European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF ŞAKİR KAÇMAZ v. TURKEY

 

 

(Application no. 8077/08)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

 

10 November 2015

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.




In the case of Şakir Kaçmaz v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Helen Keller,
          Paul Lemmens,
          Egidijus Kūris,
          Robert Spano, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 13 October 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 8077/08) 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 Şakir Kaçmaz (“the applicant”), on 4 February 2008.

2.  The applicant was represented by Mr M. Oğuz, a lawyer practising in Van. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 22 October 2012 the application was communicated to the Government.

4.  On 27 March 2013 the President of the Section decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant the applicant leave to use the Turkish language in the written proceedings before the Court.

THE FACTS

5.  The applicant was born in 1973 and is currently serving a prison sentence in Tokat Prison.

A.  The applicant’s arrest, detention in police custody and the medical reports issued during his custody period

6.  On 30 September 2001 the applicant was arrested on suspicion of membership of an illegal organisation, namely the Hizbullah. According to the arrest report, signed by four police officers, during his arrest the applicant attempted to swallow some pieces of papers and resisted the police officers who tried to take the papers out of his mouth.

7.  On the same day, the applicant was examined by a doctor at the Diyarbakır State Hospital. The doctor noted, on a police document, that the applicant had a widespread bruised area under his left eye, oedema under his right eye, a scratch on his left wrist, red patches behind his left ear and bleeding on his right ear.

8.  On 7 October 2001 the applicant was examined by a doctor who diagnosed him with pharyngitis and prescribed him medication.

9. On 8 October 2001 the applicant was questioned at the anti-terror branch of the Diyarbakır security directorate and confessed to his involvement in Hizbullah.

10.  On 9 October 2001 at 2.45 p.m. the applicant was sent for a medical examination at the Diyarbakır Health Clinic. In a document of the police directorate in which the applicant’s name was put, the doctor who examined the applicant noted that he had a widespread bruised area under his left eye and small scratches on his left wrist.

11.  On the same day, the applicant was questioned by both a public prosecutor and an investigating judge. Before the public prosecutor, the applicant responded to the questions by nodding. The public prosecutor noted that the applicant was unable to speak and therefore could not make statements. Before the investigating judge, the applicant wrote down on a piece of paper that his throat and internal organs hurt and that he was unable to speak. He further noted that he would examine his police statements and the evidence against him in detail and make his defence submissions before the trial court.

12.  On the same day the investigating judge authorised the applicant’s detention at the anti-terror branch of the Diyarbakır security directorate for a further period of ten days on the basis of Legislative Decree no. 430 in force at the material time.

13.  Later that day, at 9 p.m., the applicant was examined at the Diyarbakır State Hospital. The doctor who conducted the examination stated in a police document that the applicant had a bruise, measuring 2x3 cm, under the left orbital region and was suffering from tonsillitis.

14.  On 10 October 2001 the applicant was referred to the emergency room of the state hospital in Diyarbakır, where the doctors considered that he should be examined by a doctor at the otolaryngology department of the hospital. The applicant was subsequently subjected to a number of auditory examinations and at 2.30 p.m. on the same day an otolaryngologist stated, in a letter sent to the hospital by the police, that the applicant suffered from otitis in his right ear and tympanic membrane perforation in his left ear which could have occurred as a result of trauma. The doctor further noted that the applicant suffered from hearing loss.

15.  On 18 October 2001 the applicant made further statements to the police. According to the document containing his police statement, he had already made statements concerning his relations with the illegal organisation and he did not wish to make any further submissions as to the content of the documents that he had attempted to swallow during his arrest.

16. On the same day the applicant was once again examined by a doctor at the Diyarbakır Health Clinic. The doctor stated in a letter sent to the hospital by the Diyarbakır security directorate concerning the applicant that the latter looked weak but did not bear any signs of physical violence on his body.

17.  On the same day the applicant was transferred to the Diyarbakır prison, where he was detained on remand.

18.  On 2 November 2001 and 14 December 2001 the applicant was subjected to medical examinations at the Diyarbakır State Hospital and received treatment for breathing and indigestion problems while detained in the Diyarbakır prison.

B.  Criminal proceedings against the applicant

19.  On 12 October 2001 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant of membership of the Hizbullah under Article 168 of the former Criminal Code.

20.  The proceedings commenced before the Diyarbakır State Security Court. On an unspecified date, the case against the applicant was joined with another case which was pending before the Van State Security Court and which had been brought against a number of other persons who were charged with membership of the Hizbullah.

21.  On 6 May 2003 the Van State Security Court found the applicant guilty of attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code and sentenced him to life imprisonment. On 8 June 2004 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds.

22.  In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Van Assize Court acquired jurisdiction over the case.

23.  On 11 May 2006 the Van Assize Court sentenced the applicant to life imprisonment for membership of the Hizbullah and for his involvement in activities attempting to undermine the constitutional order by force

24.  On 16 May 2006 the applicant’s lawyer lodged an appeal against the judgment of 11 May 2006.

25.  On 15 March 2007 the Court of Cassation held a hearing during which the applicant’s lawyer was present and made defence submissions. On the same day, the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the applicant’s criminal conviction.

26.  On 21 March 2007 the Court of Cassation pronounced its decision.

27.  Following the deposit of the decision of the Court of Cassation with the registry of the first-instance court, on 14 June 2007 the Bitlis public prosecutor issued a committal order concerning the execution of the sentence (müddetname). On 21 June 2007 the committal order was served on the applicant.

C.  The investigation into the applicant’s allegations of ill-treatment

28.  On 24 December 2001 the applicant lodged two petitions with the public prosecutor’s office at the Diyarbakır State Security Court and stated that he had been subjected to ill-treatment before and during his detention in police custody. In this connection, he alleged that he had been beaten before he was taken to the hospital on the day of his arrest and that the injuries that he had sustained on his face were the result of those beatings. He further maintained that he had been stripped naked, blindfolded, insulted, threatened, strangled, subjected to electroshocks and suspended by his arms, hosed with pressurised cold water and had his testicles squeezed. The applicant further submitted that the police officers had put pressure on the injuries he had sustained under his eyes with a view to making him suffer. The applicant noted in his petition that he had suffered from tympanic membrane perforation as a result of his ill-treatment. He finally submitted that he had not made a statement before the public prosecutor and the investigating judge on 9 October 2001 as he had been unable to speak due to the ill-treatment that he had suffered at the hands of the police.

29.  On 16 January 2002 the public prosecutor at the Diyarbakır State Security Court transferred the applicant’s petition to the Diyarbakır public prosecutor’s office, noting that he did not have jurisdiction to investigate the applicant’s allegations.

30.  On 28 January 2002 the Diyarbakır public prosecutor sent letters to the public prosecutor at the Diyarbakır State Security Court and the anti-terror branch of the Diyarbakır security directorate requesting them to submit to him the medical reports issued in respect of the applicant and his police statements.

31.  On the same day the public prosecutor also requested the Diyarbakır prison authorities to bring the applicant to his office for his statement to be taken.

32.  On 4 February 2002 the Diyarbakır public prosecutor took a statement from the applicant regarding his complaint. The applicant contended that he had been tortured during the first phase of his detention in police custody, that is to say, between 30 September and 9 October 2001. He noted that he had been stripped naked, blindfolded, insulted, subjected to electroshocks and hosed with pressurised cold water on his testicles and his ears, which had resulted in the injury to his ears. He also reiterated his allegation that the officers had put pressure on the injuries that he had sustained to his face at the time of his arrest. He finally complained that between 9 and 18 October 2001 he had been subjected to psychological pressure by the police.

33.  On the same day the applicant was examined at the Diyarbakır branch of the Forensic Medicine Institute upon the request of the Diyarbakır public prosecutor. According to the report issued as a result of this examination, there was no sign of physical violence on the applicant’s body. The medical expert however noted that as regards the applicant’s allegations of ill-treatment, he could draft a further report after obtaining the reports issued during and after the applicant’s detention in police custody.

34.  On 6 February 2002 the applicant was subjected to a medical examination at the Diyarbakır state hospital as a result of which a report was issued. According to that report, the tympanic membrane of the applicant’s left ear was intact.

35.  On 29 May 2002 the Diyarbakır branch of the Forensic Medicine Institute issued a report in respect of the applicant upon the request of the Diyarbakır public prosecutor for an opinion as to whether the applicant could have sustained the injuries noted in the medical reports as a result of ill-treatment. The report noted that there was a contradiction between the report of 6 February 2002, which stated that the tympanic membrane of the applicant’s left ear was intact, and that of 10 October 2001, according to which the applicant suffered from tympanic membrane perforation in his left ear. The medical expert who prepared the report opined that in order to issue a final report, the applicant should be subjected to a medical examination and an enquiry should be conducted.

36.  Between 30 July and 26 November 2002 the Diyarbakır public prosecutor sent letters to the authorities of several prisons asking the latter to send the applicant for a medical examination. On each occasion, the prison directors informed the public prosecutor that the applicant had been transferred to another prison.

37.  On 19 December 2002 the applicant was subjected to a medical examination of his ears at the Van University Research Hospital upon the request of the Diyarbakır public prosecutor. The report issued in respect of the applicant did not make any reference to a perforation in the applicant’s left ear.

38.  On 7 March 2003 the Diyarbakır public prosecutor once again requested the Diyarbakır branch of the Forensic Medicine Institute to prepare a report containing an opinion as to whether the applicant could have sustained his injuries as a result of ill-treatment.

39.  On 7 March 2003 a doctor from the Diyarbakır branch of the Forensic Medicine Institute sent a letter to the Diyarbakır public prosecutor informing him that a final opinion could be provided only following a detailed otolaryngological examination of the applicant.

40.  On 1 July 2003 the applicant was examined by a doctor at the Van state hospital upon the request of the Diyarbakır public prosecutor. The medical expert who examined the applicant noted that the tympanic membrane of the applicant’s left ear was intact.

41.  On 5 February and 22 April 2004 the Diyarbakır public prosecutor requested the Van State Security Court to submit to him a copy of the applicant’s police statements, the arrest and search reports and the medical reports issued in his respect which were in the file of the case brought against him. On 4 May 2004 the president of the Van State Security Court sent a letter to the public prosecutor informing him that the case file was at the Court of Cassation as the appeal proceedings were pending. On 22 August 2005 and 5 January and 20 September 2006 the public prosecutor reiterated his requests as he had not received the documents asked for. On 20 September 2006 the president of the first-instance court, which, in the meantime, had became the Van Assize Court, reiterated his previous reply. On an unspecified date in 2007 the Diyarbakır public prosecutor received a copy of the case file.

42.  In the meantime, on 6 April 2004 the applicant sent a letter to the Diyarbakır public prosecutor and asked for information on the outcome of the investigation into his allegations of ill-treatment. Stating that he had not been informed of the progress of the investigation during the previous two years, he submitted that the investigation and his medical examinations focused only on the injury to his left ear, whereas he suffered from other injuries and illnesses as a result of his ill-treatment in police custody. The applicant requested that he undergo a thorough examination at the Forensic Medicine Institute. He received no response to his petition.

43.  22 April 2004 the Diyarbakır public prosecutor requested the anti-terror branch of the Diyarbakır security directorate to send him the documents pertaining to the applicant’s police custody and information as to the place of duty of the suspected police officers. On 20 May 2004 the anti-terror branch of the Diyarbakır security directorate sent the documents and information requested.

44.  On 19 October 2004 the applicant maintained before the Van Assize Court that he had lodged a petition complaining about ill-treatment that he had endured in police custody and asked to be informed of the outcome of the investigation initiated into his allegations.

45.  On 18 December 2005 the applicant was once again subjected to an auditory examination at the Van University Research Hospital. The doctor who prepared the medical report noted that the applicant suffered from slight hearing loss.

46.  On 11 May 2006 the applicant once again requested to be informed of the outcome of the investigation into his allegations of ill-treatment before the Van Assize Court. He received no response.

47.  On 26 June 2007 the applicant submitted a petition to the prison administration to be sent to the Diyarbakır public prosecutor’s office. He received no reply. On 23 June 2009 the applicant was informed that his petition had been received and no response had been given. It should be noted that the content of the applicant’s petition is not available in the case file.

48.  On 8 August 2007 the Diyarbakır public prosecutor asked the Diyarbakır branch of the Forensic Medicine Institute to provide a report on whether the applicant could have sustained the injuries observed on his body as a result of the use of force by the police.

49.  By letters dated 2 October 2007 and 14 May 2008 the public prosecutor further asked the Diyarbakır branch of the Forensic Medicine Institute to provide a medical opinion as to whether the applicant could have sustained his injuries as a result of proportionate use of force and as to whether there had been a difference between the medical reports issued at the beginning and the end of the applicant’s detention in police custody. On 23 May 2008 an expert from the Diyarbakır branch of the Forensic Medicine Institute informed the public prosecutor that the documents in the case file should be sent to the 2^nd Section of Expertise of the Forensic Medicine Institute in Istanbul.

50.  Meanwhile, on 13 March 2008 the Diyarbakır public prosecutor requested the Dicle University Research Hospital to assign a medical expert to prepare a report containing an opinion on the veracity of the applicant’s allegations on the basis of the medical reports issued in respect of the applicant.

51.  On 12 May 2008 a medical expert from the Dicle University Research Hospital sent a report to the public prosecutor’s office. According to the doctor, it was possible that the tympanic membrane perforation in the applicant’s left ear had recovered over time. He also considered that the perforation could have occurred as a result of trauma during the applicant’s arrest or when he had been in police custody.

52.  On 26 May 2008 the applicant submitted a petition to the Diyarbakır public prosecutor’s office and requested to be informed of the outcome of the investigation. By a letter dated 3 June 2008 the Diyarbakır public prosecutor informed the applicant that the investigation file had been sent to the 2^nd Section of Expertise of the Forensic Medicine Institute and the investigation was pending.

53.  On 27 May 2008 the Diyarbakır public prosecutor requested that the applicant be examined by the 2^nd Section of Expertise of the Forensic Medicine Institute. Between 15 July and 28 October 2008 the public prosecutor sent letters to the Diyarbakır prison, where the applicant had been transferred, and asked the prison authorities to send the applicant to Istanbul for a medical examination at the Forensic Medicine Institute.

54.  On 12 November 2008 the applicant was examined at the Forensic Medicine Institute. During his examination, the applicant stated that he had been beaten at the time of his arrest. He also maintained that he had been ill-treated while in police custody.

55.  On 31 December 2008 the 2^nd Section of Expertise of the Forensic Medicine Institute issued a report. In this report, reference was made to the arrest protocol, dated 30 September 2001, which stated that the police officers had had to use force to apprehend the applicant, since he had resisted arrest. The Forensic Medicine Institute also took into consideration the aforementioned medical reports dated 30 September 2001, 9, 10 and 18 October 2001, 4 and 6 February 2002, 7 March and 1 July 2003 and 12 May 2008. On the basis of these reports and the medical examination of the applicant carried out on 12 November 2008, the 2^nd Section of Expertise of the Forensic Medicine Institute established that the injuries observed on the applicant’s body had not been life-threatening, but would have prevented him from continuing his daily activities for fifteen days. It was further indicated that the injuries on the applicant’s face and ear could have been caused by a blow with a blunt object during the applicant’s arrest. The report further stated the applicant had not been subjected to an examination of his ear between 30 September and 10 October 2001 and that the red patches behind the applicant’s left ear noted in the report of 30 September 2001 could have been caused by physical trauma which could have also led to the tympanic membrane perforation in his left ear. The 2^nd Section of Expertise finally noted that there was no medical evidence demonstrating that the applicant had been subjected to physical trauma during his detention in police custody.

56.  On 15 October 2009 the Diyarbakır public prosecutor decided to close the investigation into the applicant’s allegations of ill-treatment. In his decision, he relied on the report of the 2^nd Section of Expertise of the Forensic Medicine Institute and held that the injuries observed on the applicant’s body had been sustained during the scuffle at the time of his arrest. The public prosecutor noted that the injuries observed on the applicant’s person had been caused by the force used to arrest the applicant, which had been in compliance with the Law on the Duties and Powers of the Police (Law no. 2559) and that there was no report or other evidence showing that the police officers had exceeded the limits of their powers on the use of force. The public prosecutor further considered that there was no evidence, such as medical reports or witness statements, demonstrating that the applicant had been ill-treated while detained in police custody. He also stated that the length of the applicant’s detention in police custody had been in accordance with the legislation at the material time. The public prosecutor thus concluded that there was no evidence to support the applicant’s allegation that he had been subjected to ill-treatment while in police custody.

57.  On 4 November 2009 the applicant lodged an objection with the Siverek Assize Court against the decision of 15 October 2009. In his petition, the applicant submitted that his medical examination by the 2^nd Section of Expertise of the Forensic Medicine Institute had been conducted too late. He also contended that his medical examinations had been superficial. For instance, no examination had been carried out in relation to his allegation of being subjected to electroshocks. The applicant finally submitted that he had had to be taken to the emergency service while in police custody due to his problems with his ear.

58.  On 29 March 2010 the Siverek Assize Court rejected the applicant’s objection, holding that there was no evidence showing that the applicant had been subjected to ill-treatment.

D.  The application lodged with the Court by the applicant on 22 May 2002 (Application no. 30652/02)

59.  On 22 May 2002 the applicant lodged an application with the Court alleging a violation of, inter alia, Article 3 of the Convention. The applicant alleged that he had been subjected to ill-treatment during his arrest and while in detention in police custody.

60.  On 13 December 2005 the Court, sitting as a Committee of three judges, declared the applicant’s complaint under Article 3 inadmissible for non-exhaustion of domestic remedies.

THE LAW

I.  THE GOVERNMENT’S PRELIMINARY OBJECTION

61.  In their observations dated 17 September 2013, the Government argued that the applicant’s observations had not been submitted in one of the official languages of the Court as required by Rule 34 § 1 of the Rules of Court and that there is nothing in the case file demonstrating that he had been granted leave to use the Turkish language in the proceedings before the Court. They invited the Court not to take into account the applicant’s observations and claims for just satisfaction.

62.  The Court notes that by a letter dated 27 March 2013 the applicant was informed that the President of the Section had decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant him leave to use the Turkish language in the written proceedings before the Court (see paragraph 4 above). The Court further notes that it has already examined and dismissed a similar objection by the respondent Government (see Atılgan and Others v. Turkey, nos. 14495/11, 14531/11, 26274/11, 78923/11, 8408/12, 11848/12, 12078/12, 12103/12, 14745/12, 21910/12 and 41087/12, § 12, 27 January 2015). In the present case, the Court finds no reason to depart from that conclusion. The Government’s arguments on this point should therefore be rejected.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

63.  The applicant complained that he had been subjected to ill-treatment while in police custody and that there had been no effective investigation into his allegations of ill-treatment, in breach of Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

64.  The Government contested that argument.

A.  Admissibility

1.  The parties’ submissions

65.  The Government submitted that the applicant had failed to comply with the six-month rule. In this connection, they drew the Court’s attention to the lengthy period of time that had elapsed between the date on which the applicant had filed a complaint with the public prosecutor’s office, namely 24 December 2001, and the date of introduction of the application, namely 4 February 2008. They submitted that the applicant had remained inactive between the aforementioned dates.

66.  The applicant replied that he had not failed to comply with the six-month time-limit given that the investigation into his allegations of ill-treatment had ended in 2010. He also noted that he had already introduced another application to the Court in which he had complained about the ill-treatment he had suffered while in police custody.

2.  The Court’s assessment

67.  The Court reiterates at the outset that in cases concerning an investigation into ill-treatment applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 263, ECHR 2014 (extracts) and the cases cited therein).

68.  It follows that the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, the applicants must contact the domestic authorities promptly concerning progress in the investigation - which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation - and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (see ibid., § 264 and the cases cited therein).

69.  In the present case, the Court must examine whether the applicant fulfilled his duty of diligence under the aforementioned two aspects in the light of the principles recapitulated in the judgment of Mocanu and Others v. Romania (see ibid. §§ 258-269).

70.  As to the first aspect of the duty of diligence incumbent on the applicant, which is the duty to promptly contact the national authorities, the Court first observes that the applicant brought his allegations of ill-treatment during his police custody between 30 September and 18 October 2001 to the attention of the prosecuting authorities for the first time on 24 December 2001. The Court notes in this regard that the applicant suffered from a number of health problems at the material time and was receiving medical treatment (see paragraph 18 above). Moreover, when he was brought before the public prosecutor and the investigating judge at the State Security Court on 9 October 2001, he had visible injuries on his face and suffered from health problems serious enough to prevent him from speaking (see paragraph 11 above). According to the document pertaining to the applicant’s questioning by the investigating judge, the applicant explicitly stated that he had pain in his throat and his internal organs at the material time. Both the public prosecutor and the investigating judge failed to enquire as to the reasons for the applicant’s injuries on his face and the cause of his health issues despite the fact that the applicant had been in police custody for the previous nine days. Thus, taking into account the applicant’s state of health at the material time and given that the national authorities failed to fulfil their duty to initiate an investigation although they were aware that the applicant could have been subjected to ill-treatment, the Court considers that in the present case the applicant’s delay in lodging a complaint is not decisive (see ibid. § 265).

71.  With regard to the second aspect of the duty of diligence incumbent on applicant, which is the duty to lodge an application with the Court as soon as he realised, or ought to have realised, that the investigation was not effective, the Court notes that apart from his initial petition asking the public prosecutor to start an investigation against the police officers who had allegedly ill-treated him, the applicant lodged three petitions with the Diyarbakır public prosecutor’s office on 6 April 2004, 26 June 2007 and 26 May 2008. In his petitions of 2004 and 2008, the content of which is available in the case file, he requested information on the outcome of the investigation (see paragraphs 42 and 52 above). He also asked to be informed of the progress made in the investigation on at least two occasions on 19 October 2004 and 11 May 2006 in the proceedings before the Van Assize Court (see paragraphs 44 and 46 above). The investigative authorities responded only to the applicant’s petition of 26 May 2008; his other petitions remained without reply.

72.  While it is true that the prosecuting authorities failed to inform the applicant of the progress in the investigation for almost five years and six months, in the Court’s view it cannot be concluded that the applicant was kept in the dark about the investigation into his allegations during this whole period. Subsequent to the lodging of his petition on 24 December 2001, the applicant made statements to the Diyarbakır public prosecutor in person on 4 February 2002. Moreover, he was medically examined within the context of the investigation into his allegations of ill-treatment on 4 February and 19 December 2002, 1 July 2003 and 18 December 2005. As a result, although it cannot be concluded that there was meaningful contact between the applicant and the prosecuting authorities with regard to the former’s complaint and his requests for information (compare, Mocanu and Others, cited above, § 279), the applicant could legitimately have believed that there was an effective investigation and could reasonably have awaited its outcome, so long as there was a realistic possibility that the investigative measures were moving forward (see ibid. §§ 268 and 280).

73.  The applicant lodged his application with the Court on 4 February 2008, more than six years after he had lodged his criminal complaint with the prosecuting authorities. Yet, the investigation was still pending at that time; some investigative steps had been taken and the applicant could legitimately have believed that there were tangible indications of progress in the investigation. For the reasons indicated above, which remained valid at least until the time when the applicant lodged his application before the Court, he cannot be criticised for having waited too long. Besides, the Court observes that the final domestic decision in the applicant’s case was rendered on 29 March 2010 (see ibid. §§ 281-282).

74.  The Court finally notes that the applicant lodged application no. 30652/02 alleging a violation of, inter alia, Article 3 of the Convention as early as 22 May 2002 and his complaint under Article 3 was declared inadmissible by the Court for non-exhaustion of domestic remedies. Thus, it was not unreasonable for the applicant to await progress in the investigation before lodging a fresh application with the Court.

75.  In the light of the foregoing, the Court concludes that the applicant can be considered to have done all that could have been expected of him and therefore the application was not lodged out of time. The Government’s objection must therefore be dismissed.

76.  The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

77.  The applicant submitted that he had been ill-treated both before and during his detention in police custody. He alleged that he had been stripped naked, blindfolded, beaten, threatened, strangled, subjected to electroshocks and to suspension by his arms, hosed with pressurised water, and had his testicles squeezed while in police custody. He also submitted that he had not been armed at the time of his arrest and that even if he had attempted to resist arrest, he would not have been able to since there had been four or five police officers present from the specialised counter-terrorism unit. He noted that the police officers should have followed the legal procedure in arresting him and they had failed to do so. The applicant further contended that his allegations had not been examined thoroughly and promptly. In particular, he had not been subjected to a medical examination in relation to his complaint of having been subjected to electroshocks. Nor did the prosecuting authorities obtain statements from the police officers who had arrested and questioned him during his detention in police custody.

78.  The Government submitted that the applicant had not been subjected to ill-treatment while in police custody and that he had sustained the injuries observed on his body during the scuffle that had broken out at the time of the applicant’s arrest. They contended that the evidence in the case file demonstrated that the force used by the police officers during the applicant’s arrest had been proportionate. As regards their obligation to conduct an effective investigation, the Government submitted that an investigation which had been accessible to the applicant had been conducted by the Diyarbakır public prosecutor. The Government finally noted that they were aware of the principles enunciated by the Court regarding the requirement of a prompt investigation.

2.  The Court’s assessment

a.  General principles

79.  The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 of the Convention, even in the event of a public emergency threatening the life of the nation. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, § 65, 30 September 2014 and the cases cited therein, and Bouyid v. Belgium [GC], no. 23380/09, §§ 81 and 86, 28 September 2015).

80.  The Court notes that Article 3 does not prohibit the use of force in certain well-defined circumstances. However, such force may be used only if it is indispensable and must not be excessive (see, among many others, Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII; Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007; and İzci v. Turkey, no. 42606/05, § 54, 23 July 2013). When a person is confronted by the police or other State agents, recourse to physical force which has not been made strictly necessary by the person’s own conduct diminishes human dignity and is an infringement of the rights set forth in Article 3 of the Convention (see Bouyid, cited above, § 88; see also Timtik v. Turkey, no. 12503/06, § 47, 9 November 2010). Such a strict proportionality approach has been accepted by the Court also in respect of situations in which an individual was already under the full control of the police (see, among others, Rachwalski and Ferenc v. Poland, no. 47709/99, § 59, 28 July 2009 and the cases cited therein). The Court attaches particular importance also to the type of injuries sustained and the circumstances in which force was used (see Anzhelo Georgiev and Others, cited above, § 66 and the cases cited therein).

81.  Where injuries have been sustained at the hands of the police, the burden rests on the Government to demonstrate by convincing argument that the use of force was rendered strictly necessary by the applicant’s own behaviour and that the force used by the police officers was not excessive (see Gazioğlu and Others v. Turkey, no. 29835/05, § 43, 17 May 2011).

82.  Furthermore, where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, 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 (see, among many others, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV; and Gäfgen v. Germany [GC], no. 22978/05, § 117, 1 June 2010). A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the complainant must be afforded effective access to the investigatory procedure (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 136-137, ECHR 2004-IV (extracts)). Lastly, the investigation must be thorough, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation (see Mocanu and Others, cited above, § 325).

83.  The Court finally 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 be suspended from duty during the investigation and trial, and be dismissed if convicted (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004).

b.  Application of the above principles in the present case

84.  The Court observes at the outset that the applicant has two distinct complaints under the substantive limb of Article 3 of the Convention. On the one hand, he complained about the force used by the police officers during his arrest. On the other hand, he alleged he had been subjected to serious forms of ill-treatment during his detention in police custody. The Court considers that these two complaints must be assessed separately against the background of the adequacy of the investigation carried out into the applicant’s allegations of ill-treatment.

85.  As regards the complaint concerning the force used during the applicant’s arrest, the Court first notes that there is no dispute between the parties with regard to the origin of the applicant’s injuries. Both parties accepted that the applicant’s injuries had resulted from the use of force by the security forces. The dispute between them concerns the manner in which these injuries were sustained. According to the police reports and the Government’s submissions, the police had to use force as the applicant had attempted to swallow some pieces of paper found in his flat and had resisted the officers during his arrest. The applicant, on the other hand, claimed in his petitions lodged with the national authorities and in his replies to the Government’s observations respectively that he had been beaten before being taken to the hospital on 30 September 2001 and that he had not resisted arrest.

86.  Having regard to the Government’s admission that the injuries were caused by the police officers, the Court considers that the burden rests on the Government to demonstrate by convincing argument that the use of force was rendered strictly necessary by the applicant’s own behaviour and that the force used by the police officers was not excessive (see Balçık and Others v. Turkey, no. 25/02, §§ 30-31, 29 November 2007, and Gazioğlu and Others, cited above, § 43).

87.  In this connection, the Court first observes that the medical reports pertaining to the applicant’s medical examinations of 30 September and 9, 10 and 18 October 2001 lack details such as the extent of the injuries and the applicant’s own account of how the injuries had been caused. Neither do most of the reports make any mention of whether or not the doctors who examined the applicant tried to establish how those injuries might have been caused (see paragraphs 7, 10, 13, 14 and 16 above). Besides, the doctors merely recorded their findings in the letters which had been sent to the hospitals by the police headquarters and failed to use proper medical forms (see Salmanoğlu and Polattaş v. Turkey, no. 15828/03, § 87, 17 March 2009).

88.  Nevertheless, despite their succinctness and failure to comply with the national and international standards concerning the medical examination of persons in police custody (see Salmanoğlu and Polattaş, cited above, §§ 79-84), the reports do mention the existence of injuries on the applicant’s body. In particular, according to the report dated 30 September 2001 the applicant had a widespread bruised area under his left eye, oedema under his right eye, a scratch on his left wrist, red patches behind his left ear and bleeding on his right ear (see paragraph 7 above). The report of 9 October 2001, issued at the end of the first phase of the applicant’s detention in police custody, referred to a widespread bruised area under the applicant’s left eye and small scratches on his left wrist (see paragraph 10 above). On 10 October 2001 when the applicant was still in police custody, he was found to be suffering from a tympanic membrane perforation in his left ear after an examination by a doctor at the otolaryngology department of the Diyarbakır state hospital (see paragraph 14 above). The doctor considered that the tympanic membrane perforation could have occurred as a result of trauma.

89.  The Court further observes that according to the report of the 2^nd Section of Expertise of the Forensic Medicine Institute dated 31 December 2008, the injuries on the applicant’s face and ear could have been caused by a blow with a blunt object during the applicant’s arrest (see paragraph 55 above). Taking into account the report and the conclusions of the Forensic Medicine Institute the Diyarbakır public prosecutor considered that the applicant had sustained the injuries to his face and ears, including the tympanic membrane perforation in his left hear, during his arrest and not when he had been detained in police custody.

90.  In the light of the findings of the 2^nd Section of Expertise of the Forensic Medicine Institute, the Court is also prepared to accept that the applicant’s injuries noted in the medical reports of 30 September and 9 and 10 October 2001 were the result of blunt trauma to his face and ears inflicted during his arrest. In this regard, the Court cannot but observe that although the Diyarbakır public prosecutor took a number of steps with a view to establishing whether the applicant could have sustained the injuries noted in the medical reports during his arrest, he did not attempt to establish the circumstances in which the arresting officers had inflicted blunt trauma on the applicant’s head. Nor did he inquire whether the force used during the applicant’s arrest had been strictly necessary and proportionate. For example, he failed to obtain the arresting officers’ statements with regard to the circumstances of the applicant’s arrest. Thus, in the absence of a meaningful inquiry by the public prosecutor’s office, the Government have failed to furnish convincing and credible arguments, information or documents which would provide a basis to explain or justify the degree of force used during the arrest operation (see Rehbock, cited above, § 76; Karatepe and Ulaş v. Turkey, no. 29766/03, § 32, 17 June 2008; and Samüt Karabulut v. Turkey, no. 16999/04, § 43, 27 January 2009). In the Court’s view, infliction of blunt trauma on the applicant’s face and ear does not appear to be a proportionate method to obtain the pieces of paper that the applicant had swallowed and to restrain him, even assuming that the use of force was strictly necessary.

91.  In light of the above, the Court concludes that the force used against the applicant during his arrest was excessive. Consequently, the State is responsible, under Article 3 of the Convention, for the injuries sustained by him.

92.  As regards the applicant’s allegations of ill-treatment during his detention in police custody and in the light of its considerations above, the Court notes that there is no evidence in the case-file to support the applicant’s allegation that he was subjected to ill-treatment while in police custody. In this connection, the Court cannot but remark the attitude of the public prosecutor and the investigating judge who questioned the applicant on 9 October 2001 (see paragraph 11 above). Despite the fact that they became aware that the applicant was suffering from serious health issues at the end of the first phase of his detention in police custody, they ignored the applicant’s state of health and failed to order or to initiate an investigation although they were under the duty to do so: according to Article 153 of the former Code of Criminal Procedure, in force at the material time, a public prosecutor who had been informed of a situation that gave rise to a suspicion that an offence had been committed was obliged to investigate the facts by conducting the inquiries necessary to identify the perpetrators (see Aksoy v. Turkey, 18 December 1996, § 56, Reports of Judgments and Decisions 1996-VI, and İlhan v. Turkey [GC], no. 22277/93, § 36, ECHR 2000-VII). What is more, the investigating judge authorised the applicant’s detention and questioning by police for a further period of ten days. Thus, in the Court’s view the absence of any evidence in support of the applicant’s allegations of ill-treatment in police custody is to a great extent due to the failure of the public prosecutor and the judge, who failed to proceed with a prompt investigation given that the evidence in the case file began to be collected more than two months after the end of the applicant’s detention in police custody. Nevertheless, in the absence of any evidence in support of the applicant’s allegations, the Court considers that there has been no violation of Article 3 of the Convention in its substantive aspect in respect of the ill-treatment to which the applicant was allegedly subjected during his detention in police custody (see Gülbahar and Others v. Turkey, no. 5264/03, § 54, 21 October 2008; and Böke and Kandemir v. Turkey, nos. 71912/01, 26968/02 and 36397/03, § 50, 10 March 2009).

93.  Along with the procedural shortcomings described in paragraphs 87, 90 and 92 above, the Court also notes that the investigation into the applicant’s allegations of ill-treatment lasted for a period of more than eight years and three months, a delay that runs contrary to the promptness required to punish those responsible. Moreover, the applicant was denied access to the investigatory procedure (see paragraphs 42, 46, 47 and 72 above) and there is no indication that the suspected police officers were suspended from duty during that period or that the authorities took disciplinary action against them.

94.  There has accordingly been a violation of Article 3 of the Convention in its both substantive and procedural aspects.

III.  ALLEGED VIOLATION OF ARTICLE 5 THE CONVENTION

95.  The applicant contended under Article 5 of the Convention that the length of his pre-trial detention had been excessive.

96.  The Government asked the Court to declare this part of the application inadmissible as being outside the six-month time-limit.

97.  The Court observes that the applicant’s detention on remand continued until the Van Assize Court’s final judgment of 11 May 2006. Following that date, the applicant was detained “after conviction by a competent court”. However, the application was lodged with the Court on 4 February 2008, which is more than six months from the end of the detention period complained of.

98.  It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

99.  The applicant complained under Article 6 § 1 of the Convention that he had not had a fair trial as his statements obtained as a result of ill-treatment had been used as evidence in the criminal proceedings against him.

100.  The Government asked the Court to declare this part of the application inadmissible as being outside the six-month time-limit.

101.  The Court notes that although the date on which the decision of the Court of Cassation dated 21 March 2007 was deposited with the first-instance court is not known on the basis of the documents in the case file, on 14 June 2007 the Bitlis public prosecutor prepared the committal order concerning the execution of the applicant’s prison sentence and the committal order was served on the applicant on 21 June 2007. Thus, the applicant became aware of the outcome of the proceedings before the Court of Cassation on that date.

102.  As the applicant lodged his application with the Court on 4 February 2008, the Court finds that the applicant failed to lodge his complaint under Article 6 of the Convention with the Court with due expedition.

103.  It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

A.  Damage

104.  The applicant claimed a total of 200,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

105.  The Government contested the claim.

106.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have suffered pain and distress which cannot be compensated solely by the finding of a violation. Ruling on an equitable basis, the Court awards the applicant EUR 19,500 in respect of non-pecuniary damage.

B.  Costs and expenses

107.  The applicant also claimed reimbursement of his costs and expenses relating to the proceedings before the Court. However, he did not specify an amount.

108.  The Government maintained that no award should be made without a specific claim.

109.  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 notes that the applicant did not specify the amount of legal fees, nor did he submit any receipts or other vouchers on the basis of which a specific amount could be established. Accordingly, the Court does not make any award under this head.

C.  Default interest

110.  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 complaints under Article 3 of the Convention admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 3 of the Convention in its substantive aspect with regard to the force used against the applicant during his arrest;

 

3.  Holds that there has been no violation of Article 3 of the Convention in its substantive aspect with regard to the applicant’s allegations of ill-treatment during his detention in police custody;

 

4.  Holds that there has been a violation of Article 3 of the Convention in its procedural aspect;

 

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 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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 10 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith                                                                 Guido Raimondi
       Registrar                                                                              President