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BOKE AND KANDEMIR v. TURKEY - 71912/01 [2009] ECHR 444 (10 March 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/444.html
Cite as:
[2009] ECHR 444
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SECOND
SECTION
CASE OF BÖKE AND KANDEMİR v. TURKEY
(Applications
nos. 71912/01, 26968/02 and 36397/03)
JUDGMENT
STRASBOURG
10
March 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 Böke and
Kandemir v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in three applications (nos. 71912/01 and 26968/02 and
36397/03) 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, Mr Rıfat Böke and Mr Halil Kandemir (“the
applicants”), on 15 June 2001, 7 May 2002 and 28 October
2003 respectively.
The
applicants were represented by Mr M.N. Terzi, a lawyer practising in
İzmir. The Turkish Government (“the Government”)
were represented by their Agent.
On
23 September 2005 the President of the Second Section decided to give
notice of the applications to the Government. It was also decided to
examine the merits of the case at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1969 and 1979 respectively and live in İzmir.
A. The arrest and detention of the applicants
On
14 February 2001 two persons were shot and injured in a bus by a
person who subsequently got off the bus.
On
the same day, upon receipt of information that the suspect of the
shooting was in a red car, police officers from the Aydın police
headquarters arrested the applicants during a traffic control
operation that had they initiated on the Aydın motorway. The
security forces further arrested four other persons, including the
first applicant's brother, in another car. The police officers
confiscated the applicants' mobile telephones and both cars, in which
5 firearms were found. On the same day, the applicants were taken
into police custody.
On
15 February 2001 three police officers drafted a report containing
the numbers dialled and calls received on the mobile telephones of
the first applicant, his brother and another suspect.
On
19 February 2001 a single judge at the Aydın Magistrates' Court
extended the period of the applicants'
detention in police custody for a further three days.
On
the same day the applicants' statements were taken by police officers
from the organised crime unit of the Aydın Police Headquarters.
According to the document containing their statements, the applicants
were suspected of forming a criminal profit-making organisation
proscribed by Article 1 of Law no. 4422. According to the document,
both applicants confessed to their involvement in a criminal
organisation.
On
15, 16 and 21 February 2001, the applicants were examined by doctors
at the Aydın State Hospital. The doctors noted in their reports
that there were no signs of ill-treatment on the applicants' persons.
On
21 February 2001 the applicants were brought before a single judge at
the Aydın Magistrates' Court, who ordered their detention on
remand. Before the judge, the applicants refuted the accuracy of the
documents containing their statements taken by the police.
On
22 March 2001 the firearms found in the cars were subjected to a
ballistic examination. The experts found that one of the weapons
found in the car of the first applicant's brother had been used in
the shooting of 14 February 2001.
On
an unspecified date a test was conducted in order to detect traces of
gunpowder on the applicants' and other suspects' hands, which
resulted in the finding of gunpowder traces on the applicants' hands.
B. Criminal proceedings before the İzmir State Security Court
On
19 April 2001 the Public Prosecutor at the İzmir State Security
Court filed a bill of indictment, charging the applicants and eleven
other persons with forming a criminal profit-making organisation.
On
5 June 2001 the applicants made statements before the Aydın
Assize Court and refuted the veracity of the documents containing
their statements taken by the police. The minutes containing their
statements were then sent to the İzmir State Security Court.
On
13 June 2001 the İzmir State Security Court held the first
hearing on the merits of the case and heard some of the accused and
read out the evidence in the case file. On the same day the
applicants' representative stated before the court that the
applicants disputed the accuracy of the evidence against them,
including the medical reports issued following their detention in
police custody, which stated that there was no sign of physical
violence on their bodies.
On 2 August and 11 September 2001 the court held the
second and third hearings and took statements from some of the other
accused.
On
13 June 2001, 26 July 2001, 2 August 2001 and 11 September 2001, the
State Security Court refused to release the applicants, relying on
the seriousness of the offence and the evidence in the case file.
On
1 November 2001, during the fourth hearing before the State Security
Court, the first applicant, Rıfat Böke, complained that he
had been subjected to torture during his detention in police custody
and that he suffered from cervical disk syndrome as a result. He
denounced the statements that had been taken from him in police
custody and contested the accuracy of the medical reports issued in
his respect. At the end of the hearing, the court refused to release
the applicants, taking into account the nature of the offence and
state of the evidence. The court held that the next hearing would be
held on 27 December 2001.
The
applicants filed an objection to the decision for their continued
detention.
On
20 November 2001 another Chamber of the İzmir State Security
Court dismissed the applicants' objection, holding that the decision
for their continued detention was justified.
Between
27 December 2001 and 14 May 2002 the İzmir State Security Court
held four more hearings.
On
14 May 2002 the İzmir State Security Court convicted the
applicants of forming a profit-making criminal gang and sentenced
them to three years and four months' imprisonment. In its judgment,
the court took into consideration as evidence the arrest report, the
report stating that firearms were found in the applicants' car, the
applicants' statements to the police, the medical reports issued at
the end of their detention in police custody, the report containing
the details of the telephone calls made by the first applicant, the
results of the test showing gunpowder traces on the applicants' hands
and the ballistic reports. The court further noted the past relations
between the applicants and the other accused, as well as the
hostility between them and one of the persons who had been shot on
14 February 2001. In the light of the evidence in the case file,
the State Security Court found it established that the applicants had
formed a criminal organisation with a view to making a profit, and
that the shooting of the two persons on 14 February 2001 had been a
result of the activities of that organisation. Taking into account
the total period of the applicants' pre-trial detention, the court
ordered their release.
On
5 May 2003 the Court of Cassation upheld the decision of the İzmir
State Security Court.
C. Criminal proceedings before the Aydın Criminal
Court
On
14 June 2001 the Aydın Public Prosecutor filed a bill of
indictment with the Aydın Criminal Court, charging the
applicants with causing grievously bodily harm to third persons.
On
4 December 2006 the Aydın Criminal Court acquitted the
applicants. The court noted that the persons who had been shot could
not identify the applicants as the perpetrators of the shooting. It
held that there was insufficient evidence in the case file to
conclude that the applicants had been involved in the shooting.
D. The first applicant's allegations of ill-treatment
and the related proceedings
On
26 February 2001 the applicant met his representative in the Aydın
prison. The applicant complained about the ill-treatment he had
allegedly suffered in police custody. He asked his representative to
secure him a medical examination.
On
2 March 2001 the applicant's representative filed a petition with the
İzmir Public Prosecutor's office, requesting the latter to order
the medical examination of both applicants. He alleged that, during
the applicants' detention in police custody, they had been subjected
to various forms of ill-treatment, including hanging by the arms,
which still caused them pain and had left marks on their bodies. He
further stated that the applicants had previously been examined by
doctors who had turned a blind eye to these marks and had failed to
draft accurate medical reports. He warned that an immediate medical
examination was necessary since the traces of ill-treatment risked
disappearing.
On
the same day, the Aydın Public Prosecutor sent a letter to the
Aydın Prison Administration, requesting the latter to send the
applicants to Aydın State Hospital for medical
examinations. He further asked the prison administration to provide
him with the medical reports concerning the findings on the
applicants' bodies so that he could verify whether they had been
subjected to ill-treatment.
On
29 March 2001 the first applicant was taken to a clinic attached to
the Aydın Governor's office. A doctor examined the applicant and
drafted a report in which he noted that there was no sign of
ill-treatment. He recommended that the applicant undergo a medical
examination by a neurologist.
On
30 March 2001 a doctor at the Aydın State Hospital drafted a
report on the first applicant's neurological examination. He noted
that there were no pathological findings in respect of the applicant.
According
to the first applicant's submissions, on the same day, another doctor
at the hospital took an x-ray of his neck. The applicant further
submitted that the doctor had noted in his report that he was
suffering from cervical disk syndrome. The doctor sent the
applicant's x-ray to the Aydın prison.
On
4 April 2001 a doctor at the Aydın State Hospital prescribed a
hard cervical collar for the first applicant. According to the
minutes of the hearing before the Aydın Criminal Court held on
26 July 2001, the applicant appeared before the court wearing the
collar.
On
10 May 2001 the applicant filed a complaint with the Aydın
Public Prosecutor's office against the police officers who had
allegedly ill treated him, and the prison authorities, who had
failed to arrange his transportation to a hospital for medical
examination. He also complained about the doctors who had not
examined him in accordance with the regulations and had failed to
note his injuries in their reports.
On
23 May 2001 a doctor prescribed anti-inflammatory medicine (Tilcotil)
for the applicant.
On
5 June 2001 the applicant stated before the Aydın Assize Court,
within the context of his defence concerning the case brought against
him before the İzmir State Security Court (see paragraph 14
above), that he had been subjected to torture and had suffered from
severe pain in his neck as a result. He further maintained that he
could not receive appropriate medical treatment since he was
detained.
On
23 October 2001 the Aydın Public Prosecutor issued a decision to
discontinue the criminal proceedings against the police officers
since no sign of ill-treatment had been detected on the applicant's
person. In his decision, the public prosecutor relied exclusively on
the medical reports issued in respect of the applicant on
15, 16 and 21 February 2001 and the medical report issued
during the investigation.
On
9 January 2002 Mr Böke filed an objection with the
Nazilli Assize Court against this decision. He maintained that
he had worn a cervical collar for three weeks. He further contended
that the cervical X-ray, the medical report diagnosing him with
cervical disk syndrome and the prescriptions had not been given to
him. Nor had they been included in the investigation file.
On
5 February 2002 the Nazilli Assize Court dismissed the applicant's
objection. The court considered that the decision to discontinue the
proceedings was justified given the lack of sufficient evidence
capable of substantiating the applicant's allegations of
ill-treatment.
II. RELEVANT LAW AND PRACTICE
A full description of the law
and practice at the relevant time may be found in Batı
and Others v. Turkey,
(nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV
(extracts)) and in Salduz v.
Turkey ([GC], no. 36391/02, §§ 27-31
and 37-44, 27 November 2008).
THE LAW
I. JOINDER
In
view of the similarity of the applications, the Court deems it
appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF
RIFAT BÖKE
In application no. 26968/02, the first applicant,
Rıfat Böke, complained that he had been subjected to
torture during his detention in police custody in breach of Article 3
of the Convention. He further complained under Articles 6 and 13 of
the Convention that the domestic authorities
had failed to conduct an effective investigation into his
allegations.
The Court finds it appropriate to examine these complaints under
Article 3 of the Convention alone. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 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 responsibility of the respondent State in the
light of the substantive aspect of Article 3 of the Convention
The
applicant submitted that he had been subjected to torture in police
custody. In particular, he was subjected to “Palestinian
hanging” and his head and neck had been pulled back, which
resulted in the cervical disc syndrome from which he suffered. The
applicant further submitted that prior to his detention in police
custody he had not suffered from this illness, and the fact that he
had been prescribed a cervical collar and anti-inflammatory medicine
was proof of the accuracy of his allegations. He alleged that the
medical reports according to which there were no signs of physical
violence on his person had not reflected the truth. The applicant
finally submitted that the Government had failed to submit his
hospital records and x-rays, although requested to do so by the
Court.
The
Government contended that there had been no evidence demonstrating
that the cervical disc syndrome from which the applicant allegedly
suffered occurred during his detention in police custody.
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence (see, in particular, Tanrıkulu and
Others v. Turkey (dec.), no. 45907/99, 22 October 2002). To
assess this evidence, the Court adopts the standard of proof “beyond
reasonable doubt”, but adds that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see,
among many others, Labita v. Italy
[GC], no. 26772/95, § 121, ECHR 2000-IV; Süleyman
Erkan v. Turkey,
no. 26803/02, § 31, 31 January 2008).
In
the present case, the Court notes at the outset that the first
applicant consistently maintained his allegations of ill-treatment,
in detail, not only when he complained to the national authorities
but also in his submissions to the Court. However, neither of the
medical reports, issued in his respect and submitted to the Court,
indicate that the applicant had signs of ill-treatment on his person.
Nevertheless,
the Court cannot but note that the medical reports submitted to the
Court lack detail and fall significantly short of both the standards
recommended by the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT), which are
regularly taken into account by the Court in its examination of cases
concerning ill-treatment (see, inter alia, Akkoç v.
Turkey, nos. 22947/93 and 22948/93, § 118, ECHR
2000 X), and the guidelines set out in the Manual
on the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, “the
Istanbul Protocol”,
submitted to the United Nations High
Commissioner for Human Rights (see Batı and Others,
cited above, § 100). As such, the Court considers
that the medical reports in question cannot be relied
on as evidence for proving or disproving that the applicant was
ill-treated (see Mehmet Eren v. Turkey, no.
32347/02, §§ 40-42, 14 October 2008, and
Gülbahar and Others v. Turkey, no.
5264/03, § 53, 21 October 2008).
The
Court further considers that no weight can be attached to the other
documents submitted to the Court by the first applicant, namely the
prescriptions for anti-inflammatory medicine and the cervical collar,
as evidence of ill-treatment since they are not supported by any
medical opinion linking the prescriptions to the alleged
ill treatment. The Court also observes, in this connection, that
the Government did not submit the applicant's hospital records and
X-rays, as pointed out by the applicant. Yet, even assuming that this
evidence actually exist, the Court is of the view that without a
medical report containing the diagnosis and a possible link between
the illness allegedly suffered by the applicant and the alleged
ill-treatment, no decisive importance could be
attributed to the hospital records and the X rays.
In
the light of the above considerations and in the absence of any
decisive evidence in support of the first applicant's allegations,
the Court cannot find beyond all reasonable doubt that the applicant
was subjected to ill-treatment. The Court is therefore led to
conclude that there has been no violation of Article 3 of the
Convention under its substantive limb.
2. The responsibility of the respondent State in the
light of the procedural aspect of Article 3 of the Convention
The
applicant alleged that there had not been an effective investigation
into his allegations of ill-treatment. In particular, the
Aydın Public Prosecutor did not take statements from the
other suspects who had been in police custody or the police
officers who had been on duty at the material time.
The
Government during his detention in
custody at the police headquarters
submitted that the domestic authorities
had fulfilled their obligation to conduct an effective investigation
into the applicant's allegations. They contended that the Aydın
Public Prosecutor had decided to end the investigation as none of the
medical reports indicated any injury on the applicant's person.
The Court reiterates that
Article 3 of the Convention requires the authorities to investigate
allegations of ill-treatment when they are “arguable” and
“raise a reasonable suspicion” (see, in particular, Ay
v. Turkey, no. 30951/96, §§
59-60, 22 March 2005). One of the
minimum standards of effectiveness defined by the Court's case-law is
that the competent authorities act with exemplary diligence and
promptness (see, for example, Çelik
and İmret v. Turkey, no.
44093/98, § 55, 26 October 2004).
In the present case, the Court
has not found it proved, on account of a lack of evidence, that the
first applicant was ill-treated. Nevertheless, as it has held in
previous cases, that does not preclude his complaint in relation to
Article 3 from being “arguable” for the purposes of the
positive obligation to investigate (see, mutatis
mutandis, Yaşa
v. Turkey, judgment of 2 September
1998, Reports of Judgments and
Decisions 1998-VI, § 112). In
reaching this conclusion the Court has had particular regard to the
consistency of the first applicant's allegations both when he
approached the national authorities and in his submissions to the
Court. An effective investigation was
therefore required.
The
Court observes, at the outset, that a
preliminary investigation was indeed conducted by the Aydın
public prosecutor. However, the Court is not persuaded that this
investigation was conducted either diligently or,
in other words, that it was
“effectively”.
In this connection, the Court
notes that the applicant asked his representative to secure him a
medical examination on 26 February 2001 and his representative
applied to the public prosecutor's office to that effect on 2 March
2001. However, although the Aydın Public Prosecutor requested
the prison authorities to send the applicant to the State hospital
for medical examinations on the same day, the applicant was
not able to undergo a medical examination until 29 March 2001; it
took the prison authorities 27 days to carry out the public
prosecutor's order. The Court has already held that the
authorities must act as soon as an official complaint has been lodged
in cases involving allegations of torture or ill-treatment (see
Batı and Others, cited above, § 133) since a
prompt response by the authorities in investigating such complaints
may 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
Abdülsamet Yaman v. Turkey, no. 32446/96, § 54,
2 November 2004). The Court finds that the prison authorities'
inactivity for almost four weeks, when it came to securing the
applicant's medical examination, does not comply with the requirement
of “promptness” having regard, in particular, to its
possible consequences, such as the disappearance of the traces of the
alleged ill treatment.
The
Court further observes that the Aydın Public Prosecutor relied
solely on the medical reports issued on 15, 16 and 21 February
2001 and the medical report issued during the investigation. Nor did
the Prosecutor question the police officers who
had been on duty during the applicant's detention in the Aydın
police headquarters, the other detainees or the applicant himself.
The Prosecutor also failed to take into
account the evidence submitted by the applicant, namely the
prescriptions for anti-inflammatory medicine and the cervical collar,
or address the contradiction between the medical report of 30 March
2001 and the prescription of 4 April 2001.
In
the light of the above, the Court concludes that the applicant's
allegations of ill-treatment were not effectively investigated by the
domestic authorities as required by Article 3 of the Convention.
There
has accordingly been a violation of Article 3 under its procedural
limb.
III. ALLEGED VIOLATIONS OF ARTICLE 5 § 3 OF THE
CONVENTION
60. In application no. 71912/01, the applicants complained
under Article 5 § 3 of the Convention that they had been
held in police custody for seven days without being brought before a
judge or other officer authorised by law to exercise judicial power.
In their submissions dated 13 December 2001 in the same application,
the applicants further contended under the same head that the length
of their detention pending trial had been excessive.
A. As regards the applicants' detention in police
custody
The Government submitted that the applicants had
failed to invoke Article 5 of the Convention before the domestic
authorities or challenge the decision to extend their custody. The
Court has already examined and rejected the Government's preliminary
objection in similar cases (see, for example, Öcalan v.
Turkey [GC], no. 46221/99, §§ 66-71, ECHR 2005-...).
The Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence. It therefore
finds that this part of the application is admissible.
62. As regards the merits of this complaint, the Court observes
that the applicants' detention in police custody lasted seven days.
It reiterates that, in the case of Brogan and Others v. the United
Kingdom (29 November 1988, § 62, Series A no. 145 B),
it found that detention in police custody which had lasted four days
and six hours without judicial control fell outside the strict
time constraints of Article 5 § 3 of the Convention. In
the light of the principles enunciated in the Brogan case, the
Court cannot accept that it was necessary to detain the applicants
for seven days without judicial intervention even if the activities
of which the applicants stood accused were serious.
There has accordingly been a violation of Article 5 § 3 of
the Convention.
B. As regards the applicants' detention on remand
The Government submitted that this complaint should be
rejected for failure to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. The Government argued that the
applicants could have, pursuant to Article 128 of the former Code of
Criminal Procedure, challenged the length of their detention in
police custody. They further maintained that
the applicants could have sought compensation pursuant to Law no. 466
on the Payment of Compensation to Persons Unlawfully Arrested or
Detained.
The
Court recalls that it has already examined and rejected the
Government's preliminary objections in similar cases (see, for
example, Karatay and Others v. Turkey, no. 11468/02,
§ 35, 15 February 2007; Bayam v. Turkey,
no. 26896/02, § 16, 31 July 2007).
The Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence. As a result, it
rejects the Government's preliminary objections.
However,
the Court considers that this part of
the application is inadmissible for the following reasons.
The
Court notes that the applicants' detention on remand began on
14 February 2001, when they were arrested, and ended on 14 May
2002, when the first-instance court convicted them and ordered their
release, having regard to the total amount of time they had spent in
detention. The period to be taken into consideration thus lasted
fifteen months.
The
Court observes in this connection that the İzmir State Security
Court considered the applicants' continued detention at the end of
each hearing, either of its own motion or at the applicants' request.
The Court further observes that the offence for
which the applicants and eleven other suspects were charged was of a
serious nature, since it concerned forming a criminal
organisation. Having regard to the complexity
of the case and the serious nature of the offence of which the
applicants were charged and later convicted, the Court finds that the
reasons given by the national courts for refusing release were
relevant and sufficient to justify the applicants' continued
detention for fifteen months, in particular having regard to the
evidence in the case file (see paragraph 6 and 12 above).
Accordingly, it concludes that the length of time in detention was
not unreasonable.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE
CONVENTION
In
application no. 36397/03, the applicants alleged that their defence
rights had been violated as they had been denied access to a lawyer
during their detention in police custody. They relied on Article 6
§ 3 (c) of the Convention.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
As
regards the merits, the Court reiterates that
it has already examined the same grievance in the case of Salduz
v. Turkey and found a violation of
Article 6 § 3 (c) of the Convention in conjunction
with Article 6 § 1 (cited above, §§
56-62). The Court has examined the present case and finds no
particular circumstances which would require it to depart from its
findings in the aforementioned Salduz
judgment. 45. There
has therefore been a violation of Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1 in the present
case. the Court refers to its judgment
in the case of Salduz v. Turkey ([GC]
no. 36391/02, §§ 45-63 27 November 2008) and finds a
violation of Article 6 § 3 (c) of the Convention in conjunction
with Article 6 § 1 of the Convention for the reasons set out
therein.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Alleged violations of Articles 5 and 6 of the
Convention
The
applicants complained under Article 5 § 5 of the Convention that
they had not had a right to compensation in
respect of the length of their detention in police custody and
pending trial. They further alleged under Articles
6 §§ 1 and 2 that the İzmir State Security Court had
not been an independent and impartial tribunal in that it had relied
on unlawful evidence, such as the illegal recording of their
telephone conversations and statements which had been taken from them
under duress, added to the case file by the public prosecutor, and
that it had convicted them without awaiting the judgment of the Aydın
Criminal Court. They submitted under Article 6 § 3 (b) and (d)
of the Convention that their detention in Aydın prison had
deprived them of the opportunity to contact their lawyer easily and
that the State Security Court had not given them the opportunity to
comment on the illegal telephone recordings submitted by the
prosecution. The applicants further alleged under Article 7 of the
Convention that their conviction had been unlawful as it had been
based on insufficient evidence.
Having regard to the facts of the case, the
submissions of the parties and its finding of a violation of Articles
5 § 3 and 6 § 3 (c) of the Convention above (see paragraphs
62 and 71 above), the Court considers that it has examined the main
legal questions raised under Article 5 and 6 in the present case. It
concludes therefore that there is no need to make a separate ruling
on the applicants' remaining complaints under these provisions (see
Yalçın Küçük v. Turkey (no. 3),
no. 71353/01, § 40, 22 April 2008; Kamil Uzun
v. Turkey, no. 37410/97, § 64, 10
May 2007; Getiren v. Turkey, no.
10301/03, § 132, 22 July 2008).
B. Alleged violations of Article 8 of the Convention
and Article 1 of Protocol No. 1
The
applicants contended under Article 8 of the Convention that their
telephone conversations and their conversations during their
detention in police custody had been illegally recorded. They finally
complained under Article 1 of Protocol No. 1 about the seizure of
their car and mobile telephones by the national authorities.
In the light of all the material
in its possession, the Court finds that the above submissions by the
applicants do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that these complaints must be declared inadmissible as being
manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
VI. 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
first applicant claimed 25,000 euros (EUR) and the second applicant
claimed EUR 15,000 in respect of non-pecuniary damage.
The
Government contested the applicants' claims.
The
Court notes that it has found violations of Articles 3, 5 § 3
and 6 § 3 (c) of the Convention in respect of the first
applicant, Rıfat Böke. As regards the second
applicant, Halil Kandemir, it has found violations of Articles 5 §
3 and 6 § 3 (c) of the Convention. The
Court considers, on the one hand, that the finding of a violation in
respect of Article 6 § 3 (c) constitutes in itself sufficient
just satisfaction for any non-pecuniary damage suffered by the
applicants. On the other hand, the Court
accepts that the non pecuniary damage suffered on account of the
violations of Articles 3 and 5 § 3 of the Convention cannot be
compensated solely by the findings of violations. Making its
assessment on an equitable basis, the Court awards Rıfat
Böke EUR 6,500 in respect of non-pecuniary
damage. It also awards Halil Kandemir EUR 1,500 under this
head.
Furthermore,
the Court considers that the most appropriate form of redress would
be the retrial of the applicants in accordance with the requirements
of Article 6 § 1 of the Convention, should the applicants
so request (see, Salduz, cited above § 72).
B. Costs and expenses
The
applicants also claimed EUR 6,000 for the costs and expenses incurred
before the domestic courts and the Court.
The
Government contested their claim.
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, the applicants have
not substantiated that they have actually incurred the costs claimed.
Accordingly, 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
Joins the applications;
Declares admissible the first applicant's
complaints concerning his alleged ill-treatment and the
alleged ineffectiveness of the related investigation, and both
applicants' complaints concerning the length of their detention in
police custody and the lack of legal assistance while in police
custody;
Declares the remainder of the applications
inadmissible;
Holds that there has been no violation of
Article 3 of the Convention under its substantive limb in respect of
the applicant Rıfat Böke;
Holds that there has been a violation of Article
3 of the Convention under its procedural limb in respect of the
applicant Rıfat Böke;
Holds that there has been a violation of Article
5 § 3 of the Convention on account of the length of the
applicants' detention in police custody;
Holds that there has been a violation of Article
6 § 3 (c) of the Convention on account of the lack of legal
assistance to the applicants while they were in police custody;
Holds that there is no need to examine
separately the applicants' other complaints under Articles 5 and 6 of
the Convention;
Holds
(a)
that the respondent State is to pay 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 national currency of
the respondent Government at the rate applicable at the date of
settlement:
(i) EUR
6,500 (six thousand five hundred euros) to Rıfat Böke,
plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii)
EUR 1,500 (one thousand five hundred euros) to Halil Kandemir, plus
any tax that may be chargeable, in respect of non pecuniary
damage;
(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;
Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in English, and notified in writing on 10 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President