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SECOND
SECTION
CASE OF ATALAY v. TURKEY
(Application
no. 1249/03)
JUDGMENT
STRASBOURG
18
September 2008
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 Atalay v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1249/03) 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 Yunus Atalay (“the
applicant”), on 18 September 2002.
- The
applicant was represented by Mr Şeref Turgut, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- Invoking
Articles 3 and 13 of the Convention, the applicant alleged that a
number of police officers had subjected him to ill-treatment and that
the national authorities had not only failed to carry out an
effective investigation into the circumstances of the ill-treatment,
but had also failed to punish those responsible.
- On
10 May 2007 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Istanbul.
- At
approximately 11 p.m. on 24 August 1995, a police car stopped outside
the shop run by the applicant in Istanbul’s Beyoğlu
district. Three police officers got out of the car and asked the
applicant to remove the letters “DHKP/C” (the
abbreviation for the Revolutionary People’s Liberation
Party/Front, an illegal organisation) written on a wall, two shops
down the road from the applicant’s shop.
- When
the applicant refused to comply with that request and told the police
officers that it was not his wall and therefore he had no obligation
to clean it up, the police officers started to beat him. A number of
other police officers, who were driving in the area at the time, also
stopped and took part in the beating. The police officers then took
the applicant into custody where they continued to beat him in order
to force him to sign statements, confessing to the offence of
obstructing the police in the course of their duty.
- According
to the incident report prepared by the three police officers who had
beaten the applicant, the letters “DHKP/C” had been on
the wall of the applicant’s shop and the applicant had told
them that he would “rather die than wipe them away” and
had then run away. When the police officers gave chase, the applicant
had thrown stones at them and had kicked and punched them, injuring
one of them in the process. Consequently, the officers had taken the
applicant to the police station.
- The
following day the applicant was taken to the First Aid Hospital in
Istanbul’s Taksim district where a medical report was prepared.
According to this report, the applicant’s body bore a number of
ecchymoses and lacerations.
- The
applicant was then brought to the office of the public prosecutor in
Beyoğlu district where he told the prosecutor that the police
officers had tortured him.
- The
same day the prosecutor referred the applicant to the Beyoğlu
branch of the Forensic Medicine Institute where he was examined by a
doctor. The following injuries are recorded in the medical report
prepared at the end of that examination: a one centimetre long
abrasion on the left side of the rear parietal region; a thirty
centimetre long ecchymosed area stretching from the back of the left
shoulder to the right scapular area; an ecchymosed area measuring
fifteen by three centimetres below the left scapular region; an
ecchymosed area, measuring fifteen by five centimetres, on the left
lumbar; two ecchymosed areas, measuring seven by three and seven by
fourteen centimetres, on the right side of the chest; four one
centimetre long bleeding grazes and two ecchymosed areas, each
measuring three centimetres in diameter, on the inside of the left
arm; two ecchymosed areas, each measuring two centimetres, on the
left cheek; and another ecchymosed area on the right tibial region.
The report concluded that the applicant would be unable to work for a
period of ten days.
- The
same day the prosecutor ordered the applicant’s release.
- On
10 October 1995 the applicant lodged a formal complaint with the
Beyoğlu prosecutor, seeking the prosecution of the three police
officers responsible for the ill-treatment.
- The
following day the Beyoğlu prosecutor rendered a decision of
non-jurisdiction, under the Law on the Trial of Civil Servants, and
transferred the case file to the governor’s office in Beyoğlu
for the “necessary action to be taken”.
- On
21 July 1997 the Beyoğlu District Administrative Council,
presided over by the Beyoğlu governor, granted authorisation for
the prosecution of the three officers.
- In
its decision of 29 February 2000, the Beyoğlu Criminal Court of
First Instance (hereinafter “the trial court”) convicted
the three police officers of the offence of ill-treatment contrary to
Article 245 of the Criminal Code, and sentenced each of them to three
months’ imprisonment. The trial court also ordered their
suspension from duty for a period of three months. Considering that
the applicant’s “refusal to wipe away the writing on the
wall and his attacks on the police officers” amounted to a
“provocation”, within the meaning of Article 51 §
1 of the Criminal Code, the trial court reduced the prison sentences
by a quarter and sentenced each officer to two months and seven days’
imprisonment. Taking into account the way in which the incident had
taken place and the unlikelihood of police officers committing
offences, the trial court was of the opinion that these particular
officers would not reoffend if their sentences were suspended.
Accordingly, it suspended their sentences under Article 6 of Law no.
647.
- Two
of the three police officers lodged appeals against the judgment. The
judgment became final in so far as it concerned the third police
officer, who did not appeal.
- On
30 January 2002 the judgment was quashed by the Court of Cassation in
so far as it concerned the two appellant police officers. The Court
of Cassation held that the provisions of Law no. 4616 should be
applied to them.
- On
26 April 2002 the trial court suspended the proceedings against the
two police officers in accordance with Law no. 4616, which had
entered into force on 22 December 2000 and which provides for
the suspension of criminal cases in respect of certain offences
committed before 23 April 1999.
- The
applicant lodged an objection with the Beyoğlu Assize Court
against the trial court’s decision, pointing out that the Court
of Cassation had waited two years before rendering its judgment, and
had only quashed the judgment following the entry into force of Law
no. 4616. In any event, criminal proceedings concerning the
offence of torture were outside the scope of that Law and could not,
therefore, be suspended. Since, under Turkish law, ill-treatment
could only be classified as torture if it was inflicted with the aim
of extracting information from the victim (the offence defined in
Article 243 of the Criminal Code), the trial court had no choice but
to apply Article 245 of the Criminal Code in the present case.
Nevertheless, the fact remained that the ill-treatment to which he
had been subjected constituted “torture” within the
meaning of the United Nations Convention Against Torture and Other
Cruel Inhuman or Degrading Treatment or Punishment.
- On
28 May 2002 the Beyoğlu Assize Court rejected the applicant’s
objection.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Criminal Code, in force at the material
time, were as follows.
Article 51 § 1
“If a person commits an offence in a fit of anger
or under the influence of a strong grievance caused by unjust
provocation...the punishment prescribed for the offence shall be
reduced by a quarter.”
Article 243 § 1
“Any public servant ... who inflicts
torture or cruel, inhuman or degrading treatment on accused parties
to make them confess their crimes shall be sentenced to up to five
years’ imprisonment and temporarily or permanently barred from
public service.”
Article 245
“Any law-enforcement officer ...
who, in the course of duty ... and in circumstances other than those
prescribed by law ..., ill-treats, injures or strikes a person or
does them bodily harm shall be sentenced to between three months’
and five years’ imprisonment and temporarily barred from public
service. ...”
- Pursuant
to Article 153 of the Code of Criminal Procedure, in force at the
material time, a public prosecutor who was informed by any means
whatsoever of a situation that gave rise to the suspicion that an
offence had been committed was obliged to investigate the facts in
order to decide whether or not there should be a prosecution.
- Under Law no. 4616, which entered into force on 21
December 2000, criminal proceedings in respect of offences committed
before 23 April 1999 can be suspended for a period of five
years. Suspended criminal proceedings can subsequently be
discontinued if no offence of the same or a more serious nature is
committed by the offender within the five-year period. Article 5 (a)
of Law no. 4616 stipulates that criminal proceedings concerning the
offence proscribed by, inter alia, Article 243 of the former
Criminal Code cannot be suspended.
- Pursuant
to the Law on the Trial of Civil Servants, in force at the material
time, if the alleged perpetrator of an offence was an agent of the
State, permission to prosecute had to be obtained from the local
administrative council. An appeal against the local council’s
decision lay to the Supreme Administrative Court; a refusal to
prosecute was subject to an automatic appeal of this kind.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been subjected to ill-treatment amounting to torture by police
officers but that they were not punished.
- The
Court considers that these complaints should be examined solely from
the standpoint 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.”
A. Admissibility
- The Government argued that the applicant had failed to
exhaust the domestic remedies available to him, within the meaning of
Article 35 § 1 of the Convention. In this connection, they
submitted that there were various civil and administrative remedies
provided by domestic law in respect of persons claiming to be the
victims of ill-treatment in police custody, and that the applicant
could have sought reparation for the harm he had allegedly suffered.
- The
Court reiterates that it has already examined and rejected the
Government’s preliminary objections in similar cases (see, in
particular, Nevruz Koç v. Turkey, no. 18207/03,
§ 31, 12 June 2007 and the case cited therein). It
reiterates that the remedies referred to by the Government cannot be
regarded as sufficient for a Contracting State’s obligations
under Article 3 of the Convention as they are aimed at awarding
damages rather than identifying and punishing those responsible.
- The
Court finds no particular circumstances in the instant case which
would require it to depart from its findings in the above-mentioned
case. It therefore rejects the Government’s preliminary
objection.
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government submitted that the applicant had been afforded the
necessary procedural guarantees within the meaning of Article 3 of
the Convention. An investigation had been conducted into the actions
of the police officers, who had subsequently been brought to trial.
At the end of that trial, one of the police officers had been
convicted and the proceedings against the remaining two had been
suspended. In the Government’s opinion, Law no. 4616 could not
be regarded as an amnesty law and the suspension of the criminal
proceedings against the two police officers did not mean that they
were acquitted.
- The
Government referred to the judgments in the cases of Hatton and
Others v. the United Kingdom [GC] (no. 36022/97, § 97,
ECHR 2003 VIII) and Handyside v. the United Kingdom
(judgment of 7 December 1976, Series A no. 24, p. 22, § 48),
and maintained that the national authorities were better placed than
an international court to evaluate local needs and conditions.
Furthermore, referring to the judgment in the case of Ashingdane
v. the United Kingdom (judgment of 28 May 1985, Series A no. 93,
p. 24, § 57), the Government submitted that “it
[was] no part of the Court’s function to substitute for the
assessment of the national authorities any other assessment of what
might be the best policy in this field”.
- As
the applicant had failed to claim compensation by bringing a case
before the administrative courts, his allegations were ill-founded
and the Government had fulfilled their obligations under Article 1 of
the Convention.
- The
Court observes at the outset that the Government have not challenged
the accuracy of the applicant’s allegations of ill-treatment.
In any event, it notes that the Beyoğlu Criminal Court of First
Instance found the three police officers guilty of ill-treating the
applicant on the basis of, inter alia, the medical reports
referred to above (see paragraphs 9 and 11). In these circumstances
the Court accepts that the applicant was ill-treated by the police
officers and, as a result, suffered the injuries detailed in the
medical reports.
- The
second issue to be decided by the Court, therefore, is whether that
ill-treatment attained the minimum level of severity for it to fall
within the scope of Article 3 of the Convention (see Ireland v.
the United Kingdom, judgment of 18 January 1978, Series A no. 25,
p. 65, § 162). To that end, the Court refers to the
medical reports mentioned above (see paragraphs 9 and 11). It appears
from the first report that the day after he was detained the
applicant had to be taken directly from the police station to the
local hospital. Furthermore, according to the second report drawn up
at the Forensic Medicine Institute the same day, the applicant’s
body bore fifteen separate injuries which required a ten-day period
to heal.
- In
the light of the foregoing, the Court considers that the applicant’s
injuries were sufficiently serious to amount to ill-treatment within
the meaning of Article 3 of the Convention. It further considers that
the decision adopted by the Beyoğlu Court of First Instance on
29 February 2000, which became final in respect of one of the three
police officers, amounted to an acknowledgement that the applicant’s
ill-treatment had been in violation of Article 3 of the Convention
(see, mutatis mutandis, Nikolova and Velichkova v.
Bulgaria, no. 7888/03, § 51, 20 December
2007).
- The
next issue to be decided by the Court is whether this violation has
been sufficiently redressed by the national authorities. In this
connection the Court reiterates that, under the subsidiarity
principle, it falls first to the national authorities to redress any
alleged violation of the Convention. The principle of subsidiarity
does not mean, however, renouncing all supervision of the result
obtained through the domestic remedies, otherwise the rights
guaranteed by the Convention would be devoid of any substance. In
that connection, it should be reiterated that the Convention is
intended to guarantee not theoretical or illusory rights, but rights
that are practical and effective (ibid. § 49).
- As
for the Government’s reference to the applicant’s failure
to claim compensation in respect of the ill-treatment, and assuming
that reference to be an argument to the effect that payment of
compensation would constitute adequate redress, the Court reiterates
that if the authorities could confine their reaction to incidents of
wilful police ill-treatment to the mere payment of compensation,
while not doing enough in the prosecution and punishment of those
responsible, it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity and the general legal prohibitions of killing and torture
and inhuman and degrading treatment, despite their fundamental
importance, would be ineffective in practice (ibid. §
55 and the cases cited therein; see also Assenov and Others
v. Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998-VIII, § 102)).
- The important point for the Court to review,
therefore, is whether and to what extent the national authorities
have done everything within their powers to prosecute and punish the
police officers responsible for the applicant’s ill-treatment
and whether they have imposed adequate and deterring sanctions on
them. It must be stated at this juncture that it is not the Court’s
task to verify whether the domestic courts correctly applied domestic
criminal law; what is in issue in the present proceedings is not the
individual criminal-law liability of the officers, but the Convention
responsibility of the State. For this reason, although the Court
should grant substantial deference to the national courts in the
choice of appropriate sanctions for ill-treatment by State agents, it
must exercise a certain power of review and intervene in cases of
manifest disproportion between the gravity of the act and the
punishment imposed (see Nikolova and Velichkova v. Bulgaria,
cited above, § 62).
- In
the present case, three police officers were convicted of the offence
of ill-treatment. However the convictions of two of them were quashed
on appeal and the criminal proceedings against them were subsequently
suspended pursuant to Law No. 4616. The conviction of the remaining
police officer became final as he did not appeal.
- Although
it could have imposed a maximum of five years’ imprisonment on
the police officer found guilty of ill-treating the applicant, the
trial court saw fit to impose a three-month sentence. Moreover, that
sentence was reduced by a quarter because the trial court considered
that the applicant had provoked the police officers.
- The
Court reiterates the absolute nature of the prohibition of torture or
inhuman or degrading treatment or punishment, irrespective of the
victim’s conduct (see, inter alia, Saadi v. Italy [GC],
no. 37201/06, §§ 38 40, ECHR 2008-...).
Accordingly, provocation can never be regarded as a justification for
the infliction of severe ill-treatment on an individual, in breach of
Article 3 of the Convention. Moreover, as regards the circumstances
of the present case, the Court fails to see the relevance of a
defence of provocation once the events in the street had ended, yet
the assault on the applicant continued at the police station (see
paragraph 7 in fine above). Thus, in the Court’s view,
the reduction of the prison sentence imposed on the police officer on
grounds of provocation fell short of the Convention standard of
protection from ill-treatment. Lastly, it is to be noted that the
police officer in question did not have to serve any term in prison
because the execution of his sentence was suspended (see paragraph 16
above).
- In
the light of the foregoing, the Court considers that the lenient
prison sentence imposed on the police officer and its suspension must
be regarded as manifestly disproportionate to the gravity of the
offence in question (see Ali and Ayşe
Duran v. Turkey, no. 42942/02, § 54,
8 April 2008).
- As
regards the suspension of the criminal proceedings against the other
two officers (see paragraph 19 above), the Court considers that it
rendered the criminal-law system far from rigorous and had no
deterrent effect capable of ensuring the effective prevention of
unlawful acts such as those complained of by the applicant (see
Nevruz Koç, cited above, § 54).
- In
the light of the foregoing, the Court concludes that the criminal-law
system, as applied in the instant case, neither had an adequate
deterrent effect capable of ensuring the effective prevention of
unlawful acts such as those complained of by the applicant (see
Ali and Ayşe Duran,
cited above, § 72), nor provided adequate redress for
the ill-treatment to which he was subjected. The failures highlighted
above undermined the deterrent effect of the judicial system in place
and the significance of the role it was required to play in
preventing violations of the prohibition of ill-treatment (see Okkalı
v. Turkey, no. 52067/99, § 66, ECHR 2006 ...
(extracts)).
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- In
his observations the applicant also alleged, without explaining how
or why, a violation of Article 6 of the Convention.
- The
Court notes that this complaint was not introduced until after the
present application had been communicated to the respondent
Government. The Court observes in this context that the criminal
proceedings against the police officers ended on 28 May 2002 (see
paragraph 21 above) and the applicant lodged his complaint under
Article 6 of the Convention in his observations in reply to those of
the Government submitted to the Court on 11 January 2008, that is,
more than six months later.
- It
follows that this complaint must be declared inadmissible for
non-compliance with the six-month rule laid down in Article 35 §
1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of pecuniary damage
and EUR 30,000 in respect of non-pecuniary damage.
- As
regards the applicant’s claim for pecuniary damage, the
Government pointed out that the applicant had failed to substantiate
his claim with any evidence, and asked the Court not to make an award
under this head. Concerning the applicant’s claim for
non-pecuniary damage, the Government submitted that it was excessive
and that the finding of a violation would compensate the applicant’s
alleged losses.
- The
Court observes that the applicant failed to substantiate his claim in
respect of pecuniary damage. It therefore rejects this claim.
However, the Court considers that the applicant must have suffered
pain and distress which cannot be compensated solely by the finding
of a violation. Having regard to the extent and seriousness of the
applicant’s injuries caused by the police officers, the Court
awards the applicant EUR 10,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 2,588 for the costs and expenses incurred
before the Court.
- The
Government invited the Court not to make an award to the applicant
for costs and expenses as he had failed to submit to the Court
invoices, receipts or other documents in support of his claim.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 in respect of
costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of 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, the following amounts, to be
converted into new Turkish liras at the rate applicable at the date
of settlement:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of his costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
