SECOND SECTION
CASE OF
TÜZÜN v. TURKEY
(Application no.
24164/07)
JUDGMENT
STRASBOURG
5 November 2013
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 Tüzün v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi,
President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Lawrence Early, Acting Section Registrar,
Having deliberated in private on 15 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
24164/07) 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 Kamuran Tüzün (“the applicant”),
on 29 May 2007.
The applicant was represented by Mr S. Çetinkaya,
a lawyer practising in İzmir. The Turkish Government (“the Government”)
were represented by their Agent.
On 24 June 2010 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
The applicant was
born in 1984 and lives in İzmir.
A. The applicant’s arrest, the use of allegedly
excessive force and medical certificates
On an unspecified date the İzmir police
received an anonymous telephone message which concerned the applicant.
On 30 May 2006 the İzmir police received
another phone call from the same person stating that the applicant was in the
house of a certain S.T., brother of the applicant’s fiancée.
According to the house search and seizure report
drafted on the same day at 1.30 p.m., the İzmir police conducted a
drug-related operation targeting S.T.’s house, under the supervision of the İzmir
public prosecutor. The report stated that the applicant had given a false name
and resisted the police when the officers showed him their search warrant.
According to the report, the applicant physically attacked and injured two
officers. He then fell and hit his head on the door. Four officers handcuffed
him by pinning him to the floor by the arms and shoulders. During the search,
the officers found ecstasy pills in the house. They also found a weapon hidden
under a sofa. The report was signed by nine police officers, the applicant and
the applicant’s fiancée, Ş.T. The applicant was subsequently arrested and placed
in police custody.
At 1 p.m. on the same day the applicant was
examined by a doctor at the Alsancak State Hospital, who observed a
two-centimetre-long laceration on the scalp with an oedema around it on the
left parietal region, a bruise on the front of his neck (under the chin), a
minor erythema on his right cheek, and pain and another slight erythema in the
right lumbar region.
On the same day A.T.E. and M.A., two police
officers from the team that had effected the applicant’s arrest, were also
examined by the same doctor. The doctor observed an erythema in the abdominal
region, three bruises and erythemas on the right of the back, and erythemas on
both arms of A.T.E.’s body. As regards M.A., the doctor noted an erythema of 20
cm on the left arm and a bruise of 5 cm x 5 cm on the left side of the
abdominal region.
At 8.40 p.m. on the same day A.T.E. and M.A gave
statements to police officers in their capacity as complainants and victims.
They submitted that the applicant had resisted arrest and had insulted and
physically attacked them. According to the officers, the applicant had fallen
and hit his head on the door and had then been arrested. At 10 p.m. the
applicant gave statements to the police and alleged that he had been beaten by
police officers and injured during his arrest.
On 31 May 2006 the applicant was once again
examined by a doctor, who noted a red lesion measuring 2 cm x 2 cm on his right
upper arm and a complaint of intense pain in the right part of his back.
On the same day the applicant was brought before
the İzmir Magistrates’ Court. The judge informed him that he was charged
with insulting and resisting the police officers as well as causing them
injuries. The applicant denied the allegation that he had insulted and resisted
the police officers. He maintained that he had been hit on the head by police
officers with a weapon and beaten with truncheons and guns during the house
search. The judge subsequently ordered the applicant’s pre-trial detention.
B. Criminal proceedings against the applicant
On 20 June 2006 the İzmir public prosecutor
filed a bill of indictment with the İzmir Criminal Court against the
applicant charging him with resisting the police, insulting public officials
and possession of firearms without a licence.
During the trial, the İzmir Criminal Court
took statements from the two police officers who had affected the applicant’s
arrest, the applicant and other police officers who had arrested him. The
police officers maintained before the court that they had been kicked and
punched by the applicant, who had resisted arrest, and that they had obtained
medical reports in support of their allegations. They further maintained that
the applicant had insulted them in Kurdish and in Turkish. The applicant
claimed that he had not resisted arrest or insulted the officers and that in
any case he had been unable to resist arrest on account of the number of
arresting officers.
On 25 January 2007 the İzmir Criminal Court
convicted the applicant of the aforementioned offences and sentenced him to a
total of two years and nine months’ imprisonment. The court found it
established - on the basis of the arrest and search report, medical reports,
the expert assessments of the firearm, and the statements of the complainants,
the applicant and witnesses - that the applicant had insulted and resisted the
police officers and had been in possession of an unlicensed firearm.
On 5 November 2009 the Court of Cassation
quashed the judgment of 25 January 2007, holding that the first-instance court
should have examined whether it was appropriate to suspend the delivery of the
judgment (hükmün açıklanmasının geri
bırakılması).
On 10 March 2010 the first-instance court once
again convicted the applicant of the same offences and sentenced him to a total
of two years and nine months’ imprisonment and a fine of 450 Turkish liras.
According to the information obtained by the Registry
from the website of the Court of Cassation, on 22 May 2012 the Court of
Cassation upheld the judgment of 10 March 2010.
C. Investigation into the police officers
In the meantime, on 25 July 2006 the applicant
applied to the İzmir public prosecutor’s office requesting
that the police officers who had arrested him be punished for injuring him by
using excessive force during his arrest.
. On
29 August 2006 the İzmir public
prosecutor issued a decision not to bring criminal proceedings against the
arresting police officers as he found it established that the applicant had
insulted and physically attacked the officers and resisted arrest. The public
prosecutor noted that the applicant, A.T.E. and M.A. had fallen during the
struggle and sustained injuries. According to the public prosecutor, the police
officers had handcuffed the applicant by using force when he was on the floor.
He found that there was no concrete evidence other than the complainant’s
allegations that the members of the security forces had ill-treated him.
The public prosecutor considered that the force employed by the police had not
been excessive and that the officers had acted within the scope of their
duties. The public prosecutor did not question the applicant, the accused
police officers or any other witnesses before giving his decision.
. On
10 October 2006 the applicant objected to the decision of 29 August 2006.
. On
8 January 2007 the Karşıyaka Assize Court dismissed the objection.
D. Disciplinary proceedings against the police
officers
On an unspecified date, an investigator initiated
a disciplinary investigation in respect of A.T.E. and M.A. Within the context
of this investigation, between 4 September and 27 October 2006 the investigator
took statements from the applicant, his fiancée, Ş.T., A.T.E. and M.A. and
two other police officers who had effected the applicant’s arrest. The applicant
and his fiancée stated that the applicant had been beaten by the police
officers. The applicant stated that he had not insulted or attacked the
arresting officers and that he had been hit with sticks and firearms. The
police officers, on the other hand, maintained that the applicant had insulted
them, had chanted slogans, had kicked and punched A.T.E. and M.A. and had
fallen and hit his head on the door during the struggle.
On 18 January 2007 the Provincial Police
Disciplinary Board attached to the İzmir governor’s office held that there
was no reason to subject A.T.E. and M.A. to disciplinary sanctions and considered
that they had acted within the scope of their duties during the arrest.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicant complained under Article 3 of the
Convention that the force used during his arrest had been excessive and
disproportionate and had constituted ill-treatment. The applicant further alleged
a violation of Article 13 of the Convention on account of the ineffectiveness
of the investigation into his ill-treatment.
The Court considers that these complaints should be examined
from the standpoint of Article 3 of the Convention alone.
Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested the applicant’s
argument.
A. Admissibility
The Government submitted at the outset that the
applicant did not have victim status as the injuries noted in the medical
reports could not be considered to have occurred as a result of treatment which
had attained a sufficient level of severity. The Government further argued that
the application should be rejected for non-exhaustion of domestic remedies. In
this connection, they stated that the applicant should have brought proceedings
before the administrative or civil courts to seek compensation for the harm he
had allegedly suffered. They lastly argued that the applicant had failed to comply
with the six-month time-limit, without substantiating that allegation.
The applicant submitted that he had sustained
injuries, which were documented by medical reports, as a result of use of force
by the police. He further maintained that he had lodged a complaint with the
public prosecutor’s office and had lodged an appeal against his decision, and had
thus exhausted the domestic remedies. The applicant lastly submitted that he
had lodged his application with the Court within the time-limit.
As regards the Government’s objection regarding
the applicant’s victim status, the Court observes that, according to the
medical reports issued after the applicant’s arrest, he had sustained injuries
to his head, neck, face and lumbar region. The Court is of the opinion that the
injuries noted in the medical reports are sufficient to bring the applicant’s
treatment within the scope of Article 3 of the Convention. It will examine below
whether the applicant was subjected to ill-treatment by the police as he
alleged, or whether the use of force was proportionate and necessary on account
of the applicant’s own conduct. The Court accordingly dismisses the Government’s
preliminary objection under this head.
. Regarding the
Government’s reference to civil and administrative remedies, the Court
reiterates that it has already examined and rejected similar preliminary
objections in other, similar cases (see, in particular, Güler
and Öngel v. Turkey, nos. 29612/05 and 30668/05, § 21, 4 October 2011; Atalay v. Turkey, no. 1249/03, §
28, 18 September 2008; and Gazioğlu and Others v. Turkey, no.
29835/05, §§ 29 and 30, 17 May
2011 and the cases cited therein). The Court finds no particular
circumstances in the instant case which would require it to depart from its
findings in the above-mentioned cases. It therefore dismisses the Government’s
preliminary objection in respect of civil and administrative remedies.
. Finally, as to the
Government’s objection concerning the six-month time-limit, the Court observes
that the Karşıyaka Assize Court dismissed the applicant’s objection
to the İzmir public prosecutor’s decision on 8 January 2007 and the
application was lodged with the Court on 29 May 2007. Accordingly, the Court dismisses
the Government’s objection that the application was submitted to the Court out of
time.
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The responsibility of the respondent State in the
light of the substantive aspect of Article 3 of the Convention
The Government submitted that the facts of the
case as a whole did not support the allegations that the injuries observed on
the applicant’s body, which in their opinion had not attained the level of
severity proscribed by Article 3, had been caused by treatment for which the
Government bore responsibility. They submitted that it was likely that the
injuries noted in the medical reports had occurred as a result of the applicant’s
reckless conduct and resistance when he had fallen and hit his head on the door.
Moreover, if any force had been used against the applicant by the police, such
use of force had been proportionate and had been made strictly necessary by the
applicant’s own conduct.
The applicant maintained his allegation that he
had been beaten by the police despite the fact that he had not resisted arrest.
The Court observes at the outset that it is not
disputed between the parties that the applicant sustained the injuries noted in
the medical reports during his arrest. In this connection the Court reiterates that,
according to its case-law, Article 3 does not prohibit the use of force for
effecting an arrest. However, such force may be used only if unavoidable and
must not be excessive (see Gazioğlu, cited above, § 41, and Ivan
Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007 and the cases cited
therein).
The Court further observes that the factual
circumstances of the applicant’s arrest were examined by the İzmir Criminal
Court and the Police Disciplinary Board. Both the court and the disciplinary
board obtained the arrest and search report, medical reports, and the
statements by the arresting officers and the applicant before giving their
decisions. The disciplinary board also obtained a statement from the applicant’s
fiancée. The contents of both the criminal case and disciplinary investigation
files laid the basis for the examination by the Court.
Against this background, the Court notes that, according
to the medical reports issued following the applicant’s arrest, both the
applicant and two of the arresting police officers sustained injuries. The
Court considers, in the light of the contents of those medical reports, that
the injuries observed on both the applicant and the police officers appear to have
been superficial, with no lasting consequences, and that the findings were
consistent with the police officers’ account that a physical confrontation had
taken place between the applicant and the police. The Court finds that the
injuries noted in the medical reports issued in respect of the applicant are
not consistent with the applicant’s submissions that he was hit with sticks and
firearms and kicked. In the Court’s opinion, the treatment that was described
by the applicant would have left more serious marks on his body. Moreover, the
injury on his head, a two-centimetre-long laceration, is consistent with the
allegation that the applicant had hit his head on the door while resisting
arrest. The Court accordingly finds that the applicant was not beaten during
the arrest but was injured while struggling with the police officers - as they
alleged - as a result of the force used by them. Having regard to the above,
the Court considers that there is no evidence to support the applicant’s
allegation that he was beaten by the police during his arrest. Furthermore, in
view, in particular, of the fact that two police officers also sustained
injuries to various parts of their bodies during the arrest, the Court finds
that there is nothing in the case file to show that the force used by the
police was unnecessary or disproportionate.
Accordingly, there has been no violation of
Article 3 of the Convention under its substantive limb.
2. The responsibility of the respondent State in the
light of the procedural aspect of Article 3 of the Convention
The Government contended that the applicant’s
allegations had been subjected to an effective examination, since an
investigation had been initiated promptly. They further submitted that, in
reaching his decision, the public prosecutor had taken into account the
applicant’s complaint, his statements to the police, the statements by the
police officers and the contents of the medical reports. Moreover, a
disciplinary investigation had also been initiated following the applicant’s complaint
of ill-treatment.
The applicant maintained that
his allegations had not been subjected to an effective investigation as the İzmir
public prosecutor had given the decision of 29 August 2006
without conducting an investigation. In particular, he had failed to take statements
from him, his fiancée or the police officers before giving his decision.
The Court reiterates that Article 3 of the
Convention requires the authorities to carry out an effective official
investigation into allegations of ill-treatment when they are “arguable” and
“raise a reasonable suspicion” (see, in particular, Assenov
and Others v. Bulgaria, 28 October 1998, §§ 101-102, Reports of Judgments and Decisions 1998-VIII).
In the present case, in the light of the contents of the medical reports issued
in respect of the applicant (see paragraphs 8 and 11 above), the Court
considers that the domestic authorities were under an obligation to conduct an
effective investigation regarding his allegations of ill-treatment.
In this connection, the Court notes at the
outset that it has examined the responsibility of the respondent State under
the substantive limb of Article 3 in the light of the contents of the file of
the case before the İzmir Criminal Court and the disciplinary
investigation file (see paragraph 40 above). While the documents in the case
before the İzmir Criminal Court enable the Court to make its own assessment
of the factual circumstances of the applicant’s arrest, the proceedings before
that court cannot be regarded as relevant in respect of the applicant’s
complaint under this head: the subject matter of the case before the İzmir
Criminal Court was the applicant’s alleged resistance to the police during his
arrest and his possession of a firearm without a licence and not the applicant’s
allegations that he had been subjected to ill-treatment. Moreover, the İzmir
Criminal Court delivered its first judgment on the merits of the case after the
İzmir public prosecutor’s decision not to bring
criminal proceedings against the arresting police officers had been given (see
paragraphs 15 and 20 above). The Court further notes that,
subsequent to the applicant’s complaints of ill-treatment, an investigator took
statements from the parties and the witnesses and collected documentary
evidence within the context of the disciplinary proceedings before the Police
Disciplinary Board. However, these steps were also taken after the İzmir public
prosecutor’s decision (see paragraphs 20-24 above). Besides, those proceedings
only concerned the disciplinary responsibility of the police officers.
In these circumstances, the Court finds that the
official investigation that should be taken into account in examining the
responsibility of the Government under the procedural limb of Article 3 is the
investigation conducted by the İzmir public prosecutor into the applicant’s
allegations of ill-treatment, which ended with the prosecutor’s decision of 29
August 2006.
Against this background, the Court observes that
during the investigation initiated following the applicant’s complaints, the İzmir
public prosecutor failed to obtain the applicant’s statements in person. He
also failed to take statements from the accused police officers. Nor did he question
any witnesses, including the applicant’s fiancée who had been with the
applicant at the time of his arrest. It appears that the public prosecutor
based his decision solely on the house search and seizure report and the statements
made by A.T.E. and M.A. on 30 May 2006 (see paragraphs 7, 10 and 20 above).
In the light of the above, the Court concludes
that the applicant’s allegations of ill-treatment were not effectively
investigated by the domestic authorities as required by Article 3 of the
Convention.
There has accordingly been a violation of
Article 3 of the Convention under its procedural limb.
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
The applicant claimed 30,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested this claim.
In view of the violation found under Article 3
of the Convention, the Court finds that the applicant must have suffered some
non-pecuniary damage which cannot be compensated for solely by the Court’s
finding of a violation. It therefore awards the applicant EUR 5,000 in respect
of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 5,000 for the
costs and expenses incurred before the Court. In support of his claim, he
submitted a receipt demonstrating that he had paid this sum to his legal
representative.
The Government considered the claim to be
unjustified, and urged the Court not to make any awards.
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, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
3. Holds that
there has been a violation of Article 3 of the Convention under its procedural
limb;
4. 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 the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable to the applicant, 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;
5. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 November 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Guido
Raimondi
Acting Registrar President
