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THIRD
SECTION
CASE OF ESER CEYLAN v. TURKEY
(Application
no. 14166/02)
JUDGMENT
STRASBOURG
13
December 2007
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 Eser Ceylan v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr S.
Naismith, Deputy Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14166/02) 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 Eser Ceylan (“the
applicant”), on 19 October 2001.
- The
applicant was represented by Ms S. C. Erkat, a lawyer practising in
Ankara. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- On
14 December 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Ankara.
- On
12 December 2000 an unauthorised demonstration in Kızılay,
Ankara against F Type prisons turned into a violent clash
between some of the participants, a group of Turkish nationalists and
the security forces. The demonstrators caused severe material damage
to cars and a shop, and eight police officers were injured during the
incident.
- The
applicant claims that she had been on her way to her sister's law
office when she saw armoured police vehicles firing high pressure
water jets and a group of people throwing stones at others in the
vicinity. She had had to enter the ÖDP (Liberty and Solidarity
Party) building in order to protect herself from the police and the
demonstrators.
- After
a while, police officers, who had previously obtained a search
warrant, entered the ÖDP building and arrested around fifty
persons who were inside at the time, including the applicant. During
the arrest, the applicant claims to have been insulted and beaten, in
particular, hit with truncheons on the legs, and that one of the
policemen sexually harassed her. The same police officer punched the
applicant in her right eye after she had been placed in the police
vehicle.
- On
the same day, the applicant, along with several other people, was
examined by a forensic doctor, who noted the following with respect
to the applicant:
“A
bruise of 2 cm. in diameter on the left parietal bone, widespread
bruises under the right eye and on the zygoma, a laceration on the
lower lip and 3 4 cm. abrasions on the pretibial
bones have been observed. The injuries render Eser Ceylan unfit for
work for seven days.”
- On
13 December 2000 the applicant was examined again by a forensic
expert who noted that there were no traces of battery on the
applicant's body other than those mentioned in the report of
12 December 2000.
- On
the same day the applicant was taken to the Ankara public
prosecutor's office. Before the public prosecutor, the applicant
complained about the sexual harassment and beatings to which she had
been subjected during the arrest and requested that the police
officers who committed these offences be punished.
- On
the same day, the applicant, along with seventy other persons,
appeared before the Ankara Criminal Court of First Instance. They
were charged with taking part in an unauthorised demonstration. The
applicant reiterated that she had been beaten and sexually harassed
during her arrest. She gave a description of the events with details
about the perpetrators. The court ordered the applicant's release.
- On
15 December 2000 the judge of the Ankara Criminal Court of First
Instance sent a letter to the Ankara public prosecutor's office,
stating that almost all of the defendants in the case had complained
of ill-treatment by the security forces and requested that the
necessary measures be taken.
- Following
receipt of the letter of the Ankara Criminal Court of First Instance,
the Ankara public prosecutor initiated an investigation into the
circumstances of the events.
- On
30 January 2001 the public prosecutor decided not to prosecute the
police officers who had been on duty at the relevant time. In this
connection, he maintained that the complainants had taken part in a
demonstration against F-type prisons. Although before intervening and
making arrests the police had given the demonstrators a warning and
had ordered them to disperse, the demonstrators had resisted the
police and thrown stones at them. Some of the demonstrators had then
gone into the buildings of the ÖDP and the TSİP (Socialist
Workers Party of Turkey) where they had been arrested. The public
prosecutor considered that the force used by the security forces had
not been excessive and that the injuries sustained by the
complainants had been a result of the clash which broke out between
the police and the demonstrators. He concluded that there was no
concrete evidence other than the complainants' allegations of an
“abstract nature” that the members of the security forces
had ill treated and insulted the complainants during and after
the arrest.
- On
18 June 2001 the applicant filed an objection with the Ankara public
prosecutor's office, to be referred to the closest assize court,
against the decision of 30 January 2001.
- On
6 July 2001 the Kırıkkale Assize Court dismissed the
applicant's objection.
- In
the meantime the Ministry of the Interior lodged an action for
compensation against the applicant and the other co-accused and
requested the reimbursement of the amount of compensation paid to the
injured police officers.
- On
22 January 2004 the Ankara Criminal Court of First Instance acquitted
the applicant on account of lack of evidence. The court's reasoned
decision refers to evidence such as eye-witness reports, video
recordings of the Security Directorate, video recordings of TRT
(Turkish Radio and Television) and other national television channels
and other material evidence. According to the information available
in the file, the compensation proceedings were apparently still
pending on the date on which the present judgment was adopted.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Şimşek and Others v. Turkey, (nos.
35072/97 and 37194/97, §§ 8284 and 86 87, 26 July
2005), and in Batı and Others v. Turkey (nos. 33097/96
and 57834/00, §§ 96 100, 3 June 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the treatment to which she had been
subjected during her arrest amounted to torture and inhuman
treatment. She further complained that there had been no adequate
investigation into the circumstances surrounding the incident.
Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government asked the Court to dismiss this complaint for failure to
comply with the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention. They argued
that the applicant could have sought reparation for the harm
allegedly suffered by instituting an action in the administrative
courts. The Government further maintained that the application was
not lodged within the six-month time-limit.
- The
applicant disputed the Government's arguments.
- As
regards the Government's preliminary objection concerning the
non-exhaustion of domestic remedies, the Court reiterates that it has
already examined and rejected the Government's preliminary objections
in similar cases (see, in particular, Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004). It finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned application.
Consequently, it rejects this part of the Government's preliminary
objection.
- As
regards the Government's second objection concerning the six month
rule, the Court reiterates that under Article 35 § 1 of the
Convention it may deal with an application within a period of six
months from the date on which the final decision was taken. In the
instant case, the final decision concerning the applicant's
allegations of ill-treatment was delivered on 6 July 2001 by the
Kırıkale Assize Court. As the application was lodged with
the Court on 19 October 2001, the applicant's complaint was
introduced with the Court within the six-month time-limit. In view of
the foregoing, the Court also rejects this part of the Government's
objections.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. No other ground
for declaring it inadmissible has been established. It must therefore
be declared admissible.
B. Merits
1. The parties' submissions
- The
Government contested the applicant's allegations. In particular, they
submitted that the physical findings noted in the medical reports did
not attain a sufficient level of severity to fall within the scope of
Article 3 of the Convention. In addition, the Government
maintained that an effective investigation had been conducted into
the circumstances of the case. In this connection, they referred to
the steps undertaken by the public prosecutor.
- The
applicant maintained that she had been beaten and sexually harassed
during arrest. She submitted that the ill-treatment had continued
during her transportation to detention despite the fact that she had
showed no resistance. In addition, the applicant stated that during
the criminal proceedings against her, the court had examined video
recordings of the demonstration which clearly showed that she had not
participated in the demonstration and that she did not have any
physical injuries prior to entering the ÖDP building. In this
connection, the applicant complained that the public prosecutor had
failed to take into account material evidence such as video
recordings when it decided not to prosecute the police officers for
ill-treatment.
2. The Court's assessment
- The
Court notes that Article 3 does not prohibit the use of force in
certain well-defined circumstances, such as to effect an arrest.
However, such force may be used only if indispensable and must not be
excessive (see, among others, Rehbock v. Slovenia, no.
29462/95, §§ 68 78, ECHR 2000 XII,
Krastanov v. Bulgaria, no. 50222/99, §§ 52 and
53, 30 September 2004, and Günaydın v. Turkey,
no. 27526/95, §§ 30 32, 13 October 2005).
- In
the instant case, the applicant claimed, in particular, to have been
hit on the legs with truncheons and punched in the right eye. The
findings of the medical report, in the Court's opinion, match at
least the applicant's allegations of having been punched in the right
eye. It finds the applicant's injuries (see paragraph 8) sufficiently
serious to bring them within the scope of Article 3. The Government
have not denied that the applicant's injuries resulted from the use
of force by the State authorities in the performance of their duties.
They have, however, stressed the mitigating circumstances surrounding
the incident.
- The
Court notes at the outset that it is undisputed that the applicant
was arrested at the ÖDP building and not during the
demonstration where there were violent clashes between various
parties. In this connection, it takes note of the fact that the
applicant was acquitted of the charges of participating in an
unauthorised demonstration (see paragraph 18) by the Ankara Criminal
Court of First Instance on 22 January 2004. Therefore the applicant
was not injured in the course of a random and widespread
demonstration which might have given rise to unexpected developments
to which the police officers had to react without prior preparation
(see, mutatis mutandis, Rehbock, cited above, §
72). In these circumstances, the Court considers that the burden
rests on the Government to demonstrate with convincing arguments that
the use of force, which resulted in the applicant's injuries, was not
excessive (see, mutatis mutandis, Matko v. Slovenia,
no. 43393/98, § 104, 2 November 2006).
- However,
in the instant case, the Government merely stated that force had to
be used against the demonstrators, including the applicant, without
providing any explanation or documentation which could shed light on
the circumstances which led the police to use force on the applicant
and the exact nature of the force inflicted on her. In this
connection, the Court observes that there is no indication in the
case file that the applicant could have sustained the injuries noted
in her medical reports during the demonstration or that police had
had to use force on the applicant during her arrest at the ÖDP
building because they had encountered violent or active resistance on
her part. In these circumstances, the Court finds that the Government
have failed to furnish convincing or credible arguments which would
provide a basis to explain or to justify the degree of force used
against the applicant, whose injuries are corroborated by medical
reports.
- In
light of the above, the Court concludes that the force used against
the applicant during her arrest was excessive and that therefore the
State is responsible, under Article 3 of the Convention, for the
injuries sustained by her on that date.
It follows that there has been a violation of Article 3 of the
Convention.
- Having
regard to the facts of the case, the submissions of the parties and
its finding of a violation under Article 3 above, the Court considers
that it has examined the main legal question raised in the present
application. The Court concludes therefore that there is no need to
give a separate ruling on the applicant's remaining complaint under
Article 3 (see, for example, Mehmet and Suna Yiğit v. Turkey,
no. 52658/99, § 43, 17 July 2007, and Uzun v.
Turkey, no. 37410/97, § 64, 10 May 2007).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage, costs and expenses
- The
applicant claimed 10,000 euros (EUR) in respect of pecuniary damage.
This sum concerned loss of earnings and medical costs and expenses.
She further claimed EUR 100,000 in respect of non-pecuniary damage.
- The
Government disputed those amounts.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court considers that she has failed to properly substantiate her
claims under this head. The Court accordingly dismisses it. On the
other hand, the Court finds that the applicant must have suffered
pain and distress which cannot be compensated solely by the Court's
finding of a violation. Having regard to the nature of the violation
found in the present case and ruling on an equitable basis, it awards
the applicant EUR 5,000 in respect of non pecuniary damage.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the injuries sustained by the
applicant during her arrest;
3. Holds that there is no need to examine separately the
applicant's remaining complaint under Article 3 of the Convention;
- 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 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into new Turkish liras at the rate applicable at the date of the
settlement and free of any taxes or charges that may be payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič
Deputy
Registrar President
