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ACIK AND OTHERS v. TURKEY - 31451/03 [2009] ECHR 66 (13 January 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/66.html
Cite as:
[2009] ECHR 66
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SECOND
SECTION
CASE OF AÇIK AND OTHERS v. TURKEY
(Application
no. 31451/03)
JUDGMENT
STRASBOURG
13 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 Açık and
Others 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 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31451/03) 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 eight Turkish nationals, Ms İnci Açık,
Ms Rüya Kurtuluş, Ms Serpil Ocak, Mr Erdinç
Gök, Ms Ayfer Çiçek, Mr Nuri Günay, Mr
Haşim Özgür Ersoy and Mr Murat Kaya (“the
applicants”), on 11 July 2003.
The
applicants were represented by Mr A.T. Ocak, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
On
6 September 2007 the President of the Second Section
decided to give notice of the application to the Government. It was
also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1980, 1980, 1981, 1983, 1980, 1983, 1978 and
1983, respectively, and live in Istanbul. They were students at
various faculties attached to Istanbul University at the time of the
events. The applicants were also members of a group called Istanbul
University Students’ Coordination (İstanbul Üniversite
Öğrencileri Koordinasyonu).
A. The applicants’ arrest and detention in police
custody
On
3 October 2002 Istanbul University held its opening ceremony for the
academic year 2002-2003. During the ceremony, which was attended by
politicians, businessmen and the press, the applicants were forcibly
removed from the conference hall by plain clothed policemen and taken
to Beyazıt police station, approximately 500-600 metres away
from the university.
According
to the incident report drafted by police officers at 12.15 p.m.,
the events unfolded as follows. At around 11.20 a.m., while the
Chancellor Mr Alemdaroğlu was speaking, some students, from the
upper stage of the hall, started shouting out “Freedom to
University, an end to investigations” and “Oppression
will not intimidate us, decree belongs to the State and the
University to us”, and raised banners and placards with similar
messages. They also held up enlarged photocopies of disciplinary
sanctions given to various students, including one of the applicants,
Mr Haşim Özgür Ersoy. Further to a request from
the Chancellor’s security adviser, the police warned the
students that theirs was an unlawful demonstration and that they were
breaching public order by interfering with freedom of education and
instruction and disrupting the ceremony. They were asked to come to
the police station. However, since the students continued their
protest and shouted out “Oppression will not intimidate us”,
the police, together with the private security guards of the
university, intervened and arrested nineteen students, including the
applicants, by using force. The applicants were taken to Beyazıt
police station.
At
12.15 p.m. records of the applicants’ arrest were drawn up,
which they refused to sign.
At
2 p.m. the applicants were medically examined by a doctor at Haseki
Hospital. At 4.55 p.m. they were again examined by a doctor at the
Istanbul Forensic Medicine Department.
1. İnci Açık
The
doctor at the Haseki Hospital noted that the applicant had ecchymosed
lesions in the middle of her left arm.
The
doctor at the Istanbul Forensic Medicine Department noted that the
applicant had a bruise of 2.5 cm on the middle inside part of her
left arm and another bruise of 1 cm on the lower left arm.
2. Rüya Kurtuluş
The
doctor at Haseki Hospital found that the applicant had a skin graze
and redness in her lower back region.
The
doctor at the Istanbul Forensic Medicine Department noted, in
addition to the above, a skin graze of 1 cm on the right side of her
neck. It was noted that the applicant had stated that she had
sustained these injuries during the upheaval on the university
stairs.
3. Erdinç Gök
The
doctor at the Haseki Hospital found an area of bruising and swelling
on the applicant’s forehead, bruises and swelling on the nose
and a skin graze on the back of the right ear. Further medical
analysis did not reveal any bleeding or other problems in the nasal
region.
The
doctor at the Istanbul Forensic Medicine Department noted the same
injuries on the applicant. It was further noted that, as regards the
injury on his forehead, the applicant had stated that he had been
punched in the face. As to the other injuries, the applicant failed
to remember how they had happened during the commotion.
4. Haşim Özgür Ersoy
The
doctor at Haseki Hospital observed an area of bruising on the
applicant’s left arm and four to five areas of redness of 2 cm
x 1 cm on the right side of his neck.
The
doctor at the Istanbul Forensic Medicine Department noted a 2.5 cm
area of bruising on the right shoulder and on the middle of his left
arm. The applicant also had a skin graze of 0.5 cm on the middle
front part of the neck and a 1 cm skin graze on the right upper and
lower part of the neck.
5. Serpil Ocak, Nuri Günay, Murat Kaya and Ayfer
Çiçek
The
doctors who examined the applicants found no signs of ill treatment
on their bodies. In the report drafted by the doctor at the Istanbul
Forensic Medicine Institute, it was noted that Ayfer Çiçek
had refused to take off her clothes for the examination, stating that
she had no injuries.
On
the same day the applicants were brought before the Istanbul public
prosecutor’s office, from where they were released. The
applicants allege that they were detained in police custody for about
eleven and a half hours.
B. The criminal investigation into the applicants’
complaints
On
9 October 2002 the applicants filed a complaint with the Istanbul
public prosecutor against the university security guards and the
police on duty at the conference hall that day. In their identical
complaints, the applicants claimed that, during the Chancellor’s
speech, a fellow student had got up to speak and had been impeded by
a plain-clothes police officer. Then the applicants had also got up
and had been beaten and arrested by the police. The applicants
complained that their arms had been twisted and that they had been
beaten, particularly on the head. They claimed that the beating had
continued outside the conference hall. In the complaints it was also
stated that the intervention by the security forces was an
interference with their right to freedom of expression, and that they
had the right to protest against the existing anti-democratic
measures and express their desire for a democratic university at the
opening ceremony. They submitted that their arrest and detention had
been unlawful and that the disproportionate force used against them
had constituted inhuman and degrading treatment.
On
4 November 2002 the Istanbul public prosecutor issued a decision not
to prosecute the police officers or the university security guards.
In his decision, the public prosecutor noted that the applicants had
breached public order by preventing freedom of education and by
disrupting the ceremony when shouting slogans and raising banners.
Despite having been invited to come to the police station and to end
their unlawful demonstration, they had continued. As a result 19
students had been arrested and detained in police custody using
force. It was noted that some of the plaintiffs had suffered minor
injuries but others had suffered none, and that the police had had to
use force because they had resisted arrest.
On
22 November 2002 the applicants objected to the prosecutor’s
decision. In particular, they submitted that the prosecutor had
relied solely on police records and had failed to hear evidence from
anyone, including themselves. They further challenged the official
version that they had resisted arrest, stating that they had not been
given any prior warning.
On
26 December 2002 the Beyoğlu Assize Court dismissed the
applicants’ objections. That decision was served on them on
18 January 2003.
The
Government informed the Court that no criminal proceedings had been
instituted against the applicants in respect of the above event.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained that the manner in which they had been arrested
on 3 October 2002 constituted inhuman and degrading treatment 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. Admissibility
1. As regards the applicants Serpil Ocak, Nuri Günay,
Murat Kaya and Ayfer Çiçek
The
Court finds no indication in the case file to demonstrate that these
applicants were subjected to any kind of treatment beyond the
threshold of severity required for Article 3 to apply (see Balçık
and Others v. Turkey, no. 25/02, §§ 24-26, 29
November 2007). 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.
2. As regard the applicants Rüya Kurtuluş,
Erdinç Gök, Haşim Özgür Ersoy and İnci
Açık
The
Court notes that these applicants’ complaints are 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 complaint must therefore be declared
admissible.
B. Merits
1. The parties’ submissions
The
Government dismissed the applicant’s allegations of
ill treatment and maintained that, in the circumstances of the
present case, the use of force had been proportionate to the aim
pursued.
The
applicants reiterated that the manner in which they had been taken
out of the university meeting constituted inhuman and degrading
treatment. In this connection, they claimed, in particular, that the
security forces had twisted their arms behind their backs, beaten
them and dragged them on the ground all the way to the police
station. The applicants further denied shouting slogans or raising
placards. They submitted that they had written on sheets of cardboard
but that they had not had any opportunity to display them since they
had been taken out of the hall as soon as the applicant Haşim
Özgür Ersoy had asked to speak and had been refused
permission.
2. The Court’s assessment
The
Court notes that Article 3 does not prohibit the use of force in
certain well-defined circumstances, such as to effect an arrest.
However, such force may be used only if indispensable and must not be
excessive (see, in particular, Kurnaz and Others v. Turkey,
no. 36672/97, § 52, 24 July 2007, and the references
therein).
The
Court notes that it is not disputed between the parties that the
applicants’ injuries resulted from the use of force by the
security forces in the performance of their duties. The Court
therefore considers that the burden rests on the Government to
demonstrate with convincing arguments that the force used was
indispensable and not excessive (see Balçık and
Others, cited above, § 31).
Having
regard to the documentary evidence, including newspaper reports, the
Court observes that the applicants were part of a group of students
who interrupted the proper course of the opening ceremony of the
academic year at Istanbul University during the Chancellor’s
speech, in order to protest against certain measures which they
considered to be anti democratic, by opening banners and
shouting various slogans. The Court notes that during their arrest
the applicants sustained injuries of varying degrees. While the Court
finds it credible that the applicants were warned to stop their
protests, the documentary evidence fails to shed light on the exact
manner in which that warning was given. It appears that the
authorities then intervened swiftly and with some force in order to
remove the applicants from the university hall. In this connection,
the Court notes that there is no evidence to suggest that the
students were a serious danger to public order. This is confirmed by
the fact that no criminal proceedings were subsequently initiated
against them. There is also no information in the case file to show
that the security forces encountered violent resistance on the part
of the applicants while they were being taken out of the conference
hall. In this connection, the Court notes that no information has
been forthcoming from the Government to show whether the police
officers sustained any injuries during the events.
Taking into account that the incident took place
during an opening ceremony of the University, it cannot be said that
these applicants were injured in the course of a random operation
which might have given rise to unexpected developments to which the
security forces had been called upon to react without prior
preparation (see, mutatis
mutandis, Rehbock v. Slovenia,
no. 29462/95, § 72, ECHR 2000 XII). However,
the Government have not provided any information showing that the
intervention of the security forces was properly regulated and
organised in such a way as to minimise to the greatest extent
possible any risk of bodily harm to the students.
In
these circumstances, the Court finds that the Government have failed
to provide convincing or credible arguments which would provide a
basis to explain or justify the degree of force used against the
applicants, whose injuries are corroborated by medical reports. As a
result, it concludes that the injuries sustained by Rüya
Kurtuluş, Erdinç Gök, Haşim Özgür
Ersoy and İnci Açık were the result of degrading
treatment for which the State bore responsibility.
There
has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 5, 9, 10 AND 11 OF THE
CONVENTION
The
applicants complained that their arrest and detention had been
unlawful and had infringed their freedom of thought and expression
and their right to peaceful assembly. They relied on Articles 5,
9, 10 and 11 of the Convention.
The
Court considers that the applicants’ complaints should be
examined under Article 10 alone, which, in so far as relevant,
provides:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, for the prevention
of disorder ..., [or] for the protection of the ... rights of
others...”
A. Admissibility
The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
Government maintained that the protest activity of the applicants had
not been peaceful. They repeated that the applicants had disrupted
the ceremony by shouting slogans and opening banners while the
Chancellor was giving a speech before a large audience, including
politicians and businessmen. They submitted that, in accordance with
the regulations in force, the applicants had been warned to put an
end to their actions and leave the ceremony but, since they had
refused, they had had to be forcibly taken out. They had been taken
to the police station in order to prevent them disrupting the
ceremony once again. The Government considered that the police had
intervened, further to a request to that end, in order to secure the
effective enjoyment of the rights of the organisers of the ceremony
to have a peaceful assembly.
The
applicants maintained that they had attended the ceremony with a view
to protesting against certain anti-democratic actions at the
university, but that they had been prevented from expressing their
opinions by being forcibly removed from the university grounds,
arrested and detained.
2. The Court’s assessment
The
Court reiterates that it has previously held that the arrest and
detention of protesters may constitute an interference with the right
to freedom of expression (see, for example, Lucas v. the United
Kingdom (dec.), no. 39013/02, 18 March 2003). In the instant
case the applicants participated in the opening ceremony of the
academic year at Istanbul University with the aim of protesting
against various practices of the university administration which they
considered to be anti democratic. However, their protests, by
way of shouting slogans and raising banners, were forcibly ended when
they were removed from the conference hall, arrested and detained.
Against this background, the Court considers that the applicants were
adversely affected by the police intervention and that the measures
taken against them were indeed an interference with their freedom of
expression.
This
interference will contravene Article 10 of the Convention unless it
was “prescribed by law”, pursued one or more of the
legitimate aims prescribed by paragraph 2 of Article 10, and was
“necessary in a democratic society” for achieving such
aim or aims.
It
must first be examined whether the interference complained of was
“prescribed by law”. In this connection, the Court
observes that the Government, apart from stating that the measures
taken in respect of the applicants were in conformity with the
regulations in force, have not submitted any arguments to the effect
that the interference at issue was based on and in compliance with
any statutory or other legal rule. However, the applicants, apart
from generally complaining that their arrest and detention had been
unlawful, also failed to elaborate on this point. In these
circumstances, the Court does not consider it necessary to determine
this question (see Agga v. Greece (no. 2), nos. 50776/99
and 52912/99, § 54, 17 October 2002). The Court
accepts that the interference pursued the legitimate aims of
preventing public disorder and protecting the rights of others. In
the present case what is in issue is whether the interference was
“necessary in a democratic society”.
The test of “necessity in a democratic society”
requires the Court to determine whether the interference
complained of corresponded to a “pressing social need”.
The Contracting States have a certain margin of appreciation in
assessing whether such a need exists, but it goes hand in hand with
European supervision, embracing both the legislation and the
decisions applying it, even those given by an independent court. The
Court is therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom
of expression
as protected by Article 10 (see, among many other
authorities, Vajnai v. Hungary,
no. 33629/06, § 43, 8 July 2008).
That
margin of appreciation extends in particular to the choice of the –
reasonable and appropriate – means to be used by the
authorities to ensure that lawful demonstrations can take place
peacefully (see Chorherr v. Austria, 25 August 1993,
§ 31, Series A no. 266 B).
In
the instant case, the Court notes that the applicants’ protests
took the form of shouting slogans and raising banners, thereby
impeding the proper course of the opening ceremony and, particularly,
the speech of the Chancellor of Istanbul University. As such, their
actions no doubt amounted to an interference with the Chancellor’s
freedom of expression and caused disturbance and exasperation among
some of the audience, who had the right to receive the information
being conveyed to them. Against this background, the Court considers
that the decision to remove the applicants from the university hall,
even though it interfered with their freedom of expression, may be
deemed to have been proportionate to the aim of protecting the rights
of others.
However,
the Court observes that the applicants did not resort to insults or
violence. Moreover, it repeats that they were not likely to cause
serious public disorder. This is supported by the fact that no
criminal proceedings were subsequently brought against them. The
Court considers that the applicants’ protest could have been
countered by less draconian measures, such as denying them re-entry
into the conference hall, rather than resorting to the extreme
measures of arrest and detention, even for a few hours. In these
circumstances, the Court finds that the authorities’ response
was disproportionate to the aims of preventing public disorder or
protecting the rights of others. It was not therefore “necessary
in a democratic society”.
It
follows that there has been a violation of Article 10 of the
Convention.
III. 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 Rüya Kurtuluş, Erdinç Gök, Haşim
Özgür Ersoy and İnci Açık claimed 1,000
euros (EUR) each in respect of pecuniary damage. This sum included
medical expenses, as well as legal costs incurred in the course of
the domestic proceedings. The applicants each claimed EUR 1,000
in respect of non-pecuniary damage.
The
Government contested the amounts.
As
regards the purported pecuniary damage sustained by these applicants,
the Court notes that they failed to produce any receipts or documents
in support of their claim, which is accordingly dismissed.
As
regards non-pecuniary damage, the Court considers that the
applicants are sufficiently compensated by the finding of a violation
of Article 10 of the Convention (see, mutatis mutandis, Balçık
and Others, cited above, § 62, and Saya and Others v.
Turkey, no. 4327/02, § 54,
7 October 2008).
However, concerning the violation of Article 3 which it has found in
respect of the four applicants, Rüya Kurtuluş, Erdinç
Gök, Haşim Özgür Ersoy and İnci Açık,
the Court, ruling on an equitable basis, awards them EUR 1,000
each under this head.
B. Costs and expenses
The
applicants also claimed EUR 5,843.26 for the costs and expenses
incurred before the Court. This sum included legal fees, translation
costs and other expenses. The applicants relied on the Istanbul Bar
Association’s scale of fees. They did not, however, submit any
receipts or any other relevant documents.
The
Government contested the amounts.
The Court considers that since the applicants
submitted no documentary justification for their costs and expenses,
as required by Rule 60 of the Rules of Court, it 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 inadmissible the complaint by the
applicants Serpil Ocak, Nuri Günay, Murat Kaya and Ayfer Çiçek
under Article 3 of the Convention;
Declares admissible the remainder of the
application;
Holds that there has been a violation of Article
3 of the Convention in respect of the applicants Rüya Kurtuluş,
Erdinç Gök, Haşim Özgür Ersoy and İnci
Açık;
Holds there has been a violation of Article 10
of the Convention;
Holds that the finding of a violation of Article
10 in itself constitutes sufficient just satisfaction for the
non pecuniary damage sustained by the applicants;
Holds
(a) that
the respondent State is to pay the applicants Rüya Kurtuluş,
Erdinç Gök, Haşim Özgür Ersoy and İnci
Açık, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,000 (one thousand euros) each, plus any tax
that may be chargeable,
in respect of non-pecuniary damage, to be converted into the national
currency of the respondent Governement 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 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 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally
Dollé Françoise Tulkens
Registrar President