In the case of İzci v. Turkey,
The European
Court of Human Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having
deliberated in private on 9 July 2013,
Delivers the
following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 42606/05) 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, Ms Nergiz İzci (“the applicant”), on 9 November 2005.
The applicant was represented by Ms Several Ballıkaya and Mr Murat Çelik,
lawyers practising in Istanbul. The Turkish Government (“the Government”)
were represented by their Agent.
The applicant alleged, in particular, that during a demostration she had been
severely beaten up by a number of police officers, in breach of her rights
guaranteed by Articles 3 and 11 of the Convention.
On 8 September 2010 the application was communicated 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
A. Introduction
The applicant was born in 1974 and lives in Istanbul. As the facts of the case
are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out
in Section B below (paragraphs 6-8). The Government’s submissions concerning
the facts are summarised in Section C below (paragraphs 9-13). The documentary
evidence submitted by the applicant and the Government is summarised in
Section D (paragraphs 14-26).
B. The applicants’ submissions on the facts
On 6 March 2005 the applicant took part in a demonstration to mark the Women’s
Day celebrations in Beyazıt Square in Istanbul, during which a large number
of police officers formed a ring around the crowd. Police officers did not
prevent people from entering the square and did not interfere with the
demonstrations.
When the celebrations ended with a press release issued by a number of women’s
organisations and the crowds began to disperse, police officers started hitting
people, including the applicant, with their truncheons and the ends of their
weapons and sprayed them with tear gas. As a result of the blows to her head,
face and other parts of the body, the applicant fell to the ground. Whilst she
was on the ground police officers continued to kick and hit her with their
sticks. The police officers also swore at her and insulted her.
The applicant was seriously injured and was left semi-conscious. She had to be
helped by a member of the public to leave the area. The incident was widely
publicised in the national and international media.
C. The Government’s submissions on the facts
On 18 February 2005 the office of the Governor of Istanbul was informed that a
demonstration would be held in Beyazıt Square on 6 March 2005 to celebrate
Women’s Day. The request to hold the celebrations in Beyazıt Square was
rejected and the organising committee was informed in a letter on 23 February
2005 that the celebrations could be held in Çağlayan Square in the
Şişli district and in Beykoz Field in the Beykoz district of
Istanbul.
On 6 March 2005 people began gathering at different locations in order to
march towards Beyazıt Square. Members of the security forces told them
that they would not be allowed to do so because it would obstruct the flow of
traffic.
Members of the security forces waited for 20-25 minutes for the demonstrators
to disperse. During that time some of the demonstrators left the area. Those
who remained blocked the traffic and insisted on marching to Beyazıt
Square. Members of the security forces intervened and reopened the road.
At around 11.30 a.m. the dispersed groups gathered in Beyazıt Square and
read out a press statement. At 1 p.m., after the press statement had been read
out, a group of approximately sixty persons refused to leave the area. When the
police warned them the demonstrators responded by throwing stones at the police
officers. As a result the police officers arrested a number of the
demonstrators and took them into custody by using force. The applicant was not
arrested.
During the incident seven police officers were injured and many police cars
were damaged by the demonstrators.
D. Documentary evidence submitted by the parties
The Government submitted to the Court video footage of the events. The
footage is a compilation of news aired by national television channels, as well
as the official video recording of the events by a police cameraman. The
footage shows police officers wearing gas masks hitting with their truncheons a
large number of demonstrators who try to run away from the area. Demonstrators
fallen to the ground are also kicked and hit with truncheons. A male
demonstrator who uses his body to protect a woman on the ground is kicked in
the face by a police officer. When police officers notice a number of
demonstrators hiding in bushes, they spray them with tear gas[1] before hitting them with
their truncheons. Two women on the ground trying to protect themselves from
attacks by police officers are sprayed with tear gas. Women who had taken
refuge in nearby shops and cafes are dragged out by the police and beaten up.
The footage also shows a number of shoppers, shopkeepers and other persons, who
had not been demonstrating but who had been in the area and affected by the
intense tear gas, wandering around in a confused state.
According to the report prepared by an expert who was appointed by the
domestic investigating authorities to examine the video footage and prepare a
report, police officers had not issued any warnings to the demonstrators to
disperse before attacking them. The demonstrators had not resisted the police
intervention and had not attacked the police but had simply tried to run away
from the area. Police had hit the demonstrators - including those who had
fallen to the ground - with their truncheons, kicked them, punched them and
sprayed them with tear gas.
On 8 March 2005 the applicant submitted a written request to the
Bakırköy prosecutor and requested a medical examination. She alleged that
excessive force had been used by the police officers during the incident and as
a result of that force various parts of her body had been injured. The
prosecutor referred the applicant to the Forensic Medicine Institute for a
medical examination.
According to the report of the medical examination carried out at the
Bakırköy branch of the Forensic Medicine Institute the same day, a large
number of ecchymosed areas of various sizes were present on her body including
her left upper arm, right forearm, left femur, buttocks and knees. The doctor
concluded that the applicant’s injuries would prevent her from working for a
period of five days.
On 11 March 2005 the applicant lodged an official complaint with the Istanbul
prosecutor against the Governor of Istanbul and the police officers responsible
for her ill-treatment. She pointed out that, according to the applicable
legislation, no prior notice or permission was necessary to read out a press
release. She requested, inter alia, that the Governor and the police
chiefs who abused their duties by not allowing her to enjoy her right to
assembly, as well as the police officers who had ill-treated her, be put on
trial. She complained that excessive force and tear gas had been used by the
police officers against her and against her fellow demonstrators when they were
dispersing and leaving the area of their own accord. Footage shown on
television channels and photographs published in newspapers had showed the
scale of the incident.
On 8 April 2005 the Chief Prosecutor at the Court of Cassation concluded that
the applicant had not mentioned a specific incident that could be attributed to
the Governor. A decision was thus made not to prosecute the Governor.
The disciplinary board of the police considered on 6 June 2005 that six of
the police officers had kicked the demonstrators and had also hit them with their
truncheons. It held that the police officers’ actions amounted to “degrading
behaviour”, and decided to “condemn” the actions of three police chiefs for
failing to train the six police officers properly. It also imposed a fine -
equivalent to three days’ salary - on the six police officers in question.
On 12 December 2005 the Istanbul prosecutor decided not to bring criminal
proceedings against forty-four police officers for the offence of abuse of duty
in respect of victims and complainants whose bodies did not bear any injuries.
In the prosecutor’s decision thirty-nine persons, including the applicant, were
named as victims and complainants. The applicant lodged an objection against
the prosecutor’s decision in which she repeated her complaints about the
excessive use of force against her. The applicant’s objection was rejected on
28 September 2007 by the Beyoğlu Assize Court.
In the meantime, on 9 December 2005 the Istanbul prosecutor filed an
indictment with the Istanbul Criminal Court of First Instance and accused a
total of fifty-four police officers of the offence of causing injuries by
exceeding the limits of their powers on the use of force. In this indictment
forty-nine persons, including the applicant, were listed as victims and
complainants.
References were made in the indictment to a report which had been forwarded
to the prosecutor on 28 April 2005 and which pertained to an investigation
conducted by four senior police inspectors in the immediate aftermath of the
events. According to the indictment, it was concluded in the inspectors’ report
that seven of the fifty-four police officers named as “suspects” in the
indictment had used excessive force against fifteen of the complainants and
victims, including the applicant. The inspectors considered that the seven
officers had not used their truncheons in accordance with the applicable
regulations and had even kicked a number of female demonstrators who had already
been neutralised.
The trial which began before the Fourth Division of the Istanbul Criminal
Court of First Instance (hereinafter the “trial court”) in 2005, was concluded
on 12 May 2011. In its judgment the trial court held the following:
“According to the prosecutor’s indictment, the victims
and complainants complained of having been injured when the defendant police
officers kicked them and punched them and hit them with their truncheons and
shields. They also complained of having been excessively sprayed with tear gas.
They added that the defendants had been wearing gas masks and hiding the
identification numbers on their uniforms. Furthermore, the attacks had taken
place very suddenly and when they had already been affected by tear gas. Thus,
they could not identify the police officers individually.
The defendant police officers submitted that they had
not committed the offence with which they were charged. They maintained that
the demonstrators had been harming public order by insisting on continuing with
the reading out of their press release as well as by attacking the police with
iron bars. They maintained that the force used by them against the
demonstrators had not been disproportionate.
Six of the defendants accepted during the preliminary
investigation stage that they had kicked the demonstrators from behind.
However, the lawyers defending these defendants submitted during the trial that
those self-implicating statements had been taken from the police officers by the
inspectors under duress and as a result of the press coverage of the incidents.
The inspectors questioning the police officers had thus acted contrary to the
applicable procedure. The defendants also maintained that, although the medical
reports would establish that the incidents had taken place, they were
insufficient to establish the identities of the police officers. Thus, the
victims should have been required to identify them first. They also added that
the offence in question were time-barred and the proceedings against them
should have been discontinued.
In his final submissions during the trial the
prosecutor agreed with the defendants and argued that the defendants should be
acquitted because the victims had been unable to identify the police officers.
The court finds that the defendants’ objections based
on the statute of limitations should be rejected. Proceedings against them will
be time-barred five years after the last defence submissions were made by them
on 8 September 2006.
It must be stressed that the large numbers of
defendants and victims, coupled with the fact that this was a large-scale
incident, resulted in delays in obtaining all the evidence. The trial was also
delayed as a result of the defendants’ covering their faces with helmets and
not displaying their identification numbers.
Having examined the video footage of the events, as
well as the reports and witness statements, the court finds that it is not
possible to expect the victims to identify the police officers who attacked
them because it is not possible to recognise the police officers in the video
footage.
The inspectors who had questioned the police officers
were also heard in the course of the trial proceedings and they confirmed the
authenticity and accuracy of the statements they had taken from the police
officers. One of the principles of criminal law is that witnesses are presumed
to be telling the truth, unless their testimonies are contradicted by official
documentation. There are no such documents in the file to discredit the
statements taken from the police officers by the inspectors. On the contrary,
their statements are corroborated by the video footage which shows the
punching, kicking, hitting with truncheons and shields, and using an excessive
amount of tear gas.
At the root of this incident is the freedom to express
opinions which is guaranteed in the Constitution, and the question whether
or not that freedom should be restricted in order to maintain public order. In
the Saraçhane area, which is one of the two locations where the incidents took
place, the police did not interfere in the demonstration until the
demonstrators started walking on the road where there was traffic circulation.
That intervention was thus made with a view to maintaining public order.
[However] the video footage [also] shows the police intervention against the
people who had already surrendered themselves to the police or who had been
hiding in bushes after having been sprayed with tear gas. This happens not on
the road but off it.
In Beyazıt Square, the other location of the
demonstrations, the video footage shows a scuffle between the police and
demonstrators carrying banners. The footage also shows the police kicking and
hitting with their truncheons and shields persons - mostly women - who try to
run away from the scene and who are not carrying any banners.
The above-mentioned statements taken from the police
officers by the inspectors show that:
- the defendants M.C. and A.O.P. had kicked from
behind two female demonstrators who had in their hands nothing to pose a danger
to the two officers;
- the defendant S.B. used excessive force against a
woman who had taken refuge in a café;
- the defendant C.U. hit a female demonstrator on her
shoulder and broke one of her bones;
- the defendant Y.K. kicked a demonstrator who had
been trying to seek help from the police after having been sprayed with tear
gas; and
- the defendant E.B. kicked a person who had already
been arrested.
In light of the foregoing it is accepted that some of
the defendants exceeded the limits of their powers on the use of force and used
excessive force.
...”.
The trial court concluded in its above-summarised judgment that the police
officers M.C., A.O.P., S.B., Y.K. and E.B. had used excessive force against the
demonstrators and committed the offence of ill-treatment defined in section 245
of the Criminal Code then in force (Law No. 765). It sentenced these officers
to terms of imprisonment ranging from five to ten months. The officer C.U., who
was found to have broken a bone of one of the demonstrators, was found guilty
of the offence of causing grievous bodily harm while using his powers as a
public official, an offence defined in section 86 § 3 of the Criminal Code now
in force (Law No. 5237), and sentenced to twenty-one months’ imprisonment. The
remaining forty-eight defendant police officers were acquitted for lack of
evidence.
According to the information provided to the Court by the Government on 10
November 2011, the criminal proceedings against the police officers were
discontinued on 8 September 2011 on account of the statute of limitations.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section 245 of the Criminal Code in force at the material time (Law No. 765),
provided as follows:
“Any law-enforcement officer ... who, in the course of duty ...
and in circumstances other than those prescribed by law ..., ill-treats,
injures or hits a person or inflicts on them bodily harm, shall be sentenced to
between three months’ and five years’ imprisonment and temporarily barred from
public service. ...”
Relevant provisions of Section 86 of the Criminal Code now in force (Law. No.
5237) provide as follows:
“(1) A person who intentionally causes
physical suffering to another person, or harms that other person’s physical or
mental health, shall be sentenced to between one and three years’
imprisonment....
(2) If the offence of intentionally causing
bodily harm is committed
...
c) by virtue of execution of public duties;
...
the offender shall be [prosecuted without
waiting for an official complaint from the victim] and sentenced to between two
and five years’ imprisonment.”
Section 10 of the Meetings and Demonstration Marches Act (Law no. 2911)
provides as follows:
“In order for a meeting to take place, the governor’s office or
authorities of the district in which the demonstration is planned must be
informed, during opening hours and at least seventy-two hours prior to the
meeting, by a notice containing the signature of all the members of the
organising board...”
Section 22 of the same Act prohibits demonstrations and processions on public
streets, in parks, places of worship and buildings in which public services are
based. Demonstrations organised in public squares must comply with security
instructions and not disrupt individuals’ movement or public transport.
Finally, section 24 provides that demonstrations and processions which do not
comply with the provisions of this law will be dispersed by force on the order
of the governor’s office and after the demonstrators have been warned.
Section 32 of the Act, in so far as relevant, provided as follows before it
was amended in 2008 and 2010:
“1. Unarmed persons taking part in an
unlawful meeting or procession who, instead of dispersing of their own motion
after having been warned or ordered to do so and who thus have to be forcefully
dispersed by government forces, are liable to be sentenced to a term of
imprisonment of between one and three years.
...
2. Unless their action breaches another
criminal law provision which stipulates a more severe punishment, persons who
resort to violence or making threats while being dispersed, or who resist the
attempts to disperse them, are liable to be sentenced to a term of imprisonment
of between three and five years.
...”
On 15 February 2008 the Ministry of the Interior issued a directive to law
enforcement personnel on the use of tear gases (Circular No. 19). It is noted
in the directive that, according to section 16 § 3 (b) of the Law on the Duties
and Powers of the Police (Law No. 2559), tear gases are listed among the
weapons which law enforcement officials are permitted to use in the execution
of their duties. The directive sets out the circumstances in which
tear gases may be used - both in open and confined spaces - and explains how
best to obtain the maximum benefit from their use. It stipulates that tear
gases may not be used against persons who have stopped putting up resistance,
and recommends that law enforcement personnel be prepared to provide first aid
to those affected by the gas.
According to an information note issued by the Turkish Medical Association (Türk
Tabipleri Birliği) in June 2013, CS (chlorobenzylidenemalononitrile)
and CN (chloroacetophenone) gases are used by law-enforcement officials
in Turkey. These gases damage the eyes, cause burns on the skin, severely
affect the respiratory system and the lungs, restrict breathing, slow down the
heart beat and cause fluctuations in blood pressure. Prolonged contact with
these gases permanently damages the cornea of the eye, upsets the heart rhythm,
and has caused damage to the lungs which, in turn, has led to deaths. The
effects of the gases are more pronounced in children, pregnant women and
persons with existing respiratory problems, heart problems, aneurysms,
allergies and weak immune systems. Sudden allergic oedema caused in the upper
respiratory systems by such gases, as well as use of gases on persons with
asthma or bronchitis, may be fatal. According to the expert reports, fatal
doses of gases were used in the operations conducted in 20 prisons in Turkey on
19 December 2000 during which 32 persons lost their lives and hundreds
were injured. On 1 May 2007 a seventy-five-year-old man who was sprayed with
gas in Turkey lost his life. Furthermore, such gases have been used extensively
in two incidents in 2011 during which two persons lost their lives.
On 3 June 2013 the Respiratory Society of Turkey (Türkiye Solunum
Araştırmaları Derneği; TÜSAD) issued a press release
with a view to informing the public about the dangers of tear gas and about the
steps to be taken after contact with tear gas. In the press release the effects
of tear gas are defined as follows:
“...Tear gas affects primarily the mucus membranes; in
particular the eyes, throat, respiratory system and the nose. On contact, it
immediately causes a general feeling of burning; discomfort and excessive
watering of the eyes; pain and a feeling of burning of the skin and in the nose
and throat; coughing; breathing difficulties; extreme restlessness and
discomfort; and temporary blindness. The pain and the feeling of burning on
contact with the skin causes extreme discomfort and panic. Although it does not
cause permanent damage in the organs with which it comes into contact, its
acute effects are extremely discomforting and lead to panic.
...”
III. RELEVANT INTERNATIONAL MATERIALS
According to the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on their Destruction of
13 January 1993 (“the CWC”), tear gas is not considered a
chemical weapon and its use is authorised for the purpose of law enforcement,
including domestic riot control (Article II § 9 (d)). The CWC entered into
force with regard to Turkey on 11 June 1997.
36. Relevant paragraphs of the
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
(Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, 27 August to 7 September 1990, U.N. Doc.
A/CONF.144/28/Rev.1 at 112 (1990)) provide as follows:
“3. The development and deployment of non-lethal
incapacitating weapons should be carefully evaluated in order to minimize the
risk of endangering uninvolved persons, and the use of such weapons should be
carefully controlled.
...
5. Whenever the lawful use of force and firearms
is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to
the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human
life;
(c) Ensure that assistance and medical aid are rendered to any
injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or
affected person are notified at the earliest possible moment.
...
9. Law enforcement officials shall not use
firearms against persons except in self-defence or defence of others against
the imminent threat of death or serious injury, to prevent the perpetration of
a particularly serious crime involving grave threat to life, to arrest a person
presenting such a danger and resisting their authority, or to prevent his or
her escape, and only when less extreme means are insufficient to achieve these
objectives. In any event, intentional lethal use of firearms may only be made
when strictly unavoidable in order to protect life.
...
12. As everyone is allowed to participate in lawful
and peaceful assemblies, in accordance with the principles embodied in the
Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights, Governments and law enforcement agencies and officials
shall recognize that force and firearms may be used only in accordance with
principles 13 and 14.
13. In the dispersal of assemblies that are unlawful
but non-violent, law enforcement officials shall avoid the use of force or,
where that is not practicable, shall restrict such force to the minimum extent
necessary.
14. In the dispersal of violent assemblies, law
enforcement officials may use firearms only when less dangerous means are not
practicable and only to the minimum extent necessary. Law enforcement officials
shall not use firearms in such cases, except under the conditions stipulated in
principle 9.”
37. Paragraph 35 of the Report of
the Special Rapporteur on the rights to freedom of peaceful assembly and of
association, Maina Kiai, (UN Human Rights Council A/HRC/20/27, 21 May 2012)
provides as follows:
“35. With regard to the use of tear gas, the Special
Rapporteur recalls that gas does not discriminate between demonstrators and
non-demonstrators, healthy people and people with health conditions. He also
warns against any modification of the chemical composition of the gas for the
sole purpose of inflicting severe pain on protestors and, indirectly,
bystanders.”
38. UN Committee against Torture,
Thirty-eighth session, 30 April-18 May 2007, Consideration of reports submitted
by States parties under article 19 of the Convention, paragraph 16 of the
Concluding observations of the Committee against Torture, Denmark,
CAT/C/DNK/CO/5, 16 July 2007 provides as follows:
“16. The Committee is concerned at reports emerging
of alleged excessive use of force, such as the use of physical violence and
tear gas, by law enforcement officials during the “Ungdomshus” Youth House
riots in Copenhagen in March 2007. The Committee also notes with concern
reports suggesting that a number of persons had been killed by Danish law
enforcement officials over the past two years. (arts 10, 12, 13, 14 and 16)
The State party should review the existing framework to handle
allegations of excessive use of force, including the use of weapons, by law
enforcement officials to ensure its compliance with the Convention. The State
party should ensure prompt and impartial investigations into all complaints or
allegations of misconduct, in particular when a person dies or is seriously
injured following contact with law enforcement officials. In addition, the
State party should review and strengthen its education and training programmes
relating to the use of force, including the use of weapons, by law enforcement
officials in order to ensure that the use of force is strictly limited to that
required to perform their duties.”
39. UN Committee against Torture,
Forty-fifth session, 1-19 November 2010, Consideration of reports submitted by
States parties under article 19 of the, Convention, paragraph 13 of the
Concluding observations of the Committee against Torture, Turkey, CAT/C/TUR/CO/3,
20 January 2011 provides as follows:
“13. While noting the acknowledgement by the
representative of the State party of excessive use of force by law enforcement
authorities and information on measures taken to eradicate such practice,
including by inscribing identification numbers on the helmet of police officers
during demonstrations, the Committee remains concerned at reports indicating an
increase in the excessive use of force and ill-treatment of demonstrators by
police outside official detention places (...)”
The State party should promptly implement effective measures to
put an end to excessive use of force and ill-treatment by law enforcement
authorities. The State party should, in particular:
(a) Ensure that domestic laws, rules of engagement
and standard operating procedures relating to public order and crowd control
are fully in line with the Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials, in particular the provision that lethal use of
firearms may only be made when strictly unavoidable in order to protect life
(Principles, para. 9)”
The European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (“the CPT”) has expressed its concerns over the use of
such gases in law enforcement. The CPT considers that:
“... [P]epper spray is a potentially dangerous substance and
should not be used in confined spaces. Even when used in open spaces the CPT
has serious reservations; if exceptionally it needs to be used, there should be
clearly defined safeguards in place. For example, persons exposed to pepper
spray should be granted immediate access to a medical doctor and be offered an
antidote. Pepper spray should never be deployed against a
prisoner who has already been brought under control. (CPT/Inf (2009) 25)”
In its reports pertaining to its visits carried out in a number of Member
States of the Council of Europe the CPT has made the following recommendations:
“... [A] clear directive governing the use of pepper spray to
be drawn up, which should include, as a minimum:
- clear instructions as to when pepper spray may be used, which
should state explicitly that pepper spray should not be used in a confined
area;
- the right of prisoners exposed to pepper spray to be granted
immediate access to a doctor and to be offered measures of relief;
- information regarding the qualifications, training and skills
of staff members authorised to use pepper spray;
- an adequate reporting and inspection mechanism with respect
to the use of pepper spray...” (See, inter alia, CPT/Inf (2009) 8)”.
In its 2005 Progress Report on Turkey {COM (2005) 561 final} the European Commission stated the following in relation to the demonstrations
which are the subject matter of the present application:
“As regards the right to peaceful assembly,
while public demonstrations are subject to fewer restrictions than in the past,
a number of incidents have raised concerns. In several regions brutality by the
security forces has been alleged in the context of demonstrations and outdoor
NGO press statements.
During a demonstration marking international
Women’s Day in Istanbul on 6 March 2005, police intervened with
disproportionate force, using tear gas and truncheons and injuring a number of
participants. The government quickly conveyed the message that such behaviour
on the part of the police is unacceptable. Following the incident, the Ministry
of Interior demoted and fined 6 policemen and reprimanded 3 senior officials. A
judicial investigation, launched by the Istanbul Public Prosecutor, is ongoing.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained under Article 3 of the Convention that she had been
beaten up, sprayed with various gases, sworn at and insulted by the police
officers. She also complained that such attacks by police officers were
tolerated in Turkey and went unpunished. Article 3 of the Convention provides
as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. Admissibility
The Government argued that the applicant had failed to exhaust the domestic
remedies available to her, within the meaning of Article 35 § 1 of the
Convention. In this connection they submitted that the applicant had not raised
the substance of her complaints before the national authorities and that the
criminal proceedings against the police officers were still continuing. They
also argued that the applicant had failed to seek compensation at the national
level pursuant to Article 125 of the Constitution.
The Court observes that the applicant did not only raise the substance of her
complaints when she made complaints to the national authorities on a number of
occasions, but also referred expressly to her rights guaranteed under the
Convention (see paragraphs 16, 18 and 21 above). It also notes that the
criminal proceedings against the police officers were discontinued on
8 September 2011 (see paragraph 26 above). It therefore rejects the first
element of the Government’s objection.
As for the Government’s objection based on the issue of compensation, the
Court reiterates that it has already examined and rejected similar preliminary objections
made in comparable cases (see, most recently, Ali Güneş v.
Turkey, no. 9829/07, § 32, 10 April
2012; Pekaslan and Others v. Turkey, nos. 4572/06 and 5684/06, § 47, 20 March 2012). The Court finds no
particular circumstances in the instant case which would require it to depart
from its findings in the above-mentioned cases. It therefore rejects the
Government’s objection based on the issue of compensation.
The Court notes that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The applicant submitted that the celebrations had been peaceful and that the
intervention of the police officers while the crowds began dispersing had been
unwarranted. Following the police officers’ intervention the demonstrators had
begun running away and had not attacked the police officers. Nevertheless, the
police officers had attacked them violently and sprayed them extensively with
tear gas. The applicant submitted that she could be seen in various parts of
the video footage, struggling to walk away.
The applicant argued that the report pertaining to her medical examination
after the incident, which had formed part of the evidence in the trial against
the police officers, supported her allegations of ill-treatment. She had not
only suffered physical injuries, but had also been affected mentally as a
result of the ill-treatment.
The Government argued that the facts of the instant case did not fall within
the scope of Article 3 of the Convention. The police officers had warned the
protesters that they would be arrested if they continued to resist and those
protesters who continued to resist had been arrested without excessive force
having been used.
Referring to a number of the Court’s judgments concerning the use of force by
law enforcement officials, the Government submitted that the use of force by
the police officers in the present case had been in compliance with domestic
law and had not been excessive. Since the use of force had been proportionate
to the aim of maintaining public order, there had been no violation of Article
3 of the Convention.
As the Istanbul prosecutor’s office had initiated a criminal investigation
against the police officers and filed a suit before the Istanbul Criminal Court
of First Instance, there was no liability which could be attributed to the
domestic authorities concerning the procedural limb of Article 3 of the
Convention.
The Court reiterates from the outset the absolute nature of the prohibition
of torture and inhuman and degrading treatment and punishment. It is true that,
according to the Court’s case-law, Article 3 does not prohibit the use of force
for effecting an arrest. Nevertheless, such force may be used only if it is
indispensable and it must never be excessive (see Ivan Vasilev v.
Bulgaria, no. 48130/99, § 63, 12 April 2007, and the cases cited therein).
Furthermore, recourse to physical force which has not been made strictly
necessary by a person’s own conduct is in principle an infringement of the
right set forth in Article 3 of the Convention. In this
connection, the Court reiterates that the undeniable difficulties inherent in
the fight against crime cannot justify placing limits on the protection to be
afforded in respect of the physical integrity of individuals (see Ribitsch
v. Austria, 4 December 1995, § 38, Series A no. 336 and the case cited
therein).
In view of the above-mentioned judgments, the Court cannot accept the
Government’s submissions that the use of force by the police officers was
proportionate to the aim of maintaining public order (see paragraph 52 above).
It is crucial to stress that Article 3 of the Convention does not allow for a
balancing exercise to be performed between the physical integrity of an
individual and the aim of maintaining public order (see Pekaslan and Others, cited above, § 58).
The Court observes that to a large extent the facts of the present
application have been established by the trial court which convicted a number
of the defendant police officers for having used excessive force against the
demonstrators (see paragraphs 24-25 above). Although the criminal proceedings
against those officers subsequently became time-barred and were discontinued
before the judgment convicting them became final, the Court considers that the
facts as established by the trial court in its judgment can nevertheless be
taken into account in its examination of the applicant’s allegations.
To the extent that the Government’s submission that the “facts of the instant
case do not fall within the scope of Article 3 of the Convention” (see
paragraph 51 above) is to be understood as meaning that the applicant’s
ill-treatment did not attain the required level of severity to fall within the
ambit of this provision, the Court considers that the report pertaining to the
applicant’s medical examination refutes that submission. According to that
report, the applicant’s body bore a large number of injuries which required a
healing period of five days (see paragraph 17 above). The Court also notes that
the authenticity of that medical report and the veracity of its contents have
not been challenged at the national level or indeed by the respondent
Government. In the light of the foregoing, and having regard to the nature and
severity of the applicant’s injuries, the Court considers that the applicant
did suffer injuries which were sufficiently serious as to amount to
ill-treatment within the meaning of Article 3 of the Convention.
The Court also observes that the applicant’s allegation that her injuries
were caused by the police officers has not been challenged by the national
authorities or by the Government which, however, maintained that the use of
force had been proportionate. In any event, the Court observes that, according
to the report prepared by the four police inspectors, the applicant’s injuries
had been caused by seven police officers (see paragraph 23 above).
The Court has examined the video footage of the events submitted to it by the
Government (see paragraphs 14-15 above), and has noted the violent methods
employed by the police officers. Having examined the footage which shows police
officers hitting the demonstrators who were trying to run away from the scene,
had fallen to the ground and were hiding from the police officers, as well as
these officers indiscriminately spraying the demonstrators with tear gas to the
extent that not only the demonstrators but also unconnected persons in the
vicinity were affected, the Court does not find convincing the Government’s
submissions that the force used by the police officers was proportionate.
It is noteworthy that the Government have not referred to any evidence to
show that the applicant had put up resistance to the police officers. In any
event, the fact that the applicant was not arrested and no criminal proceedings
were brought against her for any criminal offence - such as putting up
resistance to a police officer - is another indication that she had not caused
any danger to public order or to the police officers themselves, but had, like
many other demonstrators, been indiscriminately attacked by the police
officers.
The Court observes that the applicant has brought her allegations concerning
being sprayed with tear gas to the attention of the domestic authorities (see
paragraph 18 above). Like her allegations of having been beaten up, the
applicant’s allegation that she was sprayed with tear gas has also not been
challenged by any domestic authority or subsequently by the Government. The
Court will thus proceed to examine the circumstances in which the applicant was
sprayed with tear gas. It reiterates in this connection that unwarranted use of
tear gas by law enforcement officers is not compatible with the prohibition of
ill-treatment within the meaning of Article 3 of the Convention (see Ali
Güneş, cited above, § 43).
The Court reiterates that law-enforcement officers, such as the police or the
gendarmerie, should not be left in a vacuum when performing their duties,
whether in the context of a prepared operation or a spontaneous chase of a
person perceived to be dangerous: a legal and administrative framework should
define the limited circumstances in which law-enforcement officials may use
force and firearms, in the light of the international standards which have been
developed in this respect (see, mutatis mutandis, Makaratzis v.
Greece [GC], no. 50385/99, § 59, ECHR 2004-XI).
It is to be noted that the respondent Government have not sought to argue
that there existed at the time of the events clear and adequate instructions
regulating the use of tear gas and that the police officers who attacked the
applicant and other demonstrators acted in accordance with those instructions.
In any event the Court notes that the directive on the use of tear gas which
was summarised above (see paragraph 32) was not issued until some three years
after the incident giving rise to the present application.
It thus appears that the only framework regulating the use of tear gas by
police officers at the time of the events was the Law on the Duties and Powers
of the Police which allow police officers to use tear gas (see paragraph
32 above). Nevertheless, beyond listing tear gas as one of the weapons which
can be used by police officers, that Law does not set out any specific
circumstances in which tear gas may be used in accordance with Turkey’s
international obligations.
It must be stressed in this connection that the Court has already had
occasion to note the concerns expressed by the CPT on the use of tear gas and
its recommendations in that area (see Ali Güneş, cited above, §§
39-40; see also “Relevant International Materials” above). It would add in the
present judgment that the lack of a clear, detailed and binding set of
instructions on the use of tear gas at the time of the events giving rise to
the present application contributed greatly to the excessive and unjustifiable
use of tear gas towards the applicant and the other demonstrators.
In light of the foregoing the Court considers, as it has done in a number of
judgments concerning similar cases against Turkey, that the police officers in
the present case failed to show a degree of tolerance and restraint before
attempting to disperse a crowd which did not present a danger to public order
and was not engaging in acts of violence. It thus appears that the hasty
response of the police to the peaceful gathering of the demonstrators resulted
in mayhem, and the ensuing use of disproportionate force by the police officers
resulted in the injuring of the applicant (see Biçici v. Turkey,
no. 30357/05, §§ 35-36, 27 May 2010).
As for the domestic investigation into the applicant’s complaint of
ill-treatment, the Court observes that it was accepted by the trial court that
the police officers hid their identity numbers to avoid recognition
(see paragraph 24 above). Moreover, the Court observes that the national
authorities did not investigate the broader issues relating to the planning and
carrying out of the police actions, and have in effect allowed the police
officers to benefit from hiding their identification numbers by discontinuing
the proceedings on account of the statute of limitations, especially when the
difficulty associated with identifying the police officers due to them hiding
their identification numbers was cited by the same trial court as a
contributory factor to the prolongation of the criminal proceedings (see
paragraph 24 above). These shortcomings entailed the result that the police
officers’ superiors were also not called to account.
It is to be observed that the prosecutor, who prepared the indictment and
asked for the police officers to be prosecuted and punished, subsequently, in
the course of the trial proceedings, requested that the police officers be
acquitted on account of the victims’ inability to identify them (see paragraphs
22-24 above). No explanation was given by that prosecutor as to how the victims
would have been in a position to identify the police officers who had covered
their faces with gas masks and hidden their identification numbers.
Although in its rejection of the prosecutor’s request the trial court took
into account the victims’ inability to identify the police officers who allegedly
used force against them, it only found guilty six police officers who had been
questioned by inspectors after the incident and who had confessed to having
used unnecessary and excessive force. Without giving any additional reasons the
trial court acquitted the remaining forty-eight police officers for lack of
evidence.
The Court is not called on to determine the criminal liabilities of the
police officers or the appropriateness of their acquittals. However, it finds
that the failure to identify and to assess the criminal liabilities of the
large number of police officers - other than the six officers who confessed -
who used unwarranted force against the demonstrators and whose presence in the
area would have been logged in official police records, raises serious doubts
on the issue of compliance with the obligation to carry out effective
investigations into allegations of ill-treatment.
In a number of its judgments in cases against Turkey the Court has observed
that the judicial authorities’ failure to show diligence to expedite criminal
proceedings against police officers for ill-treatment-related offences has
resulted in those proceedings becoming time-barred on account of the statute of
limitations (see, inter alia, Mustafa Taştan v. Turkey,
no. 41824/05, §§ 50-51, 26 June 2012).
As it has done in those judgments, the Court considers in the present
application that the criminal-law system has proved to be far from rigorous and
to be lacking in the dissuasive effect capable of ensuring the effective
prevention of unlawful acts such as those complained of by the applicant (see,
most recently, Yazıcı and Others v. Turkey (no. 2),
no. 45046/05, § 27, 23 April 2013).
The Court stresses that when an agent of the State is accused of crimes that
violate Article 3 of the Convention, any ensuing criminal proceedings and
sentencing must not be time-barred and the granting of an amnesty or pardon
should not be permissible (see Abdülsamet Yaman v. Turkey,
no. 32446/96, § 55, 2 November 2004).
It further reiterates that where a State agent has been charged with crimes
involving torture or ill-treatment, it is of the utmost importance that he or
she should be suspended from duty during the investigation and trial, and
should be dismissed if convicted (ibid.). There is no information in the
present case that any of the police officers were suspended in the course of
the six-year-long criminal proceedings against them.
The Court finds that, on account of the beating up of the applicant and her
being sprayed with tear gas, as well as on account of the serious failures of
the judicial authorities in establishing the true facts of the incident and in
searching for the perpetrators, coupled with their failure to expedite the
proceedings, which resulted in their becoming time-barred, there has been a
violation of Article 3 of the Convention both in its substantive and procedural
aspects.
II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF
THE CONVENTION
Relying on Articles 10 and 11 of the Convention, the applicant complained
that on account of the police officers’ use of force, she had been unable to
enjoy her right to freedom of expression and assembly.
The Government contested that argument.
The Court considers that the applicant’s complaints should be examined solely
from the standpoint of Article 11 of the Convention which provides as follows:
“1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others...
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and are necessary in a
democratic society ... for the prevention of disorder or crime...”
The Court notes that this complaint is linked to the one examined above and
must therefore likewise be declared admissible.
A. Whether there was an interference with the
applicant’s exercise of her freedom of peaceful assembly
The Government argued that there had been no interference with the applicant’s
rights under Article 11 of the Convention. The demonstration in which the
applicant had taken part was not held in a permitted location and the measures
taken by the national authorities had not furthered the aim of preventing the
dissemination of ideas. Those measures had been taken with a view to preventing
disorder and crime.
The applicant maintained that the police had used unwarranted and excessive
force in the demonstration and had thus prevented her from enjoying her rights
under Article 11 of the Convention.
The Court considers that the intervention of the police officers, as well as
the ill-treatment to which the applicant was subjected, constituted an
interference with her rights under Article 11 of the Convention (see, mutatis
mutandis, Nurettin Aldemir and Others v. Turkey, nos. 32124/02,
32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, §§ 33-35,
18 December 2007).
B. Whether the interference was justified
The Government stated that the demonstration at issue had been organised in
breach of the Law on Meetings and Demonstration Marches (Law. No. 2911), and
the interference had thus been “prescribed by law”. They also submitted that
the interference had pursued the legitimate aim of, inter alia,
prevention of disorder and crime and maintaining public order and that it had
been “necessary in a democratic society”.
The applicant submitted that Beyazıt Square was an area closed to traffic.
Thus, there had never been a question of interfering with the flow of traffic
and the allegation that the police had waited for a period of 20-25 minutes
before intervening and reopening the road to traffic, did not represent the
truth. As could be seen from the video footage and the expert report (see,
respectively, paragraphs 14 and 15 above), the police officers had attacked the
crowds who had been dispersing of their own accord. The applicant submitted
that the right to demonstrate was a constitutional and democratic right and the
State was under an obligation to protect this right, rather than prevent its
citizens from exercising it.
The Court reiterates that an interference will constitute a breach of Article
11 of the Convention unless it is “prescribed by law”, pursues one or more
legitimate aim under paragraph 2 of that provision and is “necessary in a
democratic society” for the achievement of those aims.
In this connection, it is noted that the interference in the present case had
a legal basis, namely the Law on Meetings and Demonstration Marches (see
paragraphs 29-31 above), and was thus “prescribed by law” within the meaning of
Article 11 § 2 of the Convention. As regards a legitimate aim, the Government
submitted that the interference pursued, among others, the legitimate aim of
prevention of disorder and crime, and the Court finds no reason to differ.
Turning to the question of whether the interference was “necessary in a
democratic society”, the Court has examined the applicant’s complaints in the
light of the fundamental principles underlying its judgments relating to
Article 11 of the Convention (see, in particular, Oya Ataman v. Turkey, no. 74552/01, §§ 35-44, ECHR 2006-XIII, and the
judgments cited therein; Bukta and Others v. Hungary, no. 25691/04, §§
33-39, ECHR 2007-IX; Éva Molnár v. Hungary, no. 10346/05, §§ 23-46, 7
October 2008).
In the instant case, according to the Government, police officers intervened
because the demonstrators had been acting in breach of the Law on Meetings and
Demonstration Marches. However, having regard to the absence of any criminal
proceedings against the applicant, as well as the lack of any information to
show that proceedings were initiated against any other demonstrator for an
alleged breach of that Law, the Court observes that the applicant and many
other demonstrators did not act violently, contrary to the allegations of the
Government.
Furthermore, the video footage (see paragraph 14 above), the report of the
expert on that footage (see paragraph 15 above), statements taken from the six
police officers who accepted having used unnecessary and excessive force
against the demonstrators (see paragraph 20 above), and the conclusion reached
by the trial court (see paragraphs 24-25 above) show that the demonstrators
neither presented a danger to public order nor engaged in acts of violence
requiring such a heavy-handed intervention. In this connection, the Court
acknowledges that a demonstration in a public place may cause some disruption
to ordinary life, including disruption of traffic (see Disk and Kesk v.
Turkey, no. 38676/08, § 29,
27 November 2012 and the cases cited therein), but reiterates that
where demonstrators do not engage in acts of violence it is important for the
public authorities to show a certain degree of tolerance towards peaceful
gatherings if the freedom of assembly guaranteed by Article 11 of the
Convention is not to be deprived of all substance (see Nurettin Aldemir and
Others, cited above, § 46).
In the light of the foregoing, the Court considers that the intervention of
the police officers in the demonstration and the violence they used towards the
applicant was disproportionate and not necessary for preventing disorder or
crime, within the meaning of the second paragraph of Article 11 of the
Convention. It also considers that the brutality of the dispersal had an
inevitable dissuasive effect on people’s willingness to demonstrate.
There has accordingly been a violation of Article 11 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
Finally, under Article 14 of the Convention the applicant complained that she
had wanted to take part in a demonstration during which problems faced by women
were going to be voiced. Nevertheless, her attempts at doing so had been
obstructed by the use of force.
The Court considers that this complaint may be declared admissible. However,
having regard to its conclusions under Articles 3 and 11 of the Convention
above (see paragraphs 75 and 91) the Court does not deem it necessary to
examine this complaint separately.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
The applicant expressed as her wish that the conclusions reached by the Court
in her application would lead to the taking of necessary steps at the national
level with a view to preventing similar breaches of the Convention in future.
The Court observes that it has found in over forty of its judgments against
Turkey that the heavy-handed intervention of law enforcement officials in
demonstrations or the bringing of criminal proceedings against applicants for
taking part in peaceful demonstrations was in breach of Articles 3 and/or 11 of
the Convention (see, inter alia, Ali Güneş, cited above, §
46; Disk and Kesk v. Turkey, cited above, §§ 36-37). It notes that a common feature of those cases is the
authorities’ failure to show a certain degree of tolerance towards peaceful
gatherings and, in some cases, the precipitate use of physical force, including
tear gas, by the law enforcement personnel.
The Court has also noted in over twenty of those judgments the failure of the
Turkish investigating authorities to carry out effective investigations into
allegations of ill-treatment by law enforcement personnel during demonstrations
(see, most recently, Taşarsu v. Turkey, no. 14958/07, § 55, 18 December 2012).
The Court observes that 130 applications against Turkey, which concern the
right to freedom of assembly and/or use of force by law enforcement officials
during demonstrations, are currently pending before it.
In the light of the foregoing the Court considers that in order to execute
the present judgment in accordance with their obligations under Article 46 of
the Convention, the respondent State will have to adopt general measures to
prevent further similar violations in future. To that end, and without
prejudice to any other measures that Turkey might envisage and without
prejudice to the directive issued by the Ministry of the Interior on 15
February 2008 (see paragraph 32 above), the Court considers that the taking of
steps to ensure that law enforcement personnel act in accordance with the
requirements of Articles 3 and 11 of the Convention and in compliance with the
CPT’s recommendations referred to above (see paragraphs 40 and 41) when
resorting to use of forceful means - such as physical force or tear gas - are
indispensable to eliminate the above-mentioned problems which the Court
considers to be systemic. The Court also considers it necessary to ensure that
the judicial authorities conduct effective investigations into allegations of
ill-treatment in conformity with the obligation under Article 3 of the
Convention and in such a way as to ensure the accountability of senior police
officers.
In this connection, and in order to ensure full respect for the rights
guaranteed in Articles 3 and 11 of the Convention, the Court considers it
crucial that a clearer set of rules be adopted concerning the implementation of
the directive regulating the use of tear gas, and a system be in place that
guarantees adequate training of law enforcement personnel and control and
supervision of that personnel during demonstrations, as well as an effective ex
post facto review of the necessity, proportionality and reasonableness of
any use of force, especially against people who do not put up violent
resistance.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
100. 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 applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
In support of her claim the applicant submitted that she had suffered
psychological problems and had been unable to work for a period of one week as
a result of the breaches of her rights under the Convention.
The Government considered that the sum claimed by the applicant was
unacceptable and would lead to unjust enrichment if awarded.
The Court awards the applicant EUR 20,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The applicant also claimed EUR 4,069 for the costs and expenses incurred
before the domestic courts and before the Court. This sum included the fees of
her legal representatives for which the applicant referred to the tariffs
issued by the Bar Association.
The Government considered that the applicant’s claim for costs and expenses
were not supported with adequate documentary evidence. The Government submitted
that in calculating the legal fees, the tariffs set by the Turkish Bar
Association may be helpful because those tariffs have a binding effect on the
domestic courts.
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 Court observes that the applicant has not
submitted to the Court any documentation in support of her claim for the fees
of her legal representatives - such as a bill, a fee agreement or a document
showing the time spent by her legal representatives on the case - or any
documentation to show that she incurred the remaining expenses such as
translation, postal and other costs. The Court therefore rejects the applicant’s
claim for costs and expenses.
C. Default interest
The Court considers it appropriate that the default interest rate 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,
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 3 of the Convention in its substantive and procedural aspects;
3. Holds that there has been a violation of
Article 11 of the Convention;
4. Holds that there is no need to examine the
complaint under Article 14 of the Convention;
5. Holds
(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, EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into the
currency of the respondent State 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
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 23 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President