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HAZIRCI AND OTHERS v. TURKEY - 57171/00 [2007] ECHR 1000 (29 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1000.html
Cite as:
[2007] ECHR 1000
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THIRD
SECTION
CASE OF HAZIRCI AND OTHERS v. TURKEY
(Application
no. 57171/00)
JUDGMENT
STRASBOURG
29
November 2007
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 Hazırcı and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M.
Zupančič, President,
Mr C.
Bîrsan,
Mr R.
Türmen,
Mrs E.
Fura-Sandström,
Mrs A.
Gyulumyan,
Mr E.
Myjer,
Mrs I.
Berro-Lefèvre, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 57171/00) 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 seven Turkish nationals, Mr Ercan Hazırcı,
Mr Sadık Günel, Mr Ercan Başkan, Ms Lütfiye Uluk,
Mr Kemal İyit, Mr Uğur Parlak and Mr Erkal Balçık
(“the applicants”), on 17 February 2000.
The
applicants, who had been granted legal aid, were represented by Ms G.
Altay, Ms F. G. Yolcu and Mr H. Karakuş (in respect of the
first, the second, the fourth and the sixth applicant) and Mr Z.
Polat and Mr M. Çöpür (in respect of the
third, the fifth and the seventh applicant), lawyers practising in
İstanbul. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
On
4 March 2003 the Court decided to communicate the application to the
Government. In a letter of 12 July 2005, the Court informed the
parties that, in accordance with Article 29 § 3 of the
Convention, it would decide on both the admissibility and merits of
the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The
applicants were born in 1961, 1974, 1971, 1974, 1967, 1962 and 1967
respectively. The first two applicants live in İzmit. The third
applicant lives in Germany and the remainder of the applicants reside
in İstanbul.
A. The applicants' detention in police custody
On
11 January 1998 around 350-400 people gathered at the Ümraniye
Sarıgazi Cemevi
to commemorate the death of members of the TKP ML/TIKKO.
The commemoration turned into a violent clash between some of the
participants and the security forces. Thirty-five people were
arrested, including the applicants. The applicants were first taken
to Sarıgazi Gendarmerie. Later on the same day they were
transferred to the İstanbul Provincial Gendarmerie Command as
there was not enough space at the Sarıgazi Gendarmerie.
On
various dates between 11 January and 14 January 1998 two gendarmes at
Sarıgazi Gendarmerie, Mr E.G. and Mr Ö. K. took the
applicants' statements with the exception of Ercan Başkan who
stated that he wished to give his statement before a prosecutor.
On
15 January 1998 the applicants were released pending trial.
B. The applicants' medical certificates
On
various occasions between 12 and 15 January 1998 the applicants were
medically examined.
1. Ercan Hazırcı
On
12 January 1998 the applicant was examined by a doctor, Dr O.A. at
Sarıyer State Hospital who noted that he had a slight ecchymosis
on his nose and an ecchymosis of 5x4 cm on his right tibia.
On
15 January 1998 the applicant was examined by another doctor, Dr Ç.A.
at Sarıyer State Hospital. This doctor noted that he had an
ecchymosis on his right tibia and right femoral region and a number
of old ecchymoses on various parts of his back. Dr Ç.A.
mentioned that the applicant complained of pain in his chest.
11. On
the same day, the Üsküdar Forensic Medicine Department
(hereinafter: “FM department”), relying on the
aforementioned medical reports, concluded that the injuries rendered
the applicant unfit for work for a week.
2. Kemal Yiğit
On
13 January 1998 the applicant was examined by Dr O.A. who noted
grazes on the skin of his right knee joint.
On
15 January 1998 the applicant was examined by Dr Ç.A. who
found no signs of ill-treatment on his body.
On
the same day, the FM department, referring to the aforementioned
medical reports, concluded that the injuries rendered the applicant
unfit for work for three days.
3. Erkal Balçık
On
13 January 1998 the applicant was examined by two doctors at Şişli
Etfal Hospital. The first doctor noted an ecchymosis of 10x10 cm and
3x3 cm as well as pain and sensitivity on the right and the left
of his lower back respectively. The second doctor found widespread
ecchymoses on the right side of the back.
On
15 January 1998 the applicant was examined by Dr Ç.A. who
found no signs of ill-treatment on his body.
On
the same day, the FM department, taking into account the medical
reports dated 13 January 1998, concluded that the injuries rendered
the applicant unfit for work for a week.
4. Uğur Parlak
On
13 January 1998 the applicant was examined by Dr O.A. who noted a
graze on the skin of the left knee joint.
On
15 January 1998 the applicant was examined by Dr Ç.A. who
found no signs of ill-treatment on his body.
On
the same day, the FM department, referring to the medical report of
13 January 1998, concluded that the injuries rendered the applicant
unfit for work for 3 days.
5. Sadık Günel
On
12 January 1998 the applicant was examined by Dr A.T. who noted that
he had pain in his right periorbital region (around the eyes) and
left leg. The doctor found a slight ecchymosis on the right
periorbital region.
On
15 January 1998 the applicant was examined by Dr Ç.A. who
found no signs of ill-treatment on his body.
On
the same day, the FM department, in view of the medical report of
12 January 1998, concluded that the injuries rendered the
applicant unfit for work for a week.
6. Lütfiye Uluk
On
13 January 1998 the applicant was examined by Dr O.A. who found a
traumatic ecchymosis on her right femoral (thigh) region and left
scapula (shoulder blade). He transferred her to Şişli Etfal
Hospital where she was examined by two doctors. The first doctor
found a traumatic ecchymosis on top of her right femoral region, on
top of her left scapula and underneath her right scapula. He noted
that the applicant had pain in her neck and right crural region (back
of upper legs). The second doctor (an orthopaedist) found an
ecchymosis of 7x10 cm on the right lateral side of the femur region
as well as subjective pain in this region. No pathology was noted in
the X-rays.
On
15 January 1998 the applicant was examined by Dr Ç.A who
indicated that the applicant complained of numbness in her right arm
and legs. He found that the applicant had ecchymoses on her right
femoral region and left scapula region. He further noted a number of
ecchymoses on her back. The doctor concluded that these lesions were
old.
On
the same day, the FM department, as a result of the medical reports
of 13 and 15 January 1998, concluded that the injuries rendered the
applicant unfit for work for a week.
7. Ercan Başkan
On
13 January 1998 the applicant was examined by two doctors at Şişli
Etfal Hospital. According to the two medical reports issued on the
same day the applicant had a superficial graze on the left side of
his nose and his left eyebrows. His left cheek was swollen. The
applicant's scalp had multiple hyperaemic areas and he had an
ecchymosis of 5x7 cm on his left gluteal region (buttocks) and
multiple superficial grazes on the inside of his femoral region. Dr
U.D. noted that the applicant complained of pain in his scrotum and
penis. However, he found no ecchymoses, laceration or hyperaemia in
the anal region.
On
15 January 1998 the applicant was examined by Dr Ç.A. who
found no signs of ill-treatment on his body.
On
the same day, the FM department, in view of the medical reports dated
13 January 1998, concluded that the injuries rendered the applicant
unfit for work for a week.
C. Investigation instigated into the applicants'
alleged ill-treatment
On
15 January 1998 the applicant, Mr Başkan was bought before the
Üsküdar public prosecutor where he denied the accusations
against him. In particular, he submitted that he had been subjected
to ill-treatment while he was held in custody. He claimed that they
had inserted a truncheon in his anus, hit his penis with a stick and
squeezed his testicles. In addition, he alleged that they put a
plastic bag over his head and that he was blindfolded and threatened.
On
the same day, the applicants were brought before the Üsküdar
Criminal Court of First Instance where they refuted the accusations
that they had taken part in the violent clash on 11 January 1998. In
particular, Mr Hazırcı stated that he was coerced to
sign the deposition taken by the security forces. Mr Yiğit and
Mr Başkan said that their statements given to the security
forces were not true. Ms Uluk stated that her police deposition was
not given of her own free will and that they tore up her initial
statement and re wrote, and made her sign, another one. She also
stated that she had been sexually harassed and given electric shocks.
The court ordered their release.
On
the same day, the representatives of the thirty-five people arrested,
including the applicants, submitted a petition to the Üsküdar
public prosecutor's office claiming that their clients had been
subjected to ill treatment during their interrogation, that they
had not been properly medically examined and that they had also been
subjected to ill treatment after their medical examination. They
submitted that their clients had been beaten and deprived of food.
They requested an urgent medical examination.
The
Üsküdar public prosecutor decided to transfer the
applicants to the Haydarpaşa Numune Hospital for a medical
examination. According to the report drafted by the prosecutor at the
Üsküdar Criminal Court of First Instance on 15 January
1998, the complainants left the court house after the hearing despite
his request,and therefore could not be taken to a hospital for a
medical examination.
On
an unspecified date, the Üsküdar public prosecutor decided
that his office lacked competence ratione loci and transferred
the case file to the Şişli public prosecutor's office on
29 January 1998.
On
13 February 1998 Mr T.O., the prosecutor at the Şişli
public prosecutor's office, requested the identities of the gendarmes
who had participated in the interrogation of the complainants.
On
11 March 1998 the İstanbul Provincial Gendarmerie Command
informed the Şişli public prosecutor's office that Mr E.G.
and Mr Ö.K. were the gendarmes who had interrogated the
complainants.
On
8 July 1998 Mr E.G. and Mr Ö.K. were heard by a prosecutor. They
denied the accusations against them.
1. Decision no. 1998/18096
On
15 July 1998 the prosecutor, Mr T.O. gave a decision of
non prosecution against Mr E.G. and Mr Ö.K. on the ground
that there was no evidence that they had ill-treated the complainants
during interrogation. The prosecutor considered that the physical
findings noted in the medical reports were the result of lawful use
of force by the gendarmes during arrest.
The
applicants' objection against this decision was dismissed by the
2nd Chamber of the Beyoğlu Assize Court on
29 September 1999.
2. Decision no. 1998/25637
On
6 July 1998 the applicants, with the exception of Mr Balçık,
filed an official complaint with the Üsküdar public
prosecutor's office against the gendarmes at the İstanbul
Provincial Gendarmerie Command. They submitted that, on various
dates, they had been tortured by plain clothes officers.
On
21 October 1998 Mr T.E., another prosecutor at the Şişli
public prosecutor's office, decided that there was no need to
investigate the applicants' allegations of ill-treatment since the
matter had been investigated and a decision not to prosecute Mr Ö.K.
and Mr E. G. had already been given in this respect.
The
applicants objected. They submitted that they did not know that an
investigation into their allegations had been held, or that a
decision of non-prosecution had been rendered, as the decision had
never been served on them. They further stated that, in any event,
they were subjected to ill-treatment at the İstanbul Provincial
Gendarmerie Command and not at the Sarıgazi Gendarmerie where Mr
Ö.K. and Mr E. G. were stationed.
On
11 June 1999 the First Chamber of the Beyoğlu Assize Court
dismissed the applicants' objection.
D. Subsequent developments
The
criminal proceedings instigated against the applicants in respect of
their involvement in the violent clashes on 11 January 1998 ended
with their acquittal.
According
to the report issued by the Human Rights Association of Turkey on 14
November 2003, Mr Başkan applied to them on 7 May 1998 for
treatment. He gave a description of the alleged ill-treatment he had
been subjected to while held in custody in 1994, 1995, and 1996 and
in January 1998 at the İstanbul Provincial Gendarmerie Command.
The report indicates that the applicant was diagnosed as suffering
from gingivitis, sinusitis and haemorrhoids and was given appropriate
treatment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A
description of the relevant domestic law at the material time can be
found in Batı and others v. Turkey (nos. 33097/96 and
57834/00, §§ 96 100, 3 June 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained that they had been subjected to torture while
they were held at the İstanbul Provincial Gendarmerie Command in
breach 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.”
A. The parties' submissions
The
Government maintained under Article 35 § 1 of the Convention
that the applicants had failed to comply with the six-month rule.
They submitted in this respect that the applicants should have lodged
their application with the Court within six months following the
First Chamber of the Beyoğlu Assize Court's decision of 11 June
1999 (see paragraph 43).
As
to the merits, the Government stated that the injuries noted in the
medical reports were sustained by the applicants during their arrest.
In this respect, they pointed out that the applicants were
apprehended in the course of a violent demonstration and that, as
acknowledged by the applicants, the security forces had used force
during their arrest. The Government stated that the applicants'
allegations of ill-treatment did not match the physical findings
noted in the medical reports. They noted that the applicants, after
their release, could have undergone a detailed medical examination in
order to substantiate their allegations.
The
applicants maintained that they had complied with the six month
rule.
As
to the merits, the applicants submitted, in their observations dated
12 September 2005, that they were ill-treated during their
arrest and throughout their detention in custody. They claimed that
the physical findings noted in the medical reports were consistent
with their allegations of ill-treatment. They submitted that, during
custody, they were subjected to treatment such as being beaten, given
electric shocks, hit with hard objects, sexually harassed, having
their testicles squeezed and having a bag put over their
heads. They pointed out that they should have been examined by a
doctor immediately after their arrest and they also challenged the
veracity of the medical reports issued in their respect on 15 January
1998.
B. The Court's assessment
1. Admissibility
(a) The Government's preliminary objection
The
Court recalls that the six month time limit imposed by
Article 35 § 1 of the Convention requires applicants to
lodge their applications within six months of the final decision in
the process of exhaustion of domestic remedies.
In
the present case, the Court considers that the final effective
decision concerning the applicants' complaints was that of the Second
Chamber of the Beyoğlu Assize Court's decision of 29 September
1999, dismissing the applicants' objections against the public
prosecutor's decision of 15 July 1998, since the latter was the
decision on the merits of their complaint (see, mutatis
mutandis, Ete and Ete v. Turkey (dec.), no. 29315/02,
13 June 2006). The application was lodged with the Court on
17 February 2000. In view of the above, the Court considers that
the application was introduced within the six-month time-limit
provided for in Article 35 § 1 of the Convention. It therefore
rejects the Government's objection under this head.
(b) Other points on admissibility
At
the outset, the Court notes that in their observations post
communication, the applicants alluded to the fact that they were
ill-treated during arrest. However, the Court notes that, even
assuming that this was raised as a new complaint, it relates to
events or decisions which intervened more than six months before
being lodged with the Court on 12 September 2005, and the Court
therefore rejects it in accordance with Article 35 §§
1 and 4 of the Convention.
As
regards the applicants, Mr Yiğit and Mr Parlak, the Court finds
that there is no indication in the case file to demonstrate that they
were subjected to any kind of ill-treatment, the severity of which
was above the Article 3 threshold. In this connection, the Court
notes that the medical reports established at the end of their stay
in custody contain no indication of ill-treatment (see paragraphs 12
and 18) and that the findings noted in their medical reports of 13
January 1998 are insufficient to substantiate their allegations (see
paragraphs 11 and 17). Bearing in mind that the applicants were
released pending trial, it would have been possible for them to
provide the Court with medical evidence which would have contradicted
the medical reports contained in the case-file. Accordingly, the
Court concludes that these applicants have not laid the basis of an
arguable claim that they were ill-treated at the hands of the
gendarmes. For these reasons, the Court finds that their complaint
under Article 3 of the Convention is inadmissible as being manifestly
ill-founded within the meaning of Article 35 § 3 and 4 of the
Convention.
As
to the remaining applicants, the Court notes that their application
is not manifestly ill founded within the meaning of Article 35 §
3 of the Convention. No other grounds for declaring them inadmissible
have been established. Their application must therefore be declared
admissible.
2. Merits
(a) Mr Başkan, Mr Günel and Mr
Balçık
The
Court observes that the medical reports drawn up around one or two
days after the applicants' arrest and placement in custody (12 and
13 January 1998) contain a number of physical findings (see
paragraphs 14, 20 and 26). The parties do not dispute these
findings. However, they do put forward different versions as to how
the applicants had actually sustained them.
The
Court notes that the medical reports established at the end of the
applicants' stay in custody (15 January 1998) mention no physical
findings of ill treatment. The applicants, despite having been
released, failed to provide the Court with medical evidence which
contradicted the findings of the medical reports of 15 January 1998.
The Court also notes that the applicants did not provide any details
to the Court as regards the alleged ill-treatment until 12 September
2005, i.e. five years after having lodged the application (see
paragraph 51). These facts lend more credibility to the Government's
argument as regards the cause of the injuries noted in the medical
reports of 13 January 1998 (see paragraph 49) particularly since
the applicants do not dispute that they were arrested in the course
of a violent demonstration during which the police used force in
order to arrest them.
In
light of the foregoing, the material submitted by the applicants are
not sufficient to enable the Court to find beyond all reasonable
doubt that they were subjected to treatment which amounted to
torture, inhuman or degrading treatment while they were detained at
the İstanbul Provincial Gendarmerie Command.
It follows that there has been no violation of Article
3 of the Convention.
(b) Ms Uluk and Mr Hazırcı
The
Court does not find it necessary to determine whether the injuries
noted in the applicants' medical reports of 12 and 13 January 1999
respectively, were sustained during arrest since, in any event, the
medical reports drawn up at the end of their stay in custody refer to
a number of ecchymoses on their backs and an ecchymosis on Mr
Hazırcı's right femoral region which did not exist at the
time of the previous reports (see paragraphs 9 and 24). As the
Government failed to provide any plausible explanation as to the
cause of these injuries, the Court finds that they were the result of
treatment for which they bear responsibility (see, in particular,
Sunal v. Turkey, no. 43918/98, §§ 47-50,
25 January 2005).
It
follows that there has been a 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.”
A. Damage
The
applicants claimed, in total, 35,000 euros (EUR) in respect of
pecuniary damage and EUR 160,000 in respect of non-pecuniary damage.
The
Government contested the amounts.
As
regards the alleged pecuniary damage sustained by them, the Court
notes that Ms Uluk and Mr Hazırcı failed to produce any
receipts or documents in support of their claim, which is accordingly
dismissed. On the other hand, the Court finds that the applicants
must have suffered pain and distress which cannot be compensated
solely by the Court's finding of a violation. Ruling on an equitable
basis, the Court awards EUR 5,000 each to Ms Uluk and Mr Hazırcı.
B. Costs and expenses
The
applicants, who received legal aid from the Council of Europe, also
claimed EUR 3,950 for the costs and expenses incurred before the
Court. The applicants relied on the İstanbul Bar Association's
recommended minimum fees list and a schedule of costs prepared by
their representatives. They, however, did not submit any receipts or
any other relevant documents.
The
Government contested the amounts.
Since the applicants, Ms Uluk and Mr Hazırcı,
submitted no justification as regards costs and expenses as required
by Rule 60
of the Rules of Court, the Court 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
Declares the complaint concerning the alleged
ill-treatment of Ms Uluk and Mr Hazırcı when they were held
at the İstanbul Provincial Gendarmerie Command admissible and
the remainder of the application inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, Ms Uluk and
Mr Hazırcı, within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 5,000 (five thousand euros), each, in
respect of non-pecuniary damages, to be converted into new Turkish
liras at the rate applicable at the date of the settlement and free
of any taxes or charges that may be payable;
(b) that
from the expiry of the abovementioned 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;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
