SECOND SECTION
CASE OF FERHAT KAYA
v. TURKEY
(Application no.
12673/05)
JUDGMENT
STRASBOURG
25 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 Ferhat Kaya v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
FrançoiseTulkens, President,
DanutėJočienė,
DragoljubPopović,
IşılKarakaş,
GuidoRaimondi,
PauloPinto de Albuquerque,
HelenKeller, judges,
and Françoise Elens-Passos, Deputy Section
Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
12673/05) 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 a Turkish national, Mr Ferhat Kaya (“the applicant”), on
30 March 2005.
The applicant was represented by lawyers of the Kurdish Human Rights Project (KHRP) in London. The Turkish Government (“the Government”) were represented by their Agent.
On 18 September 2009 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 1974 and lives in Ardahan.
At the time of the events the applicant was a
shopkeeper and the chairman of the Ardahan Branch of the Democratic People’s
Party (DEHAP). He was also involved in a local campaign to highlight the social
and environmental impact of an oil pipeline to be built by a State company.
A. The alleged ill-treatment
On 5 May 2004, while the applicant was passing by
the Ardahan police station, a policeman asked him whether he was Ferhat Kaya.
He was then taken into the station, where he was told that a warrant had been
issued for his appearance at a court hearing the following day and was asked
for his ID documents. The applicant then called a friend, Mr B.A., and informed
him that he was at the police station. Subsequently, he was taken for a medical
examination. At 6.30 p.m. the applicant was examined by a doctor at ArdahanStateHospital, who noted no signs of ill-treatment on his body.
After his return, the applicant was allegedly
subjected to insults, and was told that he supported the PKK and that he was a
traitor. According to the applicant, he lost consciousness when was taken to a
meeting room and he could not recall how a glass door had shattered. He was
allegedly pushed by a police officer and fell on the broken glass and was
beaten and kicked by five or six police officers as he was lying on the floor.
According to him, one of the police officers pointed a rifle at him and said
that he was going to shoot him. During the incident, the applicant’s friend, Mr
B.A., was also present at the police station. According to his statement taken
by the police on the same day at 7.30 p.m., Mr B.A. had brought a packet of
cigarettes to the applicant. He then heard a policewoman ordering the applicant
to hand over his personal belongings and to sign a document. He heard the
applicant refuse. The applicant was then dragged into another room by several
police officers and during the scuffle the applicant fell down. Mr B.A. heard
the glass door shatter but did not see how it happened.
At 7.30 p.m. the same day, the applicant was
taken for another medical examination and was re-examined by the same doctor at
the Ardahan State Hospital, who found the following injuries: a cut measuring 0.5
cm on the inside of the right wrist, a superficial cut on the outside of the
wrist, a small graze on the third and fourth fingers of the right hand, redness
around the left wrist, 10 cm x 2 cm of redness on the right side of the back
(scapula region), redness on the right shoulder and a number of small patches
of redness around the right side of the back. It was also reported that the
applicant was unfit to work for three days. During the medical examination, the
police officers remained in the room.
According to a report drafted at 8 p.m. and
signed by thirteen police officers, the applicant was invited to the police
station, while he was passing by, in order to establish his work and home
address in accordance with the instructions of the Erzurum Enforcement Court
dated 4 March 2004. He refused and started shouting that they could not do
anything to him and that he was the chairman of the DEHAP. The police officers
called the public prosecutor, who ordered the applicant’s arrest. As a result
the applicant was taken for a medical examination. Upon his return, the
applicant, when asked to put his personal belongings on the table, became
aggressive and started to shout and threaten the officers and to throw his
clothes about. The applicant punched the glass door, causing it to shatter,
started hitting his head on a table and tried to hurt himself with broken
glass. In order to prevent him from hurting himself, he was handcuffed and was
later on taken for a medical examination.
On the same day, the police officers drafted
official documents regarding the incident. A number of them gave written
statements complaining about the applicant’s behaviour.
On 6 May 2004, at 9.30 a.m., the applicant was
examined by a doctor, who noted a superficial graze below his right wrist.
B. The criminal proceedings against the applicant
On 6 May 2004 the applicant was brought before
the Ardahan Magistrates’ Court. He denied the accusations against him and
reiterated the submissions he had made to the prosecutor. The court remanded
him in detention. Subsequent requests by the applicant for release were refused
on 7 and 11 May 2004 respectively.
On 14 May 2004 criminal proceedings were
instigated against the applicant for defamation, using physical violence
against police officers in the course of their duties and destroying State
property.
On 23 May 2004 the applicant was released pending
trial.
On 7 May 2007 the Ardahan Criminal Court found
the applicant guilty of defamation of a police officer under Article 258 of the
Criminal Code and sentenced him to 10 months’ imprisonment. The court further
found the applicant guilty under Article 516 of the Criminal Code of destroying
State property and sentenced him to 3 months and 10 days’ imprisonment.
On 5 June 2008 the Court of Cassation quashed
the judgment of the first-instance court for a reconsideration of whether the
pronouncement of the judgment could have been suspended for a period of five
years pursuant to Article 231 of the new Code of Criminal Procedure.
The case was accordingly remitted before the
first-instance court, which on 20 November 2008 decided that Article 231 of the
Criminal Procedure Code could not be applicable in the applicant’s case as he
had a previous criminal record. It accordingly repeated its previous judgment
and found the applicant guilty as charged.
On 19 December 2011 the Court of Cassation
upheld the applicant’s conviction in respect of destroying State property.
However, in respect of the offence of defamation of a police officer, the
appeal court found that the statutory time-limit had expired. It accordingly
dismissed the case in that respect.
C. The criminal proceedings against the accused police
officers
On 10 May 2004 the applicant filed an official
complaint with the Ardahan public prosecutor, complaining of ill-treatment in
police custody on 5 May 2004, and requested the identification and
prosecution of the police officers responsible.
On 11 May 2004 the Ardahan public prosecutor
heard evidence from the applicant. The latter also identified six police
officers from photographs.
Between 12 and 15 May 2004 the Ardahan public
prosecutor heard evidence from the accused police officers, who denied the
accusations against them.
On 13 May 2004 the Ardahan public prosecutor
heard evidence from Mr B.A.. In his statement, Mr B.A. explained that he
had seen the applicant being beaten and that he himself had been threatened,
sworn at and hassled when he had gone to take cigarettes to the applicant at
the police station. He explained that when the applicant refused to sign the
list of his personal belongings, a policeman started shouting and swearing at
him. The applicant resisted and shouted as well. When a police officer pushed
the applicant, he fell down and several police officers started hitting the
applicant in his stomach and back. Mr. B.A. explained that he had not seen how
the glass door had been broken. He stated that he also wished to file a
complaint against the police officers who had sworn at him.
On 17 May 2004 the Ardahan Public Prosecutor
filed an indictment with the Ardahan Criminal Court against eleven police
officers from the Ardahan Security Directorate, accusing them of ill-treating
the applicant and Mr B.A. The applicant did not join the criminal
proceedings as a civil party. On 7 July 2004 Mr B.A. informed the
court that he wished to withdraw his complaint against the police officers.
Throughout the trial, the police officers denied
the accusations. They stated that when the applicant had been asked to hand
over his personal belongings, he had become angry and started shouting at them.
According to the accused police officers, when the applicant tried hitting a
policewoman, he was taken to the meeting room. There, the applicant continued
his threats, shouting that he would kill them all once he was out. He also
broke the glass door, and said he would accuse all of them with ill‑treatment.
On 22 September 2004 the Ardahan Criminal Court
acquitted the police officers of the charges against them on the ground of lack
of evidence. In its decision the court held that the injuries noted in the
second medical report dated 5 May 2004 had been sustained when the applicant
had resisted the police officers. The court therefore held that the evidence in
the case file did not suffice to convict the accused officers. This judgment,
which was delivered in the applicant’s presence, became final on
30 September 2004 as no one appealed against it. The applicant, having
failed to intervene in the proceedings as a civil party, did not have the right
to appeal according to the Criminal Procedure Code.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant alleged that he had been subjected
to ill-treatment while in police custody. In respect of his complaints, the
applicant relied on Articles 3 and 13 of the Convention.
The Court considers that these complaints should
be examined from the standpoint of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested the allegations.
A. Admissibility
The Government argued that this part of the
application should be rejected for non-exhaustion of domestic remedies. In this
connection, they stated that the applicant should have intervened in the
criminal proceedings initiated against the accused police officers.
The Court notes that it
has already examined and rejected the Government’s similar preliminary
objections in previous cases (see Uyan v. Turkey (no. 2), no. 15750/02, § 48, 21 October 2008, and Keçeci v. Turkey (dec.), no. 38588/97, 17 October 2000). It finds no particular
circumstances in the instant case which would require it to depart from its
previous findings. Accordingly, it rejects the Government’s preliminary
objection.
The Court further notes that this complaint is
not manifestly ill‑founded within the meaning of Article 35 § 3 (a) 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 substantive aspect of Article 3
The Government argued that the applicant’s
allegations of ill‑treatment were unsubstantiated. They stated that the
injuries observed on the applicant’s body had been caused as a result of his own
actions. In this connection, they referred to the applicant’s contention that
he did not recall how he had sustained the injuries on his hand.
The Court reiterates that where an individual is
taken into custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible explanation of how
those injuries were caused and to produce evidence casting doubt on the
victim’s allegations, particularly if those allegations were corroborated by
medical reports, failing which a clear issue arises under Article 3 of the
Convention (Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).
In the instant case, after his arrest the
applicant was examined by a medical expert on 5 May 2004 at 6.30 p.m. and no
signs of ill-treatment were noted on his body. However, when the applicant was
examined at 7.30 p.m. the same day, the doctor who examined him found that
there was a cut measuring 0.5 cm on the inside of the right wrist, a
superficial cut on the outside of the wrist, a small graze on the third and
fourth fingers of the right hand, redness around the left wrist, 10 cm x 2 cm
of redness on the right side of the back (scapula region), redness on the right
shoulder and a number of small patches of redness around the right side of the
back. It was also reported that the applicant was unfit to work for three days.
The Court notes that at the end of the criminal
proceedings against the police officers, in a brief judgment the first instance
court stated that the injuries noted on the applicant’s body had been caused
during the scuffle between the applicant and the police at the police station.
The Court observes that the injuries observed on the applicant’s hand could
indeed be the result of him breaking the glass door. However, according to the
medical report, the applicant had also 10 cm x 2 cm of redness on the right
side of the back (scapula region), redness on the right shoulder and a number
of small patches of redness around the right side of the back. The domestic
court decision failed to shed any light on the origin of these injuries noted
on the applicant’s back, which matched at least the
applicant’s allegation of having been beaten and kicked as he was lying
on the floor.
Reiterating the authorities’ obligation to
account for injures caused to persons within their control in custody, the
Court considers in the present case that the respondent Government have failed to provide an explanation for the injuries, which were
undoubtedly sustained by the applicant while he was under the complete control
of the State authorities.
In the
circumstances of the present case, and considering the absence of a plausible
explanation from the Government as to the cause of the injuries sustained by
the applicant, the Court finds that these injuries were the result of
ill-treatment for which the Government bore responsibility.
It follows that there has been a substantive
violation of Article 3 of the Convention on account of the inhuman and
degrading treatment to which the applicant was subjected.
2. The procedural aspect of Article 3
The applicant complained about the
ineffectiveness of the investigation into his allegations of ill-treatment. He
alleged in particular that Mr B.A.’s statements had not been taken into account
and stated that the police officers had not left the examination room during
his medical examination by the doctor.
The Government contested the arguments.
The Court recalls that where an individual makes
a credible assertion that he has suffered treatment infringing Article 3 at the
hands of the police or other similar agents of the State, that provision, read
in conjunction with the State’s general duty under Article 1 of the Convention
to “secure to everyone within their jurisdiction the rights and freedoms
defined in ... [the] Convention”, requires by implication that there should be
an effective official investigation. Such an investigation should be capable of
leading to the identification and punishment of those responsible (see Labita
v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
The Court has found
above that the respondent State was responsible, under Article 3 of the
Convention, for the injuries sustained by this applicant. An effective
investigation was therefore required.
The Court firstly
notes that upon the applicant’s allegation of ill‑treatment, criminal
proceedings were promptly initiated against the accused police officers. In
this connection, it must be stressed that the obligation to investigate “is not
an obligation of result but of means”: not every investigation should
necessarily be successful or come to a conclusion which coincides with the
claimant’s account of events; however, it should in principle be capable of
leading to the establishment of the facts of the case and, if the allegations
prove to be true, to the identification and punishment of those responsible
(see Saçılık and Others v. Turkey (final on the merits
and partial just satisfaction), nos. 43044/05 and 45001/05, § 90, 5 July 2011). The Court will therefore examine whether the criminal
proceedings in the present case were capable of establishing the true facts
surrounding the applicant’s injuries and whether the Government have thus
satisfactorily discharged their burden of explaining them (see Özcan and
Others v. Turkey, no. 18893/05, § 73, 20 April 2010; Saçılık
and Others, cited above, § 91).
The Court observes
that in the acquittal decision dated 22 September 2004, the Ardahan Criminal
Court accepted the accused police officers’ version of the events and held that
the injuries observed on the applicant’s body had been caused when he resisted
the police officers. In its brief reasoning, the court did not make any
assessment of the statement of Mr B.A., who testified that he had seen the
applicant being beaten by the police officers. There is also no explanation as
to why the police officers’ statements were considered more credible than the
statements of the applicant and Mr B.A. Furthermore, the domestic court
decision did not provide any clarification as to how the applicant had
sustained the injuries observed in his back. In this connection, the Court also
takes note of the applicant’s allegation that during his medical examination
the police officers were present in the examination room. The Court reiterates
that the CPT(the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment) has underlined the importance of proper medical
examinations as an essential safeguard against ill-treatment of persons in
custody. Such
examinations must be carried out by a properly qualified doctor, without any
police officer being present. Practices such
as in the present case undermine the effectiveness and reliability of medical
examinations (see, Akkoç v. Turkey, nos. 22947/93 and 22948/93,
§ 118, ECHR 2000‑X.; Elci and Others v. Turkey, nos. 23145/93
and 25091/94, § 642, 13 November 2003).
The foregoing
considerations are sufficient to enable the Court to conclude that the domestic
proceedings in the instant case fell short of the requirements of Article 3 of
the Convention.
There has accordingly
been a violation of Article 3 under its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant
complained under Article 5 §§ 1 and 2 of the Convention that he had been
unlawfully and arbitrarily arrested and placed in detention on remand. Relying
on Articles 10 and 11 of the Convention, the applicant further complained that
he had been arrested on account of his political activities. Finally, under
Article 14 of the Convention the applicant alleged that he had been
discriminated against due to his Kurdish origin and political opinions.
However, an
examination by the Court of the material submitted to it does not disclose any
appearance of a violation of these provisions. It follows that this part of the
application is manifestly -ill-founded and
must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
The applicant claimed 30,000 euros (EUR) in
respect of non‑pecuniary damage.
The Government contested this claim.
The Court finds that
the applicant 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
applicant EUR 9,750 in respect of non‑pecuniary damage.
B. Costs and expenses
The applicant also claimed a total of 7,715 pounds
sterling (GBP) (equivalent to approximately EUR 9,400) in respect of legal fees
and for expenses.
The Government contested the claims.
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. The Court notes at the outset that no invoice has been
submitted to substantiate the costs and expenses. As regards the lawyers’ fees,
in view of the documents in its possession and the above criteria, the
Courtconsiders it reasonable to award the applicant the sum of EUR 4,000 to be
paid in pounds sterling to his representatives’ bank account in the United Kingdom.
C. Default interest
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 COURTUNANIMOUSLY
1. Declares the complaint concerning Article 3
of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention under its substantive and procedural aspects;
3. Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR
9,750 (nine thousand seven hundred and fifty euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into the
national currency of the respondent State at the rate applicable at the date of
settlement;
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be converted into pounds
sterling at the rate applicable at the date of settlement and to be paid into
his representatives’ bank account in the United Kingdom;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
