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SECOND
SECTION
CASE OF ÇETİNKAYA AND ÇAĞLAYAN v. TURKEY
(Applications
nos. 3921/02, 35003/02 and 17261/03)
JUDGMENT
STRASBOURG
23
January 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 Çetinkaya and Çağlayan v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E.
Fura-Sandström,
Mr D. Popović, judges,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 4 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications (nos. 3921/02, 35003/02,
17261/03) 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 two Turkish
nationals, Ms Fahriye Çetinkaya and Mr Akın Çağlayan
(“the applicants”), on 23 October 2001, 13 July 2002
and 6 May 2003, respectively.
- The
applicants were represented by Mrs F. Karakaş Doğan, a
lawyer practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
5 January 2006 the Court declared the applications partly
inadmissible and decided to communicate to the Government the
complaints concerning the applicants’ alleged ill-treatment in
police custody, the right to an effective remedy in this regard, the
length of their detention in police custody, the alleged deprivation
of their right to challenge the lawfulness of their detention, and
their right to compensation in this respect. Under the provisions of
Article 29 § 3 of the Convention, it decided to examine the
merits of the applications at the same time as their admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1978 and 1980 respectively and live in
Istanbul.
A. The events concerning the applicants’ arrest
and detention
- On
29 July 2001 the applicants were arrested on suspicion of having
participated in an illegal demonstration which took place in
Ümraniye. They were subsequently taken to the Ümraniye
Security Directorate.
- According
to the arrest reports drafted by the police officers and signed by
the applicants on the day of the incident, in Ümraniye a group
of fifteen people closed the main street to traffic by blocking the
side streets with dustbins, and they initiated a protest rally. They
were carrying torches and shouting slogans in support of the PKK.
When they noticed that policemen were approaching, they started to
run away. The first applicant, who was identified by the police as
one of the protesters, was arrested on the spot. The second applicant
was arrested following a chase. The police prevented him from being
lynched. It was further noted in the arrest report that the second
applicant’s lip was injured.
- Following
his examination by a doctor at the Haydarpaşa Numune Hospital,
the medical report dated 29 July 2001 concluded that the second
applicant had an abrasion on his upper lip and a 5-15 centimetre
hyperaemia on the right side of his chest. It was noted that it was
necessary to consult cardiothoracic and ear, nose and throat
specialists.
- Thereafter,
the applicants were handed over to the Anti-Terrorism Department of
the Istanbul Security Directorate.
- On
31 July 2001, upon the request of the Anti-Terrorism Department, the
public prosecutor at the Istanbul State Security Court prolonged the
applicants’ detention in police custody until 2 August 2001.
- On
1 August 2001, the public prosecutor extended the applicants’
detention for three more days.
- The
applicants were taken to the Forensic Medicine Institute for medical
examinations both in the evening of 3 August 2001 and in the morning
of 4 August 2001. The medical reports drafted on these dates
concluded that there were no signs of blows on the applicants’
bodies.
- On 4 August 2001 the applicants were taken before the
public prosecutor, where they denied all the allegations made against
them. They contended that they had been forced to sign police
statements without reading their contents. Later on, the applicants
were taken before a judge at the Istanbul State Security Court. The
first applicant contended that, although there were no marks on her
body, she had been tortured in police custody. The second applicant
maintained that police officers had hit him, pulled his hair and
insulted him. He confirmed, however, the outcome of the medical
report dated 3 and 4 August 2001. The court ordered their detention
on remand.
- On
6 August 2001 another doctor at the Forensic Medicine Institute
drafted a report concerning the second applicant. The doctor noted
that, in view of the findings in the report of 29 July 2001, she
could only draft a final report after the applicant had been examined
by chest and ear, nose and throat specialists. Subsequently, the
public prosecutor ordered the applicant’s transfer to a
hospital for a medical check-up. The report dated 8 August 2001,
given by the ear, nose and throat clinic of the Sağlamcılar
State Hospital, concluded that he was in good health.
B. Criminal Proceedings against the applicants
- On
7 August 2001 the public prosecutor at the Istanbul State Security
Court filed an indictment, charging the applicants with aiding and
abetting the PKK under Article 169 of the Criminal Code.
- On
1 November 2001 the first hearing was held before the Istanbul State
Security Court. The court gave a decision of non-jurisdiction and
transferred the case file to the Ümraniye Criminal Court of
First Instance. Moreover, considering that the applicants had
permanent residences, it ordered their release pending trial.
- On
16 February 2004 the Ümraniye Criminal Court of First Instance
acquitted the applicants on account of lack of evidence.
C. The investigation against the police officers
- On
22 August 2001 the applicants’ lawyer filed two separate
petitions with the Fatih public prosecutor, complaining about the
applicants’ ill-treatment during their arrest and detention in
police custody. He maintained that the first applicant had been
beaten, cursed and threatened with rape in police custody. In the
petition regarding the second applicant the lawyer argued that the
police had intentionally remained passive when people had tried to
lynch him. Moreover, he complained that the applicant had been
blindfolded, insulted and beaten up. His testicles had been squeezed
and his nose and mouth had been covered in order to create a fear of
suffocation. He had been forced to clean the floors of the Security
Directorate. Additionally, the lawyer noted that both applicants
complained that the doctors had not properly examined them, and that
they had been unable to complain of their injuries as the police
officers were present in the room.
- The
Fatih public prosecutor initiated an investigation against the four
police officers who were allegedly responsible for the ill-treatment
of the applicants. On 5 March 2002 the public prosecutor gave a
decision of non-prosecution, holding that the second applicant’s
injuries, noted in the medical report dated 29 July 2001, had been
caused by the people who had attempted to lynch him prior to his
rescue and arrest by the police. Furthermore, he concluded that there
was no evidence in support of the applicant’s allegations. On
25 March 2002 the second applicant filed an objection against the
decision of non-prosecution. On 6 May 2002 the Beyoğlu Assize
Court dismissed his objection.
- On
9 August 2002 the public prosecutor gave a decision of
non-prosecution in respect of the police officers who were allegedly
responsible for the first applicant’s ill-treatment, on account
of lack of evidence. On 3 September 2002 she filed an objection
against this decision. On 17 December 2002 Beyoğlu Assize
Court dismissed her objection.
THE LAW
- The
applicants alleged that they had been subjected to various forms of
ill-treatment in police custody, in violation of Article 3 of the
Convention. The second applicant also complained about the treatment
to which he was subjected during his arrest. They contended under
Article 13 of the Convention that there was no effective
investigation into their allegations of ill-treatment. They further
complained under Article 5 §§ 3, 4 and 5 of the
Convention about the length of their detention in police custody and
their inability to challenge the lawfulness of their detention and to
claim compensation in the domestic courts in this respect.
I. ADMISSIBILITY
A. Article 3 of the Convention
- The applicants maintained that they had been subjected
to ill-treatment in violation of Article 3 of the Convention, which
provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment
- Without
submitting any medical reports in support of their allegations, the
first applicant maintained that during her custody at the
Anti-Terrorism Department of the Istanbul Security Directorate she
had been beaten and threatened with rape, while the second applicant
complained of having been blindfolded, hit, pulled by the hair,
insulted, having his testicles squeezed and his nose and mouth
covered in order to create a fear of suffocation. He complained that
he was forced to clean the floors of the Security Directorate.
Additionally, the second applicant alleged that, during his arrest,
private individuals who heard the accusations against him attempted
to lynch him. The arrest report and the medical report dated 29 July
2001 confirmed the latter allegation, concluding that he had a
bleeding lip and some hyperaemia on his chest. However, the applicant
further alleged that the police failed to protect him from an
attempted lynching.
- The
Government maintained that all medical reports concerning the first
applicant concluded that there had been no traces of blows on her
body. Moreover, although the medical report dated 29 July 2001
concerning the second applicant concluded that he had an abrasion on
his upper lip and a hyperaemia on his chest, the Government argued
that this was not sufficient evidence to show that the treatment had
attained the level of severity required for there to be a violation
of Article 3 of the Convention.
- While reiterating that Article 3 enshrines one of the
most fundamental values of democratic societies, the Court recalls
that in assessing evidence in a claim of a violation of Article 3 of
the Convention, it adopts the standard of proof “beyond
reasonable doubt” (Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001-VII). Such proof may,
however, follow from the coexistence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of
fact (Ireland v. the United Kingdom, judgment of 18 January
1978, Series A no. 25, p. 65, § 161).
- The
Court is sensitive to the subsidiary nature of its task and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95,
4 April 2000). Nonetheless, where allegations are made under
Article 3 of the Convention, as in the present case, the Court
must apply a particularly thorough scrutiny (see, mutatis
mutandis, Ribitsch v. Austria, judgment of 4 December
1995, Series A no. 336, § 32, and Avşar, cited
above, § 283).
- The
Court notes that there are a number of elements in the instant case
which cast doubt on whether the applicants suffered treatment
prohibited by Article 3 when they were arrested and detained in
police custody.
- Firstly,
the Court notes that the applicants’ allegations of
ill-treatment submitted before the domestic authorities were
inconsistent. The applicants’ statements given before the
public prosecutor and the judge differed from their allegations noted
in the petitions dated 22 August 2001 and drafted by their lawyer
(paragraphs 12 and 17 above). The Court observes that the petitions
included many additional complaints which were not brought to the
attention of the judicial authorities in the applicants’
earlier submissions.
- Secondly, except for the report dated 29 July 2001
which concerned only the second applicant, none of the medical
examinations revealed traces of ill-treatment on the applicants’
bodies (paragraphs 11 and 13 above). The Court is aware of the lack
of details in these reports. Nevertheless, it notes that there is no
material in the case file which could call into question the findings
in these reports or add probative weight to the applicants’
allegations (see Sevgin and İnce v. Turkey, no. 46262/99,
§ 57, 20 September 2005).
- Thirdly, it observes that the medical report dated 29
July 2001 concluded that the second applicant had an abrasion on his
upper lip and a hyperaemia on his chest. It is not disputed by the
parties that these injuries were caused by private individuals who
attempted to lynch the applicant during his arrest. Thus, the
question in the instant case is whether the police failed to protect
the second applicant from the violent acts of private individuals in
such a way as to amount to a breach of the respondent State’s
positive obligations under Article 3 of the Convention. The Court
does not wish to speculate on what the applicant’s physical
condition would have been if the police had remained passive while he
was attacked by private individuals, as he alleged. It notes,
however, that there is no evidence in the case file which confirms
the applicant’s version of facts.
- In
conclusion, the evidence before it does not enable the Court to find
beyond all reasonable doubt that the applicants were subjected to
ill-treatment and that the police failed to protect the second
applicant from the risk of being lynched.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Article 13 of the Convention
- The
applicants complained that there were no effective remedies in
domestic law in respect of their allegations of ill-treatment.
- The
Government disputed the applicants’ argument.
- The Court reiterates that Article 13 of the Convention
cannot reasonably be interpreted so as to require a remedy in
domestic law in respect of any supposed grievance under the
Convention that an individual may have, no matter how unmeritorious
his complaint may be. The grievance must be an arguable one in terms
of the Convention (see, in particular, Boyle and Rice v. the
United Kingdom, judgment of 27 April 1988, Series A no. 131,
§ 52). In view of its conclusions above, the Court considers
that the applicants have no arguable claim of a violation of their
rights under Article 3, which would have required a remedy within the
meaning of Article 13. Consequently, 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.
C. The remainder of the applicants’ complaints
- The
Court notes that the remainder of the applicants complaints 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.
II. MERITS
- The applicants complained under Article 5 §§
3, 4 and 5 of the Convention that their detention on remand was
unreasonably long, and that their requests for release pending trial
received no serious consideration by the court. Moreover, they
contended that they were prevented from working whilst on remand, as
a result of which they incurred financial loss. Article 5 of the
Convention provides as relevant:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Article 5 § 3 of the Convention
- The
Government argued that the applicants’ custody period was in
conformity with the domestic legislation in force at the time of the
incident.
- The Court has already accepted on a number of
occasions that the investigation of terrorist offences undoubtedly
presents the authorities with special problems (see Brogan and
Others v. the United Kingdom, judgment of 29 November 1988,
Series A no. 145-B, pp. 33-34, § 61; Murray v. the
United Kingdom, judgment of 28 October 1994, Series A no. 300-A,
p. 27, § 58; Demir and Others v. Turkey,
judgment of 23 September 1998, Reports 1998 VI, p. 2653,
§ 41). This does not mean, however, that the authorities have
carte blanche under Article 5 to arrest suspects and detain
them in police custody, free from effective control by the domestic
courts and, ultimately, by the Convention’s supervisory
institutions, whenever they consider that there has been a terrorist
offence (see, among others, Murray, cited above, § 58)
- The
Court notes that the applicants’ detention in police custody
lasted six days. It reiterates that in the Brogan and Others
case it held that detention in police custody which had lasted four
days and six hours without judicial control fell outside the strict
constraints as to the time laid down by Article 5 § 3 of the
Convention, even though its purpose was to protect the community as a
whole against terrorism (Brogan and Others, cited above, §
62).
- Even
supposing that the activities of which the applicants stood accused
were linked to a terrorist threat, the Court cannot accept that it
was necessary to detain them for six days without judicial
intervention.
- There
has, accordingly, been a violation of Article 5 § 3 of the
Convention.
B. Article 5 § 4 of the Convention
- The
Government maintained that, at the material time, Article 16 of Law
no. 2845 on procedure in the State Security Courts provided that any
person arrested in connection with an offence within the exclusive
jurisdiction of those courts had to be brought before a judge within
forty-eight hours at the latest or, if the offence was a joint one
committed outside the region under emergency rule, within fifteen
days. They contended that the applicants had an effective remedy to
challenge the lawfulness of their detention. However, they did not
indicate the legal basis of this remedy.
- The Court recalls that in its Sakık and Others
v. Turkey judgment (26 November 1997, Reports
1997 VII, § 53), it was not persuaded that at the material
time there existed an effective remedy before a State Security Court
by which an applicant could challenge the lawfulness of his detention
in police custody. It sees no reason to depart from that conclusion
in the instant case (see Dalkılıç v. Turkey,
no. 25756/94, § 27, 5 December 2002). As to the length of the
applicants’ custody before being brought before a judge –
six days – the Court would add that this period, which was
lawful under the relevant domestic law at the time, sits ill with the
notion of “speedily” contained in Article 5 § 4 (see
Sakık and Others, cited above, § 51).
- In
conclusion, the Court finds that there has been a breach of Article 5
§ 4 of the Convention
C. Article 5 § 5 of the Convention
- The
Government asserted that, according to Article 19 of the
Constitution, a person deprived of his or her liberty shall have the
right to initiate proceedings before a judicial authority which shall
give a speedy ruling on the case and order immediate release. They
argued that, in cases of illegal detention, a request for
compensation could be submitted within three months following the
final decision of the trial court under the terms of Law no. 466
on compensation payable to persons unlawfully arrested or detained.
- The
Court notes that an action for compensation under Law no. 466
could only be brought for damage suffered as a result of an unlawful
deprivation of liberty. It observes that the applicants’
detention in police custody was in conformity with the domestic law.
Consequently, they did not have a right to compensation under the
provisions of Law no. 466 (see Sakık and Others, cited
above, § 60).
- The Court therefore concludes that there has been a
violation of Article 5 § 5 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
applicants claimed 10,000 euros (EUR) each in respect of
non-pecuniary damage. Moreover, each applicant claimed EUR 2,000 for
their pecuniary damages.
- The
Government disputed the applicants’ 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 accepts that the applicants suffered non-pecuniary damage
such as distress resulting from their detention for six days without
the opportunity to challenge its lawfulness, which cannot be
sufficiently compensated by the finding of a violation. Having regard
to its case-law, and making its assessment on equitable basis, the
Court awards each of the applicants EUR 1,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 6,000 for the costs and expenses incurred
for the costs and expenses incurred before the domestic authorities
and before the Court.
- The
Government maintained that the applicants’ claim under this
heading was unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to
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 applicants, jointly, the sum of
EUR 1,500 for 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 complaints concerning the length of
the applicants’ detention in police custody and lack of
remedies in domestic law to challenge the lawfulness of their
detention and to obtain compensation for the alleged violations of
Article 5 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds that there has been a violation of Article
5 § 5 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 sums, to be
converted into new Turkish liras at the rate applicable at the date
of settlement:
(i) EUR
1,000 (one thousand euros) each for non-pecuniary damage,
(ii) EUR
1,500 (one thousand five hundred euros), jointly, for costs and
expenses,
(iii) plus
any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 23 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
