was proportionate. In
delivering this decision, the public prosecutor had regard to the
fact that after the press statement had been read out, a group of
seventy people had not dispersed and had attacked the police officers
with sticks and stones, also causing damage to nearby shops and
vehicles. In the public prosecutor’s opinion, the force used by
the police had therefore been proportionate.
- On
29 December 2004 the applicants filed an objection against the public
prosecutor’s decision.
- On
13 December 2005 the Istanbul Assize Court dismissed the applicants’
objection.
- In
the meantime, on 30 June 2004, the Beyoğlu public prosecutor
filed a bill of indictment against eighteen accused, including the
applicants, with the Beyoğlu Criminal Court and accused them
under Article 32 of Law no. 2911 of taking part in an
illegal demonstration without prior authorisation and of not
dispersing despite the police officers’ warning. Five police
officers, who had been wounded during the incident, joined the
proceedings as intervening parties.
- On
7 March 2006 the Beyoğlu Criminal Court acquitted the applicants
of the charges against them. In delivering its decision, the Criminal
Court had regard to a video recording of the incident, to witness
statements and to the submissions of the intervening parties. The
court found it established that the applicants were not amongst the
demonstrators who had been carrying “Halkevleri”
flags and had attacked the police officers. The court accordingly
stated that there was no evidence in the file to support a finding
that the applicants had violated Law no. 2911 or resisted the police
officers as alleged.
II. RELEVANT DOMESTIC LAW
- Article
16 of Law no. 2559 on the Duties and Powers of the Police provides:
“The police may use firearms:
(a) In self defence, ...;
(h) if a person or a group resists the police
and prevents them from carrying out their duties or if there is an
attack against the police.”
Additional Article 6 (dated 16 June 1985)
“In cases of resistance by persons whose arrest is
necessary or by groups whose dispersal is necessary, threat of attack
or an attack, the police may use force to subdue these actions.
Use of force refers to the use of bodily force, physical
force and all types of weapons specified in the law and may gradually
increase according to the nature and level of resistance or attack
with a view to restoring calm.
In cases of intervention by group forces, the extent of
the use of force and the equipment and instruments to be used shall
be determined by the commander of the intervening force.”
THE LAW
I. JOINDER
- Given
the similarity of the applications, as regards both fact and law, the
Court deems it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that they had been subjected to police
brutality, which had caused them physical suffering. In this respect,
they relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government maintained that the applicants’ allegations were
unsubstantiated and that the force used against the applicants by the
police had been proportionate.
A. Admissibility
- The
Government contended that the applicants had failed to exhaust the
domestic remedies available to them under domestic law. In the first
place, they submitted that the application had been lodged with the
Court on 3 August 2005, while the domestic proceedings were
still pending before the Istanbul Assize Court. The Government
further submitted, in the alternative, that the applicants could also
have initiated compensation proceedings before the administrative
courts.
- As
regards the first limb of the Government’s objections, the
Court reiterates that applicants are required, in principle, to
exhaust the different domestic remedies available to them before they
apply to the Court. However, the last stage in the exhaustion of
these remedies may be reached after the lodging of the application
but before the Court is called upon to pronounce on the issue of
admissibility (see Mehmet Emin Yüksel v. Turkey
(dec.), no. 40154/98, 2 December 2003). The Court notes that the
final decision in the prosecution of the accused police officers was
delivered on 13 December 2005, which is before the Court had decided
on admissibility. The Government’s first objection must
accordingly be dismissed.
- As
regards the second objection, the Court reiterates that it has
already examined and rejected the Government’s similar
preliminary objections in previous cases (see, in particular,
Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004; Balçık
and Others v. Turkey, no. 25/02, § 22, 29 November
2007; and Biçici v. Turkey, no. 30357/05, § 22,
27 May 2010). It finds
no particular circumstances in the instant case which would require
it to depart from its findings in the above-mentioned applications.
Consequently, it rejects this part of the Government’s
preliminary objection as well.
- The
Court further notes that this part of the application 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. It must therefore be declared admissible.
B. Merits
- The
applicants maintained that they had participated in the demonstration
organised in protest against NATO and that following the reading of a
statement to the press the police had used excessive force to
disperse the crowd. In support of their submissions, the applicants
relied on medical reports, which stated that both applicants had
several bruises on their bodies and that they were unfit to work for
seven days.
- The
Government denied the allegations and maintained that the use of
force in the instant case had been proportionate and necessary.
- As
the Court has underlined on many occasions, Article 3 of the
Convention enshrines one of the most fundamental values of a
democratic society. It prohibits in absolute terms torture or inhuman
or degrading treatment or punishment, irrespective of the
circumstances and victim’s behaviour (see Labita v. Italy
[GC], no. 26772/95, § 119, ECHR 2000 IV). In this
connection, it also notes that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3 of
the Convention.
- Furthermore,
in assessing evidence, the standard of proof “beyond reasonable
doubt” is generally applied. However, such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Further,
where allegations are made under Articles 2 and 3 of the Convention,
the Court must apply a particularly thorough scrutiny (see Saya
and Others v. Turkey, no. 4327/02, § 19, 7 October
2008).
- The
Court observes that in the instant case there is no dispute between
the parties that the applicants were injured during a demonstration
due to the use of force by the police in order to disperse the
protestors. According to the medical reports, the applicants had
several bruises on their bodies and were found unfit to work for
seven days. The Court is therefore convinced that these injuries are
sufficient to bring the applicants’ complaints within the scope
of Article 3.
- The
Court reiterates that Article 3 does not prohibit the use of force in
certain well-defined circumstances. However, such force may be used
only if indispensable and must not be excessive (see Rehbock v.
Slovenia, no. 29462/95, §§ 66-78, ECHR 2000 XII).
- The
Court observes from the submissions of the Government and from the
video recording of the incident that following the reading of the
statement to the press, the demonstrators had started to disperse of
their own accord without a forceful intervention on the part of the
authorities. It is also noted that at this time a small group of
demonstrators, carrying the flags of the NGO Halkevleri
Derneği (Peoples’ Houses), had a
confrontation with the police. While they attacked the police
officers with sticks and stones, the police used force to disperse
them. The Court notes at this point that it has been established by
the Beyoğlu Criminal Court that the applicants were not among
the demonstrators who had attacked and resisted the police officers.
In this connection, the Court also observes from the video recording
of the incident that a very large group of police officers, all
equipped with helmets, gas masks and other necessary equipment, had
been deployed to the area prior to the demonstration. It is therefore
not possible to conclude that the security forces were called upon to
react without prior preparation (see Balçık and
Others, cited above, § 32). Furthermore, the Government have
not provided any information showing that the intervention of the
security forces was properly regulated and organised in such a way as
to minimise to the greatest extent possible any risk of bodily harm
to the demonstrators. The Court concludes therefore that although a
small group of demonstrators attacked the police officers after the
press statement had been read out, it is not possible to conclude
that the force used by the police against the applicants, who were
not among the resisting demonstrators, was justified.
- In
these circumstances, the Court finds that the injuries sustained by
the applicants were the result of treatment for which the State bears
responsibility.
- There
has therefore been a violation of Article 3 of the Convention on
account of the inhuman and degrading treatment to which the
applicants were subjected.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants complained under Article 5 § 1 (c) of the Convention
that their placement in police custody had been illegal.
- The
Court notes that the applicants were released from police custody on
30 June 2004, whereas the present applications were lodged with the
Court on 3 August 2005. Consequently, this part of the
application should be rejected for non-compliance with the six-month
time-limit pursuant to Article 35 §§ 3 and 4 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLES 10 and 11 OF THE
CONVENTION
- Relying
on Articles 10 and 11 of the Convention, the applicants complained
that, as they had been arrested during a demonstration, their right
to freedom of expression and assembly had been breached.
- The
Government denied that claim.
- The
Court notes that these complaints are linked to the ones examined
above and must likewise be declared admissible.
- However,
having regard to the facts of the case, the submissions of the
parties and its finding of a violation of Article 3 above, the Court
considers that it has examined the main legal question raised in the
present applications. It concludes, therefore, that there is no need
to give a separate ruling on the remaining part of the application
(see, for example, Kamil Uzun v. Turkey, no. 37410/97,
§ 64, 10 May 2007; K.Ö. v. Turkey,
no. 71795/01, § 50, 11 December 2007; Juhnke v. Turkey,
no. 52515/99, § 99, 13 May 2008; Çelik v.
Turkey (no. 1), no. 39324/02, § 44, 20 January 2009;
and Yananer v. Turkey, no. 6291/05, § 47, 16 July 2009).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicants each requested 10,000 euros (EUR) in respect of
compensation for pecuniary damage and EUR 20,000 in respect of
compensation for non-pecuniary damage. Referring to the Istanbul Bar
Association’s scale of legal fees, the applicant’s
representative further claimed EUR 8,170 covering seventeen hours’
legal work spent on the presentation of the present case before the
Court.
- The
Government contested the claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
regards non-pecuniary damage, the Court
finds that the applicants must have suffered pain and distress which
cannot be compensated for solely by the Court’s finding of a
violation. Having regard to the nature of the violation found and
ruling on an equitable basis, it awards the applicants EUR 9,000
each in respect of non-pecuniary damage.
- Finally, as regards legal fees, according to the
Court’s case-law, an applicant is entitled to 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, regard being had to the documents in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 3,000 jointly to the applicants
under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides
to join the applications;
- Declares the applicants’ complaints
concerning their alleged ill-treatment and their right to freedom of
expression and assembly admissible; and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the inhuman and degrading treatment
to which the applicants were subjected;
- Holds that there is no need to examine
separately the applicants’ complaints under Articles 10 and 11
of the Convention;
- Holds
(a) that the respondent State is to
pay the applicants, within three months from the date on which the
judgment becomes final in accordance with 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
9,000 (nine thousand euros) each, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros) jointly, plus any tax that may be
chargeable to the applicants, 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 4 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
