SECOND SECTION
CASE OF
BOZDEMİR AND YEŞİLMEN v. TURKEY
(Application no.
33860/03)
JUDGMENT
STRASBOURG
9 July 2013
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 Bozdemir and Yeşilmen v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 18 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
33860/03) 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 Gülçin (Yeşilmen)
Bozdemir and Mrs Maşallah Yeşilmen (“the applicants”), on 6 August
2003.
The applicants were represented by Mrs F.
Karakaş Doğan and Mrs E. Keskin, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
The applicants alleged that they had been
deprived of their right to liberty and security, that they had been subjected
to ill-treatment while in police custody and that they had been denied an
effective remedy in respect of their complaints of ill-treatment. The
applicants invoked Articles 3, 5, 6 and 13 of the Convention.
On 11 September 2007 the Court declared the
application partly inadmissible and decided to communicate the complaints
concerning the applicants’ alleged deprivation of liberty, their ill-treatment
while in police custody, and the lack of effective remedies to the Government.
It 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 1970 and 1979
respectively and live in Istanbul. They are the sister and wife of Ş.Y.,
allegedly a member of the PKK (the Kurdistan Workers’ Party), an illegal
organisation.
A. The facts as alleged by the applicants
On 28 November 1997, at 1 a.m. and 4 a.m.
respectively, the applicants’ separate flats were raided by police officers
from the anti-terrorist branch of the Istanbul
Police Headquarters. They were looking for Şabettin Yeşilmen.
Subsequently, they took him and the applicants and their children into custody.
The applicants and their children were subjected
to ill-treatment both when at their flats and when they were taken to the
police headquarters. In particular, Gülçin Bozdemir, who was pregnant at the
time, was stripped naked, beaten, insulted and threatened with the killing of
her children. She lost her baby as a result of the ill-treatment
deliberately inflicted on her by the police officers. She concealed this for
cultural reasons and never mentioned it until after the application was
communicated to the Government. She was also forced to watch her brother being
tortured.
Maşallah Yeşilmen was insulted and
threatened with the killing and torture of her children. She was beaten with a
truncheon. She received blows to her hands and abdomen. She was stripped naked
and threatened with rape in the presence of her husband.
On the same day, when Şabettin Yeşilmen
confessed to the charges against him, allegedly as a result of the
ill-treatment that he and his family members had suffered, the applicants and
their children were taken home by the police. The detention of the applicants
and their children at the Istanbul Police
Headquarters was not recorded.
On 2 December 1997 the applicants lodged a
complaint with the Fatih public prosecutor’s office, claiming that they had
been taken into custody on 28 November 1997 and subjected to ill-treatment
at the Istanbul Police Headquarters.
On the same day, Gülçin
Bozdemir was examined by a doctor from the
Istanbul branch of the Human Rights Foundation of Turkey, who observed a purple
bruise measuring 8 x 5 cm on her upper left arm, a purple bruise of 6 x 2 cm on
her left biceps, a purple bruise of 4 x 4 cm on her right biceps, a purple
bruise of 7 x 5 cm and a yellow-green bruise of 3 x 2 cm on her left thigh, and
a purple bruise of 3 x 4 cm on her left foot. The doctor diagnosed Gülçin Bozdemir as suffering from, inter alia, soft
tissue trauma, an upper respiratory tract infection and an acute stress disorder. On 28 July 1998 a
committee of three doctors from the same organisation drafted a medical report
on Gülçin Bozdemir’s medical examination and concluded that the diagnosis of
soft tissue trauma and acute stress disorder was consistent with the applicant’s
allegations of ill-treatment, and that it was possible that the applicant’s upper
respiratory tract infection was the result of the alleged ill-treatment.
On 3 December 1997, at the request of the Fatih
public prosecutor, the applicants were examined by a doctor at the Istanbul branch of the Institute of Forensic Medicine. The doctor reported the following
in respect of Maşallah Yeşilmen:
“There are purple and yellow bruises on the left palm. She
complains of pain in her neck.”
As regards Gülçin Bozdemir, the
doctor reported the following:
“Purple-green bruises of 3 cm and 2 cm in diameter are observed
on the left and right biceps respectively. There are also purple-green
bruises of 1.5 cm and 2 cm in diameter on the left thigh and left foot.”
. The
doctor certified Gülçin Bozdemir and Maşallah
Yeşilmen unfit for work for three days and one day respectively.
On an unspecified date Şabettin
Yeşilmen contended before the court which tried him that his sister, Gülçin Bozdemir, had been tortured in front of him
when he was in police custody.
On 13 April 2000 the Fatih public prosecutor
issued a decision not to prosecute six police officers from the anti-terrorist branch of the Istanbul Police Headquarters.
In his decision, the public prosecutor noted that there was no evidence, such
as an arrest report, or documents containing statements by the applicants or
witnesses, in support of the applicants’ allegation that they had been taken
into police custody on 27 and 28 November 1997. He therefore concluded
that there was insufficient evidence to commit the police officers for trial in
connection with the applicants’ allegations of ill-treatment.
. The
decision of 13 April 2000 was not served on the applicants or their
representatives. The applicants’ representatives obtained the decision from the
Fatih public prosecutor’s office in October 2002.
. On
30 October 2002 the applicants lodged an
objection against the decision of 13 April
2000. In support of it, they submitted the
report dated 28 July 1998 concerning
Gülçin Bozdemir’s medical examination (see paragraph 11 above).
. On
11 April 2003 the Beyoğlu Assize Court dismissed the applicants’
objection, holding that the decision of 13
April 2000 was in accordance with the law.
B. The facts as alleged by the Government
On 3 December 1997 the applicants’ lawyer lodged
a complaint with the Istanbul Chief Public Prosecutor’s office alleging that
the applicants had been taken into custody on 27 November 1997 and had been
subjected to ill-treatment by the police officers on duty. The lawyer
requested a medical examination of the applicants.
On the same day, the applicants underwent
medical examinations at the Istanbul Forensic Medicine Institute. The medical
report issued by the doctors stated that Maşallah Yesilmen had an
ecchymosis on her palm and Gülçin Bozdemir had bruises on her arms and left
foot.
On 4 December 1997 the applicants’ legal
representative filed an application with the Fatih public prosecutor’s office
in Istanbul complaining that on the night of 27 November 1997 the applicants
had been arrested, together with their husbands, at their homes and had been
taken to the Security Directorate by police officers from the anti-terrorist
department. She alleged that the applicants had been beaten during the arrest
in the presence of their children and that ill-treatment in the form of
beatings, insults and threats had continued at the Security Directorate.
Relying on the medical reports issued by the forensic doctor, she claimed that
the applicants had been unfit for work for one and three days respectively. She
thus requested the prosecuting authorities to carry out an investigation and to
bring the police officers involved in the ill-treatment to justice.
The Fatih public prosecutor immediately
commenced an investigation into the applicants’ allegations. In this
connection, by letters of 8 December 1997 and 5 February 1998 he requested the
Istanbul Security Directorate’s anti-terrorist department to furnish the
statements taken from the applicants at the police station, together with the
custody records and medical reports. He also asked for the names of the police
officers who had taken part in the questioning of the applicants. The
prosecutor also asked the Ümraniye Police Department to find the applicants and
to ensure that they attended at his office.
In a report dated 13 January 1998 a police
officer, after visiting the applicants’ residences a number of times, noted
that, according to information given by the neighbours, the applicants had not
been living at their homes for the last two months.
By a letter of 16 February 1998 the Security
Directorate informed the Fatih public prosecutor that the applicants had not
been taken into custody. The custody records were made available to the public
prosecutor’s office. The logbook did not contain the applicants’ names.
On 19 July 1999 the public prosecutor took a
statement from the second applicant in relation to her allegations. She stated
that on the night of 27 November 1997 she had been taken from her home and
taken to the anti-terrorist police department, where she spent three
days. She had been beaten up, denied food, sexually abused and threatened with
rape. The police officers had also spent a night in her house in the hope that
members of the illegal organisation might visit her.
The public prosecutor also took statements from
the police officers who were on duty on 27 and 28 November 1997. The police
officers all denied the allegations and claimed that they had not arrested or
detained the applicants.
On 13 April 2000 the Fatih public prosecutor
issued a decision of non-prosecution in relation to the applicants’ complaints,
on the ground that there was no evidence to substantiate the allegations. He
noted that there was no documentary evidence, such as an arrest report, custody
record or witness statements, which could help prove the allegations.
On 30 October 2002 the applicants’ lawyer filed
an objection against the Fatih public prosecutor’s decision with the
Beyoğlu Assize Court.
On 11 April 2003 the Beyoğlu Assize Court
dismissed the applicants’ appeal on the basis of the evidence contained in the
investigation file and the reasons given by the Fatih public prosecutor.
C. The documents furnished by the parties
1. Police reports dated 29 November 1997
The Government furnished three reports
concerning police operations carried out on 29 November 1997 subsequent to the
killing of a police officer and the wounding of two others in a police patrol
car in the Ümraniye district of Istanbul.
According to the first report, which had the
title “Arrest, search and seizure report”, police officers arrested a suspect,
namely M.Ç., in relation to the aforementioned terrorist attack. The suspect
told the police officers that he could show them the flat where members of the
[PKK] terrorist organisation were staying. The police officers then raided that
flat and arrested three people, namely Şabettin Yeşilmen, who was the
owner of the flat, A.B. and H.D. The police officers searched the flat with the
permission of Şabettin Yeşilmen but did not find anything illegal.
According to the second and third reports, the
suspects, Şabettin Yeşilmen and M.Ç., told the police officers that
they could show them the locations where they had hidden the weapons used
during the said attack. At a construction site shown to them by Şabettin
Yeşilmen, the police officers found weapons, ammunition and hand grenades
and seized them. The police officers then searched a house with the permission of
the owner, A.B. They found more weapons, ammunition and a number of documents
belonging to the illegal organisation, and seized them.
2. Relevant pages of the custody logbook
The relevant pages of the custody logbook kept
at the anti-terrorist police department of the Istanbul Security Department
contain the names of the people taken into custody between 25 November 1997 and
3 December 1997. The list does not contain the names of the applicants.
3. The police duty logbook
The relevant pages of the police duty logbook
contain the names of the police officers who were on duty at the police station
each day and night between 27 November 1997 and 1 December 1997.
4. Witness statements provided by the applicants
(a) M.Ç..’s statement dated 18 April 2008
M.Ç., who was arrested on 27 November 1997 and
spent seven days in custody at the anti-terrorist police department, alleged
that he had seen both applicants in custody. He had seen them being tortured,
insulted and sworn at during their transfer from their cell to the interview
room. He stated that from his cell he had been able to hear the applicants’
screams while being tortured. This witness’s name appears in the custody log
provided by the Government.
(b) Statement by A.Y.
The witness is the father-in-law of Şabettin
Yeşilmen and the father of the second applicant. In November 1997, he had
been with Şabettin Yeşilmen when police officers had raided the
latter’s flat. He stated that his son-in-law and daughter had been beaten,
arrested and severely beaten up by fifteen to twenty police officers and
that they had then been taken to the anti-terrorist police department on
Vatan Street. He had later learned that they had been subjected to further
torture during their detention.
(c) Statement by Mehmet M.O.
The witness, who is the nephew of Şabettin
Yeşilmen, was at the latter’s flat on the night of the incident. He
claimed that on the morning of 28 November 1997, at around 3.30 a.m., police
officers had raided his uncle’s flat and, after severely ill-treating him and
his wife (the second applicant), had taken them away by car. He had heard that
his uncle and the second applicant had been subjected to torture while in
police custody.
(d) Ş.B.’s statement dated 24 April 2008
The witness lives in the same neighbourhood as
the second applicant. She is also a friend of the second applicant. She stated
that on the morning of 28 November 1997, at 10 a.m., she had gone to visit
the second applicant but there had been no one at home. When she had enquired
as to the whereabouts of the second applicant, she had been told by the
neighbour of the second applicant living on the second floor of the building
that police officers had arrested Maşallah Yeşilmen along with Gülçin
Bozdemir, her uncle, A.B., and Şabettin Yeşilmen. When released from
custody, the aforementioned persons had borne the marks of severe torture.
(e) Şabettin Yeşilmen’s statement dated 18
April 2008 and his allegations before the Istanbul State Security Court (in
file no. 1997/512)
The witness, who is currently serving his
sentence in prison, is the brother of the first applicant and husband of the
second applicant. He alleged that early in the morning of 28 November 1997 a
number of police officers had broken into his flat, where he, his wife,
children, father-in-law, sister, brother-in-law, and two nephews had been
sleeping. He claimed that the police officers had severely beaten him and manhandled
his guests. He had been arrested together with his sister Gülçin Bozdemir and
his wife Maşallah Yeşilmen and had been taken to the anti-terrorist
department. He had been insulted and severely tortured by the police officers
during his detention. The police officers had tortured his wife and sister in
front of him. They had further threatened to rape them if he did not confess to
the charges against him.
The witness alleged at the first hearing of the Istanbul State Security Court that while in police custody his sister and wife had been
tortured in front of him in order to compel him to confess to the charges.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Criminal
Code, in force at the material time, makes it a criminal offence to deprive an
individual unlawfully of his or her liberty (Article 179 generally, Article 181
in respect of civil servants). It further proscribes torture and ill-treatment
in Articles 243 and 245, which read as follows:
Article 243
“Any ... public official who, in order to extract a confession
of guilt in respect of a criminal offence, tortures or ill-treats any 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.
Where such conduct causes death, the sentence incurred under
Article 452 ... shall be increased by between one third and one half.”
Article 245
“Any law enforcement officer ... who, in the course of duty ...
and in circumstances other than those prescribed by law ..., ill-treats,
injures or strikes a person or does them bodily harm shall be sentenced to
between three months’ and three years’ imprisonment and temporarily barred from
public service. ...”
THE LAW
I. ADMISSIBILITY
The Government argued that the applicants had
failed to exhaust the domestic remedies available to them, as required by
Article 35 § 1 of the Convention. In this connection, they submitted that the
applicants had not availed themselves of the civil- and administrative-law
remedies which could have provided reparation for the harm they had allegedly
suffered.
The Court reiterates that it has already
examined and rejected such preliminary objections by the Government in similar
cases (see, in particular, Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004). It
finds no particular circumstances in the instant case which would require it to
depart from its findings in those cases. It therefore rejects the Government’s
preliminary objection.
The Court notes that the application is
not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must therefore be
declared admissible.
II. THE
COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
1. The applicants
The applicants argued that the evidence before
the Court proved that they had been taken from their home, kept in
unacknowledged detention and tortured by police officers, and that the
authorities had failed to carry out an adequate investigation into these
matters. They requested the Court to find that the Government had violated
Articles 3, 5 § 1 and 13 of the
Convention.
2. The Government
The Government denied the applicants’
allegations and averred that the investigation conducted by the prosecuting
authorities had shown that the applicants’ allegations were ill-founded and
that there had been no violation of any Article of the Convention.
B. General principles
The Court refers to its case-law confirming the
application of the standard of proof “beyond reasonable doubt” in its
assessment of evidence (Orhan v. Turkey, no. 25656/94, § 264,
18 June 2002). Such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted presumptions
of fact. In this context, the conduct of the parties when evidence is being
obtained has to be taken into account (Ireland v. the United Kingdom,
18 January 1978, § 161, Series A no. 25).
The Court is sensitive to the subsidiary nature
of its role and recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact where this is not rendered unavoidable by the
circumstances of a particular case. Nonetheless, where allegations are made in
respect of unacknowledged detention of individuals, the Court must apply a
particularly thorough scrutiny (see, mutatis mutandis, Orhan,
cited above, § 265), even if certain domestic proceedings and
investigations have already taken place.
C. The Court’s evaluation of the facts in the present
case
The Court notes that the facts of the case are
in dispute between the parties. While the applicants claimed that they had been
detained and subjected to ill-treatment by the police officers, the Government
contended that the applicants had never been taken into custody and thus had
not been subjected to ill-treatment. In the light of the foregoing, the Court
observes that the verification of the applicants’ allegations of ill-treatment
hinges upon the prior establishment of whether the applicants were indeed taken
into custody early in the morning of 28 November 1997, as alleged. Thus, with
the above considerations in mind, the Court will proceed to the examination of
the written evidence furnished by the parties.
In this connection, the Court notes that the
applicants gave a detailed account of the events leading to their alleged
arrest, detention and ill-treatment by police officers from the anti-terrorist
department of the Istanbul Security Department (see paragraphs 6-9, 19, 21 and
25 above).
In support of their allegations concerning their
arrest and detention, the applicants submitted to the Court witness statements
which they had obtained in April 2008. Among these witnesses, A.Y., Mehmet M.O.
and Şabettin Yeşilmen claimed that they had seen the applicants being
arrested by force and being taken away by police officers from the
anti-terrorist branch on the night of 27 November 1997 or early in the morning
of 28 November 1997 (see paragraphs 36, 37 and 39 above).
M.Ç., whose name appears in the custody logbook
as a suspect arrested on 27 November 1997 and who spent seven days in the custody
of the anti-terrorist police, alleged that he had seen both applicants being
ill-treated by police officers (see paragraph 35 above). Likewise, Şabettin
Yeşilmen, who is the brother of the first and husband of the second
applicant, claimed that he had witnessed the applicants’ arrest, detention and
ill-treatment by the police officers and that the treatment suffered by
the applicants had been inflicted on them in order to compel him to confess to
the charges against him (see paragraphs 39 and 40 above).
Finally, the witness Ş.B. stated that she
had learned about the arrest and detention of the applicants from her
neighbours when she enquired as to their whereabouts (see paragraph 38
above).
In view of the foregoing, the Court notes that
in their written statements, the witnesses all made affirmations broadly in
line with the applicants’ account of the facts set out in their original
application form and in the statements which they made to the domestic
authorities, namely that the police officers had raided their flats, had
arrested them using force and had taken them to the anti-terrorist department
of the Istanbul Security Department on Vatan street, where they had been kept
in unacknowledged detention and ill-treated on the night of 27 November
1997 or early in the morning of 28 November 1997.
In the Court’s opinion, although the statements
given by the applicants’ witnesses cannot be overlooked, it is not clear why
the applicants waited so long to submit them to the Court. These statements
must also have been conveyed to the prosecuting authorities at the relevant
time with a view to assisting them in their investigation. Moreover, the
statements in question were either given by the applicants’ close relatives or
family friends (see paragraphs 36-39 above) with the exception of the
statements made by M.Ç. (see paragraph 35 above), the veracity of which has
never been tested. Furthermore, the statements given by Ş.B., who is a
family friend, do not go beyond hearsay evidence since she did not witness the
alleged events in person but heard them from her neighbours (see paragraph 38
above). Accordingly, there is no independent eyewitness evidence to lend
support to the applicants’ allegations.
Turning to the Government’s submissions, the
Court notes that they relied on the findings of the Fatih public prosecutor and
asserted that the applicants had never been taken into custody. In order to verify
the applicants’ allegations of detention the public prosecutor had confined
himself to checking the entries in the custody logbook containing the names of
detainees and questioning the police officers who had been on duty on that day
(see paragraphs 22, 24 and 26 above). Relying on the statements given by the
police officers and the absence of documents noting the applicants’ arrest and
detention, he terminated the investigation on the ground that there was no
evidence corroborating the applicants’ allegations (see paragraph 15 above).
However, the Court considers that the public
prosecutor failed to broaden the investigation by following up on the possible
leads given by the applicants and took no steps on his own initiative to
identify possible witnesses. In the Court’s view, the public prosecutor could
have taken statements from those who were present in the applicants’ flats
during their alleged arrest or from neighbours who might have seen the
applicants being taken away by the police officers. Likewise, the public
prosecutor had the entire list of detainees to hand when he received the
custody logbooks of the anti-terrorist police. Thus he could have
questioned the detainees, such as M.Ç. (see paragraph 35 above), who were in
the custody of the anti-terrorist police at the same time as the applicants.
Accordingly, given the Fatih public prosecutor’s
readiness to accept the police officers’ version of events and his failure to
broaden the investigation by identifying possible witnesses, the Court cannot
accept his conclusion that the applicants’ allegations were not corroborated by
any documentary evidence or eyewitnesses. The Court finds that the conclusion
in question rests entirely on the assertion that there was no record of the
applicants’ detention. However, it is led to observe that the absence of the
names of the applicants from the custody records cannot be seen as conclusive
proof that they were not detained. The Court notes in this connection that it
has recorded deficiencies relating to entries in custody logbooks in previous
cases (see Ahmet Özkan and Others v. Turkey, no. 21689/93, § 206, 6
April 2004; Tepe v. Turkey, no.
27244/95, § 148, 9 May 2003; Timurtaş
v. Turkey, no. 23531/94, § 105, ECHR 2000-VI; İrfan Bilgin v. Turkey,
no. 25659/94, § 130, ECHR 2001-VIII; Çakıcı
v. Turkey [GC], no. 23657/94, § 105, ECHR 1999-IV; Çiçek v. Turkey, no. 25704/94, §§
137-138, 27 February 2001; Orhan, cited above, § 313; and Osmanoğlu
v. Turkey, no. 48804/99, § 48, 24 January 2008).
. The
Court is thus faced with a situation where it is unable to establish what
happened on the night of 27 November 1997 or early in the morning of 28
November 1997. This inability emanates from, on the one hand, the failure of
the applicants to submit sufficient evidence in support of their allegations,
and, on the other, the incomplete investigation file submitted by the
Government.
. The
Court finds it more appropriate to deal with the consequences of these failures
when examining the applicants’ complaints concerning the Government’s alleged
failure to carry out an effective investigation into their complaints (see
paragraphs 69-72 below).
III. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF
THE CONVENTION
The applicants complained that they had been
subjected to various forms of ill-treatment and that there were no effective
remedies for their complaints. They relied on Articles 3, 6 and 13 of the
Convention, which provide, in so far as relevant:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 6 § 1
“In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Submissions of the parties
1. The applicants
The applicants alleged that they had been
subjected to severe ill-treatment by the police officers during their
arrest and unacknowledged detention at the anti-terrorist police department.
They maintained that the prosecuting authorities had failed to conduct an
effective investigation into their complaints.
2. The Government
The Government contested those claims. They
contended that the investigation carried out by the authorities had shown that the
applicants had not been arrested or detained, or ill-treated by the police
officers. Therefore the applicants’ allegations were unsubstantiated.
B. The Court’s assessment
1. General principles
The Court reiterates that Article 3 of the
Convention ranks as one of the most fundamental provisions in the Convention,
from which no derogation is permitted. 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 rights requires that these provisions be interpreted and applied so as to
make its safeguards practical and effective (see Avşar
v. Turkey, no. 25657/94, § 390, ECHR 2001-VII (extracts)).
The Court further 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 veracity of the victim’s allegations, particularly if those
allegations are backed up by medical reports. Failing this, a clear issue
arises under Article 3 of the Convention (see Çolak
and Filizer v. Turkey, nos. 32578/96 and 32579/96, § 30, 8
January 2004; Selmouni v. France
[GC], no. 25803/94, § 87, ECHR 1999-V; Aksoy v.
Turkey, 18 December 1996, § 61, Reports of Judgments and Decisions 1996-VI;
and Ribitsch v. Austria, 4 December 1995, § 34 Series A no. 336).
Lastly, where an individual raises an arguable
claim that he has been seriously ill-treated by the police or other such agents
of the State unlawfully and in breach of Article 3, that provision, read in
conjunction with the State’s general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and freedoms defined
in ... [the] Convention”, requires by implication that there should be an
effective official investigation. This investigation should be capable of
leading to the identification and punishment of those responsible. If this were
not the case, the general legal prohibition of torture and inhuman and
degrading treatment and punishment, despite its fundamental importance, would
be ineffective in practice and it would be possible in some cases for agents of
the State to abuse the rights of those within their control with virtual
impunity (see Assenov and Others v. Bulgaria,
28 October 1998, § 102, Reports 1998-VIII).
2. Application of the above principles to the
circumstances of the present case
(a) Alleged ill-treatment suffered by the applicants
In the instant case, the Court has not found it
established that the applicants were arrested and kept in the custody of the
anti-terrorist police on the night of 27 November 1997, as alleged (see
paragraph 59 above). In view of the applicants’ failure to submit sufficient
evidence in support of their allegations, the Court
cannot but conclude that they have failed to make out their case to the extent
necessary for the burden to shift onto the Government to explain how
their injuries were caused and produce evidence casting doubt on the veracity
of the victims’ allegations.
The Court thus concludes that there has been no
violation of Article 3 of the Convention in its substantive aspect in
respect of the ill-treatment to which the applicants were allegedly subjected.
(b) Alleged ineffectiveness of the domestic remedies
The Court reiterates that the rights enshrined
in the Convention are practical and effective, and not theoretical and
illusory. Therefore, investigations of the present kind must be able to lead to
the identification and punishment of those responsible. In the instant case,
however, the proceedings in question did not produce any concrete result owing
to the public prosecutor’s preparedness to accept the police officers’
assertion that the applicants had not been taken into custody or ill-treated,
as well as his failure to broaden the investigation by following up on possible
leads given by the applicants and to take the necessary steps on his own
initiative to identify possible witnesses (see paragraphs 57 and 58 above).
In the light of the foregoing, and given the
authorities’ failure to pursue criminal proceedings against the police officers
in order to obtain a determination of their responsibility, and their
punishment in the event of a conviction, the Court does not consider that the
investigation into the applicants’ complaints can be considered to have been
sufficiently thorough and effective to meet the procedural requirements of
Article 3 of the Convention.
There has accordingly been a procedural
violation of that provision.
In these circumstances, the Court considers that
no separate issue arises under Articles 6 and 13 of the Convention (see Timur
v. Turkey, no. 29100/03, §§ 35-40, 26 June 2007).
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicants submitted that they had been kept
in unacknowledged detention in police custody, in violation of Article 5 of the
Convention, which provides, as relevant:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person for
non- compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so; ...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his arrest and
of any charge against him.
3. Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.
5. Everyone who has been the victim of arrest or detention
in contravention of the provisions of this Article shall have an enforceable
right to compensation.”
The applicants argued that this provision had
been violated since they had been taken into custody without their detention
being officially recorded.
The Government submitted that there was no basis
for finding that the applicants had been taken into custody and it was
therefore impossible to find any violation of Article 5 of the Convention.
The Court notes that it has been unable to
establish whether the applicants were arrested and held in unacknowledged
detention on the basis of the documents submitted by the parties.
In view of these considerations, the Court
concludes that there has been no violation of Article 5 of the Convention.
V. 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 each claimed 3,000 euros (EUR) in
respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.
The Government considered that no award should
be made for just satisfaction. They submitted, in the alternative, that any
award to be made under this head should not lead to unjust enrichment.
The Court notes that the applicants have not
specified any particular sum or produced any arguments or documents in support
of their claim for pecuniary damage. The Court accordingly makes no award under
this head.
Having regard to the nature of the violations
found in the present case and ruling on an equitable basis, the Court awards
each applicant EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed the total amount of
EUR 7,000 for costs and expenses incurred before the Court.
The Government submitted that the claims were
unsubstantiated.
The Court notes that the applicants have not
submitted any relevant documents in support of their costs and expenses claims,
as required by Rule 60 of the Rules of Court. It accordingly makes no
award under this head.
C. 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
1. Declares
the application admissible;
2. Holds that
there has been no violation of Article 3 of the Convention under its
substantive aspect;
3. Holds that there has been a violation of
Article 3 of the Convention under its procedural aspect;
4. Holds that there has been no violation of
Article 5 of the Convention;
5. Holds that there is no need to examine
separately the complaints under Articles 6 and 13 of the Convention;
6. Holds
(a) that the respondent State is to pay each
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand
euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 9 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
