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THIRD
SECTION
CASE OF GÜVEN AND OTHERS v. TURKEY
(Application
no. 68694/01)
JUDGMENT
STRASBOURG
12
April 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Güven and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 68694/01) 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 twelve Turkish nationals, Mr Ahmet Güven,
Mr Ramazan Akdağ, Mr Kadri Sönmez, Mr Metin Göktepe,
Ms Neslihan Göktepe, Mr İzzettin Koç, Mr Kadri Issı,
Mr Mehmet Kışanak, Mr Rıdvan Karatay, Mr Ali Kemal
Yıldız, Mr Yaşar Avcı and Ms Emsihan Karatay
(“the applicants”), on 30 October 2000.
- The
applicants were represented by Mr T. Fırat, a lawyer practising
in Izmir. The Turkish Government (“the Government”) did
not designate an Agent for the purpose of the proceedings before the
Court.
- On
23 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1968, 1972, 1964, 1966, 1973, 1962, 1976,
1962, 1963, 1971, 1970 and 1969 respectively. They were detained in
the Buca prison, in İzmir, at the time of the events giving rise
to the present application.
A. Events in Buca Prison
- On
20 July 1995 the applicants, along with ten other prisoners, were
taken from their cells to an area of the prison in order to be
brought before the İzmir State Security Court for trial.
According to the applicants, while they were waiting to be collected,
they were attacked by prison administrators, prison warders and
gendarmes using truncheons and wooden planks, because they had
objected to being searched. According to the Government the
applicants had resisted the search, attached themselves to one
another and subsequently fallen down the stairs and injured
themselves. The applicants were then taken to the İzmir State
Security Court in prison vehicles.
- At
the hearing before the State Security Court, the applicants'
complained that they had been beaten before being brought before the
court. The court noted the applicants' condition and decided to
postpone the proceedings on the ground that it was impossible to hold
a hearing in such circumstances. It ordered that the applicants be
medically examined and that the results be sent to the İzmir
public prosecutor's office with a view to the opening of an
investigation. A letter to that effect was sent the same day to the
public prosecutor.
B. The investigation concerning the incident in Buca
prison
- A
preliminary investigation was instigated by the İzmir public
prosecutor's office into the allegations of the applicants. On
20 July and 14 August 1995 the prosecutor took statements
from the applicants who reiterated that they were beaten by the
gendarmes and the prison wardens.
- On
20 July 1995 a forensic expert examined Ahmet Güven, Kadri
Sönmez, Metin Göktepe, Neslihan Göktepe, İzzettin
Koç, Kadir Issı, Mehmet Kışanak, Rıdvan
Karatay, Ali Kemal Yıldız and Ms Emsihan Karatay in prison.
- In
his report, the doctor noted that Emsihan Karatay complained of a
pain in her head and her left leg. The doctor decided that the
applicant be referred to the orthopaedist at the Izmir State
Hospital.
- As
regards Neslihan Göktepe, he observed that there were swellings
on her head, behind her left ear and an erythema
on her back as a result of blows. He also noted a graze on her neck.
The doctor concluded that Neslihan Göktepe should be re-examined
by a forensic expert at the Izmir Forensic Medicine Institute in
seven days.
- In
respect of Kadri Issı, the doctor noted erythemas
on the upper left part of his back and on his left arm. He
further observed a wound and haemorrhage under his left ear. Kadri
Issı further complained of pain in the lower right part of his
back. The doctor considered that the injuries rendered the applicant
unfit for work for fifteen days.
- As
to İzzettin Koç, the medical report referred to wounds
over his eyebrows and nose and several ecchymoses, erythemas
and grazes on his back and his left knee which had been caused by
blows. The doctor concluded that the injuries rendered İzzettin
Koç unfit for work for ten days and that he would recover
within twenty days following a medical treatment.
- As
regards Mehmet Kışanak, the doctor observed swellings and
erythemas on the upper part of the back, underneath the chin and
around the nose and mouth as a result of blows. He further noted an
erythema on the applicant's right leg. The doctor concluded that the
injuries rendered Mehmet Kışanak unfit for work for ten
days and that he would recover within twenty days following a medical
treatment.
- As
regards Rıdvan Karatay, the medical report referred to an
erythema and a swelling on the right eye orbit, erythemas and
ecchymoses on the upper part of the back as a result of blows. The
applicant further complained of pain in his head. The doctor decided
that Rıdvan Karatay should be referred to the ophthalmologist at
the Izmir State Hospital.
- With
regard to Kadri Sönmez, the forensic expert noted erythemas and
swellings on the upper part of his back, on both his arms and his
right ear. The applicant also complained of pain in his left leg. The
doctor observed that the injuries rendered the applicant unfit for
work for five days.
- As
to Ali Kemal Yıldız, the report referred to swellings and
erythemas on the applicant's back, neck, and head and to an
ecchymosis behind his ear as a result of blows. There were also
erythemas on the applicant's left arm and left leg. The doctor
further noted that the applicant complained of pain in his head and
his chin. He concluded that the injuries rendered him unfit for work
for seven days and considered that he would recover within five days.
- As
regards Metin Göktepe, the doctor observed swellings, erythemas
and ecchymoses behind the applicant's head, on his chin, back, neck
and arms as a result of blows. The forensic expert concluded that the
injuries rendered him unfit for work for ten days and considered that
he would recover within twenty days following medical treatment.
- Finally,
as regards Ahmet Güven, the medical report referred to pain in
the applicant's head, wounds on the right eye orbit and around the
eyebrows, to swellings and pain in his right arm and to ecchymoses
and grazes on his back and around his ribs. The doctor decided that
the applicant be referred to the orthopaedist at the Izmir State
Hospital.
- On
18 August 1995 an expert from the Forensic Medicine Institute
examined Ramazan Akdağ and sent the medical report to the Izmir
public prosecutor's office. According to this report this applicant
sustained the following injuries: haemorrhage
on the right sclera, swelling of 4 x 4 cm on the post-parietal bone
on the scalp, erythemas on the forehead, swellings and
ecchymoses on the zygomas, the orbits and the left ear, swelling and
a scar on the lower lip, a trauma on the left clavicle, ecchymosis of
10 cm in diameter on the left hemithorax and ecchymotic lesions on
the right hemithorax. The forensic expert considered that the
injuries were not life threatening but rendered him unfit for work
for seven days and that he would recover within twenty days.
- On
17 November 1995 a doctor from the Forensic Medicine Institute
reported that Yaşar Avcı, who was hospitalised on 20 July
1995 with the diagnosis of “general body trauma”, had
sustained the following injuries at the time of the hospitalisation:
ecchymoses on the back and on both shoulders, a graze of 2 x 2 cm on
the right zygoma, erythemas in the forehead, sensitivity on the left
tibia. The doctor considered that the applicant should wear a
cervical collar. According to the report of 17 November 1995 the
applicant was discharged from the hospital on 28 July 1995 and
was re examined on 9 October 1995. The expert concluded that the
injuries had not been life threatening but had rendered him unfit for
work for ten days and that he would recover.
- On
9 April 1996 the prosecutor decided not to prosecute the Director of
Buca Prison and his staff for alleged ill-treatment of the
applicants. The applicants objected to this decision. On 25 June 1996
the Karşıyaka Assize Court dismissed the applicants'
objection.
- On
11 April 1996 the prosecutor transferred the investigation file
concerning the gendarmes to the İzmir Administrative
Council. However, the case file subsequently went astray after it was
sent to the Divisional Gendarme Command at Buca Prison.
- On
1 May 2000 İzmir Administrative Council decided to open an
investigation against three gendarme officials in connection with the
disappearance of the above-mentioned case file. It however decided
not to bring proceedings against the gendarmes responsible for the
transfer of the applicants to court on 20 July 1995.
- The
Government informed the Court that the proceedings against the
gendarmes who had lost the file were terminated by a decision of
non prosecution on 15 January 2002 on account of the expiry of
the statutory time-limit.
- The
applicants claimed that they were never informed of the outcome of
the proceedings and that they learned of the decision of the İzmir
Administrative Council when the Court delivered its judgment in the
case of Satık and Others (no. 31866/96, 10 October 2000)
which had been lodged by ten other prisoners who had been injured on
20 July 1995 in Buca prison.
C. The detention conditions of Ahmet Güven
- The
applicant was convicted of carrying out activities for the purpose of
bringing about the secession of a part of the national territory
under Article 125 of the Criminal Code and sentenced to death on
2 December 1998. This judgment became final on 17 April 2000
after the Court of Cassation upheld the judgment of the
first-instance court. On 6 September 2002 the
applicant's sentence was commuted to life imprisonment by the İzmir
Assize Court.
- It
appears from the case-file that the applicant took part in hunger
strikes on various occasions and that as a result his health
deteriorated.
- According
to the medical report issued by Bitlis State Hospital on 26 June
2003 the applicant suffered from hypertension, anxiety and slight
amnesia. On 15 July 2003 the Bitlis State Hospital Medical Commission
issued an additional report in which it concluded that the medical
condition of the applicant did not necessitate the suspension of his
sentence.
- On
28 July 2003 the applicant requested the suspension of his sentence
pursuant to Article 399 of the Criminal Code on Procedure. On 17 July
2003 the Bitlis public prosecutor, relying on the aforementioned
reports of the Bitlis State Hospital, dismissed the applicant's
request. No document has been submitted by the parties as to whether
the applicant objected to this decision.
- According
to a medical report issued by Bitlis State Hospital on 24 June
2004 the applicant suffered from hypertension, depression, vertigo
(light-headedness) and head pains. The applicant was prescribed
medication as well as a special diet. Following this report the
prison authorities decided that the applicant be given a special
diet.
- According
to a medical report issued by two doctors, Mr U.O. and Mr N.S., on 1
November 2005, the applicant was diagnosed in 2003 as suffering from
hypertension and amnesia. They noted that he was receiving drug
treatment and that he could physically continue to take care of
himself within a prison facility.
- The
Government submitted a number of documents as regards the applicant's
transfer to various medical centres for check-up and the results of
his analyses.
II. THE 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, §§ 96 100, 3 June 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 13 OF THE
CONVENTION
- The
applicants complained that the treatment to which they were subjected
by the prison authorities and gendarmes on 20 July 1995 in Buca
Prison amounted to torture and inhuman treatment, in violation of
Article 3 of the Convention. In their observations dated 11 May 2006
the applicants further complained, without any elaboration, that the
incident at Buca prison and subsequent developments also violated
their rights under Articles 2 and 13 of the Convention.
- The
Court considers that the applicants' complaint should be examined
from the standpoint of Article 3 alone, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government maintained that since the applicants failed to take part
in any civil and administrative proceedings, the Court was precluded
from examining the applicants' complaints of a substantive violation
of Article 3 due to the alleged ill-treatment. On this point they
referred to the Court's case-law, in particular to Kelly and
Others v. the United Kingdom, no. 30054/96, § 110, 4
May 2001).
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objections in similar cases (see, in
particular, Satık and Others v. Turkey (dec.),
no. 31866/96, 31
August 1999). The Court finds no particular circumstances
in the instant case, which would require it to depart from its
findings in the above-mentioned application.
- In
these circumstances, the Court rejects the Government's preliminary
objection.
- The
Court further considers that this part of the application raises
serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It
concludes therefore that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other
ground for declaring it inadmissible has been established and it
must, therefore, be declared admissible.
B. Merits
- The
Government disputed the applicants' version of events and maintained
that the incident was caused by the applicants' conduct since they
had resisted the officials. They further stated that a meticulous
investigation had been conducted into the circumstances of the case.
- The
applicants maintained their complaints and stated, in particular,
that they did not consider that their case was any different from the
judgment of Satık and Others v. Turkey (no. 31866/96, 10
October 2000) since it concerned the same events.
- The
Court recalls that in its judgment of Satık and Others
(cited above, §§ 61-62) it found that the
applicants in that case had been beaten and injured by State agents
and concluded that the treatment to which they had been subjected
amounted to a violation of Article 3 of the Convention. It further
held that the investigation carried out by the national authorities
in respect of the incident in Buca Prison had been inadequate.
- The
Court does not consider there to be any material difference between
that case and the present one.
- Accordingly,
the Court finds that in the present case there has been a violation
of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicants complained that they were not informed by the national
authorities of the outcome of the investigation into their
allegations in breach of Article 34 of the Convention, which reads as
follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Court observes that the applicants' application was lodged within six
months of the date on which the Izmir Administrative Council
delivered its decision, which was the date of the final decision in
their case for the purposes of Article 35 § 1 of the Convention.
Furthermore, the applicants have in no way substantiated that the
non-communication of the Council's decision was designed either
directly or indirectly to hinder the effective exercise of the
applicants' right of petition. In these circumstances the Court
considers that no issue arises under Article 34 of the Convention.
Therefore, this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected pursuant to Article 35 § 4.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- By
a letter dated 14 October 2004 one of the applicants, Ahmet Güven,
complained that the authorities' refusal to release him despite his
ill health constituted a violation of his right to life.
- The
Court considers that Ahmet Güven's complaint should be examined
under Article 3, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Court reiterates that it cannot be ruled out that the detention of a
person who is ill may raise issues under Article 3 of the Convention
(see Mouisel v. France, no. 67263/01, § 37,
ECHR 2002-IX). However, Article 3 cannot be construed as laying down
a general obligation to release detainees on health grounds. It
nonetheless imposes an obligation on the State to protect the
physical well-being of persons deprived of their liberty, for example
by providing them with the requisite medical assistance (see Hurtado
v. Switzerland, judgment of 28 January 1994, Series A no. 280-A,
opinion of the Commission, pp. 15-16, § 79).
- In
the instant case, the Court observes that apart from the initial
letter where the applicant laid out his complaints, neither he nor
his representative provided the Court with additional submissions or
updated information as regards his health and conditions of his
detention. Having examined the materials provided by the Government,
the Court considers that, as matters stand at present, the
applicant's situation has not attained a sufficient level of severity
to fall within the scope of Article 3 of the Convention (see
Saydam v. Turkey (dec.), no. 26557/04, ECHR 2006 ...,
Priebke v. Italy (dec.), no. 48799/99, 5 April 2001, and, a
contrario, Tekin Yıldız v. Turkey, no. 22913/04, 10
November 2005). Consequently, this complaint is manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected pursuant to Article 35 § 4.
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
applicants, Ahmet Güven, Neslihan Göktepe, Rıdvan
Karatay and Emsihan Karatay each claimed 75,000 euros (EUR) for
non-pecuniary damages. Ramazan Akdağ, Metin Göktepe,
İzzettin Koç, Kadri Issı, Mehmet Kışanak,
Ali Kemal Yıldız and Yaşar Avcı each claimed
EUR 60,000 and Kadri Sönmez claimed EUR 50,000 for
non-pecuniary damage.
- The
Government contested the amounts.
- Ruling
on an equitable basis, the Court awards each of the applicants the
sum of EUR 8,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 30,000 for the costs and expenses
incurred before the Court. They submitted a fees note prepared by a
translator and receipts for two stamps.
- The
Government contested the amount.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 applicants, jointly, the sum of EUR 500 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
- Declares the complaint concerning the
applicants' allegations of having been subjected to ill-treatment on
20 July 1995 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 applicants, 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 the settlement and exempt from all taxes
and duties:
(i) EUR
8,000 (eight thousand euros) to each applicant in respect of
non pecuniary damage;
(ii) EUR
500 (five hundred euros), jointly, 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 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič Registrar President
