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SECOND
SECTION
CASE OF ARİF ÇELEBİ AND OTHERS v. TURKEY
(Applications
nos. 3076/05 and 26739/05)
JUDGMENT
STRASBOURG
6
April 2010
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 Arif Çelebi
and Others 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,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl Karakaş,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 3076/05 and 26739/05)
against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by six Turkish nationals,
Mr Arif Çelebi, Ms Mukaddes Çelik, Ms Sultan
Arıkan (Seçik), Mr Bayram Namaz, Mr Sedat Şenoğlu
and Mr Necati Abay (“the applicants”), on 28 December
2004 and 29 April 2005 respectively.
- The
first applicant was represented by Mr M. Kırdök and
Mrs M. Kırdök and the other applicants were
represented by Ms G. Tuncer, lawyers practising in Istanbul. The
Turkish Government (“the Government”) were
represented by their Agent.
- On
28 January 2009 and 10 September 2008, respectively the President of
the Second Section decided to give notice of the applications to the
Government. It was also decided to examine the merits of the
applications at the same time as their admissibility (Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1963, 1954, 1971, 1963, 1975 and 1956
respectively and, according to their application forms, live in
Istanbul.
A. The applicants' detention in police custody and the
medical certificates concerning their alleged ill-treatment
1. The applicants' detention in police custody
- Between
22 February and 6 March 1997 the applicants were detained in police
custody at the Istanbul Security Headquarters on suspicion of
membership of an illegal armed organisation, namely the MLKP
(Marxist-Leninist Communist Party); they claimed that they were
subjected to various forms of ill-treatment there. In particular the
applicants complained in their application form of the following
types of treatment.
a) Arif Çelebi
- The
applicant complained, in particular, that he had been blindfolded,
forced to remain standing or sitting for a long time, deprived of
sleep, forced to listen to loud music, suspended, squeezed in the
testicles, beaten, stripped and made to lie in cold water.
b) Mukaddes Çelik
- The
applicant complained, in particular, that she had been blindfolded,
forced to remain standing or sitting for a long time, left exposed to
the circulation of cold air, sworn at, refused toilet breaks and
sexually harassed.
c) Sultan Arıkan (Seçik)
- The
applicant complained, in particular, that she had been blindfolded,
suspended, sexually harassed, raped by insertion of a finger, sworn
at, beaten and forced to listen to loud music and remain sitting for
a long time.
d) Bayram Namaz
- The
applicant complained, in particular, that he had been beaten,
subjected to “Palestinian hanging”, forced to remain
standing, hosed with cold water, squeezed in the testicles, deprived
of sleep, threatened with death and sworn at.
e) Sedat Şenoğlu
- The
applicant complained, in particular, that he had been beaten,
suspended, hosed with cold water, sworn at, threatened and deprived
of sleep.
f) Necati Abay
- The
applicant complained, in particular, that he had been suspended
several times, squeezed in the testicles, hosed with cold water,
forced to listen to loud music, threatened and forced to remain
standing or sitting for a long time.
2. The applicants' medical certificates
a) Arif Çelebi
- On
26 February 1997 the applicant was examined by a doctor at a
hospital, who noted that he had difficulty in moving his upper limbs.
- On
4 March 1997 the applicant was examined by a doctor at the Forensic
Medicine Institute at the Istanbul State Security Court, who found
that he had pain and difficulty in moving his right arm and that the
skin on his scrotum had peeled away.
- On
6 March 1997 the applicant was examined by a doctor at the Forensic
Medicine Institute at the Istanbul State Security Court, who noted
that the previous findings remained valid.
- On
15 October 1999 the Istanbul Forensic Medicine Institute, on the
basis of the above-mentioned medical reports on the applicant, issued
a final report in which it concluded that the injuries noted in those
reports rendered him unfit for work for two days.
b) Mukaddes Çelik
- On
27 February 1997 the applicant was examined by a doctor at a
hospital, who noted that she complained of stomach pain and of FMF
(Familial Mediterranean Fever), which she had suffered from for the
past thirty-two years.
- On
3 March 1997 the applicant was examined by a doctor at the Fatih
Forensic Medicine Institute, who found no signs of ill-treatment on
her body.
- On
6 March 1997 the applicant was examined by a doctor at the Forensic
Medicine Institute at the Istanbul State Security Court, who found no
signs of ill-treatment on her body.
c) Sultan Arıkan (Seçik)
- On
27 February 1997 the applicant was examined by a doctor at a
hospital, who noted that she had suffered a loss of strength in both
shoulders and the left wrist, and had a bruise of 10 cm on the front
of her left arm and a bruise of 0.5 cm on her right arm.
- On
4 March 1997 the applicant was examined by a doctor at the Forensic
Medicine Institute at the Istanbul State Security Court, who found
that she had an old bruise of 5 cm by 3 cm on the inner side of her
right arm and a slight graze on her elbow. The doctor also noted that
the applicant had slight redness on the inner left arm, sensitivity
and pain in the arms, numbness in the fingers, slight redness on the
back of her shoulders and a headache.
- On
6 March 1997 the applicant was examined by a doctor at the Forensic
Medicine Institute at the Istanbul State Security Court, who noted
that the previous findings remained valid and that the applicant had
slight redness and pain in her right shoulder.
- On
15 October 1999 the Istanbul Forensic Medicine Institute, on the
basis of the above-mentioned medical reports on the applicant, issued
a final report in which it concluded that the injuries noted in those
reports rendered her unfit for work for two days.
- According
to the medical report issued by the Turkish Human Rights Association
on 11 February 2008, the applicant had been examined by doctors at
that association on various dates from 18 March 1997 onwards and
found her to be suffering from a brachial plexus injury (nerve
damage) which was consistent with her account of ill-treatment.
d) Bayram Namaz
- On
26 February 1997 the applicant was examined by a doctor at a
hospital, who noted that he suffered from pain during shoulder
movements.
- On
3 March 1997 the applicant was examined by a doctor at the Fatih
Forensic Medicine Institute, who noted that he had pain starting from
his right shoulder up to his right elbow, loss of feeling in his
fingers and pain in the elbow, under both scapular regions and in his
testicles. The doctor concluded that these injuries rendered the
applicant unfit for work for three days.
- On
6 March 1997 the applicant was examined by a doctor at Forensic
Medicine Institute at the Istanbul State Security Court, who noted
that he had pain in his left knee and on the right side of his back.
He also found that he had pain and loss of strength in the right arm.
e) Sedat Şenoğlu
- On
27 February 1997 the applicant was examined by a doctor at a
hospital, who found no signs of ill-treatment on his body.
- On
3 March 1997 the applicant was examined by a doctor at Fatih Forensic
Medicine Institute, who noted that he had pain in the back of his
neck and on the right scapula and had difficulties in moving his
neck. The doctor concluded that these injuries rendered the applicant
unfit for work for one day.
- On
6 March 1997 the applicant was examined by a doctor at Forensic
Medicine Institute at the Istanbul State Security Court, who noted
that the previous findings remained valid.
f) Necati Abay
- On
27 February 1997 the applicant was examined by a doctor at a
hospital, who noted that he had a bruised region on his right elbow.
- On
3 March 1997 the applicant was examined by a doctor at the Fatih
Forensic Medicine Institute, who noted that he had slight swelling on
the upper right elbow and a 1 cm by 1 cm bruised region, pain during
arm movements, slight loss of feeling in the fifth finger of the
right hand and the second finger of the left and pain in the scrotum.
The doctor concluded that these injuries rendered the applicant unfit
for work for three days.
- On
6 March 1997 the applicant was examined by a doctor at the Forensic
Medicine Institute at the Istanbul State Security Court, who noted
that he had loss of strength and pain in his right arm and elbow and
loss of feeling in his fingers.
B. Investigation instigated into the alleged
ill-treatment and the ensuing criminal proceedings against police
officers
- On
6 March 1997 the applicants were brought before the public prosecutor
at the Istanbul State Security Court, where they complained that they
had been subjected to various forms of ill-treatment while being held
in police custody.
- Following
the receipt of written complaints dated 10 and 11 March 1997 by
some of the applicants that they had been subjected to ill-treatment
in police custody, the Fatih public prosecutor instigated an
investigation into these allegations. In this connection, he
requested from the relevant authorities all documents concerning the
complainants' detention in police custody.
- On
8 May 1997 the Fatih public prosecutor heard evidence from all the
police officers who had been on duty between 21 February 1997 and
6 March 1997. They denied that the applicants had been
ill-treated as alleged.
- On
23 June 1997 the Fatih public prosecutor drew up a report in which he
recommended that the public prosecutor at the Istanbul Assize Court
initiate criminal proceedings against eight police officers, pursuant
to Article 243 of the Criminal Code, as in force at the time.
- On
4 July 1997 the prosecutor at the Istanbul Assize Court filed a bill
of indictment against eight police officers for the ill-treatment of
fifteen detainees, including the applicants (hereinafter “the
complainants”). The charges were brought under Article 243
of the Criminal Code.
- On
14 July 1997 the criminal proceedings before the Istanbul Assize
Court commenced.
- In
the meantime, on 17 July 1998, the Provincial Police Disciplinary
Commission considered that there was no need to impose sanctions on
the eight accused police officers on account of the lack of evidence.
- In
the course of the proceedings, the first-instance court heard
evidence from all the applicants, other plaintiffs and the accused
police officers. The applicants, except for Necati Abay, joined the
proceedings as civil parties. At a hearing on 2 October 1998 one of
the complainants identified someone in the audience as one of the
police officers who had tortured her. Subsequently, the public
prosecutor filed an additional indictment against that individual and
the number of accused increased from eight to nine persons. A number
of times the court had to postpone the confrontation procedure since
the accused police officers were not present in court and one police
officer failed to appear before the court for over two years before
an arrest warrant had to be issued in respect of him. In the
meantime, on 7 March 1999, one of the plaintiffs, Mr Yeter, who had
been arrested again, died in police custody.
- During
the proceedings the accused requested the court to hear evidence from
witnesses attesting to the fact that a witness who had subsequently
become a civil party had been pressured by the illegal armed
organisation into fabricating claims of ill-treatment. Their requests
were dismissed by the court. In protest, the legal representatives of
the accused resigned. On 8 July 2002 the public prosecutor submitted
his opinion on the merits of the case. After this date the applicants
or their new legal representatives sought numerous extensions in
order to file their final defence submissions. In response, one of
the judges sitting on the bench entered a written objection against
the decisions of the court to accord them on the ground that the
accused were abusing their right of defence in order to prolong the
proceedings with a view to ensuring that the prosecution became
time-barred.
- On
2 December 2002 the first-instance court, on the basis of the
evidence in the case file, acquitted five of the accused police
officers for lack of evidence. However, referring to the evidence in
the case file, it found it established that the four remaining police
officers from the
anti-terrorism branch of the Istanbul Security
Headquarters had intentionally ill-treated the complainants, in order
to extract confessions from them. Accordingly, pursuant to Article
243 § 1 of the Criminal Code, the court sentenced each of them
to one year and two months' imprisonment. It also made an order
banning them from public service for three months and fifteen days.
These sentences were subsequently reduced and later suspended on the
grounds that the defendants had no prior criminal record and that the
court was convinced that they would not reoffend.
- On
1 April 2004 the Court of Cassation quashed the first-instance
court's judgment in so far as it concerned the four convicted police
officers on grounds of erroneous sentencing. It upheld the judgment
in so far as it concerned the acquittal of one police officer and
discontinued the proceedings as regards the four other acquitted
police officers on the ground that the statutory time-limit for the
offence had expired in respect of them.
- On
11 November 2004 the first-instance court discontinued the
proceedings against the remaining accused police officers on the
ground that the prosecution of the offences had become time-barred.
- In
the meantime, on 7 February 2005, the legal representatives of the
complainants filed a complaint with the public prosecutor against the
Ministry of the Interior, the Security Directorate and some police
officers who had prepared a report, alleging that, throughout the
proceedings before the Istanbul Assize Court, both the complainants
and their lawyers had been subjected to threats, intimidation and
defamatory incidents. In particular, they complained that the public
prosecutor had questioned them in relation to an anonymous defamatory
letter sent to the court and objected to the contents of a report
that had been prepared by two police officers in respect of the
ill-treatment allegations made by one of the plaintiffs.
- On
29 November 2006 the Court of Cassation upheld the judgment of the
first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Batı and Others v. Turkey (nos. 33097/96 and
57834/00, ECHR 2004-IV), and Zeynep Özcan v. Turkey (no.
45906/99, 20 February 2007).
THE LAW
I. JOINDER
- Having
regard to the similar subject matter of the applications, the Court
finds it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicants complained under Articles 3 and 13 of the Convention about
the treatment to which they had been subjected while they were held
in police custody, and about the manner in which the investigation
and the ensuing criminal proceedings concerning their allegations had
been conducted by the authorities, resulting in impunity.
- The
Court considers that these complaints should be examined from the
standpoint of Article 3 alone, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The Government asked the Court to dismiss the
applications for failure to comply with the requirement of exhaustion
of domestic remedies under Article 35 § 1 of the
Convention. They argued that the applicants could have sought
reparation for the harm they had allegedly suffered by instituting an
action in the civil or administrative courts. In respect of the first
applicant, the Government further claimed that he should have lodged
his application within six
months of the date on which the
incident had occurred.
- The
applicants contested the Government's arguments.
- The
Court reiterates that it has already examined and rejected the same
argument by the Government in previous cases (see, for example,
Orhan Kur v. Turkey, no. 32577/02, § 36, 3 June 2008,
and Eser Ceylan v. Turkey, no. 14166/02, §
23, 13 December 2007). It finds no particular circumstances in
the present case which would require it to depart from that
conclusion. Furthermore, reiterating that the six-month time-limit
imposed by Article 35 § 1 of the Convention requires
applicants to lodge their applications within six
months of the final decision in
the process of exhaustion of domestic remedies, the Court considers
that the application lodged by the first applicant on 28 December
2004 was in conformity with that rule. Consequently, the Court
dismisses the Government's preliminary objections.
- Moreover,
the Court finds that the applications are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government maintained that the applicants' allegations were
unsubstantiated. In this connection, in respect of application
no. 26739/05, they submitted that the injuries noted in the
applicants' medical reports were the result of force used by the
police during their arrest and that those injuries, which had not
attained the level of severity proscribed by Article 3, did not
confirm the applicants' allegations. In addition, the Government
noted the absence of any physical findings in the medical reports
concerning Mukaddes Çelik. Moreover, in respect of both
applications nos. 3076/05 and 26739/05, referring to the various
actions undertaken by the domestic authorities, they submitted that
the investigation and the ensuing criminal proceedings had been
adequate.
- The
applicants maintained their allegations.
2. The Court's assessment
- The
Court observes that in Erdoğan Yılmaz and Others v.
Turkey, (no. 19374/03, §§ 48-51 and 57-59, 14
October 2008) where it examined the allegations of ill-treatment of
applicants who were also party to the same criminal proceedings
against the police officers as in the present case, it found that the
treatment to which the applicants in that case had been subjected
amounted to a violation of Article 3 of the Convention. It further
held that the criminal proceedings brought against the accused police
officers had been inadequate.
- Having
examined the documentary evidence submitted by the parties, the Court
does not consider there to be any material difference between that
case and the present one. In this connection, it observes that, after
acquainting itself with the evidence and having had the benefit of
seeing the various witnesses give their evidence and of evaluating
their credibility, the Istanbul Assize Court, in its decision of
2 December 2002, found that all the complainants, including the
applicants in the present case, had been ill-treated by four police
officers from the anti terrorism branch of the Istanbul Security
Headquarters. In convicting these police officers under Article 243
of the Criminal Code, the court further found that the police
officers had inflicted such treatment intentionally in order to
extract confessions (see paragraph 42 above). That decision was
quashed by the Court of Cassation on a sentencing technicality.
However, the proceedings were subsequently discontinued for being
time barred. In the instant case no cogent evidence has been
provided which could lead the Court to depart from the findings of
fact of the first-instance court in this respect.
- As
to the seriousness of the treatment in question, the Court reiterates
that, under its case-law in this sphere (see, among other
authorities, Selmouni v. France [GC], no. 25803/94, §§
96-97, ECHR
1999-V), in order to determine whether a particular
form of ill-treatment should be qualified as torture, it must have
regard to the distinction, embodied in Article 3, between this notion
and that of inhuman or degrading treatment. It appears that it was
the intention that the Convention should, by means of this
distinction, attach a special stigma to deliberate inhuman treatment
causing very serious and cruel suffering. In
this connection, the Court considers that the treatment complained of
was inflicted intentionally by the police officers for
the purpose of extracting confessions. In these circumstances, the
Court finds that it
was particularly serious and cruel and capable of causing severe pain
and suffering. It therefore
concludes that the ill-treatment involved in this case amounted to
torture within the meaning of Article 3 of the Convention.
- Moreover,
the Turkish criminal-law system as applied in the instant case,
namely the discontinuation of the prosecution for being time-barred
following lengthy proceedings, has proved to be far from rigorous and
would have had no dissuasive effect capable of ensuring the effective
prevention of unlawful acts such as those complained of by the
applicants (ibid., § 57).
- Accordingly,
there has been both a substantive and a procedural violation of
Article 3 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
the application form, the first applicant further complained under
Articles 6 and 13 of the Convention that the authorities'
failure to conduct an effective investigation into his complaints of
ill-treatment had hindered his right to bring compensation
proceedings against the persons responsible for his ill-treatment.
The other applicants complained under Articles 6, 8 and 14 of
the Convention that the first-instance court had lacked independence
and impartiality, that the proceedings had been excessively lengthy
and that, in the course of the criminal proceedings, they and their
families had been subjected to threats and intimidation by the police
and had been discriminated against.
- The
Court notes that these complaints are linked to the ones examined
above and must likewise be declared admissible.
- However,
having regard to the facts of the case, the submissions of the
parties and its finding of a violation of Article 3 above, the Court
considers that it has examined the main legal question raised in the
present applications. It concludes, therefore, that there is no need
to give a separate ruling on the applicants' remaining complaints
under the Convention (see, for example, Kamil Uzun v.
Turkey, no. 37410/97, § 64, 10 May 2007; K.Ö.
v. Turkey, no. 71795/01, § 50, 11 December 2007;
Juhnke v. Turkey, no. 52515/99, § 99, 13 May
2008; Çelik v. Turkey (no. 1), no. 39324/02,
§ 44, 20 January 2009; and Yananer
v. Turkey, no. 6291/05, §
47, 16 July 2009).
IV. 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
first applicant claimed 40,000 euros (EUR) and the other applicants
each claimed EUR 80,000 in respect of non pecuniary damage.
- The
Government contested the amounts.
- The
Court finds that the applicants must have suffered pain and distress.
Having regard to the nature of the violation found in the present
case and ruling on an equitable basis, the Court awards the
applicants EUR 31, 2000 each in respect of non pecuniary
damage.
B. Costs and expenses
- The
first applicant claimed, in total, 7,340 Turkish liras (TRY)
(approximately EUR 3,333) for the costs and expenses incurred before
the Court. The other applicants claimed, in total, EUR 33,355 for
similar costs and expenses. In support of their claims the applicants
submitted a schedule of costs prepared by their lawyers. In addition,
the first applicant submitted a receipt in respect of lawyers' fees.
- The
Government contested the amounts.
- 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the first applicant, Mr Arif Çelebi,
EUR 3,000 and to award the other applicants, jointly, the sum of EUR
3,000 for the proceedings before the Court.
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
1. Decides to join the applications;
- Declares the applications admissible;
- Holds that there has been a violation of Article
3 of the Convention under both its substantive and procedural limbs;
- Holds that that there is no need to examine
separately the complaints under Articles 6, 8, 13 and 14 of the
Convention;
- Holds
(a) that the respondent State is to pay, 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 Turkish liras at the rate
applicable at the date of settlement:
(i) to
each applicant, EUR 31,200 (thirty one thousand two hundred euros),
plus any tax that may be chargeable, in respect of non pecuniary
damage;
(ii) to
Mr Arif Çelebi, EUR 3,000 (three thousand euros) plus any tax
that may be chargeable to him, in respect of costs and expenses;
(iii) to
Ms Mukaddes Çelik, Ms Sultan Arıkan (Seçik),
Mr Bayram Namaz, Mr Sedat Şenoğlu and Mr Necati Abay,
jointly, EUR 3,000 (three thousand euros) plus any tax that may
be chargeable to them, in respect of 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
