SECOND SECTION
CASE OF
TARKAN YAVAŞ v. TURKEY
(Application no.
58210/08)
JUDGMENT
STRASBOURG
18 September 2012
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 Tarkan Yavaş v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
FrançoiseTulkens, President,
DanutėJočienė,
DragoljubPopović,
IsabelleBerro-Lefèvre,
AndrásSajó,
IşılKarakaş,
GuidoRaimondi, judges,
andFrançoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
58210/08) 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 Tarkan Yavaş (“the
applicant”), on 23 October 2008.
The applicant was represented by Mr C.
Gökdoğan, a lawyer practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
The applicant allegedunder Article 3 of the
Convention that he had been subjected to ill-treatment while in police custody.
He also argued that the investigation against the police officers concerned was
ineffective in that the criminal proceedings against them were still pending.Relying
upon Article 5 §§ 1 and 3 of the Convention, the applicant submitted that he
had been arrested without a legal basis and had been kept in police custody for
a lengthy period. Invoking Article 6 § 1 of the Convention, he also complained
that the criminal proceedings against him had been excessively long.
On 20 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1968 and lives in Istanbul.
On 12 November 1999 he was arrested on suspicion
of setting up a criminal organisation, namely the Bilim Araştırma
Vakfı (Foundation for Science and Research). On the same day he went
through a medical examination at the HasekiResearchHospital. The medical report
drafted following that examination noted that there was no signof ill-treatment
on his body.
During his time at police custody, on 15 November
1999, the applicant was examined once more, this time at the Şişli EtfalResearchHospital. The second report drawn up there also indicated that there existed no
sign of ill-treatment on his body.
The applicant was released on 17 November 1999.
Immediately after his release, he went through two more medical examinations at
two different institutions, namely the VakıfGurebaHospital and the Forensic
Medicine Institute. The reports drawn up after each examination indicated once
again the lack of any sign of ill-treatment on his body.
The first three medical reports were issued in
respect of the applicant together with some other persons, who were also
arrested on suspicion of having committed the same offence.
A. Criminal proceedings against the applicant
On 11 January 2000 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant,
together with several others, of setting up and running a criminal
organisation. Subsequently, on 14 February 2000 the applicant was placed in
pre-trial detention. The next day, on 15 February 2000 he was heard by the
Bakırköy Criminal Magistrates’ Court and released pending trial.
In 2004, following a constitutional amendment,
state security courts were abolished and the case was transferred to the Istanbul Assize Court.
On 9 May 2008 the Istanbul Assize Court
discontinued the proceedings as the statutory time-limit for prosecuting the
offence of setting up a criminal organisation had expired.
On 28 December 2009 the Court of Cassation
upheld the judgment of the Istanbul Assize Court.
B. Criminal proceedings against the police officers
On an unspecified
date in 2000 the applicant filed a complaint, together with the others, against
several police officers, claiming that he had been subjected to ill-treatment
during his time in police custody. According to his submissions, his testicles
had been squeezed and he had been beaten, handcuffed to a chair and insulted.
On 26 October 2001 the Beyoğlu public
prosecutor issued a decision not to prosecute.
On 21 November 2002 the Beyoğlu Assize
Court rejected the applicant’s objection to the public prosecutor’s decision.
Nevertheless, on 5 March 2004, following an
objection filed by one of the other complainants, the same court decided to
extend the scope of the investigation and requested medical reports from the
Forensic Medical Institute.
Subsequently, on 13 April 2005, although the
medical reports had not yet been submitted, the court annulled thedecision of
the Beyoğlu public prosecutor and held that criminal proceedings would be
brought against the police officers involved.
Accordingly, on 22 June 2005 the Istanbul public
prosecutor filed an indictment with the Istanbul Assize Court, accusing the
police officers of torture pursuant to Article 243 § 1 of the former Penal Code
(Law no. 765) as he considered that provisionto be more favourable for the
accused.
During the course of the proceedings against the
police officers, the Head of the Istanbul University Forensic Medicine
Department examined the applicant. In her report dated 29 March 2007 she
noted that the applicant had complained that,during his police custody in
November 1999 and his pre-trial detention in February 2000, his testicles had
been squeezed and he had been beaten, insulted and forced to perform physical
activities which would overstrain his body. After examining the medical reports
which had been issued in respect of the applicant in November 1999, she
reported that although those reportshad indicated no sign of ill-treatment on
the applicant’s body, none of them had been drafted in compliance with the
general principles of forensic medicine set forth by the Ministry of Health. In
this connection, she stated that each report had been issued in respect of
several individuals and it was not clear whether the patients had been under
psychological duress at the time or what kind of examinations had been
conducted by the doctors. She concluded, therefore, that the reports issued
immediately after the applicant’s release from police custody could not be
accepted as proof against his allegation of ill-treatment.
On 4 August 2010 the Forensic Medicine Institute
submitted a report to the Istanbul Assize Court upon the request of the latter.
That report maintained that some lesions and problems in the applicant’s
meniscus had been found in 2003. It added also that he appeared to be suffering
from post-traumatic stress disorder. The report noted however that it was not
possible to conclude that those conditions resulted from the allegedill‑treatment
inflicted on the applicant in 1999.
On 25 March 2011 the Forensic Medicine Institute
drafted another report following the court’s request. According to that report,
the first four medical reports, which stated that there was no sign on the
applicant’s body, were unclear as each of them had been drawn up in respect of
several individuals.
The Istanbul Assize Court conducted more than
thirty hearings during which it heard the statements of the complainants, the
accused and the witnesses. It also evaluated medical reports in respect of each
complainant as well as the above-mentioned expert reports. The proceedings are
still pending before that court.
II. RELEVANT DOMESTIC LAW
Article 243 § 1 of the former Penal Code (Law
no. 765) which regulated torture committed by civil servants read as follows:
Article 243
“Anypublic official who, in order to extract a confession of
guilt in respect of a criminal offence, tortures or ill-treats a person,
engages in inhuman conduct or violates human dignity, shall be punished by up
to five years’ imprisonment and disqualified from holding public office
temporarily or for life.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
Without giving any specific details, the
applicant complained that he had been subjected to ill-treatment during his
time in police custody. He further maintained that the criminal proceedings
against the police officers concerned had lasted too long so as to render the
investigation against them ineffective. He relied upon Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government argued that the applicant had
failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the
Convention in that the criminal proceedings against the police officers were
still pending before the domestic court. In this connection, they requested the
Court to suspend the examination of the case until the end of the said
proceedings.
The Court notes that in the present case
criminal proceedings were brought against the police officers complained of by
the applicant. However, those proceedings are still pending more than twelve
years and six months after the applicant’s release from police custody. It
reiterates that the question whether the criminal proceedings pending against the
officers can be regarded as effective under the Convention is closely linked to
the substance of the applicant’s complaint. It therefore joins the Government’s
objection on this point to the merits (see Veli Tosunand Others v. Turkey,
no.62312/00, §§ 39-40, 16 January 2007, and Fırat Can v. Turkey,no. 6644/08, §§ 33-35, 24 May 2011).
The Court further notes that this complaint is
not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of
the Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The substantive aspect of Article 3
The Court recalls 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 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). Where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons within their
control, strong presumptions of fact will arise in respect of injuries
occurring during such control (see, mutatis mutandis, Maslova and
Nalbandov v. Russia, no. 839/02, § 99, 24 January 2008).
In the instant case, the applicant went through
four medical examinations, which were conducted on the day he was arrested,
during his police custody and following his release, respectively. According to
the reports drawn up after these examinations, the applicant did not bear any
indication of ill-treatment on his body. In this connection, the Court has
regard to the fact that each of these four medical reports was drafted by a
different doctor.Two other reports, submitted to the Istanbul Assize Court
during the proceedings against the police officers involved in the alleged
acts, stated that the above-mentioned reports had not complied with the general
principles of forensic medicine. Nevertheless, the Court observes that these
latter reportswere drafted in 2007 and 2011respectively, years after the
applicant’s release, and therefore could not substantiate hisclaim except for
dwelling upon the accuracy of the reports drawn up inNovember 1999. Consequently, there is no decisive
evidence in the case file which could call into question the findings in the
first four reports or add probative weight to the applicant’s allegation.
In the light of the foregoing and having regard
to the applicant’s failure to describe the alleged acts in detail, the Court
cannot consider it established
beyond reasonable doubt that the applicant was subjected to ill‑treatment
during his time at police custody (see, among many others, Erişen
and Others v. Turkey, no. 7067/06, § 41, 3 April 2012).
It follows that there
has been no violation of Article 3 of the Convention under its substantive
aspect.
2. The procedural aspect of Article 3
The Court reiterates that Article 3 of the
Convention also requires the authorities to investigate allegations of
ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see,
in particular, Assenov and Others v. Bulgaria, 28 October 1998, §§
101-102, Reports of Judgments and Decisions 1998‑VIII).
In the present case, the Court has not found it
proved, on account of lack of evidence, that the applicant was ill-treated, as
alleged. Nevertheless, as it has held in previous cases, that does not preclude
this complaint in relation to Article 3 from being “arguable” for the purposes
of the State’s positive obligation to investigate (see, Böke and Kandemir v.
Turkey, nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009). In
reaching this conclusion, the Court has had particular regard to the pending criminal
proceedings against the police officers who are accused of torture pursuant to
Article 243 of the former Penal Code (Law no. 765).
The Court recalls that the minimum standards as
to the effectiveness of an investigation include the requirements that the
investigation must be independent, impartial and subject to public scrutiny,
and that the competent authorities must act with exemplary diligence and
promptness (see, among others, Çelik and İmret v. Turkey, no. 44093/98, § 55, 26 October 2004, and Hürriyet Yılmaz v.
Turkey, no. 17721/02, § 46, 5 June 2007).
Turning to the facts
of the present case, the Court notes that an investigation into the applicant’s
allegation of ill-treatment was started by the Beyoğlu public prosecutor,
who later issued a decision not to prosecute the police officers involved in
the alleged acts. Although this decision was upheld by the Beyoğlu Assize
Court on 21 November 2002, the same court
annulled it more than two years later, on 13 April 2005, following an objection
filed by one of the other individuals who claimed to have been ill‑treated.
The Court observes that an indictment against the police officers was issued by
the Istanbul public prosecutor only then, on 22 June 2005, more than
five years after the applicant’s complaint to that effect. Besides that rather
long period of time that had elapsed until criminal proceedings were brought
against the officers, the Court also has regard to the fact that those
proceedings are still pending before the Istanbul Assize Court after almost
seven more years.
Consequently, the Court considers that the
applicant’s allegation of ill-treatment was not investigated either diligently
or promptly and the investigation cannot therefore be considered as effective
(see, in particular, Fırat Can v. Turkey, cited above, §§ 43-50, and Aysu v.
Turkey,no. 44021/07, §§
39-42,13 March 2012). In the light of the foregoing, the Court also
dismisses the Government’s objection that the applicant failed to exhaust
domestic remedies in view of the pending criminal proceedings against the
police officers concerned (seeVeli Tosunand Others v. Turkey, cited
above, § 60; and Fırat Can v. Turkey, cited above,§ 49).
It follows that there has been a violation of
Article 3 of the Conventionunder its procedural aspect.
II. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE
CONVENTION
The applicant
complained under Article 6 § 1 of the Convention that the criminal proceedings
against him had been incompatible with the “reasonable time” requirement.
The Government contested that argument, claiming
that the length of the impugned proceedings had been
in compliance with Article 6 § 1 of the Convention, taking account of the
complexity of the case, the number of the accused and the difficulties in
collecting evidence.
The Court notes that the impugned criminal
proceedings, where the applicant was tried with several others, began on 12
November 1999, when the applicant was arrested and ended on 28 December 2009,
when the Court of Cassation upheld the judgment of the Istanbul Assize Court
discontinuing the case. They therefore lasted for a period of over ten years
and one month.
The Court observes that it has frequently found
violations of Article 6 § 1 of the Convention in cases raising issues
similar to the one in the present case (see, among others, Er v.Turkey, no. 21377/04, § 23, 27 October 2009; Şahap
Doğan v.Turkey, no. 29361/07, § 39,27 May 2010; and Fırat
Can, v. Turkey, cited above,
§ 74;see also, mutatis mutandis, Frydlender v. France
[GC], no. 30979/96,§§ 42-46, ECHR 2000‑VII, and Daneshpayeh v.
Turkey, no. 21086/04,§§ 26-29, 16 July 2009).Having examined all the
material submitted to it, it considers that the Government have not put forward
any fact or argument capable of persuading it to reach a different conclusion
in the present case. Having regard to its case-law on the subject, the
Courtfinds that the length of the proceedings was excessive and failed to meet
the “reasonable time” requirement.
There has accordingly been a violation of
Article 6 § 1 of the Convention in respect of the excessive length of the
criminal proceedings against the applicant.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicant further complained under Article 5
§§ 1 and 3 about the alleged unlawfulness and the excessive length of his
police custody, which had lasted for a period of five days.
The Court notes that the applicant was released
from custody on17 November 1999. Following the initiation of criminal
proceedings against him, on 14 February 2000 he was placed in detention on
remand. Nevertheless, he was released pending trial the next day, on15 February
2000, that is more than eight years before he lodged the application with the
Court.
Accordingly, the Court holds that the complaint is inadmissible for
non-compliance with the six-month time-limit pursuant to Article 35 §§ 1
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The applicant claimed 20,000 euros (EUR) in
respect of pecuniary andnon-pecuniary damage.He did
not submit any claim for costs and expenses.
The Government contested this claim, considering
the requested amount excessive.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. Having regard to the nature of the violations found and
ruling on an equitable basis, it awards the applicantEUR 16,250 in respect of
non‑pecuniary damage.
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins
the Government’s preliminary objection on the issue of exhaustion of domestic
remedies in respect of Article 3to the merits and dismisses it;
2. Declares the complaints concerning Articles
3 and 6 § 1 admissible and the remainder of the application inadmissible;
3. Holds that there has been no violation of
Article 3 of the Convention under its substantive aspect;
4. Holds that there has been a violation of
Article 3 of the Convention under its procedural aspect;
5. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the excessive length of the
criminal proceedings against the applicant;
6. Holds
(a) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention,EUR 16,250
(sixteen thousand two hundred fifty euros)to be converted into Turkish liras at
the rate applicable at the date of settlement:
(b) that from the expiry of the above-mentioned
three months until settlement, simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy Registrar President
