(Application no. 16999/04)
27 January 2009
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 Samüt Karabulut v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 6 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. ALLEGED VIOLATION OF ARTICLES 3, 10 AND 11 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“1. Everyone has the right to freedom of peaceful assembly...
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of ... public safety, [or] for the prevention of disorder or crime....”
1. The parties' submissions
2. The Court's assessment
a) Article 11
b) Article 3
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
4. Holds by 5 votes to 2
(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, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into new 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;
Done in English, and notified in writing on 27 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following partly separate opinion is annexed to this judgment:
Partly dissenting opinion of Judges Vladimiro Zagrebelsky and András Sajó;
PARTLY DISSENTING OPINION OF JUDGES VLADIMIRO ZAGREBELSKY AND ANDRÁS SAJÓ
While sharing the opinion that in the instant case there has been a violation of Article 11 of the Convention, which is in our view the main point of interest in the case, we were not able to follow the majority in finding also a violation of Article 3.
In the majority's view the applicant's version of his arrest, “namely a gratuitous, excessively brutal attack on his person by several police officers” is unsubstantiated (paragraph 40). However, the majority take account of the traces of a blow on the frontal region of the applicant's head and finds “this injury, particularly because of its location, sufficiently serious to bring it within the scope of Article 3” (paragraph 41). As to the origin of the injury the applicant suffered, the majority acknowledge that he continued to demonstrate despite the police warnings and the dispersal of the crowd. It is in that context that the applicant was arrested and was injured.
The majority find a violation of Article 3 because “the Government have failed to furnish convincing or credible arguments which would provide a basis to explain or to justify the head injury sustained by the applicant during his arrest, at the end of a peaceful demonstration” (paragraph 43). In our view, the peaceful nature of the demonstration has no bearing on the circumstances of the applicant's arrest, because the key factor was his own attitude when he refused to disperse and intervened when the police were arresting a fellow demonstrator (paragraph 6).
When an applicant suffers injuries while in custody and thus in the hands of the authorities, the Court rightly ask the Government to provide convincing reasons and explanations. If such explanations are not offered by the Government, a kind of presumption of the authorities' responsibility often operates (Anguelova v. Bulgaria, judgment of 13 June 2002, § 110, and Ipek v. Turkey, judgment of 17 February 2004, § 165) But in totally different circumstances like the present ones, where investigations and judicial decisions took place at national level and excluded any police responsibility (paragraph 11-21), the reversal of the burden of proof appears to us unjustified. In fact the majority's reasoning contradicts the conclusions of the national judge without finding any procedural violation of Article 3 and compels the Government to provide a probatio diabolica in the procedure before the Court.
1 The judgment is not final yet.
2 The judgment is not final yet.