SECOND SECTION

CASE OF YERLİ v. TURKEY

(Application no. 59177/10)

JUDGMENT

STRASBOURG

8 July 2014

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 Yerli v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Işıl Karakaş,
	András Sajó,
	Nebojša Vučinić,
	Egidijus Kūris,
	Robert Spano,
	Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 17 June 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 59177/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Yerli (“the applicant”), on 3 August 2010.
2.  The applicant was represented by Mr K. Derin, a lawyer practising in Adana. The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicant alleged, in particular, that his arrest and the ill-treatment to which he was subjected by a police officer were in breach of his rights guaranteed by Articles 3, 5 and 6 of the Convention.
4.  On 5 February 2013 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
A.  Introduction
5.  The applicant was born in 1982 and lives in Adana. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraph 6). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 7). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraph 8-30).
B.  The applicant’s submissions on the facts
6.  At the time of the incidents the applicant was selling CDs from a street stand in Adana. On 5 July 2001 the applicant and his relative M.Y. were arrested by the police while they were working at the stand. They were taken to the police station and beaten up by a police officer there. As a result of a punch to his ear, the applicant’s eardrum was perforated. The applicant and M.Y. were subsequently released from the police station.
C.  The Government’s submissions on the facts
7.  On 5 July 2001 the Adana Police Station received a complaint that damaged CDs were being sold from a street stand. A number of police officers went to the venue and talked the applicant and M.Y. into a solution with the complainant, but they did not arrest them because their activity had not constituted an offence.
D.  Documentary evidence submitted by the parties
8.  On 7 July 2001 the applicant and M.Y. lodged a criminal complaint with the Adana prosecutor against a police officer who they alleged had ill-treated them on 5 July 2001. At the time of their complaint they did not know the identity of the police officer but gave a description of his physical appearance. They also complained that they had been arrested without any explanation and that as a result of that arrest they had been arbitrarily deprived of their rights.
9.  On 9 July 2001 the applicant went back to the Adana prosecutor’s office and complained that he had been injured as a result of the ill-treatment. In order to provide evidence of his injuries the applicant requested a medical examination. On the same day the Adana prosecutor referred the applicant to the Adana Forensic Medicine Institute.
10.  On 10 July 2001 the Adana Forensic Medicine Institute reported that the applicant’s left eardrum had been perforated as a result of physical trauma, and that the injury required a 15-day healing period.
11.  On 10 July 2001 the applicant also applied to the Adana branch of the Turkish Human Rights Foundation, where a number of physical and psychological assessments were carried out by the doctors working for the Foundation. According to a report drawn up on 22 October 2001, the applicant had a perforation in his left eardrum and he was suffering from acute post-traumatic stress disorder. The report concluded that the doctors’ findings were compatible with the applicant’s story of ill-treatment.
12.  In the Turkish Human Rights Foundation’s report the applicant was reported as having described the incident and told the doctors that after he was punched on his ear, his eardrum had been perforated and he was no longer able to hear on that side. He added that, at the end of his arrest, he had not been taken to a forensic doctor for the required medical check, but the police officers had taken him to a private doctor, where he was diagnosed with ear perforation. The applicant submitted the report for the investigation file. However, this evidence was not further investigated during the proceedings.
13.  On 11 July 2001 the applicant and his relative M.Y. gave their statements at the Adana prosecutor’s office. The applicant complained that he had been beaten by a police officer working at the Adana Police Station and as a result his eardrum had been perforated. He said that he did not know the name of the officer, but he could identify him. M.Y. affirmed the same in his statement. He complained that he had also been beaten by the same officer; however, he had not asked to be examined by a doctor because the ill-treatment had not left any marks on his body.
14.  On 16 July 2001 the prosecutor’s office asked for another medical examination at the Adana State Hospital in order to determine the date of injury to the applicant’s ear. It was concluded that it was medically not possible to determine the date of injury.
15.  On 18 July 2001 the applicant submitted the names of his witnesses to the investigating authorities.
16.  On 2 August 2001, a chief police commissioner who had been entrusted with the duty of investigating the applicant’s allegations, questioned the applicant, his relative M.Y., the suspect and two other police officers as witnesses. That administrative investigation was conducted because the domestic law applicable at the time required prosecutors to seek permission from the administrative authorities before they could prosecute a police officer (see paragraph 58 below). A police officer, V.A., who worked at the Adana police station, testified as a witness. He stated that the applicant had neither been arrested nor ill-treated on 5 July 2001.
17. On the same day the applicant was arrested once more after a complaint was received regarding his CD stand, and taken to the police station. He was released the following day.
18.  On 25 October 2001 the Adana prosecutor decided not to prosecute the police officer because the Governor of Adana had denied the requisite permission for a criminal prosecution.
19.  On 6 May 2002 the prosecutor’s decision was notified to the applicant’s lawyer. On the same day the lawyer lodged an objection against the decision.
20.  In response to the applicant’s objection, on 20 May 2002 the Tarsus Assize Court decided to quash the decision and ordered the prosecutor to file criminal charges against the police officer. The Assize Court noted that the prosecutor had not conducted a proper investigation and had failed, in particular, to establish whether the applicant had been taken to the police station on 5 July 2001, and to question the eyewitnesses named by the applicant.
21.  M.T., a police officer working at the Adana Police Station, was subsequently indicted before the Adana 8th Criminal Court of First Instance (hereinafter “the criminal court”) and the applicant was admitted to the case as the complainant. On 14 August 2002 M.T. gave his statement before the criminal court. He denied all the charges.
22.  On 13 August 2002 the suspect M.T. informed the criminal court in writing that he had been assigned to work for the United Nations Mission in Kosovo; therefore, he would not be able to be present at the court hearings. As a result, until June 2004 the criminal court was unable to summon him to take part in the proceedings.
23.  On 18 March 2003 and 29 September 2003 the witnesses proposed by the applicant testified before the criminal court. The first witness stated that he had helped the applicant at his CD stand occasionally, and that he had seen him on the day of the incident. The applicant had told him that he had been ill-treated by the police because he had refused to provide them with free CDs. The other witness testified that he had taken the applicant to the hospital, and during that time the applicant had told him that he had been beaten in the police station.
24.  On 25 March 2003 police officer V.A. (see paragraph 16 above) appeared as a witness before the criminal court. He testified that the applicant had been taken to the police station by the suspect M.T. However, he had not been subjected to ill-treatment.
25.  On 10 June 2004 the suspect M.T. attended the hearing before the criminal court. The applicant was not present at the hearing. The criminal court ordered the applicant to attend the next hearing and identify the suspect from his photographs. However, the applicant and his relative M.Y. could not be brought before the criminal court until May 2005 as a result of a change of address.
26.  On 5 May 2005 the applicant and his relative M.Y. attended the hearing before the criminal court. M.Y. also testified as a witness. He stated that the applicant had been subjected to ill-treatment at the police station and had suffered injuries to his ear, which was later diagnosed at the hospital as perforation of the eardrum. The criminal court also asked him to identify the suspect from his photograph. M.Y. stated that he needed to see the suspect in person in order to be able to identify him because he considered that he would not be able to do so from the photographs.
27.  On 5 January 2006 the criminal court was informed that the suspect could not appear before the court because he was in Kosovo. The suspect could not be brought before the court until December 2006.
28.  On 17 September 2007 the criminal court decided to acquit the police officer on the ground of insufficient evidence.
29.  On 18 September 2007 the applicant’s lawyer appealed to the Court of Cassation.
30.  On 8 February 2010 the Court of Cassation quashed the decision of the first instance court on the ground that the limitation period had expired, and ordered the discontinuation of the proceedings against the police officer.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
31.  A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-99, ECHR 2004-IV (extracts)).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 3 AND 6 OF THE CONVENTION
32.  The applicant complained that the treatment to which he had been subjected at the police station amounted to ill-treatment within the meaning of Article 3 of the Convention. He also complained that no effective investigation had been carried out into his allegations at the national level under Article 6 of the Convention. He complained that the national court had not concluded the proceedings within a reasonable time and that that failure had eventually resulted in those proceedings becoming time-barred.
33.  The Court considers that these complaints should be examined solely from the standpoint of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
34.  The Government contested that argument.
A.  Admissibility
35.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The substantive aspect of Article 3 of the Convention
36.  The applicant submitted that he had been ill-treated at the police station. The two medical reports, issued by the Forensic Medicine Institute and the Adana branch of the Turkish Human Rights Foundation, proved his allegations of ill-treatment.
37.  The Government argued that the applicant had not been arrested and had not been subjected to ill-treatment on the date as he alleged. Even though the police officers had arrived at the venue upon a complaint, the applicant had not been arrested because he had not committed any offences. For this reason, the medical reports issued in respect of the applicant did not prove that he had been ill-treated by the police; it was possible that the injuries on his body were sustained before or after 5 July 2001.
38.  The Government further argued that the applicant had complained about the ill-treatment two days after his alleged arrest and that the medical report had been drawn up on that date. The applicant had failed to provide any plausible explanation as to why he had waited for two days before going to a doctor.
39.  The Government submitted that, among the witnesses who testified before the Adana Criminal Court, only M.Y. had stated that he had seen the applicant being subjected to ill-treatment at the police station. The Government argued that it was questionable whether M.Y. was impartial, as he was a relative of the applicant.
40.   Regarding the testimony of the police officer V.A., who worked at the police station at the time of the incident and who told the criminal court that the applicant had been taken to the police station on 5 July 2001 (see paragraph 24 above), the Government submitted that V.A. had in fact wanted to say that he had seen the applicant at the police station on 2 August 2001, and not on 5 July 2001.
41.  Having regard to the foregoing, the Government maintained that the applicant’s allegation was not proven “beyond reasonable doubt”, and that there had been no violation of Article 3 of the Convention under its substantive aspect.
42.  The applicant did not comment on the Government’s above observations, but repeated that he had been ill-treated at the police station.
43.  The Court observes that it is disputed between the parties whether the applicant was taken to the police station and ill-treated there by a police officer on 5 July 2001.
44.  It notes that the evidence in support of the applicant’s allegations includes the statement made by the applicant’s witness M.Y., who testified before the prosecutor and subsequently before the criminal court that he had witnessed the ill-treatment. In addition to this, the applicant underwent two different medical examinations in which his injury was documented.
45.  On the other hand, the Court cannot but note that the applicant did not bring a complaint with the prosecution office until some two days after the alleged ill-treatment had taken place, and did not ask to be examined by a doctor until four days after the alleged incident. The Court considers that the lapse of the four days renders it difficult to conclude that the medical report constituted irrefutable proof in support of the applicant’s allegations. In this connection, the Court observes that the applicant did not offer any explanation in respect of these delays.
46.  Additionally, when the applicant and his relative M.Y. brought their complaints to the attention of the prosecutor, they were unable to identify the suspect, but they gave a description of his physical appearance. Nevertheless, the investigating authorities did not give the applicant or M.Y. the opportunity to identify M.T because M.T. had claimed that he had not been in Turkey during the course of most of the proceedings (see paragraphs 22 and 27 above). The Court is not convinced that the authorities were unable to bring together the applicant, his witness M.Y and the defendant M.T. in the course of the criminal proceedings, which lasted for a period of five years before the first instance court.
47.  The Court also points out that the criminal court did not make any attempts to verify the accuracy of the testimony of the police officer V.A., who worked at the police station at the time of the incident and who claimed to have seen the applicant at the police station on 5 July 2001. In this connection the Court cannot accept the Government’s submission that the police officer V.A. mistakenly stated that he had seen the applicant in police custody on 5 July 2001 (see paragraph 40 above) because it considers that those submissions lack any basis and are not tested by a national authority.
48.  In light of the foregoing, although the Court is prepared to accept that the applicant has suffered an injury to his ear, it is unable to establish, on the basis of the evidence in the file, whether or not he was arrested on 5 July 2001 and ill-treated by police officers. This inability follows partly from the applicant’s failure to bring his complaints to the attention of the national authorities and to seek medical assistance in a timely manner, and partly from the national authorities’ failure to carry out certain investigatory steps in respect of the applicant’s allegations. The Court finds it more appropriate to deal with the consequences of this failure when examining the applicant’s complaint concerning the Government’s alleged failure to carry out an effective investigation (see, mutatis mutandis, Bozkır and Others v. Turkey, no. 24589/04, § 54, 26 February 2013).
49.  In the light of the foregoing, the Court is unable to find it established beyond a reasonable doubt that the applicant was subjected to ill-treatment by a police officer. It therefore concludes that there has been no violation of Article 3 of the Convention under its substantive aspect.
2.  The procedural aspect of Article 3 of the Convention.
50.  The applicant submitted that the criminal proceedings were not completed promptly but were allowed to continue for seven years and five months. He alleged that the national courts’ failure to conduct the trial in a timely manner resulted in the discontinuation of the criminal proceedings on account of the expiry of the limitation period.
51.  The applicant also maintained that the investigation conducted into his complaints of ill-treatment was not effective: the national court failed to collect crucial evidence, and, most remarkably, it did not even offer him the opportunity to confront and identify the defendant.
52.  The Government submitted that the obligation to conduct an effective investigation was an obligation of means, but not of results. The national authorities started the investigation procedures immediately following the applicant’s complaint. The prosecutor did not confine himself to the applicant’s first medical report, and obtained another one from the Forensic Medicine Institute to assess the former. Furthermore, a report from the Adana State Hospital was obtained to determine on which date the applicant was injured. Also, the Adana Criminal Court heard the parties and the witnesses who might have had information on the incident.
53.  The Government also maintained that the applicant had not appeared at the hearings and his lawyer had not shown sufficient effort in this regard. This finally caused the criminal case to become time-barred. The delay resulted from the behaviour of the applicant. The domestic authorities took all the reasonable measures and they effectively carried out proceedings to secure the evidence without any delay.
54.  The Government were of the opinion that the requirements arising from the case-law of the Court were met in the instant case and that there was nothing else the domestic authorities could have done.
55.  The Court reiterates that, where an individual raises an arguable claim that he has been ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3 of the Convention, 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. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII).
56.  In this connection the Court considers that the applicant has been consistent in recounting his allegations both before the national authorities and subsequently before the Court. Furthermore, the medical report of 10 July 2001 drawn up by the Adana Forensic Medicine Institute which states that the injury to the applicant’s ear had resulted from physical trauma (see paragraph 10 above) lends support to the applicant’s allegation of ill-treatment. Indeed, his allegations were deemed to be worthy of a full investigation by the Tarsus Assize Court, which quashed the prosecutor’s decision not to investigate and ordered the prosecutor to file criminal charges against the police officer (see paragraph 20 above). Subsequently, on the basis of the applicant’s allegations, the police officer was indicted and put on trial (see paragraph 21 above). In light of the above, the Court considers that the applicant brought to the attention of the national authorities an arguable claim which obliged those authorities to carry out an effective investigation as required by Article 3 of the Convention (see Dursun Çevik v. Turkey (dec.), no. 57406/00, 10 October 2006). The Court will now turn to examine whether or not this was done.
57.  The Court stresses at the outset that, as submitted by the Government, the obligation to investigate “is not an obligation of result but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events. The investigation should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). It should equally be stressed that what the obligation inherent in Article 3 of the Convention requires is that the authorities must take the reasonable steps available to them to secure the evidence concerning the incident (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II).
58.  The Court notes in the present case that the initial investigations were conducted by the Governorship of Adana together with the police officers who were the hierarchical superiors of the police officer allegedly responsible for the ill-treatment. It reiterates that investigations conducted by such persons cannot meet the independence and impartiality requirement of an effective investigation within the meaning of the Convention, and the Court thus cannot attach any importance to them (see Ümit Gül v. Turkey, no. 7880/02, § 53-57, 29 September 2009, and Saçılık and Others v. Turkey, nos. 43044/05 and 45001/05, § 98, 5 July 2011). In the present case, the fact that the initial investigation was carried out by police officers resulted in the judicial authorities’ access to the evidence at the early and crucial stages being irretrievably delayed (see Saçılık and Others, cited above, § 99).
59.  The Court also notes that according to the report of the Adana branch of the Turkish Human Rights Foundation, the applicant was taken to a doctor by the police officers on the day of the incident, following the bleeding in his ear. Although this important information was given to the prosecutor, no attempts were made by the prosecutor or subsequently by the criminal court, to find and question the doctor who allegedly conducted the first treatment (see, mutatis mutandis, Ramsahai and Others, cited above, § 326).
60.  In a number of its judgments in cases against Turkey the Court has observed that the judicial authorities’ failure to show diligence to expedite criminal proceedings against police officers for ill-treatment-related offences has resulted in those proceedings becoming time-barred on account of the statute of limitations (see, inter alia, İzci v. Turkey, no. 42606/05, § 72, 23 July 2013, and Mustafa Taştan v. Turkey, no. 41824/05, §§ 50-51, 26 June 2012). As it has done in those judgments, the Court considers in the present application that on account of the inordinate delays the criminal law system has proved to be far from rigorous and to be lacking in the dissuasive effect capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicant (see, Yazıcı and Others v. Turkey (no. 2), no. 45046/05, § 27, 23 April 2013 and the cases cited therein). In this connection the Court notes, in particular, that the Court of Cassation did not examine the appeal lodged by the applicant for a period of almost two and a half years (see paragraphs 29-30 above).
61.  The Court reiterates that when an agent of the State is accused of crimes that violate Article 3 of the Convention, any ensuing criminal proceedings and sentencing must not be time-barred and the granting of an amnesty or pardon should not be permissible (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004).
62.  The Court notes that although the proceedings lasted for a period of five years before the first instance court, the investigating authorities did not give the applicant or M.Y. the opportunity to even identify M.T. for the alleged crime (see paragraph 46 above).
63.  The Court finds that, on account of the failures of the judicial authorities to act promptly and in a timely manner to carry out the investigation and to conduct the trial, as well as their failures to take important steps in establishing the true facts of the incident and securing evidence there has been a violation of Article 3 of the Convention in its procedural aspect.
II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
64.  Finally, the applicant complained that he was detained at the police station without any explanation and in breach of his right to liberty and security within the meaning of Article 5 of the Convention, which provides as follows:
“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:
...
(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;
...”
65.  The Government contested that argument.
66.  The Court observes that two days after his alleged arrest, the applicant brought a complaint to the prosecution office that he had been arrested without any explanation and thus been arbitrarily deprived of his rights. However, the Adana Criminal Court did not examine this matter, and its acquittal decision of 17 September 2007 does not contain any mention of this matter. Likewise, the applicant’s lawyer did not object to the deprivation of the applicant’s liberty when he appealed against the acquittal decision. The Court notes that it was known to the applicant by 2007 that the national courts were not examining his complaint; however, he did not lodge his application with the Court until 3 August 2010. He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention in respect of this complaint. This aspect of the case must therefore be rejected pursuant to Article 35 § 1 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
67.  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
68.  The applicant claimed 60,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
69.  The Government contested the applicant’s claim.
70.  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.
B.  Costs and expenses
71.  The applicant also claimed EUR 3,000 in respect of the fees of his legal representative for representing him in the proceedings before the Court. In support of that claim he submitted a time-sheet, showing the hours of work done by the legal representative. He also claimed EUR 110 for various postal and translation expenses.
72.  The Government considered that the claim in respect of the lawyer’s fees were excessive, and submitted that the claim in respect of other costs was not supported with adequate documentary evidence.
73.  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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.
C.  Default interest
74.  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.  Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 3 of the Convention in its substantive aspect;

3.  Holds that there has been a violation of Article 3 of the Convention in 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 the currency of the respondent State 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, in respect of non-pecuniary damage;
(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President