SECOND SECTION
CASE OF
ÇOŞELAV v. TURKEY
(Application no.
1413/07)
JUDGMENT
STRASBOURG
9 October 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 Çoşelav v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
Danutė Jočienė,
Dragoljub Popović,
Işıl Karakaş,
Guido Raimondi,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
1413/07) 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, Mrs Hanife Çoşelav and Mr Bekir
Çoşelav (“the applicants”), on 26 December 2006.
The applicants were represented by Mr Murat
Timur, a lawyer practising in Van. The Turkish Government (“the Government”)
were represented by their Agent.
The applicants alleged, in particular, that the
national authorities had failed to protect the right to life of their son while
he was being detained in prison.
On 6 September 2010 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 applicants were born in 1957 and 1961
respectively and live in Istanbul.
On 29 December 2003 the applicants’ then
sixteen-year-old son, Bilal Çoşelav, was serving a prison sentence in the
juvenile wing of Kars Prison when he made an attempt to take his own life by
hanging himself in the courtyard. Prison warders arriving at the scene resuscitated
him and he was subsequently returned to his prison wing. In a statement taken
by the prison governor, Bilal Çoşelav was reported as having explained that
he was finding it difficult to adapt to prison life and that he was suffering
from psychological problems.
Disciplinary proceedings were brought against
Bilal Çoşelav for his attempted suicide but the disciplinary board decided
not to impose a punishment. The board told him that “he was setting a bad
example to other inmates”, and warned him that if he were to do “such things”
again he would be treated more severely.
Bilal Çoşelav made another attempt to kill
himself on 19 January 2004 by taking an overdose. He was taken to hospital
for treatment and then on 28 January 2004 he was transferred to Erzurum Prison.
On 9 February 2004 a prisoner told the governor
of Erzurum Prison that Bilal Çoşelav had been “behaving oddly”, had talked
about hanging himself, and his behaviour had been causing concern in the
juvenile wing.
On the same day, Bilal Çoşelav was
transferred from the juvenile wing of the prison to another wing which housed adult
prisoners from his home town. According to a report drawn up by prison officers,
this had been at the request of Bilal Çoşelav, who had claimed that
“although his identity card showed that he was seventeen years old, he was
actually older” and could therefore be detained in an adult wing.
On 16 February 2004 Bilal Çoşelav told the
prison governor that he wanted to be transferred to another wing because he did
not get on with the people in his wing.
Between 27 February and 10 December 2004 Bilal Çoşelav
sent twenty-two letters to the prison governor and the prosecutor of Erzurum
Prison stating that he urgently needed to see the governor to discuss his
personal problems. On the few occasions on which his requests were granted he
told the governor that he wanted to be transferred to another wing in the
prison. He also informed the governor that he had not been visited regularly by
his family, that he did not have any money and that he wanted to work in the
prison to earn some.
According to two reports drawn up by prison officers,
on 15 December 2004 Bilal Çoşelav met with the deputy governor
and asked to be transferred to another cell. When his request was refused he tried
to attack a prison warder with a razor blade, kicked and broke the sink in his
cell and set fire to his mattress.
According to another report drawn up by prison officers,
on 17 December 2004, at approximately 10.00 a.m., Bilal Çoşelav injured
his head by repeatedly hitting it against his cell walls and was then taken to
the infirmary to have the injury treated. Later on the same day, he was brought
back to the wing and placed in a cell on his own.
At around 1.30 p.m. that same day, Bilal Çoşelav
hanged himself from the iron bars of his cell with his bed sheets. A doctor
arrived and for five minutes tried unsuccessfully to resuscitate him, finally
pronouncing him dead.
Later on the same day, the Erzurum prosecutor
and a doctor arrived at the prison and photographed Bilal Çoşelav’s body.
They then took the body to the local hospital where, on the same day, a
post-mortem examination was carried out. According to the post-mortem report,
the cause of death was asphyxia. Samples taken from the body were sent for
further forensic examination.
Between 17 and 21 December 2004 prosecutors
questioned the prison officers. Their statements agreed with the
above-mentioned reports. The prisoners questioned by the prosecutors stated
that they had not seen the incident. Both the prison officers and the prisoners
claimed that they knew Bilal Çoşelav had problems.
It appears from a report that, on 30 December
2004, a prosecutor instructed the prison governor to inform the family of Bilal
Çoşelav’s death. Later on the same day the prison governor obtained the
telephone number of the second applicant (Bekir Çoşelav) from the prison records
and informed him of the death of his son.
On 3 January 2005 the second applicant formally
identified the body of his son. On the same day, the prosecutor released the
body for burial.
On 7 January 2005 the second applicant met with
the Erzurum prosecutor and told him that he had not been informed of the death
of his son until 30 December 2004. He alleged that Bilal had not had
any problems with his family and that he might have been killed by two prison warders
with whom he had argued in the days leading up to his death. He also wanted the
prison officers prosecuted for their failure to inform him promptly of his son’s
death.
Proceedings were brought by the disciplinary
board of the prison against two prison warders who had been on duty in Bilal Çoşelav’s
wing on the day he committed suicide. On 3 February 2005 the disciplinary board
decided to give formal warnings to these warders. It was noted in the disciplinary
board’s report that the large number of cells in the wing had made it
impossible for the warders to keep a constant watch on Bilal Çoşelav, who
had been suffering from psychological problems. However, adequate precautions
could have been taken by increasing the number of prison warders there, which
would have ensured that he was under sufficient surveillance.
On 10 February 2005 both applicants, with the
assistance of their legal representative, submitted a detailed complaint to the
prosecutor claiming, inter alia, that the iron bars from which their son
had allegedly hanged himself were too low - for a person of his height (180 cm)
- to have been effective for this purpose.
The doctors who had examined the samples taken
from Bilal Çoşelav’s body stated in their report of 29 March 2005 that his
death had been caused by hanging.
On 29 April 2005 the Erzurum prosecutor decided
to close the criminal investigation stating that, in his opinion, no one had
incited or encouraged Bilal Çoşelav to commit suicide.
On 3 May 2005 the Directorate for Prisons
informed the second applicant that disciplinary proceedings had been brought
against the prison officers who had failed to inform the family of the suicide
of their son.
The applicants filed an objection against the
prosecutor’s decision to close the criminal investigation. They argued that the
prosecutor had failed to carry out a thorough investigation into the facts
surrounding their son’s death.
The objection was dismissed by the Oltu Assize Court on 7 February 2006. That decision was communicated to the
applicants on 6 September 2006.
In the meantime, on 21 November 2005, the
applicants wrote to the Ministry of Justice claiming compensation for the death
of their son. In their letter the applicants argued, inter alia, that
even assuming that their son had committed suicide, this was on account of the
prison authorities’ failure to take adequate steps to protect his right to
life. When the Ministry of Justice failed to respond to their letter, the
applicants brought an action against the Ministry before the Erzurum Administrative Court on 8 February 2006.
On 29 December 2006 the Erzurum Administrative
Court, by a majority of two to one, rejected the applicants’ case, with the majority
considering that the prison authorities could not be blamed for Bilal Çoşelav’s
suicide, which had occurred as a result of his family problems. The dissenting judge,
however, noted in his separate opinion that Bilal Çoşelav was being held
in an adult wing of the prison in breach of the applicable domestic law, which
required that he be kept in a juvenile wing. The judge argued that the
possibility that his detention with adults had contributed to his psychological
problems could not be excluded. He added that the fact that Bilal had repeatedly
asked to be transferred showed that he had been having problems with the adult prisoners
in his wing. The dissenting judge concluded by arguing that Bilal Çoşelav should
have been kept under constant observation, at least on that particular day when
he had injured himself by hitting his head against the wall, some hours before
he had succeeded in killing himself.
On 12 March 2007 the applicant lodged an appeal
against the Erzurum Administrative Court’s decision. On 15 December 2010 the Supreme Administrative Court quashed the decision and held that the file should be returned
to the Erzurum Administrative Court for reconsideration. In its decision the
Supreme Administrative Court also referred to the prison disciplinary board’s
conclusion (see paragraph 21 above), and concluded that the decision adopted by
that disciplinary board proved that the prison authorities had acted in breach
of their duties by failing to ensure an adequate watch on Bilal Çoşelav,
who had been suffering from psychological problems. It also held that the
prison authorities’ failure to inform the family in a timely manner of the
death of their son must have contributed to the family’s suffering. According
to the information provided by the applicants, the Ministry of Justice
requested a rectification of the Supreme Administrative Court’s decision and
the examination of that request is still continuing before the Supreme Administrative Court.
II. RELEVANT DOMESTIC LAW
Article 107 (b) of the Regulations on Prison
Administration and Execution of Sentences (which entered into force on 5 July
1967 and was repealed in 2006) stipulated that prisoners under the age of eighteen
were to be kept separately from other prisoners. According to Article 106 of
the Regulations, prisoners were to be given the opportunity to “inform prison
governors, prosecutors and the Ministry of Justice of their complaints and
requests”.
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. Council of Europe
Recommendation Rec(2006)2
of the Committee of Ministers to member States on the European Prison Rules of 11
January 2006 (“the European Prison Rules”) includes in its basic principles:
“...
11.1 Children under the age of 18 years should not be detained
in a prison for adults, but in an establishment specially designed for the
purpose.
11.2 If children are nevertheless exceptionally held in such a
prison there shall be special regulations that take account of their status and
needs.
...
35.1 Where exceptionally children under the age of 18 years are
detained in a prison for adults the authorities shall ensure that, in addition
to the services available to all prisoners, prisoners who are children have
access to the social, psychological and educational services, religious care
and recreational programmes or equivalents to them that are available to
children in the community.
...
35.4 Where children are detained in a prison they shall be kept
in a part of the prison that is separate from that used by adults unless it is
considered that this is against the best interests of the child.
...”
The recommendation of the Committee of Ministers
to Member States of the Council of Europe on social reactions to juvenile
delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th
meeting of the Ministers’ Deputies, in so far as relevant, reads as
follows:
“Recommends the governments of member states to review, if
necessary, their legislation and practice with a view: ...
7. to exclude the remand in custody of minors, apart
from exceptional cases of very serious offences committed by older minors; in
these cases, restricting the length of remand in custody and keeping minors
apart from adults; arranging for decisions of this type to be, in principle,
ordered after consultation with a welfare department on alternative proposals
...”
. In the report pertaining to its
visits carried out in Turkey between 5 and 17 October 1997 (CPT/Inf
(99) 2 EN, publication date: 23 February 1999), the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(“the CPT”) expressed its serious misgivings “as regards the policy of having
juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in
adult prisons”.
. In a report on its visit to Turkey between 16 and 29 March 2004 (CPT/Inf (2005) 18), the CPT stated the following:
“[i]n the reports on its visits in 1997 and September 2001, the
CPT has made clear its serious misgivings concerning the policy of having
juveniles who are remanded in custody placed in prisons for adults. A
combination of mediocre material conditions and an impoverished regime has all
too often created an overall environment which is totally unsuitable for this
category of inmate. The facts found in the course of the March 2004 visit have
only strengthened those misgivings. Here again, the laudable provisions of the
Ministry of Justice circular of 3 November 1997 (‘the physical conditions of
the prison sections allocated to juvenile offenders shall be revised and
improved to conform with child psychology and enable practising educative
programmes, aptitude intensive games and sports activities’) have apparently
had little practical impact.”
B. United Nations
36. The
1989 United Nations Convention on the Rights of the Child (hereafter,
“the UN Convention”), adopted by the General Assembly of the United
Nations on 20 November 1989, has binding force under international law on the
Contracting States, including all of the member States of the Council of Europe.
Article
1 of the UN Convention states:
“For the purposes of the present Convention, a child means
every human being below the age of eighteen years unless, under the law
applicable to the child, majority is attained earlier.”
Article
3(i) states:
“In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration.”
Article
37 (c) provides:
“States Parties shall ensure that:
(c) Every child deprived of liberty shall be treated
with humanity and respect for the inherent dignity of the human person, and in
a manner which takes into account the needs of persons of his or her age. In
particular, every child deprived of liberty shall be separated from adults
unless it is considered in the child’s best interest not to do so and shall
have the right to maintain contact with his or her family through
correspondence and visits, save in exceptional circumstances; ...”
Article
40 provides in so far as relevant:
“1. States Parties recognise the right of every child
alleged as, accused of, or recognised as having infringed the penal law to be
treated in a manner consistent with the promotion of the child’s sense of
dignity and worth, which reinforces the child’s respect for the human rights
and fundamental freedoms of others and which takes into account the child’s age
and the desirability of promoting the reintegration and the child’s assuming a
constructive role in society.
...”
The relevant part of the Concluding Observations
of the United Nations Committee on the Rights of the Child in respect of Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows:
“65. ... The fact that detention is not used as a
measure of last resort and that cases have been reported of children being held
incommunicado for long periods is noted with deep concern. The Committee is
also concerned that there are only a small number of juvenile courts and none
of them are based in the eastern part of the country. Concern is also expressed
at the long periods of pre-trial detention and the poor conditions of
imprisonment and at the fact that insufficient education, rehabilitation and
reintegration programmes are provided during the detention period.
66. The Committee recommends that the State party
continue reviewing the law and practices regarding the juvenile justice system
in order to bring it into full compliance with the Convention, in particular articles
37, 39 and 40, as well as with other relevant international standards in this
area, such as the United Nations Standard Minimum Rules for the Administration
of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for
the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to
raising the minimum legal age for criminal responsibility, extending the
protection guaranteed by the Juvenile Law Court to all children up to the age
of 18 and enforcing this law effectively by establishing juvenile courts in
every province...”
According to UNICEF, the juvenile justice system was in its infancy in Turkey in 2008. Judges were still learning about child-sensitive detention centres,
alternative dispute resolution procedures and due process for children in
conflict with the law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3, 6 AND 13
OF THE CONVENTION
In their application form the applicants
complained, under Articles 2 and 3 of the Convention, about the death of
their son. They alleged that he had either been deliberately killed or that the
authorities had failed to take the necessary precautions to protect his right
to life. Relying on Articles 6 and 13 of the Convention, the applicants
also complained that the authorities had failed to conduct an effective
investigation into the circumstances surrounding his death.
In their observations on the admissibility and
merits of the case the applicants did not maintain their allegation that their
son had been killed deliberately, but continued to hold that the national
authorities had failed to take necessary steps to protect his right to life.
The Court considers that the applicants’
complaints should be examined solely from the standpoint of Article 2 of the
Convention, which provides, in so far as relevant, as follows:
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
...”
The Government contested the applicants’
arguments.
A. Admissibility
The Government argued that the applicants had
failed to exhaust domestic remedies because the proceedings for compensation
were still pending before the Supreme Administrative Court.
The Court reiterates that, if the infringement
of the right to life or to physical integrity is not caused intentionally, the
positive obligation to set up an “effective judicial system” does not
necessarily require criminal proceedings to be brought in every case and might be
satisfied if civil, administrative or even disciplinary remedies were available
to the victims (see, for example, Mastromatteo
v. Italy [GC], no. 37703/97, §§ 90, 94
and 95, ECHR 2002-VIII,and Vo
v. France [GC], no. 53924/00, § 90, ECHR 2004-VII).
In the present case the consideration of the Government’s
objection to the admissibility of this complaint requires an examination to be
made of the effectiveness of the administrative proceedings brought by the applicants.
As such, it is closely linked to the
substance of the applicants’ complaints and cannot be examined at this stage of
the proceedings. The Court thus concludes that the Government’s objection
should be joined to the merits (see paragraph 78 below). Noting that no other
obstacle to its admissibility exists, the Court declares the complaint
admissible.
B. Merits
The applicants maintained that there was a
causal link between the prison authorities’ negligent behaviour and their son’s
death, and that the authorities had failed to take the necessary steps to
protect the right to life of their son, notwithstanding the fact that he was known
to be at risk of killing himself. They submitted that, as an absolute minimum, their
son could have been seen by a specialist. Furthermore, the prison authorities
could have kept him under constant watch at least on that particular day on
which he had injured himself - just hours before his death.
The applicants also complained that no effective
investigation had been carried out by the authorities and that the post mortem
examination had not been conducted in accordance with the applicable procedure.
Had they been informed about the death of their son immediately, they would
have hired their own forensic expert to attend the post mortem examination and
could thus have eliminated the family’s suspicions of the involvement of a
third party in their son’s death. The applicants also alleged that the investigating
authorities had not questioned all the witnesses.
The Government submitted that the applicants’
son had experienced problems adapting to the prison regime and had attempted to
kill himself on a number of occasions. After each of those attempts the
authorities had been “patient” and taken him to the infirmary. They had thus
taken the necessary precautions promptly in order to protect his right to life.
The Government also submitted that, at the time
of his death, Bilal Çoşelav had been detained in a prison wing appropriate
for his age and condition.
In the Government’s opinion, the prison authorities
could not have foreseen that Bilal Çoşelav would commit suicide.
Nevertheless, the authorities had done all that was necessary to prevent that occurrence.
Although Bilal Çoşelav had shown signs of mental and emotional disturbance
on occasions, his suicide could not have been predicted from his behaviour and
the prison staff could not be criticised for failing to recognise his mental
state or for not having taken sufficient preventive measures to avoid his
suicide.
The Government also claimed that an effective
investigation had been conducted by the authorities. It had not been possible
to inform the family promptly because the authorities had been unable to contact
them. The second applicant had been contacted on 3 January 2005 and called to
the hospital to identify the body of his son. Afterwards the applicants had
been in a position to take an active part in the investigation.
1. The Government’s alleged responsibility for Bilal Çoşelav’s
death
The Court reiterates that Article 2 of the
Convention, which safeguards the right to life, ranks as one of the most
fundamental provisions in the Convention. Together with Article 3, it also
enshrines one of the basic values of the democratic societies making up the Council
of Europe. The object and purpose of the Convention as an instrument for the
protection of individual human beings requires that Article 2 of the Convention
be interpreted and applied so as to make its safeguards practical and effective
(see McCann
and Others v. the United Kingdom, 27 September 1995, §§ 146-47,
Series A no. 324).
The first sentence of Article 2 § 1 of the
Convention enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to safeguard the
lives of those within its jurisdiction (see L.C.B. v. the United Kingdom,
9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). As
regards the rights of prisoners, the Court has had previous occasion to
emphasise that persons in custody are in a vulnerable position and that the
authorities are under a duty to protect them. It is incumbent on the State to
account for any injuries suffered in custody, an obligation which is
particularly stringent when an individual dies (see, for example, Salman
v. Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII).
Bearing in mind the difficulties in policing
modern societies, the unpredictability of human conduct and the operational
choices which must be made in terms of priorities and resources, the scope of
the positive obligation must be interpreted in a way which does not impose an
impossible or disproportionate burden on the authorities. Accordingly, not
every alleged risk to life can entail for the authorities a Convention
requirement to take operational measures to prevent that risk from
materialising. For a positive obligation to arise regarding a prisoner with
suicidal tendencies, it must be established that the authorities knew, or ought
to have known at the time, of the existence of a real and immediate risk to the
life of an identified individual and, if so, that they failed to take measures
within the scope of their powers which, judged reasonably, might have been
expected to prevent that risk from materialising (see Keenan
v. the United Kingdom, no. 27229/95, §§ 89 and 92, ECHR
2001-III).
The Court has recognised in the past that prison
authorities must discharge their duties in a manner compatible with the rights
and freedoms of the individual prisoner concerned. There are general measures
and precautions which ought to be available to diminish the opportunities for
self-harm, without infringing personal autonomy (ibid., § 92).
Turning to the facts of the present application,
the Court observes that the Government, while claiming that it was not possible
for the prison staff to foresee that Bilal Çoşelav would commit suicide,
also maintained that all possible steps had been taken by the prison
authorities to prevent him from doing so.
In the light of the documents detailing his two
suicide attempts, his repeated requests for help and the incidents of self-harm,
the Court considers that the prison authorities had been given ample indication
that Bilal Çoşelav was at risk of suicide. Indeed, the fact that he had been
suffering with psychological problems was documented by almost every national
authority who dealt with him or his death, and every prisoner and prison officer
was aware of his problems.
The Court also considers, like the
Administrative Court judge who dissented from the majority decision rejecting
the applicants’ compensation claim (see paragraph 29 above), that the detention
of Bilal Çoşelav - who had already made two attempts to kill himself - in
contravention of the applicable domestic Regulations (see paragraph 31 above)
and in a wing together with adult prisoners may well have contributed to his
existing problems which, in turn, tragically led him to take his own life. In
this connection, the Court cannot accept the respondent Government’s
submissions that, at the time of his death, Bilal Çoşelav was detained in
a wing designed for juvenile prisoners, when, according to the documents
summarised above, he was clearly being kept together with adults (see paragraph
10 above).
The decision to transfer him to the adult wing,
according to a prison report, was taken at the request of Bilal Çoşelav
himself. The Court finds it surprising that such a request was considered without
any verification of his age, and considers that decision to be a clear
illustration of the prison authorities’ lack of respect for both the domestic
regulations and the international instruments regulating the detention of
juvenile prisoners.
The Court observes that the detention of
Bilal Çoşelav in an adult wing was in contravention of the applicable regulations
which were in force at the time (see paragraph 31 above) and which laid down Turkey’s obligations under international treaties. The unlawful practice of detaining
minors with adults at that time, as well as the Turkish authorities’ failure to
cater for the needs of juvenile prisoners, were noted and criticised by the United Nations Committee on
the Rights of the Child, the CPT
and UNICEF (see paragraphs 32-38 above).
. The Court has also previously had
occasion to examine the issue of the detention of minors in adult prisons in
its judgment in the case of Güveç v. Turkey, where the applicant - a
minor at the time - was being held on pre-trial detention in an adult prison
and made numerous attempts to take his own life. The Court concluded, in that
judgment, that the detention of the applicant in a prison with adults had increased
his psychological problems which, in turn, had led to his repeated
attempts to take his own life (no. 70337/01, § 92, ECHR 2009 (extracts)).
Having regard to the fact that the national
authorities were aware of Bilal Çoşelav’s problems, the Court considers
that those authorities were under an obligation to take “measures within the
scope of their powers which, judged reasonably, might have been expected to
avoid that risk” (ibid.). In the circumstances of the present
application, that obligation did not only require them to keep a constant watch
on Bilal Çoşelav, but also to provide adequate medical help for his
psychological problems. The Court will thus examine whether any such steps were
taken by the national authorities.
According to the documents in the case file, the
first indication that Bilal Çoşelav was at risk of suicide was his first
attempt to take his own life in the courtyard of Kars Prison on 29 December
2003. After having been resuscitated he was simply returned to his cell and the
prison authorities’ only response was to threaten him with disciplinary action
for “setting a bad example to other inmates” by attempting to take his own life
(see paragraph 7 above).
His second attempt to kill himself on 19 January
2004 also failed to induce the authorities to provide him with the psychological
assistance he evidently needed. Instead, some nine days later the authorities transferred
him to Erzurum Prison and placed him in an adult wing.
The indifference displayed by the prison
authorities towards Bilal Çoşelav’s problems continued in Erzurum Prison,
notwithstanding his repeated requests for help. The Court considers it
unfortunate that such indifference was referred to as “patience” by the
respondent Government (see paragraph 48 above). In the opinion of the Court, what
Bilal Çoşelav needed at the time was urgent and specialist help - not
patience or threats of disciplinary sanctions. Moreover, contrary to the
respondent Government’s submission (see paragraph 48 above), the fact that,
after each suicide attempt, Bilal Çoşelav was examined at the infirmary is
not sufficient to deduce that he was provided with adequate medical care; the
subject matter for the Court’s examination is not whether or not adequate steps
were taken to resuscitate him, but whether or not reasonable steps were taken
to prevent him from attempting to take his own life in the first place.
The gradual worsening of Bilal Çoşelav’s problems
and his frustration must have become apparent to the prison authorities when,
after his request to be transferred to another ward was rejected by the deputy governor
of the prison on 15 December 2004, he tried to attack a prison warder
with a razor blade, kicked and broke the sink in his cell and set fire to his
mattress.
The serious and critical level to which his
state of mind had deteriorated in the final hours of his life was demonstrated
when he repeatedly hit his head against the walls of his cell at 10.00 a.m. on 17 December
2004. His head injury was treated in the prison infirmary and he was then
returned to his cell, where, within a matter of hours, he hanged himself at
1.30 p.m.
The Court considers that no adequate watch was
kept on Bilal Çoşelav by the prison authorities. The Court finds it
striking that after having harmed himself by hitting his head against the
walls, Bilal Çoşelav was left in his cell on his own, without any
supervision. In this connection, the Court notes that the failure to keep an
adequate watch on him was also noted by Erzurum Prison’s disciplinary board,
which stated that this failure had been due to a shortage of staff (see
paragraph 21 above).
Having regard to the disciplinary proceedings
brought against Bilal Çoşelav and the indifference displayed to his grave
psychological problems, the Court concludes that the national authorities were
not only responsible for the deterioration of Bilal Çoşelav’s problems by detaining
him with adult prisoners, but also manifestly failed to provide any medical or
other specialist care to alleviate those problems.
In the light of the foregoing the Court finds
that there has been a violation of Article 2 of the Convention in its
substantive aspect owing to the national authorities’ failure to protect the
right to life of Bilal Çoşelav.
2. Effectiveness of the criminal investigation and the
administrative proceedings concerning Bilal Çoşelav’s death
. The
Court reiterates that where lives have been lost in circumstances potentially
engaging the responsibility of the State, Article 2 of the Convention entails a
duty for the State to ensure, by all means at its disposal, an adequate
response - judicial or otherwise - so that the legislative and administrative
framework set up to protect the right to life is properly implemented and any
breaches of that right are repressed and punished (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 91, ECHR 2004-XII, and Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54,
ECHR 2002-II). What an effective investigation in this context entails was
recently summarised by the Court in its judgment in the case of Shumkova v.
Russia (no. 9296/06, §§
106-109, 14 February 2012).
In the present case two sets of proceedings were
instigated into Bilal Çoşelav’s death. The first is the criminal
investigation which began when the prosecutor became aware of the death on 17
December 2004, and ended on 29 April 2005 when that prosecutor decided that no
one had incited or encouraged Bilal Çoşelav to commit suicide. The applicants’
objection against the prosecutor’s decision was rejected by the Oltu Assize Court on 7 February 2006.
The Court reiterates that one of the important
requirements of an effective investigation is the existence of a sufficient
element of public scrutiny of the investigation or its results to secure
accountability in practice as well as in theory. The degree of public scrutiny
required may well vary from case to case. In all instances, however, the
next-of-kin of the victim must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interests (see Güleç v. Turkey, 27 July 1998, §§ 78 and 82, Reports 1998-IV).
In the present case the applicants were not
informed of the death of their son until 30 December 2004. Thus, for a period
of thirteen days the applicants were not only unable to participate in the
investigation, but were also not informed about the steps taken by the
prosecutors.
The Government submitted that the authorities
had been unable to contact the family promptly because they could not find
them. Nevertheless, the Court observes that, according to the documents
submitted by the Government, contact details of Bilal Coşelav’s family
were already in the prison records and, indeed, the prison governor obtained
the telephone number of the second applicant, Bekir Çoşelav, from those
records and informed him on 30 December 2004 when instructed do to so by the
prosecutor (see paragraph 18 above). The Court thus cannot find credible the
Government’s submissions about the authorities’ inability to contact the family
in the immediate aftermath of the incident. It therefore considers that the
family were prevented from taking part in the investigation in its early and
crucial stages directly as a result of the authorities’ failure to inform them
in a timely manner.
The Court notes that no attempts appear to have
been made by the prosecutor to examine any alleged failures in preventing Bilal
Çoşelav from committing suicide. It was sufficient for the prosecutor to
establish that he had taken his own life and that no one had incited him to do
so. There are no documents in the file to show, for example, that the
prosecutor made enquiries about any reasons which may have led Bilal
Çoşelav to take his own life and whether there had been any actions or
omissions attributable to the prison officers. Taking such steps would have
been a logical way to proceed in the investigation and would have been in
compliance with the respondent State’s positive obligations under Article 2 of
the Convention to take pre-emptive steps to protect the right to life of those
under their control.
The second set of proceedings into Bilal
Çoşelav’s death is the administrative proceedings which are currently
pending before the Supreme Administrative Court. Having regard to the lengthy
period which has elapsed since they were instigated, the Court considers that they
do not meet the requirement of promptness and reasonable expedition implicit in the context of effective investigations
(see Yaşa v. Turkey, 2 September 1998, § 103, Reports
1998-VI).
Furthermore, as already noted above (see paragraph
45 above), the Court considers that in cases concerning positive obligations
under Article 2 of the Convention, compensation proceedings may be regarded as
an effective remedy. In the present case the administrative courts could have
examined the applicants’ claims within a reasonable time, to decide whether or
not the prison authorities had been negligent in the matter of the death of
their son. Nevertheless, the proceedings which were initiated in 2006 are still
pending before the Supreme Administrative Court (see paragraph 30 above).
Having regard to the national courts’ failure to show diligence in expediting
those proceedings, the Court finds that the applicants were not required to
await their conclusion before lodging their application with it. It therefore
rejects the Government’s objection based on the issue of exhaustion of domestic
remedies (see paragraph 45 above), and concludes that the national authorities
have failed to carry out an effective investigation capable of establishing the
responsibility of those whose actions or failures led to Bilal Coşelav’s
death. It follows that there has been a violation of Article 2 of the
Convention in its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicants alleged, without
specifying in which respect, a violation of Article 5 § 1 (a), (b), (d) and (e)
of the Convention. Under Article 14 of the Convention and Protocol No. 12 to
the Convention, the applicants also alleged that their son’s rights under the
Convention had been violated because of his Kurdish origin. Finally, the
applicants alleged a violation of Articles 17 and 18 of the Convention.
Concerning the complaint under Protocol No. 12
to the Convention the Court observes that Turkey has not ratified that Protocol.
The applicants’ complaint in this regard is therefore incompatible ratione personae with the Convention and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
The Court has examined the applicants’ remaining
complaints. It finds that, in the light of all the material in its possession,
those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols. It follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. 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
The applicants claimed 200,000 euros (EUR) in
respect of pecuniary and EUR 200,000 in respect of non-pecuniary damage.
The Government considered the sums claimed to be excessive
and unsubstantiated by documentary evidence.
On account of the applicants’ failure to submit
documentary evidence in support of their claim for pecuniary damage, the Court cannot
determine any causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. On the other hand, it awards the applicants
jointly EUR 45,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed EUR 99,549 for the
costs and expenses incurred before the domestic courts and for those incurred
before the Court. In respect of EUR 9,549 of that claim the applicants
submitted a timesheet to the Court, showing that a total of thirty-one hours had
been spent by their legal representative on the case. In respect of their claim
for the remaining EUR 90,000 the applicants argued that they had agreed to
pay that sum to their legal representative in fees.
The Government considered the sum claimed to be
excessive and unsupported by any documentary evidence. They also invited the
Court not to make an award in respect of the costs and expenses incurred at the
national level.
In response to the Government’s argument
concerning the costs and expenses relating to the proceedings at the national
level, the Court reiterates that, if it finds that there has been a violation
of the Convention, it may award the applicant the costs and expenses incurred
before the domestic courts for the prevention or redress of the violation (see Société
Colas Est and Others v. France, no. 37971/97, §
56, ECHR 2002-III, and the cases cited therein). In the present case the
applicants brought the substance of their Convention rights, that is, their son’s
right to life, to the attention of both the prosecutors and the administrative
courts. The Court thus considers that the applicants have a valid claim in
respect of part of the costs and expenses incurred at the national level.
The Court also observes that, contrary to the
Government’s assertion, the applicants did submit a timesheet to the Court showing the hours spent by their lawyer on the
case. It also observes that such time sheets have been accepted by the Court as
supporting documents in a number of cases (see, inter alia, Beker v. Turkey, no. 27866/03, § 68, 24 March 2009
and the cases cited therein).
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. Regard being had to the documents in its possession
and the above criteria, the Court considers it reasonable to award the sum of
EUR 4,000 covering costs under all heads.
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 COURT UNANIMOUSLY
1. Joins to the merits the Government’s
objection to the admissibility of the complaints under Article 2 of the
Convention, and dismisses it;
2. Declares the complaints concerning the
applicants’ son’s right to life admissible and the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 2 of the Convention in its substantive aspect on account of the
national authorities’ failure to protect the right to life of the applicants’
son Bilal Çoşelav;
4. Holds that there has been a violation of
Article 2 of the Convention on account of the national authorities’ failure to
carry out an effective investigation into the death of the applicants’ son;
5. Holds
(a) that the respondent State is to pay the applicants
jointly, 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 the currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 45,000 (forty-five thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 4,000 (four thousand euros), 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;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Ineta
Ziemele
Registrar President
