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SECOND
SECTION
CASE OF SERDAR GÜZEL v. TURKEY
(Application
no. 39414/06)
JUDGMENT
STRASBOURG
15 March
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 Serdar Güzel
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 Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 22 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39414/06) 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 Serdar Güzel
(“the applicant”), on 26 September 2006.
- The
applicant was represented by Mr M. A. Kırdök, Mrs M. Kırdök
and Mrs M. Hanbayat, lawyers practising in Istanbul. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
11 May 2009 the President of the Second Section decided to give
notice of the application to the Government. It
was also decided that the admissibility and merits of the application
would be examined together (former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's arrest and detention in police
custody and the medical reports issued in respect of him
- On
20 February 1999 the applicant was arrested by officers from the
anti-terrorist branch of the Istanbul Police
Headquarters on suspicion of membership of the MLKP
(Marxist-Leninist Communist Party), an illegal organisation; he was
arrested in a restaurant along with a woman, G.B. According to the
arrest report signed by four police officers, the applicant and G.B.
attempted to escape, following which the officers were obliged to use
force in order to effect their arrest. Thereupon, the applicant and
G.B. were found to possess false identity cards.
- On
the same day the applicant was medically examined by a doctor who
noted that he was suffering from pain and restricted movement in his
shoulders.
- The
applicant was subsequently placed in the Istanbul Police
Headquarters. He was allegedly ill-treated there. In particular, he
claimed to have been subjected to hanging, to have had his testicles
squeezed and to have been forced to lie in ice covered by a wet
blanket.
- On
25 February 1999, at 3.10 p.m., the applicant was again examined by a
doctor, who noted the following:
“There is a bruise of 2 cm. on the right ...”
- On
27 February 1999, at 12 p.m., the applicant was examined by a doctor
from the Istanbul branch of the Forensic Medicine Institute, who
observed the following on the applicant's body:
“An ecchymosis of yellow-green colour of 4 x 3 cm
under the left eye; a haematoma of 3 x 2 cm on the exterior of the
right eyebrow; a scabbed wound of 1 cm on the vertex; scabbed grazes
on the exterior of the left wrist; an ecchymosis of yellow colour of
10 x 10 cm and a hyperaemia of 4 x 3 cm in the right armpit;
sensitivity in the right testicle...”
- On
the same day the applicant was taken before the public prosecutor and
a single judge at the Istanbul State Security Court. On both
occasions the applicant maintained that he had been subjected to
torture while in police custody. He submitted that he had been
subjected to hanging, that his testicles had been squeezed and that
he had been forced to lie in ice covered by a wet blanket.
- On
the same day the judge at the State Security Court ordered the
applicant's pre-trial detention. The applicant was subsequently
placed in Ümraniye prison.
B. Criminal proceedings against the police officers
- On
6 April 1999 the applicant lodged a criminal complaint with the Fatih
Public Prosecutor's Office against the police officers who had
allegedly inflicted the ill-treatment on him. He stated that he had
been beaten, hung by the arms, immersed in cold water and forced to
lie in ice. Furthermore, his testicles had been squeezed. Stating
that he would recognise the police officers who had been responsible
for his ill-treatment, the applicant requested that an investigation
be initiated into his allegations.
- On
31 December 2002 the Fatih Public Prosecutor issued a decision not to
prosecute anyone in relation to the applicant's
allegations. He noted in the decision that the applicant had refused
to go to the public prosecutor's office from prison to make
statements and that the police officers had denied the veracity of
the allegations against them.
- On
an unspecified date the decision of 31 December 2002 was quashed.
- On
1 August 2003 the Fatih Public Prosecutor filed a bill of indictment
with the Fatih Criminal Court against four police officers from the
anti-terrorist branch of the Istanbul Police
Headquarters, charging them with ill-treatment under Article 245 of
the former Criminal Code.
- On
2 April 2004 the Fatih Criminal Court issued a decision based on lack
of jurisdiction and transferred the case to the Istanbul Assize Court
because the charges of torture should have been brought under
Article 243 of the former Criminal Code.
- On
27 September 2004 the applicant joined the case against the police
officers as a civil party.
- Between
27 September 2004 and 26 July 2006, the First Chamber of the Istanbul
Assize Court postponed the hearings as some of the accused police
officers could not be summoned.
- On
various dates the accused police officers and the applicant made
statements before different courts at the request of the Istanbul
Assize Court. These statements were then sent to that court.
- On
13 December 2006 the Istanbul Assize Court held that the
criminal proceedings against the police officers should be
discontinued on the ground that the prosecution was time-barred
(zamanaşımı).
- On
27 February 2008 the Court of Cassation upheld the judgment of
13 December 2006.
C. Criminal proceedings against the applicant
- On
27 August 1999 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant and eleven
other persons. The applicant was charged with attempting
to undermine the constitutional order, an offence proscribed by
Article 146 § 1 of the former Criminal Code.
- On
11 November 1999 the Istanbul State Security Court held the
first hearing on the merits.
- Pursuant to Law no. 5190 of 16
June 2004 abolishing State Security Courts, published in the Official
Gazette on 30 June 2004, the case against the applicant was
transferred to the Istanbul Assize Court.
- According
to the information in the case file, the applicant was released from
pre-trial detention on 4 January 2011. However, the case against the
applicant is still pending before the Thirteenth Chamber of the
Istanbul Assize Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A description of the relevant domestic law at the
relevant time may be found in Batı and
Others v. Turkey (nos. 33097/06 and
57834/00, §§ 95 99, ECHR 2004-IV), and
Barış v. Turkey, (no. 26170/03, § 14, 31 March
2009)
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 6 OF THE CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been subjected to torture while in police custody, and that
the authorities had failed to punish those responsible for his
ill-treatment. He further contended under Article 6 § 1 of the
Convention that the case against the police officers had not been
concluded within a reasonable time. Relying on Article 6 § 3 of
the Convention, he further maintained that he had not been heard in
person by the First Chamber of the Istanbul Assize Court and that he
had not been able to question the accused police officers before that
court.
- The
Court considers that these complaints should be examined from the
standpoint of Article 3 alone.
A. Admissibility
- The
Government argued that the applicant had failed to exhaust available
domestic remedies within the meaning of Article 35 § 1 of the
Convention. In this connection, they submitted that the applicant had
not availed himself of the civil and administrative law remedies
which could have provided reparation for the harm which he had
allegedly sustained. The Government further submitted that the
applicant had failed to comply with the six-month time-limit with
regard to his complaints under Articles 3 and 13. They contended that
the applicant should have lodged these complaints within six months
of his detention in police custody.
- The
applicant disputed the Government's arguments.
- The
Court reiterates that it has already examined and dismissed the
Government's preliminary objections in similar cases (see, for
example, Dur v. Turkey, no. 34027/03, § 26, 18 September
2008; Eser Ceylan v. Turkey, no. 14166/02,
§ 23, 13 December 2007; and Arif Çelebi
and Others v. Turkey, nos. 3076/05 and 26739/05, § 53,
6 April 2010). It finds no particular circumstances in the
instant case requiring it to depart from its findings in the
above-mentioned applications. It therefore rejects the Government's
preliminary objection.
- The
Court 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
1. The responsibility of the respondent State in the
light of the substantive aspect of Article 3 of the Convention
- The
Government submitted that the injuries noted in the applicant's
medical reports were the result of force used by the police during
his arrest which was proportionate in the circumstances.
- The
applicant alleged that he had been subjected to ill-treatment while
in police custody. In particular, he had been beaten and subjected to
hanging and his testicles had been squeezed. He relied on the medical
reports dated 25 and 27 February 1999 in support of his allegations.
- The Court reiterates the basic principles laid down in
its judgments concerning the prohibition of ill-treatment under
Article 3 of the Convention (see Selmouni v. France [GC],
no. 25803/94, § 95, ECHR 1999-V; Çelik and
İmret v. Turkey, no. 44093/98, § 39,
26 October 2004; Hacı Özen v. Turkey,
no. 46286/99, §§ 46 and 47, 12 April 2007; and
Demirbaş and Others v. Turkey, nos. 50973/06,
8672/07 and 8722/07, §§ 55 and 56, 9 December
2008). It will examine the responsibility of the respondent State
under the substantive limb of Article 3 in the light of these
principles.
- In the instant case, the Court observes that the
medical report drawn up on 27 February 1999 showed that the applicant
had sustained injuries to various parts of his person, notably to his
head, eyes, right armpit and right testicle. The Court notes that the
parties did not dispute the findings of the medical report of 27
February 1999. However, they put forward different versions of how
the applicant had actually sustained them. The applicant alleged that
he had been ill-treated while in custody, whereas the Government
alleged that the injuries had occurred during his arrest.
- The
Court observes that after his arrest the applicant was examined by a
doctor who noted that the applicant had suffered injuries to his
shoulders. The Court considers that if the applicant had sustained
the injuries noted in the medical report of 27 February 1999 during
the arrest, as alleged by the Government, those injuries should have
appeared in the report drawn up on 20 February 1999. The Court
further notes that the findings of the medical report are consistent
with the types of ill-treatment alleged by the applicant (see
paragraph 33 above). The Court is therefore not satisfied with the
Government's explanations as to how the applicant sustained the
injuries found on his body (see Getiren v. Turkey,
no. 10301/03, § 74, 22 July 2008).
- The Court reiterates that States are responsible for
the welfare of all persons held in detention. Such persons are in a
vulnerable situation and the authorities have a duty to protect them
(see Mehmet Emin Yüksel v. Turkey, no. 40154/98,
§ 30, 20 July 2004). Bearing in mind the authorities' obligation
to account for injuries caused to persons under their control in
custody, and in the absence of a convincing explanation by the
Government in the instant case, the Court considers that the injuries
recorded in the medical report of 27 February 1999 were the result of
treatment for which the Government bear responsibility. The Court
further observes that the respondent Government failed to make any
submission as regards the nature and degree of the ill-treatment. In
the absence of such an explanation, and having regard to the extent
of the injuries noted in the medical report of 27 February 1999,
as well as to the strong inferences that can be drawn from the
evidence that the ill-treatment was inflicted in order to obtain
information from the applicant about his suspected connection with
the MLKP, the Court is led to conclude that the ill-treatment
involved very serious and cruel suffering that can only be
characterised as torture (see, among others, Salman v. Turkey
[GC], no. 21986/93, § 115, ECHR 2000 VII; Aksoy v.
Turkey, 18 December 1996, § 64, Reports of Judgments and
Decisions 1996-VI; Abdülsamet Yaman v. Turkey, no.
32446/96, § 47, 2 November 2004; and Koçak v.
Turkey, no. 32581/96, § 48, 3 May 2007).
- There
has accordingly been a violation of Article 3 of the Convention under
its substantive limb.
2. The responsibility of the respondent State in the
light of the procedural aspect of Article 3 of the Convention
- The
Government contended that the applicant's allegations had been
subjected to an effective examination since an investigation had been
initiated promptly. They contended that the mere fact that the
outcome of the proceedings had not been favourable for the applicant
did not mean that the remedy in question had been inadequate.
- The
applicant maintained that the criminal proceedings brought against
the police officers had been ineffective because they had been
terminated for being time-barred and he had not been heard in person
by the first-instance court.
- 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, Ay v. Turkey, no. 30951/96, §§
59-60, 22 March 2005). When the official investigation has led to the
institution of proceedings in the national courts, the proceedings as
a whole, including the trial stage, must satisfy the requirement of
the prohibition of ill-treatment. While there is no absolute
obligation for all prosecutions to result in conviction or in a
particular sentence, the national courts should not under any
circumstances be prepared to allow grave attacks on physical and
moral integrity to go unpunished (see Okkalı v. Turkey,
no. 52067/99, § 65, ECHR 2006-XII (extracts)).
- In this connection, the Court reaffirms that when an
agent of the State is accused of crimes involving torture or
ill-treatment, the criminal proceedings and sentencing must not be
time-barred and the granting of an amnesty or pardon should not be
permissible. It further reiterates that where a State agent has been
charged with crimes involving torture or ill-treatment, it is of the
utmost importance that he or she be suspended from duty during the
investigation and trial, and should be dismissed if convicted (see
Abdülsamet Yaman v. Turkey, no. 32446/96, §
55, 2 November 2004).
- The
Court has found above that the respondent State was responsible,
under Article 3 of the Convention, for the injuries sustained by the
applicant. An effective investigation was therefore required.
- The Court notes in the instant case that the case
against the police officers was dropped on 13 December 2006 as the
statutory time-limit had elapsed. That judgment became final on 27
February 2008. Furthermore, there is no indication in the case file
that the accused police officers were suspended from duty during this
time. The Court observes that the proceedings
in question have not produced any result because the substantial
delays resulted in the application of the statutory limitations in
domestic law (see Abdülsamet
Yaman v. Turkey, cited above, §
59). It finds that the domestic authorities cannot be considered to
have acted with sufficient promptness or diligence, which created
virtual impunity for the main perpetrators of the acts of violence,
despite the evidence against them (see Batı
and Others v. Turkey, nos. 33097/96
and 57834/00, § 147, ECHR 2004 IV).
- In
the light of the foregoing, the Court finds that the criminal
proceedings brought against the police officers were inadequate and
therefore in breach of the State's procedural obligations under
Article 3 of the Convention.
- It
follows that there has been a violation of Article 3 under its
procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that the
national authorities had failed to punish those
responsible for his ill treatment, in connection with his
allegations under Article 3, and that, as a result, he had not had an
effective remedy whereby he could claim compensation.
- The
Government contested that argument. They submitted that the applicant
could have sought compensation pursuant to Article 141 of the
Code of Criminal Procedure (Law no. 5271).
- The
Court observes that according to Article 141 (a) and (b) persons who
are unlawfully arrested or detained and who are not brought before a
judge within the statutory period for which they can be held in
custody may seek compensation from the State for the pecuniary and
non pecuniary damage they have sustained. The remedy referred to
by the Government can therefore not be considered to be an effective
remedy for the damage sustained by the applicant as a result of the
ill-treatment he suffered at the hands of the police officers.
- The
Court further refers to its findings above (see paragraphs 28-31) and
reiterates its conclusion in a number of previous cases that the
civil remedies were inoperative in such situations as they did not
enable the applicants to obtain compensation for the alleged
violations (see, among others, Batı and Others, cited
above, § 148; Müdet Kömürcü v. Turkey
(no. 2), no. 40160/05, § 36, 21 July 2009; and Karagöz
and Others v. Turkey, nos. 14352/05, 38484/05 and 38513/05,
§ 59, 13 July 2010). The Court finds no reason in the instant
case to depart from its earlier conclusion.
- There
has accordingly been a violation of Article 13 in conjunction with
Article 3 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLES 5 § 3 and 6 §
1 OF THE CONVENTION
- The applicant complained that his detention during the
judicial proceedings had exceeded the “reasonable time”
requirement of Article 5 § 3 of the Convention.
He further alleged under Article 6 § 1 of the Convention that
the length of the criminal proceedings brought against him was
excessive.
A. Admissibility
- The
Court 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
1. Article 5 § 3 of the Convention
- The
Government maintained that the length of the applicant's pre trial
detention was reasonable. In particular, they submitted that the
seriousness of the crime and the risk of escape, together with the
special circumstances and the complexity of the case, had justified
the applicant's continued detention pending trial.
- The
applicant maintained his allegations.
- The
Court observes that in the instant case the detention began on
20 February 1999 when the applicant was taken into police
custody, and ended on 4 January 2011. His pre-trial detention thus
lasted eleven years, ten months and seventeen days.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, İnan and Others v. Turkey,
nos. 19637/05, 43197/06 and 39164/07, §§ 39 and 40, 13
October 2009). Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
convincing argument capable of persuading it to reach a different
conclusion in the present case. Having regard to its case-law on the
subject, the Court finds that the length of the applicant's detention
pending the criminal proceedings against him has been excessive and
contravenes Article 5 § 3 of the Convention.
There
has accordingly been a violation of this provision.
2. Article 6 § 1 of the Convention
- The
Government maintained that, in the circumstances of the present case,
the length of the criminal proceedings could not be considered to
have been unreasonable. In this connection, they referred to the
complexity of the case. The Government further submitted that the
applicant and his representative had contributed to the length of the
proceedings by not attending a number of hearings. Finally, they
maintained that there had been no delays in the proceedings which
could be attributed to the authorities.
- The
applicant maintained his allegation.
- The
period to be taken into consideration is approximately twelve years
at one level of jurisdiction. The Court has frequently found
violations of Article 6 § 1 of the Convention in cases raising
issues similar to the one in the present application (see, for
example, İnan and Others, cited above, §§ 46
and 47). In the present case, the Court observes that neither the
complexity of the case nor the alleged conduct of the applicant is
sufficient to explain the delays in the conduct of the proceedings.
The Court therefore finds no reason to depart from the conclusions of
the case cited above.
There
has therefore been a breach of Article 6 § 1 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.”
A. Damage, costs and expenses
- The
applicant claimed 45,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered non pecuniary
damage which cannot be compensated solely by the finding of
violations. Having regard to the gravity of the violations and to
equitable considerations, it awards the applicant his claim in full.
- Furthermore,
according to the information submitted by the parties, the criminal
proceedings against the applicant are still pending. In these
circumstances, the Court considers that an appropriate means for
putting an end to the violation which it has found would be to
conclude the criminal proceedings in issue as speedily as possible,
while taking into account the requirements of the proper
administration of justice (see Yakışan v. Turkey,
no. 11339/03, § 49, 6 March 2007).
- The
applicant also claimed EUR 8,000 for the costs and expenses incurred
before the domestic courts and the Court. In support of his claims
the applicant submitted a fee agreement and a schedule of costs,
which indicate eighty hours of legal work carried out by his
representative.
- The
Government contested this claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,500 under all
heads.
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
- Declares the application admissible;
- Holds that there has been a 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
13 of the Convention in conjunction with Article 3 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention on account of the length of the
applicant's pre-trial detention;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings brought against the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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 on the date of
settlement:
(i) EUR 45,000
(forty-five thousand euros) in respect of non pecuniary damage,
plus any tax that may be chargeable;
(ii) EUR
3,500 (three thousand five hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant;
(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 15 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Francoise Elens-Passos Françoise
Tulkens
Deputy
Registrar President
