(Application no. 39324/02)
20 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 Çelik v. Turkey (no. 1),
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The alleged ill-treatment
B. The investigation into the alleged ill-treatment
II. RELEVANT DOMESTIC LAW AND PRACTICE
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions
B. The Court's assessment
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. 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.”
A. Damage, costs and expenses
B. Default interest
FOR THESE REASONS, THE COURT
(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 sums, to be converted into the national currency of the respondent Government at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, for non-pecuniary damage;
(ii) EUR 1,000 (one 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;
Done in English, and notified in writing on 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens Registrar President
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 Judge András Sajó, joined by Judge Vladimiro Zagrebelsky;
PARTLY DISSENTING OPINION OF JUDGE
ANDRÁS SAJÓ JOINED BY JUDGE VLADIMIRO ZAGREBELSKY
To my regret I have to disagree with the Court's conclusion that there has been a procedural violation of Article 3 of the Convention. Contrary to all the cases referred to in the Judgment, this applicant (who entered the police headquarters of his own will and was free to leave at any moment) could not allege even a semblance of ill-treatment (except a medical report issued two months after the incident that contradicted the report that was taken on the day of the incident at the hospital chosen by the applicant). He did not suffer any physical damage and (according to the Court, paragraph 34 above) the alleged verbal abuse he complained of was not enough to amount to degrading treatment within the meaning of Article 3 of the Convention.
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). However, there is no such duty to investigate where there is no sign of injury. In the absence of injury I could not find any grounds for a reasonable suspicion.
In the absence of a fact that, at least arguably, brings the application within the orbit of Article 3 of the Convention, there is no reason to evaluate a futile investigation, even if it is part of a system which has been found repeatedly not to be in conformity with the Convention.
1 The judgment is not yet final.