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OZGUR UYANIK v. TURKEY - 11068/04 [2010] ECHR 365 (23 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/365.html
Cite as:
[2010] ECHR 365
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SECOND
SECTION
CASE OF ÖZGÜR UYANIK v. TURKEY
(Application
no. 11068/04)
JUDGMENT
STRASBOURG
23
March 2010
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 Özgür Uyanık 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 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 11068/04) 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 a Turkish national, Mr Özgür Uyanık
(“the applicant”), on 18 February 2004.
The
applicant was represented by Ms A. Kocabal Ince, a lawyer practising
in Istanbul. The Turkish Government (“the Government”)
were represented by their Agent.
On
26 January 2009 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
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1974 and lives in Istanbul.
Between
16 May and 30 May 1996 the applicant was detained in police custody
in connection with an investigation into an illegal organisation. He
claimed to have been subjected to various forms of ill treatment
whilst in custody. In the application form the applicant complained,
in particular, that he had been blindfolded, suspended from the arms,
electrocuted, stripped and beaten. He further submitted that he had
been arrested on either 13 or 14 May 1996.
On
30 May 1996 the applicant was examined at the Istanbul State Security
Court by a doctor from the Forensic Medicine Institute, who found
that the applicant had pain and difficulty in hearing in his right
ear and numbness in his left arm. The doctor recommended the
applicant be transferred to a hospital for a neurological and an EGM
test (an electromyogram is a test that is used
to record the electrical activity of muscles).
An
additional medical examination of the same date at the Taksim State
Hospital revealed that there were no pathological findings in the
applicant's ears but that there were symptoms of brachial plexitis
(damage to nerves) on the left arm. The doctor recommended an EGM
test, which
revealed no pathology at the time of the test, 18 October 2000.
On
30 May 1996 the applicant was brought before the public prosecutor at
the Istanbul State Security Court, where he accepted the contents of
his statements given to the police and gave information about various
events. He also requested to be transferred to a State hospital on
the ground that he had some complaints. Afterwards the applicant was
brought before a judge at the Istanbul State Security Court, where he
accepted his earlier submissions. The judge remanded him in custody.
On
the same day the applicant and five other suspects arrested and
detained on the same grounds as the applicant (“complainants”)
lodged an official complaint with the Istanbul public prosecutor's
office against the police officers who had taken part in their
questioning, claiming that they had been ill treated.
On
3 July 1997 the Istanbul public prosecutor transferred the
complainants' case to the Fatih public prosecutor's office.
On
13 April 1998 the Fatih public prosecutor heard evidence from the
applicant, who complained in particular of being blindfolded,
suspended from his arms, electrocuted, stripped and beaten. He
submitted that he had been arrested on either 13 or 14 May 1996, and
that during his custody period he had been transferred to different
anti-terrorism headquarters in various parts of Turkey. The applicant
further claimed that his arm had been injured because he had
struggled while he was being suspended and that the problem in his
ear resulted from a blow. He alleged that he had been ill treated
by at least twenty to twenty-five police officers and that he would
be able to identify most of them.
On
12 May 1998 the prosecutor decided that; in the absence of evidence
proving the allegations, there was no need to prosecute any police
officer at the Anti-Terrorist Branch of the Istanbul Security
Headquarters.
The
applicant objected to this decision before the Beyoğlu Assize
Court.
Meanwhile,
by an indictment dated 27 June 1996, the public prosecutor at the
Istanbul State Security Court initiated criminal proceedings against
the applicant and ten others, accusing them, inter alia, of
membership of an illegal armed organisation and of taking part in
various robberies and killings on its behalf.
On
7 July 1996 criminal proceedings against the applicant commenced
before the Istanbul State Security Court. In the hearing held on
20 November 1996 the court heard the applicant, who retracted
his statements given to the police and the public prosecutor,
claiming that he had been subjected to torture during his police
custody. Throughout these criminal proceedings which, according to
the information in the case file to date, are still pending before
the domestic courts, the applicant, who was remanded in custody until
1 February 2006, repeated that his statements during the preliminary
investigation had been extracted from him under torture and
ill-treatment.
In
the meantime, at the request of the Beyoğlu Assize Court,
further medical examinations and tests were conducted on the
applicant on 25 October 2000, 9 August 2002 and 14
May 2003. On 9 August 2002 the applicant was examined by
doctors at the 2nd, 3rd and 4th
Section of Expertise of the Forensic Medicine Institute. It appears
that the applicant, who was on hunger strike, suffered, inter
alia, from hallucinations, memory deficit and schizophrenia of
the Korsakoff syndrome type.
On
9 July 2003 the 2nd Section of Expertise of the Forensic
Medicine Institute, after examining the applicant's version of the
facts and the medical reports contained in the case file, concluded
that the applicant was suffering from an ulnar cubital turner
syndrome on his right arm and slight axial motor neuropathy. However,
it was not possible to conclude that these conditions had appeared as
a result of alleged ill-treatment in custody. Moreover, there was no
medical evidence to demonstrate that the applicant had suffered a
traumatic lesion.
On
7 December 2003 the Beyoğlu Assize Court, referring to the
conclusions of the above report and other evidence in the case file,
dismissed the applicant's objections.
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, ECHR 2004-IV
(extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The
applicant complained under Articles 3 and 13 of the Convention that
he had been subjected to ill-treatment while in police custody and
that the domestic authorities had failed to conduct an effective
investigation into his allegations.
The Court considers that these complaints should be
examined from the standpoint of Article 3
alone, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The Government first asked the Court to dismiss the
application as inadmissible for failure to comply with the
requirement of exhaustion of domestic remedies under Article 35 § 1
of the Convention. They argued that the applicant could have sought
reparation for the harm he had allegedly suffered by instituting an
action in the civil or administrative courts. Secondly, the
Government claimed that the applicant should have lodged his
application within six
months of the date on which the
incident had occurred.
The
Court reiterates that in previous cases it has already examined and
rejected identical arguments by the Government concerning civil and
administrative remedies (see, for example, Nevruz Koç v.
Turkey, no. 18207/03, § 31, 12 June 2007, and
Eser Ceylan v. Turkey, no. 14166/02, § 23,
13 December 2007). The Court finds no particular circumstances
in the present application which would require it to depart from that
conclusion. It therefore dismisses the Government's objection of
failure to exhaust domestic remedies.
Furthermore,
reiterating 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, the Court considers that the
application lodged on 18 February 2004 was introduced in conformity
with that time-limit. It thus likewise dismisses the Government's
preliminary objection in this connection.
Moreover, the Court notes that the application is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. No other grounds for declaring it inadmissible has
been established. It must therefore be declared admissible.
B. Merits
The
Government disputed the applicant's claims. In this connection, they
maintained that the applicant's allegations were not supported by
appropriate evidence and that an investigation had been carried out
into his complaint of ill-treatment.
The
applicant maintained his allegations.
The
Court reiterates that where an individual is taken into custody in
good health but is found to be injured by the time of release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused and to produce evidence casting doubt on
the victim's allegations, particularly if those allegations were
corroborated by medical reports, failing which a clear issue arises
under Article 3 of the Convention (see Yananer v. Turkey, no.
6291/05, § 34, 16 July 2009 and the references therein).
In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Avşar v.
Turkey, no. 25657/94, § 282, ECHR 2001). Such
proof may, however, follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, § 161 18 January 1978, Series A no. 25).
Where the events in issue lie wholly or in large part within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
In
the instant case, the Court observes that the applicant was detained
in police custody for at least fourteen days. It notes that the
ill-treatment complained of by the applicant consisted mainly of
being blindfolded, hanged, electrocuted, stripped and beaten. In this
connection, it considers that the applicant's version of events has
been consistent both before the Court and the domestic authorities.
As
regards medical evidence, the Court notes that the applicant was not
examined medically following his arrest. It further observes that the
medical report drawn up at the end of his stay in police custody
found that the applicant had pain and difficulty in hearing in his
right ear and numbness in his left arm. A second report issued the
very same day established that the applicant's left arm presented
symptoms of brachial plexitis (nerve damage). The findings regarding
the applicant's left arm, in the Court's opinion supports the
applicant's allegations that he suffered damage to this limb.
In
this connection the Court observes that the Government failed to
provide an explanation as to the manner in which this injury was
sustained by the applicant. Considering the circumstances of the case
as a whole, and the absence of a plausible explanation from the
Government as to the cause of this injury to the applicant, who was
throughout this whole time under the control of the State
authorities, the Court finds that it was the result of treatment for
which the Government bore responsibility.
The Court reiterates that Article 3 of the Convention
also 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). The minimum
standards as to effectiveness defined by the Court's case-law include
the requirements that the investigation be independent, impartial and
subject to public scrutiny, and 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 addition, the Court reiterates that the rights
enshrined in the Convention are practical and effective, and not
theoretical or illusory. Therefore, in such cases, an effective
investigation must be able to lead to the identification and
punishment of those responsible (see Orhan Kur v. Turkey,
no. 32577/02, § 46, 3 June 2008).
The
Court has found above that the respondent State was responsible,
under Article 3 of the Convention, for the injuries sustained by the
applicant. An effective investigation was therefore required (ibid,
§ 47).
In
the instant case, the Court observes that an investigation into the
allegations of the applicant was initiated promptly by the public
prosecutor's office. This investigation ended when the Assize Court
upheld the decision of the public prosecutor not to prosecute any
police officer at the Anti-Terrorist Branch of the Istanbul Security
Headquarters. In the course of the investigation additional medical
reports were sought to establish the veracity of the applicant's
allegations and the prosecutor heard evidence from the applicant.
Nonetheless, the Court observes that there were
striking shortcomings in the way the investigation was conducted by
the domestic authorities, which had repercussions on its
effectiveness. Firstly, the Court reaffirms that evidence obtained
during forensic examinations plays a crucial role during
investigations into detainees' allegations of ill-treatment (see
Salmanoğlu and Polattaş v. Turkey, no. 15828/03, §
79, 17 March 2009). In this connection, the Court cannot but
note that the medical reports established at the end of the
applicant's detention in police custody lack detail and fall
significantly short of the standards recommended by both 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, § 100, cited above). Moreover, although the
Beyoğlu Assize Court sought to obtain additional medical
evidence, the time which elapsed between the alleged ill treatment
and the date of these examinations (see paragraphs 16 and 17 above)
adversely affected, in the Court's view, the possibility of
establishing the origins of the applicant's arm injury. In this
connection, it regrets the fact that it took the authorities more
than four years to organise an EGM test for the applicant in order to
ascertain the origins of his injury (see paragraph 7 above).
Secondly, the Court notes that neither the applicant
nor the other complainants were ever requested to identify the
alleged perpetrators either by way of checking police photographs or
by an identification parade. In this connection, the Court considers
that there was no serious attempt on the part of the public
prosecutor to elucidate the identities of these police officers, who
are referred to in his decision only as “police officers at the
Anti-Terrorist Branch of the Istanbul Security Headquarters”.
Thirdly, in the course of his investigation the prosecutor appears to
have failed to hear any police officers or potential eyewitnesses,
such as other persons held in the same detention unit as the
applicant.
In
the light of the above, the Court does not find that the above
investigation met the requirements of thoroughness and effectiveness
under Article 3 of the Convention.
There
has therefore been both a substantive and a procedural violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
In
his application form the applicant further complained under Article 5
§§ 2, 3, 4 and 5 of the Convention in respect of his
detention in police custody.
The
Government argued under Article 35 § 1 of the Convention that
the applicant's complaints under this head should be rejected for
failure to comply with the six-month rule. They maintained that he
should have lodged his application with the Court within six months
of the date on which his police custody ended.
As to the Government's objection concerning the
six-month rule, the Court reiterates that, according to the
established case-law of the Convention organs, where there is no
domestic remedy available, the six-month period runs from the date of
the act alleged to constitute a violation of the Convention (see,
among other authorities, Yüksektepe v. Turkey,
no. 62227/00, § 31, 24 October 2006).
The
Court notes that the applicant's detention in police custody ended
when he was remanded in custody on 30 May 1996, whereas the
complaints under Article 5 of the Convention were lodged with the
Court on 10 February 2004, more than six months later. In these
circumstances, the Court accepts the Government's objection that the
applicant has failed to comply with the six month rule. It
follows that this part of the application must be rejected pursuant
to Article 35 §§ 1 and 4 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, costs and expenses
The
applicant claimed in total 90,000 euros (EUR) in respect of pecuniary
and non-pecuniary damage incurred due to the torture to which he had
been subjected and also for his lengthy detention and criminal
proceedings. The applicant further asked the Court to order the
Government to reopen a proper criminal investigation into his
complaints of ill-treatment and to initiate an inquiry regarding
those who had conducted the previous investigation.
The
Government rejected the applicant's claims for damages.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court finds that the applicant must have suffered pain
and distress which cannot be compensated solely by the Court's
finding of a violation. Having regard to the nature of the violation
found in the present case and ruling on an equitable basis, the Court
awards the applicant EUR 27, 300 for non pecuniary damage.
Finally,
the Court does not find it appropriate to rule on the applicant's
remaining requests.
B. 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 the applicant whilst in police custody and the lack
of an effective domestic investigation into his complaints admissible
and the remainder of the application inadmissible;
Holds that there has been both a substantive and
procedural violation of Article 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 27,300
(twenty-seven thousand three hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Turkish liras at the rate applicable on 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 23 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
