SECOND SECTION
CASE OF ATHAN v.
TURKEY
(Application no. 36144/09)
JUDGMENT
STRASBOURG
3 September 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 Athan 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 Stanley Naismith, Section Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
36144/09) 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 Meydin Athan (“the applicant”), on
19 June 2009.
The applicant was represented by Mr M. Vefa, a
lawyer practising in Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
On 21 June 2011 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 CIRCUMSTANCES OF THE CASE
The applicant was born in 1974 and lives in
Diyarbakır.
On 24 March 2006, in the course of a military
operation, several terrorists were killed by the security forces in Bingöl. On
28 March 2006 a large group of people assembled at their funeral and protested
against the security forces. The demonstrations continued and in the course of
the events about 1,500 to 2,000 people resisted the police, attacking them with
stones, blocking the traffic by burning tyres and damaging nearby shops and
public buildings by throwing stones. Many demonstrators were arrested by the
police. According to the documents in the case file, the applicant was among
those who were arrested on the night of 30 March 2006.
At 3.30 a.m. on 31 March 2006 the applicant was
examined by a doctor at the Diyarbakır State Hospital. In his report, the
doctor noted that there were ecchymoses on the applicant’s back, lumbar area and
the side of his left knee.
At 10.12 p.m. on 1 April 2006 the applicant was
examined by another doctor at the Diyarbakır State Hospital. The medical
report indicated large ecchymoses on the applicant’s back and on the outer part
of his left femur.
At 2.46 a.m. on 2 April 2006 the applicant was
examined for a third time, by another doctor from the same hospital. According
to the report, no new signs of physical violence were found on the applicant.
Following those medical examinations, the
applicant was brought before the Diyarbakır Public Prosecutor, where he
denied the charges against him.
On the same day the applicant, along with ten
other persons, was questioned by the Diyarbakır investigating judge. The
medical report was read to the applicant. He stated that the injuries had not
occurred during the incidents but had been inflicted by police officers while
he had been in police custody. The judge remanded the applicant in custody.
On 2 May 2006 the Diyarbakır Public
Prosecutor issued an indictment charging the applicant with involvement in the
activities of an illegal organisation.
On 25 May 2007 the Diyarbakır Assize Court
convicted the applicant under Article 314 of the Criminal Code and sentenced
him to six years and three months’ imprisonment. In convicting the applicant,
the assize court relied on video recordings and witness statements, and found
it established that the applicant had participated in the funeral and the
subsequent demonstrations. The court also had particular regard to the
statement of a police officer, who had identified the applicant as the person
who had wounded him by throwing stones. It was therefore concluded that the
applicant had acted in support of an illegal organisation.
On 30 May 2011 the Court of Cassation upheld the
judgment of the first-instance court.
In the meantime, on 18 September 2006, on the
basis of the medical reports, the applicant filed a complaint with the
Diyarbakır Public Prosecutor alleging ill-treatment by police officers. He
also alleged that the doctor who had not found any new traces of ill-treatment
was guilty of professional misconduct.
On 27 October 2008 the public prosecutor issued
a decision not to prosecute on the ground that the complainant’s statement had
not been taken by the police. As he had never been questioned by the police,
the public prosecutor considered that the ill-treatment allegations remained
abstract. He also concluded that there were no grounds for instituting
proceedings against the doctor concerned, as in the medical report she had
mentioned that there were no new signs of physical violence since the previous
reports and therefore she had had no intention of covering up any traces of
ill-treatment.
On 26 February 2009 the Siverek Assize Court
rejected an appeal lodged by the applicant.
On 19 June 2009 the decision was served on the
applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been subjected
to ill-treatment while in police custody. He further alleged that the
investigation against the police officers had been ineffective. In this connection,
he relied on Articles 3 and 13 of the Convention.
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 maintained that the application
should be rejected for non-exhaustion of domestic remedies. In this connection,
they argued that the applicant should have brought compensation proceedings
before the civil and/or administrative courts.
The Court has already examined and rejected
similar preliminary objections by the Government in previous cases (see, in
particular, Atalay v. Turkey, no. 1249/03, § 29, 18 September
2008). It reaffirms its earlier conclusions 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. The Court therefore finds no
particular circumstances in the instant case which would require it to depart
from its previous findings. Accordingly, this objection cannot be upheld.
The Court notes that this complaint 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. Substantive aspect of Article 3
Without giving a detailed description, the
applicant alleged that he had been subjected to ill-treatment in breach of
Article 3 of the Convention. In support of his allegation, he relied on the
medical reports described above and argued that he had not been among the
demonstrators. He also maintained that he had not been ill-treated during his
arrest, but while in police custody.
The Government contested the allegations. In
their view, the applicant had been among the group of demonstrators who had
violently attacked the police and caused damage to nearby shops and public
buildings. The Government maintained that the police had had to use force to
neutralise the demonstrators. They considered that, in view of the strong
resistance, the force used had been necessary and proportionate to maintain
public order.
The Court reiterates at the outset the absolute
nature of the prohibition of torture or inhuman or degrading treatment or
punishment. It also reiterates that Article 3 does not prohibit the use of
force to effect an arrest. Nevertheless, such force may be used only if it is
indispensable and must never be excessive (see Pekaslan and Others v. Turkey,
nos. 4572/06 and 5684/06, §
56, 20 March 2012).
In the present case, the Court is faced with
two conflicting versions of the facts. Although the applicant maintained that
he had been ill-treated while in police custody, in their observations the
Government stated that the police officers had had to use force to arrest the
applicant, who had been among the resisting demonstrators. The Court observes
in this connection that there are three medical reports in the case file which
reveal extensive bruises on the applicant’s back and on the side of his leg. It
also notes that in his investigation, the public prosecutor failed to establish
the cause of those injuries. For the reasons explained below (see paragraphs
31-34), the investigation into the applicant’s ill-treatment allegations cannot
be considered effective, as required by Article 3 of the Convention.
Nevertheless, in the absence of further information, the Court cannot conclude
beyond a reasonable doubt that the applicant was ill-treated while in police
custody as alleged.
There has therefore been no violation of Article
3 under its substantive aspect.
2. Procedural aspect of Article 3
The Government argued that the investigation
conducted by the domestic authorities into the applicant’s allegations of
ill-treatment had been thorough and effective.
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, §§ 101-02, Reports of Judgments and
Decisions 1998-VIII).
In the present case, the Court has not found it
proved, owing to lack of evidence, that the applicant was ill-treated as alleged.
Nevertheless, as it has held in previous cases, that does not preclude the
applicant’s complaint under Article 3 from being “arguable” for the purposes of
the positive obligation to investigate (see Böke and Kandemir v. Turkey,
nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009, and Aysu
v. Turkey, no. 44021/07, § 40, 13 March 2012). In reaching this
conclusion, the Court has particular regard to the fact that the three medical
reports issued while the applicant was in police custody recorded bruises on
his back and leg. In the Court’s view, the domestic authorities were thus under
an obligation to conduct an effective investigation regarding the applicant’s
allegations of ill-treatment.
According to the information in the case file,
following the applicant’s complaint on 18 September 2006, the Diyarbakır Public
Prosecutor started an investigation. However, the investigation ended on
27 October 2008, namely two years after the incident, with a decision not
to prosecute. The Court finds it striking that in delivering his decision, the
public prosecutor relied solely on the fact that the applicant had not been
questioned by the police. The appeal against that decision was dismissed on 26
February 2009. It appears from the documents in the case file that the public
prosecutor made no serious attempts to discover the real cause of the injuries
noted on the applicant’s body. In their observations, the Government suggested
that the applicant had been injured during arrest, as the police had had to use
force to disperse the resisting demonstrators. However, the Court notes that in
the course of his investigation, the public prosecutor did not take any steps
to clarify that assumption. Instead, he merely concluded that as the applicant
had not been questioned by the police, his allegations of ill-treatment were
unsubstantiated.
In this connection, the Court considers that
requesting an additional expert’s opinion from the Forensic Medicine Institute
regarding the cause and timing of the applicant’s injuries could have provided
helpful information regarding the applicant’s allegation that he was
ill-treated while in police custody. Furthermore, it is striking that the
public prosecutor did not take any statements from potential eyewitnesses who
had been arrested and held in detention on remand with the applicant.
Statements of the police officers involved in the applicant’s arrest could also
have provided information establishing the facts of the incident. The Court
therefore concludes that the investigation in the present case cannot be
considered as complying with the requirements of Article 3 of the Convention.
In view of the foregoing, the Court holds that
those procedural shortcomings had adverse repercussions on the effectiveness of
the investigation into the applicant’s allegations of ill-treatment.
There has therefore been a violation of Article
3 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained, under Article 6 of the
Convention, that he had been denied a fair hearing. He alleged that, in
convicting him, the trial court had relied on a statement that he gave to the
police under duress.
The Court
observes that in the present case, no statements were taken from the applicant
by the police. Following his arrest, the applicant was transferred to the
public prosecutor and the investigating judge without undergoing prior
questioning by the police. Furthermore, in its judgment the Diyarbakır
Assize Court relied on video recordings and photographs showing that the
applicant had been among the group of protestors. The applicant was also
identified by a police officer as the person who had wounded him by throwing
stones. Based on the evidence in the case file, the trial court found the
applicant guilty as charged and its judgment was subsequently upheld by the
Court of Cassation.
Consequently, the
Court considers that the applicant’s complaint raised under Article 6 of the
Convention is unsubstantiated and concludes that this part of the application
should be declared inadmissible as being manifestly ill-founded within the
meaning of Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
The applicant claimed 50,000 euros (EUR) in
respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage.
The Government contested the claims.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, it considers that the applicant must have suffered
pain and distress which cannot be compensated solely by the finding of a
violation. Ruling on an equitable basis, the Court awards the applicant EUR
5,000 in respect of non-pecuniary damage.
B. Costs and expenses
Referring to the Diyarbakır
Bar Association’s scale of legal fees, the applicant’s representative further claimed EUR 1,500 for the legal fees incurred during the
domestic proceedings and EUR 1,000 for those incurred before the Court. The
applicant did not submit any invoices 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 are
reasonable as to quantum. In the present case, the applicant has not
substantiated his claim for costs and expenses. Accordingly, the Court makes no
award 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 complaint concerning Article
3 admissible and the remainder of the application inadmissible;
2. Holds that there has been no substantive violation
of Article 3 of the Convention;
3. Holds that
there has been a procedural violation of Article 3 of the Convention;
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, EUR
5,000 (five thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
