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SECOND
SECTION
CASE OF MUHAMMET ŞAHİN v. TURKEY
(Application
no. 7928/02)
JUDGMENT
STRASBOURG
25
September 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 Muhammet Şahin v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mrs A. Mularoni, judges,
and Mrs F.
Elens-passos, Deputy Section Registrar,
Having
deliberated in private on 4 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7928/02) 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 Muhammet Şahin
(“the applicant”), on 19 October 2001.
- The
applicant was represented by Mr A. Tatlıpınar, 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
21 March 2006 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
applicant was born in 1975 and lives in Turkey.
- The
applicant was wanted by the police on suspicion of membership of the
illegal organisation, the DHKP-C (Devrimci Halk Kurtuluş
Partisi-Cephesi; the Revolutionary People's Liberation
Party-Front).
- According
to the applicant, on 2 August 1996 he was taken into police custody
by plain clothes police officers, who kicked and punched him during
the arrest. They then handcuffed the applicant, put him in a taxi and
took him to the headquarters of the Anti-Terrorism Branch of the
Istanbul Security Directorate in the Aksaray District.
- The
arrest report, dated 2 August 1996 and signed by the applicant,
stated, that the police had received information that the applicant
would meet with another member of the DHKP-C at an address in the
Kadıköy District of Istanbul. Four police officers from the
Anti-Terrorism Branch waited for him at that address. When they saw
the applicant, they identified themselves as police officers. The
applicant tried to run away and the officers had to use force to
arrest him.
- At
the headquarters of the Anti-Terrorism Branch of the Istanbul
Security Directorate, the applicant was allegedly subjected to
ill-treatment. In particular, he was allegedly stripped naked,
blindfolded and subjected to Palestinian hanging and falaka.
Electric cables were attached to his sexual organs and his toes, and
electric shocks were administered to him. His testicles were squeezed
and a firearm was inserted into his anus. The applicant was also
hosed down with cold water.
- On
12 August 1996 the applicant was examined by a doctor who noted the
following marks on his body: a completely-healed 5 cm abrasion on the
side of the left wrist, three grazes of 1 x 4 - 5 cm on the right
wrist, a completely-healed 5 cm long graze on the left shoulder, two
abrasions of 1 cm in diameter under the right knee. The doctor
further opined that the injuries rendered the applicant unfit for
work for two days.
- On
15 August 1996 the applicant was taken before the public prosecutor
at the Istanbul State Security Court. He contended that he had been
subjected to ill-treatment during his custody period and that his
statements had been taken under duress. The public prosecutor at the
Istanbul State Security Court referred the applicant to the Forensic
Medicine Institute for a medical examination. The applicant was
examined by a forensic medical expert who noted the same marks on the
applicant's body as the doctor who had examined him on 12 August.
- The
Istanbul State Security Court subsequently ordered the applicant's
detention on remand.
- On
an unspecified date, the Fatih public prosecutor initiated an
investigation into the allegations of ill-treatment of the applicant.
- On
7 and 25 November 1996, 9 December 1996 and 13 August 1998 the Fatih
public prosecutor took statements from four police officers who were
on duty at the headquarters of the Anti-Terrorism Branch of the
Istanbul Security Directorate at the relevant time and were involved
in taking the applicant's police statement.
- On
31 December 1998 the Fatih public prosecutor sent a report
to the Istanbul public prosecutor and summarised the facts and
complaints concerning the investigation. The Fatih public
prosecutor requested the Istanbul public prosecutor to file
a bill of indictment with the Istanbul Assize Court, charging
the four police officers with inflicting torture under Article 243
§ 1 of the Criminal Code.
- On
14 January 1999 the Istanbul public prosecutor did so.
- Between
25 January 1999 and 16 February 2000, the Istanbul Assize Court held
seven hearings and heard three of the police officers. The fourth
police officer and the applicant made statements before the Aydın
Assize Court and the Sakarya Assize Court respectively on commission,
which were then sent to the Istanbul Assize Court. The applicant
maintained before the court that he had been subjected to torture in
police custody. The police officers denied the allegations against
them.
- On
16 February 2000 the Istanbul Assize Court acquitted the accused
police officers. In its judgment, the first-instance court noted that
the applicant could not identify the accused police officers and that
therefore, there was insufficient evidence to convict them. The court
further considered that the injuries on the applicant's body could
have occurred during the arrest.
- On
6 August 2001 the judgment of 16 February 2000 was served on the
applicant, who was detained in Kırklareli E-type prison.
- On
7 August 2001 the applicant filed an appeal against the judgment of
the Istanbul Assize Court.
- On
8 October 2001 the first-instance court dismissed the applicant's
appeal, holding that the applicant could not lodge an appeal since he
had not intervened as a civil party to the criminal proceedings.
- The
judgment of the Istanbul Assize Court became final as neither the
public prosecutor nor the accused appealed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to ill-treatment
during his arrest and his police custody. In respect of his
complaints, the applicant invoked Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested these arguments.
A. The Government's preliminary objection
- The
Government asked the Court to dismiss the application for failure to
comply with the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention. They argued
that the applicant could have sought reparation for the harm which he
had allegedly suffered by instituting an action in the administrative
courts.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objection in similar cases (see, in
particular, Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004). It finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned application.
- Consequently,
it rejects the Government's preliminary objection.
B. Alleged ill-treatment of the applicant
1. During his police custody
- The
applicant maintained that he had been subjected to various forms of
ill-treatment during his police custody at the Istanbul Security
Directorate Building. In this respect, he maintained that he had been
stripped naked, punched, subjected to falaka, electric shocks
and Palestinian hanging, and hosed with pressurised water. He also
stated that a firearm had been inserted into his anus and his
testicles had been squeezed.
- The
Government denied these allegations.
- The
Court reiterates that Article 3 enshrines one of the most fundamental
values of democratic societies. Even in the most difficult
circumstances, such as the fight against terrorism and organised
crime, the Convention prohibits in absolute terms torture and inhuman
or degrading treatment or punishment. Unlike most of the substantive
clauses of the Convention and of Protocols Nos. 1 and 4, Article 3
makes no provision for exceptions and no derogation from it is
permissible under Article 15 § 2 even in the event of a public
emergency threatening the life of the nation (see Selmouni v.
France [GC], no. 25803/94, § 95, ECHR 1999-V; Assenov and
Others v. Bulgaria, judgment of 28 October 1998, Reports of
Judgments and Decisions 1998-VIII, p. 3288, § 93).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001-VII, extracts; Talat Tepe
v. Turkey, no. 31247/96, § 48, 21 December 2004). Such
proof may, however, follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (Labita v. Italy [GC],
no. 26772/95, § 121, ECHR 2000 IV).
- 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; Avşar, cited
above, § 283).
- Turning
to the facts of the present case, the Court notes that any
ill-treatment inflicted in the way alleged by the applicant would
have left marks on his body, in particular, falaka and
electric shocks. These marks would have been observed by the doctor
who had examined him at the end of his police custody (see
Yüksektepe v. Turkey, no. 62227/00, § 26,
24 October 2006). The Court observes that the medical report
dated 12 August 1996 indicated the presence of abrasions and
grazes. However these findings are insufficient to substantiate the
severe ill-treatment described by the applicant as occurring during
his detention in police custody. There is also no material in the
case file which would call into question the findings in the medical
report dated 12 August 1996 or add probative weight to the
applicant's allegations. In particular, there is no indication in the
case file that the applicant requested, or had been refused
permission, to see another doctor at the end of his police custody.
- In
view of the above, the Court concludes that the evidence before it
does not enable it to find beyond all reasonable doubt that the
applicant was subjected to ill-treatment as alleged while he was held
in police custody.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
2. During his arrest
- The
Court 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 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.
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. To assess this evidence, it adopts the
standard of proof “beyond reasonable doubt”, but adds
that such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (Labita, cited above, § 121). The
Court has held on many occasions that, where a person is injured
while in detention or otherwise under the control of the police, any
such injury will give rise to a strong presumption that the person
was subjected to ill-treatment (Matko v. Slovenia, no.
43393/98, § 99, 2 November 2006; Bakbak v. Turkey,
no. 39812/98, § 47, 1 July 2004). It is incumbent on the
State to provide a plausible explanation of how the injuries were
caused, failing which a clear issue arises under Article 3 of the
Convention (Selmouni, cited above, § 87; Ribitsch,
cited above, § 34).
- The
Court notes that, in the instant case, the applicant was not
medically examined at the beginning of his detention before he was
taken into police custody. However the medical certificate dated 12
August 1996, which was taken on the tenth day of his custody,
indicated the presence of a completely-healed 5 cm abrasion on the
side of the left wrist, three grazes of 1 x 4 - 5 cm on the right
wrist, a completely-healed 5 cm graze on the left shoulder and two
abrasions of 1 cm in diameter under the right knee. It was further
certified that the applicant was unfit for work for two days.
Furthermore, the arrest report dated 2 August 1996, which was signed
by the applicant, stated that he had tried to run away during his
arrest and the officers had used force to catch him. It is also
stated in the judgment of the Istanbul Assize Court, dated 16
February 2000, that the injuries on the applicant's body could have
occurred during the arrest. The Government did not dispute the
medical findings in the report of 12 August 1996, or put forward a
different version as to the cause of the injuries.
- The
Court further notes that in his application form the applicant gave a
detailed description of the circumstances of his arrest. In its view,
the injuries on the applicant's body appear to be consistent with his
allegation that he was beaten by four police officers during his
arrest. At this point, the Court would like to emphasize that in
similar situations, it is crucial to determine whether the injuries
had been sustained in the course of the arrest and whether the
arresting officers had used excessive force. However, in the present
case, it notes with concern that the applicant was not medically
examined upon his arrest. Such an examination would have been the
appropriate step for the authorities to have taken as, in their
observations and in the domestic proceedings, they admitted that the
police officers had resorted to force during the arrest. A report
could have then clarified the cause and extent of any injuries
existing at that time. Furthermore, it is also understood from the
incident report that the police officers had received an intelligence
report that the applicant would be at that address. As a result, the
officers had the opportunity to secure the area to ensure his arrest
and it cannot be said that the police officers were called upon to
react without prior preparation (see Rehbock v. Slovenia,
no. 29462/95, § 72, ECHR 2000 XII).
- Considering the circumstances of the case as a whole,
and in particular, in the absence of a medical examination on the
first day of the applicant's arrest, the Court concludes that the
applicant's injuries, which are corroborated by a medical report,
were the result of treatment for which the State bore responsibility.
- It follows that there has been a substantive violation
of Article 3 of the Convention in this respect.
C. The alleged lack of effective investigation
- The
applicant further maintained, under Article 3, that the authorities
had not conducted an adequate investigation into his complaints of
ill-treatment.
- The
Government denied the allegations. They stated that the domestic
authorities had conducted a serious investigation into the
applicant's complaints.
- Where an individual raises an arguable claim that he
or she has been seriously ill-treated by the police in breach of
Article 3, that provision, read in conjunction with the State's
general duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation. This investigation
should be capable of leading to the identification and punishment of
those responsible (see Assenov and Others, cited above, §
102; Labita, cited above, § 131). The minimum standards
as to effectiveness defined by the Court's case-law also include the
requirements that the investigation must be independent, impartial
and subject to public scrutiny, and that the competent authorities
must act with exemplary diligence and promptness (see, for example,
Çelik and İmret v. Turkey, no. 44093/98, § 55,
26 October 2004).
- In
the present case, the Court notes that the applicant raised his
allegation of ill-treatment before the national authorities.
Subsequently the İstanbul Public Prosecutor initiated criminal
proceedings against four police officers who had been involved in
taking the applicant's police statement at the Security Directorate.
However, it is not persuaded that this investigation was conducted
diligently or, in other words, that it was “effective”.
- The
Court observes that, during the domestic proceedings, the applicant's
statement was taken on commission by the Sakarya Assize Court and
thus he was not provided with the opportunity to confront the
accused police officers with a view to identifying them. It further
observes with concern that the criminal proceedings in question were
brought solely against the police officers who had been involved in
taking the applicant's statement at the Security Directorate
Building. In the Court's view, it is remarkable that, although the
Istanbul Assize Court concluded in its judgment that the injuries on
the applicant's body could have been caused during his arrest, at no
stage of the domestic proceedings were statements taken from the four
officers who had arrested the applicant allegedly by using force.
Furthermore, no statement was taken from the doctor who had drawn up
the medical report dated 12 August 1996 in order to provide an
explanation as to the origin of the injuries observed on the
applicant's body.
- In
the light of the above, the Court concludes that the applicant's
claim that he was ill-treated was not subject to an effective
investigation by the domestic authorities as required by Article 3 of
the Convention.
- There
has therefore been a procedural violation of Article 3 in this
regard.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- In
his reply to the Government's observations, the applicant submitted
further complaints. He maintained that the length of his police
custody constituted a breach of Article 5 § 3. He also
complained, under Article 5 § 4, about his inability to
challenge the lawfulness of his police custody.
- The
Court recalls that, pursuant to Article 35 § 1 of the
Convention, it may only deal with a matter “within a period of
six months from the date on which the final decision was taken”.
The running of the six months time-limit is, as a general rule,
interrupted by the first letter from the applicant indicating an
intention to lodge an application and giving some indication of the
nature of the complaints made. As regards complaints not included in
the initial application, the running of the six months time-limit is
not interrupted until the date when the complaint is first submitted
to a Convention organ (see, Allan v. the United Kingdom
(dec.), no. 48539/99, 28 August 2001).
- In
the present case, the six-month time-limit in respect of the
applicant's Article 5 complaints started to run on 15 August 1996
when his period in police custody ended. The Court notes that these
complaints were not mentioned in any communication prior to 25 August
2006.
- Consequently,
the Court concludes that this part of the application should be
rejected for being introduced out of time pursuant to Article 35 §§
1 and 4 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
applicant claimed 20,000 US Dollars (USD) (approximately 14,800 euros
(EUR)) in respect of non-pecuniary damage.
- The
Government contested this claim.
- Ruling
on an equitable basis, the Court awards EUR 5,000 to the applicant in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed USD 6,000 (approximately EUR 4,400) for the
costs and expenses incurred before the Court.
- The
Government contested the claims.
- The
Court notes that the applicant submitted a legal fee agreement which
referred to the Istanbul Bar Association's scale of fees. 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 sum of EUR 1,500 covering all heads.
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 alleged
ill-treatment of the applicant during his arrest and the failure of
the authorities to conduct an effective investigation into his
allegation of ill-treatment admissible and the remainder of the
application inadmissible;
- Holds that there has been a substantive
violation of Article 3 of the Convention on account of the
ill-treatment to which the applicant was subjected during his arrest;
- Holds that there has been a procedural violation
of Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant's allegation that he was ill-treated by the police;
- 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 New Turkish liras at the rate applicable
at the date of settlement and free of any taxes or charges that may
be payable:
(i) EUR
5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros) 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-passos F. Tulkens Deputy Registrar President
