SECOND SECTION
CASE OF
AMİNE GÜZEL v. TURKEY
(Application no.
41844/09)
JUDGMENT
STRASBOURG
17 September 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 Güzel 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 27 August 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
41844/09) 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, Ms Amine Güzel (“the applicant”), on
28 July 2009.
The applicant was represented by Mr B. Temel, a
lawyer practising in Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
The applicant alleged that she had been subjected
to ill-treatment during both her arrest and her time in police custody and
complained that the investigation conducted into her allegation of
ill-treatment had not been effective.
On 20 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1980 and lives in Diyarbakır.
On 25 February 2008 a group of people, including Members
of Parliament, gathered in Diyarbakır to make a press statement against
military operations that were being conducted by the Turkish security forces. According
to the police records, the security forces had been informed of the
demonstration and had taken the necessary measures beforehand. The records
noted that following the statement and the speeches made by the Members of Parliament,
the crowd started marching and shouting slogans praising
the imprisoned leader of the PKK (the Kurdistan Workers’ Party, an illegal
organisation). After some members of the group attacked police officers
with stones, the security forces intervened, as a result of which the crowd
dispersed, damaging a number of shop fronts on their way. The records stated
that a few hours later the demonstrators regrouped once again, this time
setting trash containers on fire and blocking traffic.
During the latter part of the events, the applicant
was arrested together with four other people, three of whom were throwing
stones at police officers, according to the arrest and seizure report drawn up
by those officers later on. The report did not indicate anything as regards the
acts conducted by the applicant except for stating that she had been taken to
the Çarşı police station with the others.
The applicant alleged that during her time at the
said police station, she was insulted, severely kicked and beaten until she was
transferred to the Diyarbakır Training and Research Hospital, where she
underwent a medical examination. The medical report drawn up afterwards indicated
that the applicant had skin abrasions on her lower and upper lips, several red
patches (erythema) on her legs (six or seven measuring 2x7 cm above her right
knee, two with a 6 cm diameter above both her knees, two or three measuring 2x6
cm below her right knee, and another two or three of 2x5 cm on her left leg),
swelling and erythema of 2x3 cm on her nose and her right cheek bone.
On the same day, the applicant was examined for a
second time, this time by a doctor at the Diyarbakır
Branch of the Forensic Medicine Institute. The medical report issued afterwards
maintained that the applicant had claimed to have been beaten, taken to
hospital several times and given serum there. It further stated that she had
several bruises on different parts of her body (one measuring 20x30 cm on her
right thigh, one of 8x4 cm above her right knee, one of 8x10 cm on her left thigh,
one measuring 15x4 cm on her left leg, and one of 2x0.5 cm below her right
eye) and that various parts of her head, chest and waist were painful to the
touch. There were no bone fractures on the body or the skull, no trauma inside
the skull and no major lesions, either vascular or on the internal organs. The
report finally established that the injuries caused to the applicant were not
life-threatening, but could not be treated with simple
medical attention.
Following the medical examinations, upon an
order of the Diyarbakır public prosecutor, the applicant was taken to the
Anti-Terrorism Branch of the Diyarbakır Security Directorate.
The next day, on 26 February 2008, the applicant
was transferred to the Diyarbakır Training and Research Hospital once
again, where she was examined by a doctor and underwent two blood tests and an
ultrasound.
On 27 February 2008 two medical reports were
drawn up in respect of the applicant: one noting the signs of physical violence
on her body, the other stating the results of the ultrasound test. According to
the former report, there were widespread bruises on the front of the applicant’s
legs and another bruise below her right eye. That report concluded that there were
no newly sustained injuries on her body. As for the latter report, it stated
that the ultrasound performed on the applicant had revealed a cyst of 2 cm on
her right ovary.
The applicant was released three days later, on
28 February 2008. A medical report issued by the Mevlana Health Clinic just before
her release indicated the same findings as those of the previous report and
noted that the applicant had widespread bruises on her legs and one bruise under
her right eye.
A. Investigation against the
police officers involved
On 3 March 2008 the applicant filed a complaint
with the Diyarbakır public prosecutor’s office. She maintained that, while
she had been walking towards the gathering to find her son and get him to come away
from it, she had been hit with a truncheon on her face by police officers, who
had then dragged her along by the turtleneck collar of her sweater in such a
way that she had choked. She alleged that at the Diyarbakır
Çarşı police station, where she had been kept with four other people,
she had been insulted, kicked and beaten with truncheons and clubs. She also
stated that the ill-treatment had only taken place at the police station and
that she had no complaints against the police officers at the Anti-Terrorism
Branch.
On 5 March 2008, upon the request of the Diyarbakır
public prosecutor, a doctor at the Diyarbakır Branch of the Forensic
Medicine Institute drafted a preliminary report, summarising the findings of
the first two medical examinations performed on the applicant.
On 25 July 2008 the Diyarbakır public
prosecutor requested a detailed forensic medical report from the Forensic
Medicine Institute.
. Subsequently,
on 7 August 2008 a final forensic medical report indicating the findings
of the applicant’s medical examinations was submitted to the public prosecutor.
That final report noted that although there were no bone fractures on the
applicant’s body and the injuries found had not put her life at risk, they were
not so light as to have been able to be treated with simple medical attention.
. On
24 September 2008 the Diyarbakır public prosecutor issued a decision not
to prosecute. On the basis of the arrest and seizure report drafted by the
police officers and the indictment issued against the applicant, he stated that
the injuries on the applicant’s body seemed to have been caused by force lawfully
employed by the officers during her arrest, which had been within the scope of
their duties. Referring to the final forensic medical report, he further stated
that the injuries had been able to be treated with simple medical attention.
Accordingly, he concluded that there was no concrete evidence in support of the
applicant’s allegations that members of the security forces had ill-treated
and insulted her.
. The
applicant lodged an objection against the public prosecutor’s decision.
. On
30 December 2008 the Siverek Assize Court rejected the applicant’s objection,
holding that the police officers concerned had not exceeded the limits of legal
force. In reaching that decision, the court noted that according to the medical
reports drawn up in respect of the applicant, the injuries on her body had been
able to be treated with simple medical attention. That decision was served on
the applicant on 29 January 2009.
. On
24 March 2011, upon the request of the Diyarbakır public prosecutor to
that effect, the Siverek Assize Court annulled the decision not to prosecute and
held that criminal proceedings should be initiated against the police officers concerned
under Articles 86 and 256 of the Criminal Code (Law no. 5237), for intentionally causing bodily harm to the applicant in
excess of the limits of legal force. The court stated that following the Court’s
communication of the applicant’s case to the respondent Government, it had been
realised that the Diyarbakır public prosecutor had mistakenly noted that
the injuries on the applicant had been able to be treated with simple medical
attention, whereas the medical reports had actually indicated otherwise.
. Subsequently,
on 7 April 2011 the police officers involved in the alleged acts were invited
to the Diyarbakır public prosecutor’s office to give statements.
. The
proceedings against the officers appear to be pending.
B. Criminal proceedings
against the applicant
On 19 March 2008 the Diyarbakır public
prosecutor filed an indictment with the Diyarbakır Assize Court, accusing
the applicant of disseminating propaganda on behalf of the illegal organisation,
the PKK, and committing crimes on its behalf without being a member of that
organisation, pursuant to section 7 of the Prevention
of Terrorism Act (Law no. 3713) and Articles 220 and 314 of the Criminal Code
respectively.
On 11 May 2010 the
Diyarbakır Assize Court found the applicant guilty as charged and
sentenced her to seven years of imprisonment.
II. RELEVANT DOMESTIC LAW
The relevant articles of the Criminal Code (Law
no. 5237) read as follows:
Article 86 - Intentional bodily harm
“1. Any person, who intentionally causes bodily harm to someone
or damages their health or senses, shall be punished by imprisonment for one to
three years.
2. If the offence is committed;
...
c. by a public official, in abuse of the powers vested in him,
...
he shall be sentenced to imprisonment for two to five years.”
Article 256 - Exceeding the limits of legal force
“The provisions of Article 86 shall be applied in cases where
the public official with the power to use force exceeds the limits of legal
force during the commission of his duty.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant argued that she had been subjected
to ill-treatment during her arrest and while in police custody. She complained
about the manner in which the Diyarbakır public prosecutor had conducted
the investigation into her allegation of ill-treatment and the outcome of that
investigation. She relied upon Articles 3, 6 and 14 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.”
A. Admissibility
The Government argued that the application
should be found inadmissible for non-exhaustion of domestic remedies, in that
the investigation against the police officers involved in the applicant’s
alleged ill-treatment was still pending.
The applicant disputed the Government’s
argument, alleging that the initiation of criminal proceedings against the
police officers following the communication of the present application to the
Government had been aimed at rendering the application inadmissible. She also
maintained that the said criminal proceedings would not be effective, as more
than three years had passed since the date the alleged acts had taken place and
it would not be possible for the domestic court to establish the facts due to
the passage of time.
In so far as the Government’s preliminary
objection concerns the substantive aspect of the complaint under Article 3 of
the Convention, the Court notes that despite the Diyarbakır public
prosecutor’s initial decision not to prosecute, which was upheld by the Siverek
Assize Court shortly thereafter, that court subsequently annulled the said decision
and decided to initiate criminal proceedings against the police officers
concerned following the communication of the application to the respondent
Government in January 2011. Accordingly, with that decision of the Assize
Court, a new investigation into the matter began on 24 March 2011.
The Court observes that the investigation
instigated against the police officers involved in the incident is still
pending. In that respect, it draws a distinction between the instant case and
those where the investigations into the applicants’ allegations of
ill-treatment remained pending for periods of time so long as to render the
said investigations ineffective (see Veli Tosun and Others v. Turkey,
no. 62312/00, §§ 51-61, 16 January 2007; Fırat Can v. Turkey,
no. 6644/08, §§ 43-50, 24 May 2011; and Tarkan
Yavaş, cited above, §§ 35-38). In the present case, as opposed to the above-cited
cases, there is no ongoing investigation in the traditional sense, since the
criminal proceedings against the police officers involved began following the
communication of the case to the respondent Government, more than two years
after the Siverek Assize Court’s rejection of the applicant’s objection against
the decision not to prosecute. The Court accordingly considers that the new investigation
should be assessed separately.
. The Court reiterates that the issue
of exhaustion of domestic remedies requires a determination to be made of the
effectiveness of the investigation at issue (see Aslan v. Turkey (dec.),
no. 75307/01, 19 October 2004). However, it finds it impossible at this stage
to reach a conclusion about the effectiveness of the new investigation, as the
criminal proceedings against the police officers concerned have been pending
for two years, which, in the circumstances of the instant case, it does not
deem contrary to the competent authorities’ obligation to act with promptness as
defined by the Court’s case-law (see, a contrario, Çelik and
İmret v. Turkey, no. 44093/98, §§ 54-60, 26 October 2004).
. It is to be recalled that in line
with the principle of subsidiarity, it is best for the facts of cases to be
investigated and issues to be resolved in so far as possible at the domestic
level. It is in the interests of the applicant, and the effectiveness of the
Convention system, that the domestic authorities, who are best placed to do so,
act to put right any alleged breaches of the Convention (see Varnava
and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90,
16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 164, ECHR 2009,
and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no.
39630/09, § 141,
ECHR 2012).
. Having regard to the foregoing and without prejudice to the applicant’s right to lodge a fresh
application under Article 34 of the Convention should the new investigation
against the police officers concerned prove ineffective, the Court concludes that the complaint under the substantive aspect
of Article 3 of the Convention is premature and must
be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of
domestic remedies (see, among others, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008, and M.V. v.
Slovakia (dec.), no. 62079/09, 23 November 2010).
. As regards the procedural aspect of
the complaint, the Court notes that whether the investigation, to the extent
that it concerns the period until the initiation of criminal proceedings against
the police officers in 2011, could be regarded as effective under the
Convention is directly linked to the substance of the applicant’s complaint. It
therefore joins the Government’s preliminary objection on this point to the
merits (see, among others, Veli Tosun and Others, cited above, §§ 39-40, and Tarkan Yavaş, cited
above, § 27).
The Court notes that the complaint under the
procedural aspect of Article 3 of the Convention 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
The Court reiterates 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).
It is beyond doubt that a requirement of
promptness and reasonable expedition is implicit in this context. While there
may be obstacles or difficulties which prevent progress in an investigation in
a particular situation, a prompt response by the authorities in investigating
allegations of ill-treatment may also generally be regarded as essential in
maintaining public confidence in their adherence to the rule of law and in preventing
any appearance of collusion in or tolerance of unlawful acts (see, among
others, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §
136, ECHR 2004-IV (extracts), and Çelik and İmret, cited
above, § 55).
Turning to the facts of the present case, the
Court observes that the Diyarbakır public prosecutor instigated an
investigation into the applicant’s allegations of ill-treatment immediately
after her request to that effect. Within a period of six months, the public prosecutor
examined written documents, including the arrest and seizure report, the
indictment against the applicant and two forensic medical reports indicating
the findings of the medical examinations performed on her. The Court observes,
however, that during that period, the public prosecutor neither took the
statements of the police officers concerned, nor did he hear the applicant and
the others present during her arrest. Paying due regard to the statements in
the indictment and the police records, and finding that the injuries to the
applicant had been able to be treated with simple medical attention, he
concluded that the force used by the police on the applicant had been within
legal limits. He accordingly issued a decision not to prosecute the police officers
involved in the alleged acts (see paragraph 18 above).
At this point, the Court indicates that although
the public prosecutor noted that the injuries found on the applicant’s body merely
required simple medical attention, the final forensic medical report, which he
relied on, noted otherwise (see paragraph 17 above). Moreover, the Siverek
Assize Court reiterated the same mistake and used identical wording in
rejecting the applicant’s objection against the decision not to prosecute.
The Court further considers that,
notwithstanding the possible effectiveness of the new investigation started
into the applicant’s allegations following the Court’s communication of the
present case to the respondent Government, the authorities have failed to
provide a prompt response, as it has been more than five years since the date
the applicant filed a complaint with the Diyarbakır public prosecutor’s
office, arguing that she had been subjected to ill-treatment.
In the light of the above, the Court concludes
that the applicant’s claim that she was ill-treated during her arrest and while
she was kept in police custody was neither diligently nor promptly investigated.
Therefore, the investigation conducted into her allegations, until the
instigation of the new investigation in 2011, cannot be considered as effective
(see Aysu v. Turkey, no. 44021/07, §§ 41-42, 13 March 2012, and Tarkan
Yavaş, cited above, §§ 35-38). The Court also dismisses the Government’s
preliminary objection that the applicant failed to exhaust domestic remedies in
view of the pending investigation against the police officers concerned (see Veli Tosun
and Others, cited above, § 60; Fırat Can, cited above, § 49; and
Tarkan Yavaş, cited above, § 37).
There has accordingly been a procedural violation
of Article 3 of the Convention.
II. 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.”
The applicant claimed EUR 23,000 in respect of
pecuniary and non-pecuniary damage.
The applicant also claimed EUR 5,721 for costs and
expenses, giving a breakdown of the number of hours of work for which her
lawyer sought payment.
The Government contested these claims. They argued
that there had been no violation of the Convention and that in any case, there
was no causal link between the violations alleged and the damage sustained.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 12,500 in
respect of non-pecuniary damage.
As regards the costs
and expenses, the Court reiterates that time sheets have been accepted in the
past as supporting documents in a number of cases (see Çoşelav v.
Turkey, no. 1413/07, § 89, 9 October
2012, and Beker v. Turkey, no. 27866/03, § 68, 24 March 2009). It
accordingly considers it reasonable to award the sum of EUR 1,500 to the
applicant for the proceedings before the Court.
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins
the Government’s preliminary objection on the issue of exhaustion of domestic
remedies in respect of the procedural aspect of Article 3 to the merits
and dismisses it;
2. Declares the complaint concerning the
procedural aspect of Article 3 of the Convention admissible and the remainder
of the application inadmissible;
3. Holds that there has been a violation of
Article 3 of the Convention under its procedural aspect;
4. 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, to be
converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR 12,500 (twelve
thousand five hundred euros), plus any tax that may be chargeable to her, in
respect of non-pecuniary damage;
(ii) EUR 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable to her, 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 amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
