In
the case of Yavuz Çelik v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Giorgio
Malinverni,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque, judges,
and
Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34461/07) 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
Yavuz Çelik (“the applicant”), on 31 July 2007.
The Turkish Government (“the Government”) were
represented by their Agent.
On
27 August 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1968 and lives in Istanbul.
A. The applicant’s arrest and detention in
police custody
On
11 August 2006 the Muğla Magistrates’ Court issued an
arrest warrant against the applicant in order to obtain his
statement in relation to a charge of slander.
According
to incident reports drawn up at the Üsküdar Doğancılar
police station, an officer was sent to the applicant’s house
early on 27 October 2006 to execute the arrest warrant. Upon
discovering that the applicant was not at home, he left a note
inviting him to present himself at the Üsküdar Doğancılar
police station to make a statement regarding the charge brought
against him.
Later
the same day, at approximately 2.30 p.m., the applicant telephoned
the police station and quarrelled with the officer Y.A. on the
phone, arguing that the police had no authority to ask him to go to
the police station as he had not received a summons from the court
to make a statement. It is indicated in the incident report that the
applicant was very aggressive on the phone and that he insulted and
threatened officer Y.A. The applicant denied these allegations.
Immediately
after this phone conversation, three police officers were sent to
the applicant’s home to effect his arrest. Upon the
applicant’s failure to cooperate and surrender, oral
instructions were given from the office of the Üsküdar
public prosecutor to make a forcible arrest. A scuffle then ensued
between the parties, and the applicant attempted to throw himself
off the balcony. He was, however, detained by the police, with the
assistance of his neighbour E.A.
The
applicant was subsequently taken to the Üsküdar Doğancılar
police station at approximately 3.30 p.m. According to the police
report, the applicant continued to behave aggressively and defiantly
at the police station, shouting that the police had no authority to
keep him there, and at one point he tried to jump out of the window
to escape. The officers, however, managed to grab hold of him and
restrained him with handcuffs. The applicant confirmed this, but
claimed that he had only attempted to jump out of the window as a
reaction to two police officers hitting him on the chest and foot.
On
27 October 2006 at 5.20 p.m. the applicant was examined by a doctor
at the Haydarpaşa Numune Hospital, who noted no signs of
ill treatment on his body. Following the medical examination,
the applicant was taken back to the Üsküdar Doğancılar
police station.
B. Criminal proceedings against the applicant and the
medical certificates concerning his alleged ill-treatment
In
the meantime, after handing the applicant over to the police
station, two of the police officers who had made the arrest, namely
M.Al. and M.Ak., underwent a medical examination at the Haydarpaşa
Numune Hospital. Slight abrasions were noted on both officers’
right hands.
On
27 October 2006 the three police officers who were in charge of the
applicant’s arrest, namely M.Al., M.Ak. and M.K., and the
police officer the applicant had allegedly insulted on the phone
earlier that day, namely Y.A., lodged criminal complaints with the
Üsküdar public prosecutor against the applicant, accusing
him of resisting police officers on duty and insulting them. In
their complaints, they each gave identical accounts of the events
that took place prior to and during the applicant’s arrest,
which were also consistent with the official incident reports (see
paragraphs 6 and 7 above).
At
approximately 6 p.m. on the same day the applicant’s neighbour
E.A., who had witnessed the whole incident and had assisted the
police in restraining and arresting the applicant, was asked to
testify as a witness. E.A. verified that the applicant had violently
resisted arrest, including by shouting insults, whereas the
arresting police officers had in no way assaulted or otherwise
mistreated him.
On
an unspecified date the Üsküdar public prosecutor
initiated an investigation against the applicant on charges of
obstructing police officers in the performance of their duties by
insulting and assaulting them (investigation no. 2006/22778).
On
28 October 2006 at half past midnight the applicant was questioned
at the police station in relation to the charges brought by the
police officers. According to the official statement (sanık
ifade tutanağı), which he declined to sign, the
applicant chose to remain silent and refused the assistance of the
lawyer appointed by the Bar Association. He declared that he would
make his statement before the public prosecutor.
At
around noon the same day the applicant was taken to the Üsküdar
police headquarters by two police officers, K.B. and Ö.M., for
a physical identity check, including the taking of fingerprints. The
applicant claimed that when he inquired about the purpose of the
identity check, K.B. started swearing at him and then punched him on
the nose, eye and cheek and squeezed him by the throat in the yard
of the headquarters, while his hands were cuffed behind his back.
At
2.45 p.m. on the same day he was referred to the Haydarpaşa
Numune Hospital for a medical examination.
At
2.55 p.m. a doctor at the Haydarpaşa Numune Hospital examined
the applicant and noted an oedema on his nose, hyperaemia of 5 x 5
cm on the right side of his neck, ecchymosis (bruising) of 2 x 1 cm
on the left side of his neck, hyperaemia on his right shoulder blade
and hyperaemia and abrasion of 1.5 cm on his left shin. An
otolaryngologist who examined him at 3.15 p.m. also noted
sensitivity on his cervix. No information was provided in the
medical reports as to how the indicated injuries might have been
sustained by the applicant.
The
applicant was subsequently brought before the Üsküdar
public prosecutor. In his statement, which was made in the presence
of his lawyer, the applicant denied the charges against him in
relation to the insult and assault of police officers on duty. He
lodged a counter-complaint against the officers who had carried out
his arrest for trespass and violation of the right to privacy of the
home. He also complained that earlier that day he was beaten,
strangled and sworn at by a police officer, K.B., outside the
Üsküdar police headquarters, where he had been taken for
an identity check, and that another officer who had accompanied
them, namely Ö.M., had witnessed the incident. After having
identified both police officers, who were waiting outside the office
of the public prosecutor, he demanded that the public prosecutor
initiate an investigation against K.B. for subjecting him to
ill-treatment.
On
28 October 2006 at 10.30 p.m. the applicant was referred to the
Istanbul Forensic Medicine Institute for a further medical
examination. The doctor who examined him noted, in a preliminary
report, that the applicant complained of having been hit on the face
and squeezed around the neck earlier that day, as well as of having
his chest crushed the day before during his arrest, on account of
which he was suffering breathing problems. The doctor found an
ecchymosis on the right side of the applicant’s nose, an
ecchymosis of 1 x 0.5 cm on the front left side of the base of his
neck and an abrasion of 2 x 2 cm on the front side of his left
forearm, just below the joint. He referred the applicant to a
specialist in pulmonary diseases before drawing up the final report.
This preliminary report was apparently not made available to the
applicant.
On
30 October 2006 the applicant was examined by a pulmonary
specialist, who did not note any damage to his lungs apart from a
scar from a previous operation.
There
is no information in the case file as to the outcome of the
investigation against the applicant.
C. Investigation into the alleged ill-treatment of the
applicant
On
28 October 2006 the Üsküdar public prosecutor questioned
police officer K.B. regarding the applicant’s allegations of
ill-treatment (investigation no. 2006/23358). K.B. stated that at
approximately 11.30 a.m. that day he had taken the applicant to the
Üsküdar police headquarters together with officer Ö.M.
When the applicant asked why he had been brought there, they
explained that the Üsküdar public prosecutor had issued
written instructions for him to have a physical identity check for
the purposes of the ongoing investigations against him. The
applicant thereafter became extremely agitated and starting shouting
loudly and swearing. When they tried to get him inside the building,
he tried to hurt himself by hitting his head against the front
window of the building. K.B. alleged that he then tried to cuff the
applicant’s hands behind his back in order to get better hold
of him. When the applicant resisted, Ö.M. tried to hold him
down by the waist while he stabilised the applicant by putting his
neck in an arm-lock and cuffing his hands behind his back. K.B.
claimed that some police officers on patrol duty at the relevant
time had witnessed these events. K.B. also pressed charges against
the applicant on account of the insults and the injuries he had
sustained, which consisted of a red line of 3 cm x 5 cm on his right
forearm, as had been noted by the public prosecutor.
The
public prosecutor subsequently took a statement from Ö.M., the
police officer who had accompanied K.B. at the time of the impugned
incidents. Ö.M., who was also a relative of K.B. by marriage,
repeated the latter’s statement. He also claimed that two
police officers on duty at the Üsküdar police headquarters
had witnessed the events.
On
9 November 2006 the public prosecutor heard E.A., the applicant’s
neighbour who had witnessed his arrest. E.A. verified his earlier
police statement, except for the part about the applicant insulting
the police officers, which he claimed had been misrecorded. E.A.
stated that the applicant had at no point insulted the police
officers, yet he had very strongly resisted arrest. He further
stated that the police officers carrying out the arrest had not used
excessive force or otherwise ill-treated the applicant.
On
the same day the Üsküdar public prosecutor issued a
decision not to prosecute the accused police officers M.Al., M.Ak.,
M.K. and K.B. He held that both the applicant and the police
officers who had carried out his arrest had sustained slight
injuries as a result of the applicant’s aggressive resistance
to his arrest on 27 October 2006. However, as E.A. had also
confirmed in his witness statement, the police had not used
excessive force to effect the arrest. The public prosecutor did not
indicate in the decision the medical reports and other evidence he
relied on for the purposes of the investigation.
On
27 November 2006 the Forensic Medicine Institute delivered its final
report regarding the applicant. After repeating the findings of the
previous medical reports, it concluded that the injuries observed on
the applicant’s body were not life-threatening and could be
treated by a simple medical intervention.
On
4 December 2006 the applicant objected to the decision of the public
prosecutor. The applicant argued, inter alia, that on 28
October 2006 at approximately 1.15 p.m. he had been punched on the
face and strangled by police officer K.B., who had cuffed his hands
behind his back to render him more defenceless. The injuries he had
sustained as a result of this beating had been clearly indicated in
the medical report issued by the Haydarpaşa Numune Hospital at
2.55 p.m. that day. The Forensic Medicine Institute, where the
public prosecutor had referred him after taking his statement, had
also noted his injuries in its preliminary report and had
photographed them. However, neither the report of the Forensic
Medicine Institute nor the photographs had been submitted to the
investigation file at the Üsküdar public prosecutor’s
office by the police officer in charge. The applicant asserted that
when he had requested the Forensic Medicine Institute’s
preliminary report from the public prosecutor’s office, the
prosecutor had informed him in person that the report was not in the
investigation file. In the absence of this report, his complaints
against K.B. regarding the ill treatment he had been subjected
to had not been duly examined by the public prosecutor. He further
claimed that the public prosecutor had not heard his witnesses
regarding the impugned incidents.
On
18 January 2007 the Kadıköy Assize Court upheld the
decision of the public prosecutor, without responding to the
applicant’s specific objections. That decision was served on
the applicant on 10 February 2007.
On
7 February 2007 the applicant requested from the Forensic Medicine
Institute the medical report issued by its Istanbul branch following
his examination on 28 October 2006.
On
19 February 2007 the Forensic Medicine Institute informed the
applicant that a copy of the report containing the findings of his
medical examination had been sent to the Üsküdar public
prosecutor’s office on the same date as the examination. In
the event that it could not be found in the investigation file, a
new copy could be supplied at the request of the public prosecutor’s
office. It appears that no such request was made by the office of
the Üsküdar public prosecutor.
In
the meantime, on 12 February 2007 the applicant applied to the
Üsküdar public prosecutor’s office, requesting,
inter alia, that his medical report prepared by the Forensic
Medicine Institute, together with the photographs, be found and
communicated to him, and that the authorities responsible for
concealing these documents be punished. He also demanded an
explanation as to why K.B. had been charged with “excessive
use of force” rather than “ill-treatment” and why
the public prosecutor had heard evidence from a witness called by
the police against him, E.A., but not accepted the examination of
witnesses on his behalf. The applicant did not receive a reply from
the public prosecutor’s office.
On
29 May 2007 the applicant applied once again to the Üsküdar
public prosecutor’s office for the medical report issued by
the Forensic Medicine Institute, which was not available in the
investigation file. It appears that he did not receive a reply to
this request either.
D. Disciplinary proceedings against police officers
In
the meantime, administrative proceedings were also initiated against
the police officers who had effected the applicant’s arrest,
namely M.Al., M.Ak., M.K. and Y.A. It appears that no administrative
action was taken against K.B. in respect of the applicant’s
allegations of ill-treatment.
On
an unspecified date the chief superintendent officer in charge of
the investigation submitted an investigation report, in which he
expressed the opinion that the officers involved in the applicant’s
arrest had acted strictly under orders from the public prosecutor
and had not committed any offences which required disciplinary
action.
On
8 January 2007 the Üsküdar District Governor’s
Office discontinued the investigation against the police officers on
the basis of the report of the chief superintendent officer.
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 outside the Üsküdar
police headquarters on 28 October 2006 and that the domestic
authorities had failed to conduct an effective investigation into
his allegations of ill treatment.
The Court considers that these complaints should be examined from
the standpoint of Article 3 alone.
A. Admissibility
The
Government argued that the applicant had failed to exhaust available
domestic remedies within the meaning of Article 35 § 1 of the
Convention. In this connection, they submitted that the applicant
had not availed himself of the civil and administrative law remedies
which could have provided reparation for the harm which he had
allegedly sustained. The Government further submitted that the
applicant had failed to comply with the six-month time-limit with
regard to his complaints under Articles 3 and 13. They
contended that the final domestic decision regarding the applicant’s
complaints had been delivered by the Kadıköy Assize Court
on 18 January 2007.
The
applicant disputed the Government’s arguments.
The
Court reiterates that it has already examined and dismissed the
Government’s preliminary objections in similar cases (see, for
example, Dur v. Turkey, no. 34027/03, § 26, 18
September 2008; Eser Ceylan v. Turkey, no. 14166/02, §
23, 13 December 2007; Salmanoğlu and Polattaş
v. Turkey, no. 15828/03, § 72, 17 March 2009; and Arif
Çelebi and Others v. Turkey, nos. 3076/05 and
26739/05, § 53, 6 April 2010). It finds no particular
circumstances in the instant case requiring it to depart from its
findings in the above-mentioned applications. The Court particularly
notes in this connection that the final decision of the Kadıköy
Assize Court was served on the applicant on 10 February 2007 and the
applicant lodged his application with the Court within six months of
this date. It therefore rejects the Government’s preliminary
objections.
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 further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
The
Government submitted that the facts of the case as a whole did not
support the allegations that the injuries observed on the
applicant’s body, which in their opinion had not attained the
level of severity proscribed by Article 3, were caused by a
treatment for which the Government bore responsibility. They
submitted that bearing in mind the applicant’s reckless
conduct from the moment of his arrest, it was likely that the
injuries noted in the medical reports had been self-inflicted.
Moreover, if any force had been used against the applicant by the
police, such use of force had been proportionate and had been made
strictly necessary by the applicant’s own aggressive conduct.
The Government further contended that an effective investigation had
been immediately carried out in respect of the applicant’s
allegations and that the authorities had taken the necessary steps
to identify and prosecute the alleged perpetrators. However, the
mere fact that the outcome of the proceedings had not been
favourable for the applicant did not mean that the remedy in
question had been inadequate.
The
applicant alleged that his injuries had been caused by the
ill treatment he had been subjected to on 28 October 2006 by a
police officer and had not resulted from the resistance he had shown
at the time of or subsequent to his arrest, contrary to the
allegations of the Government. He further argued that an effective
investigation had not been conducted into his allegations of
ill-treatment and that the public prosecutor had failed to act
impartially by accepting witness statements on behalf of the police
while ignoring the witnesses proposed by him.
The
Court reiterates at the outset that Article 3 of the Convention
prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim’s behaviour (see Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV).
The
Court further 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 Selmouni v. France [GC], no. 25803/94, §
87, ECHR 1999-V, and Ribitsch v. Austria, 4 December
1995, § 34, Series A no. 336).
The
Court notes from the documents in the case file, in particular the
statements of the applicant, the police officers and the witness
E.A. and the medical certificates of the relevant police officers,
that the applicant in the instant case was arrested on 27 October
2006 after some considerable resistance and struggle. Nevertheless,
the medical report drawn up by the Haydarpaşa Numune Hospital
immediately after the arrest, the findings of which were not
contested by the applicant, found no injuries or other signs of
physical violence on the applicant’s person.
On
the other hand, the two medical reports issued the following day by
the Haydarpaşa Numune Hospital and the Istanbul Forensic
Medicine Institute found that the applicant had sustained some
injuries on his body, notably on his nose, neck and shoulder blade,
some time between the two medical examinations at the Haydarpaşa
Numune Hospital. It is undisputed that the applicant sustained these
injuries after his arrest, but while he was still in the hands of
police officers from the Üsküdar Doğancılar
police station. The Government, therefore, bear the burden of
providing a plausible explanation for the cause of those injuries
(see Selmouni, cited above, § 87).
The
Court notes in this connection that the parties put forward
different versions as to how the applicant actually sustained the
injuries in question. The applicant alleged fairly consistently
before both the Court and the domestic authorities that he had been
ill-treated by a police officer, namely K.B., outside the Üsküdar
police headquarters prior to his identity check. He claimed, in
particular, that he had been punched on the nose and strangled,
which appears consistent with the findings in his medical reports.
The Government, on the other hand, contended that the police bore no
responsibility for the applicant’s injuries, which had either
been self inflicted or had been caused by use of proportionate
force made strictly necessary by the applicant’s own conduct.
Relying on the statements of the two police officers involved in the
incidents (K.B. and Ö.M.), they argued that prior to his
identity check, which had taken place before his medical examination
on 28 October 2006, the applicant had begun acting violently and had
hit his head against the front window of the Üsküdar
police headquarters in a fit of frenzy. The applicant’s rowdy
conduct had necessitated his being restrained by forceful means,
including being handcuffed while in a stranglehold. All of the
injuries found on the applicant’s body could thus be traced
back to these incidents, which had taken place outside the Üsküdar
police headquarters on 28 October 2006.
In
order to establish whether the Government have satisfactorily
discharged their burden of providing plausible explanations for the
injuries sustained by the applicant in the instant case, regard must
be had, inter alia, to the investigation carried out by the
national authorities into the incident and the conclusions reached
by them. The Court reiterates here that, where an individual raises
an arguable claim that he has been seriously ill-treated by the
police or other such agents of the State unlawfully and in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined
in ... [the] Convention”, requires by implication that there
should be an effective official investigation. This investigation,
as with that under Article 2, should be capable of leading to the
identification and punishment of those responsible (see, mutatis
mutandis, Assenov and Others v. Bulgaria, 28 October
1998, § 102, Reports of Judgments and Decisions 1998-VIII;
Beker v. Turkey, no. 27866/03, § 53, 24 March
2009; and Özcan and Others v. Turkey, no. 18893/05,
§ 73, 20 April 2010).
The
Court notes in this regard that promptly after the applicant lodged
his complaints, the public prosecutor initiated an investigation
into his allegations of ill-treatment, albeit under the charge of
excessive use of force, and questioned K.B. as the alleged
perpetrator and Ö.M. as the main witness. However, it appears
that after taking these initial steps, the public prosecutor put the
applicant’s allegations of ill-treatment against K.B. aside
and took no further action, making no decision which demonstrated a
commitment to establishing the actual circumstances surrounding the
applicant’s injuries.
The
Court firstly notes in this regard that despite the entirely
differing accounts provided by the applicant and the implicated
police officers as to the events that occurred on 28 October 2006
outside the Üsküdar police headquarters, the public
prosecutor did not summon any more witnesses, from amongst the
police or other persons in the vicinity at the relevant time, in
order to establish a fair and objective account of events. This is
despite the explicit statements from K.B. and Ö.M. that a
number of police officers had witnessed the incidents.
Secondly,
the fact that the decision not to prosecute had already been
rendered by the time the Istanbul Forensic Medicine Institute
delivered its final report on the injuries sustained by the
applicant on 27 November 2006 leads the Court to consider that the
public prosecutor acted too hastily to close the investigation,
without showing the requisite diligence in collecting all the
relevant evidence to complete the case file. In fact, there is a
considerable amount of evidence provided by the applicant, which the
Government failed to rebut, to suggest that the investigation file
which formed the basis of the public prosecutor’s decision did
not even contain a copy of the Istanbul Forensic Medicine
Institute’s preliminary report of 28 October 2006.
Although the findings in the Haydarpaşa Numune Hospital’s
report of 28 October 2006 alone were sufficient to establish the
extent of the injuries sustained by the applicant, the public
prosecutor’s apparent indifference as to the incompleteness of
the case file casts doubt on the accuracy, breadth and fairness of
the entire investigation, particularly in view of the repeated
attempts by the applicant to have this particular deficiency
remedied.
Lastly,
and most strikingly, the Court notes that the decision not to
prosecute taken by the public prosecutor failed altogether to deal
with the accusations made by the applicant against K.B. Confining
the examination solely to the events surrounding the applicant’s
arrest on 27 October 2006, the public prosecutor concluded that the
applicant’s injuries had been caused by his resistance to
arrest and that the police had not used excessive force while taking
him into detention. In coming to this conclusion the public
prosecutor relied mainly on the arrest report, the statements made
by the police officers who had conducted the applicant’s
arrest and the witness statement by E.A., who had testified on
behalf of the police. The public prosecutor also took into account
whatever medical certificates he had in the investigation file,
including those establishing the injuries sustained by two of the
arresting officers. However, the public prosecutor failed to answer
the obvious question as to why the medical report issued immediately
after the applicant’s arrest bore no sign of ill-treatment, if
the injuries noted in subsequent reports had really been sustained
at the time of arrest. Nor did he refer, even briefly, to the events
that allegedly occurred the next day outside the Üsküdar
police headquarters, not even to endorse K.B.’s version of
events. The Court notes in this connection that even assuming that
the events had indeed occurred as recounted by K.B., the national
authorities were still under an obligation to demonstrate with
convincing arguments that the force used by K.B. to restrain the
applicant was not excessive and was indispensable, particularly in
view of the hyperaemia noted on the applicant’s neck which
indicated forceful strangulation (see above paragraph 17 and
19). The applicant’s allegations of ill-treatment against K.B.
were, therefore, left completely unexamined.
The
Court moreover considers that the complete disregard by the national
authorities of the applicant’s allegations against K.B. is
also manifested in the lack of disciplinary action against that
police officer. The Court notes that although disciplinary
proceedings were initiated against the police officers who had
effected the arrest, and whom the applicant had only reproached for
trespass, no similar action was taken against K.B., despite the
unambiguous complaints lodged by the applicant against him.
55. In the light of the foregoing, the Court considers
that the documents in its possession show that the entire
investigation was not carried out in a thorough manner and thus
failed to meet the requirements of an effective investigation within
the meaning of the Convention. The Court notes in particular that
the facts of the dispute concerning the applicant’s
ill treatment have not been the subject of any determination by
a national court or other judicial authority and that, consequently,
the investigation was not capable of establishing the true
circumstances surrounding the applicant’s treatment. The Court
therefore considers that the Government, who simply relied on the
unscrutinised statements of K.B. and Ö.M., that is the
perpetrator of the alleged ill-treatment and his colleague and
relative by marriage, have failed to meet their responsibility to
provide a plausible explanation as to how the applicant suffered his
injuries while he was in the hands of agents of the State. In those
circumstances the Court finds that the violence inflicted on the
applicant on 28 October 2006, as described by the applicant himself
and which appears consistent with the findings of the medical report
of the same date, reaches the threshold of inhuman and degrading
treatment within the meaning of Article 3 of the Convention.
There
has accordingly been a violation of Article 3 of the Convention
under its substantive limb as well as under its procedural limb.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
The
applicant claimed 15,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested this claim.
The
Court considers that the applicant must have suffered non pecuniary
damage which cannot be compensated solely by the finding of a
violation. Ruling on an equitable basis, it therefore awards the
applicant EUR 11,700.
The
applicant did not claim any costs and expenses. Accordingly, no
award is made under this head.
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
1. Declares the application admissible
unanimously;
2. Holds by 6 votes to 1 that there has been a
violation of Article 3 of the Convention under its substantive limb
on account of the inhuman and degrading treatment that the applicant
was subjected to;
3. Holds unanimously that there has been a
violation of Article 3 of the Convention under its procedural limb;
4. Holds by 6 votes to 1
(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 11,700
(eleven thousand seven 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;
5. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 July 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge A.
Sajó is annexed to this judgment.
F.T.
F.E.P.
PARTLY DISSENTING OPINION OF JUDGE SAJÓ
While
I fully agree with the applicability in the present case of the
standards developed by the Court, I have come to the conclusion that
in the light of those standards there has been no violation of the
substantive prong of Article 3. Therefore I have to respectfully
dissent.
First,
as to the applicant’s arrest, there is independent evidence
that the applicant, who was already very agitated (see paragraphs
6-8 of the judgment), forcibly resisted his arrest on 27 October
2006. This is confirmed by the witness statement of a neighbour and
the slight abrasions suffered by the arresting police officers. The
medical report that was drawn up after the arrest did not indicate
any signs of ill-treatment on the body of the arrested person (see
paragraph 9).
The applicant also complained about the incident that took place
when he was taken to the Üsküdar police headquarters for
an identity check (see paragraph 15). According to the second and
third medical reports (see paragraphs 17 and 19) drawn up on 28
October, the applicant must have suffered injuries while in police
custody as abrasions and ecchymosis (bruising) were noted on his
body. In such circumstances the Government have the duty to provide
a plausible explanation that the injury did not result from inhuman
or degrading treatment. This duty to provide a plausible explanation
is to be understood in the context of the requirement that a State
can be held responsible for a violation of its international law
obligations when facts conducive to such responsibility are proven
“beyond reasonable doubt”, where such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. The issue
in the present case concerns the rebuttal of a presumption (see
Labita v. Italy [GC], no. 26772/95, § 121, ECHR
2000 IV).
While
the investigative measures in the case are subject to criticism, I
find the explanation provided by the Government plausible. Witness
Ö.M. did in fact corroborate the version provided by police
officer K.B., according to which it was the applicant who had
provoked the police and behaved in a self-destructive way. The
injuries sustained by police officer K.B. (see paragraph 5 of the
judgment) indicate that the applicant continued to behave
aggressively. Such behaviour would be consistent with the pattern
that was observed earlier by other witnesses (aggressiveness,
several attempts to throw himself out of the window – see
paragraphs 7-8). The injuries suffered by the applicant while being
restrained do not indicate that the use of force by K.B. was
disproportionate (see paragraph 26).
For
the above reasons I also felt unable to vote in favour of the
excessive compensation granted for non-pecuniary damage.
