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THIRD
SECTION
CASE OF SÜLEYMAN ERKAN v. TURKEY
(Application
no. 26803/02)
JUDGMENT
STRASBOURG
31
January 2008
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 Süleyman Erkan
v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Boštjan
M. Zupančič,
President,
Corneliu
Bîrsan,
Rıza
Türmen,
Elisabet
Fura-Sandström,
Alvina
Gyulumyan,
David
Thór Björgvinsson,
Ineta
Ziemele, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 10 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26803/02) 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 Süleyman Erkan
(“the applicant”), on 15 March 2002.
- The
applicant, who had been granted legal aid, was represented by Mr A.
Talipoğlu, 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
19 September 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 1969 and lives in İstanbul.
- On
8 September 1999 at 5.15 a.m. the applicant was arrested by police
officers from the anti-terror branch of the Istanbul Security
Directorate on suspicion of membership of an illegal organisation,
the PKK (the Kurdistan Workers' Party). According to the arrest
protocol, the police officers had to use force to apprehend the
applicant since he resisted the arrest. The applicant refrained from
signing this document. The applicant alleged that, contrary to what
was indicated in the arrest protocol, he had been arrested on 5
September 1999.
- Following
his arrest, the applicant was blindfolded, put in a car and threats
were uttered against him. After being driven around for some time,
still blindfolded, he was taken to the anti-terror branch of the
Istanbul Security Directorate. There, the applicant was allegedly
punched, kicked, beaten on the head and the back with a truncheon and
threatened with death. He also alleged that his testicles were
squeezed.
- On
8 September 1999 at 7.10 a.m. the applicant was examined by a doctor
in the Haseki State Hospital who noted an ecchymosis of 9 x 3 cm on
the left of the lower part of his abdominal region. The doctor
concluded that there were marks of physical violence on the
applicant's body and considered that he should be examined by an
urologist. On the same day at 7.25 a.m. the applicant was examined by
an urologist who found, by using the technique of palpation, that the
applicant's testicles were painful and sensitive.
- On
9 September 1999 the applicant was again examined by a general
practitioner in the Haseki State Hospital who considered that the
applicant should be taken to an internist. According to the report
drawn up by the doctor, the applicant was brought to him as he was on
a hunger strike in police custody. The applicant was then taken back
to the Security Directorate.
- On
11 September 1999 the applicant was again examined by a general
practitioner in the Haseki State Hospital who noted that the
applicant was brought before him because of hunger strike. The doctor
considered that the applicant should be examined by an internist. On
the same day, the applicant underwent a blood test.
- On
12 September 1999 the applicant was examined by a doctor in the
Haseki State Hospital who noted that there was no sign of physical
violence on his body.
- On
the same day, the applicant was brought before the public prosecutor
at the Istanbul State Security Court. In his statement, he maintained
that he had been subjected to ill-treatment while in police custody
and that, therefore, he had started a hunger strike. Subsequently, on
the same day, the applicant was brought before the investigating
judge at the Istanbul State Security Court. Before the judge, the
applicant maintained that he had been kept in police custody for
about one week and that he had been subjected to ill-treatment during
custody. He further denied the accusations against him. The judge
ordered the applicant's release as there was no strong evidence
demonstrating that he had committed the offences of which he was
accused.
- On
14 September 1999 the applicant filed a complaint with the
Büyükçekmece public prosecutor's office against the
police officers from the anti-terror branch of the Security
Directorate, who had allegedly ill-treated him. In his petition, the
applicant maintained that he had been arbitrarily deprived of his
liberty between 5 and 8 September 1999 and that he had been subjected
to ill-treatment while in police custody. He further contended that
on the fourth or fifth day of his detention in police custody he had
fainted due to ill-treatment and that he awoke in the Haseki State
Hospital. He finally maintained that on 12 September 1999 the doctor
had drawn up the medical report without examining him.
- Upon
receipt of the applicant's petition, on the same day the Büyükçekmece
public prosecutor took a statement from the applicant who reiterated
his complaints and requested that the police officers who had
ill treated him be punished. The public prosecutor then
requested the doctor at the Büyükçekmece Health
Centre to examine the applicant and submit a medical report.
- Still
on the same day, the applicant was examined by a medical expert from
the Büyükçekmece Health Centre, who observed two
scarred incisions of 0.5 cm each on his nose and on his left heel, a
scarred incision of 2-3 cm on his left elbow and an ecchymosis of 2
cm on his abdominal region.
- On
15 September 1999 the applicant was examined by two medical experts
from the Human Rights Foundation who noted the following marks and
considered that the applicant's account of events was consistent with
the marks observed on his body:
“...a scabbed wound of 2 x 1 cm on the left elbow,
a scabbed wound of 0.5 x 1 cm on the right side of the lower lip, an
old wound of 0.5 cm in diameter on the forehead, a scabbed wound on
the left heel, a dark brown ecchymosis of 3 x 1 cm on the left lower
part of the sternum, haemorrhage on the upper part of the external
part of the outer ear....”
- On
20 September 1999 the Büyükçekmece public prosecutor
issued a decision of lack of territorial
jurisdiction and sent the investigation
file to the Fatih public prosecutor's office.
- On
23 and 26 November 1999 respectively the Fatih public
prosecutor took statements from two police officers who were on duty
at the anti-terror branch of the Istanbul Security Directorate at the
time of the applicant's detention in police custody. The first
officer R.D. contended that he had signed the document containing the
applicant's statements but had not participated in the questioning.
He denied the allegations against him. He further maintained that
there had been no need to torture the applicant as the security
forces had already found several organisational documents of the PKK
in his house. The second officer, İ.K., denied the accusation
and claimed that members of illegal organisations generally made this
kind of false accusation. He further contended that the minor marks
mentioned in the medical report of 14 September 1999 did not result
from torture. He alleged that they might have been the marks
resulting from handcuffing.
- On
19 February 2001 the Fatih public prosecutor took a statement from
the applicant, who reiterated his allegations and emphasised that he
had been arrested on 5 September 1999, although the date on the
arrest protocol was 8 September 1999.
- On
20 February 2001 the Fatih public prosecutor issued a decision not to
prosecute in respect of the police officers. He found that there was
no evidence other than the applicant's allegations on which to
initiate criminal proceedings against the police officers.
- On
15 May 2001 the applicant filed an objection against the decision of
20 February 2001.
- On
29 August 2001 the Beyoğlu Assize Court dismissed the
applicant's objection. This decision was served on the applicant's
lawyer on 9 October 2001.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he was
subjected to ill-treatment during his police custody and that the
authorities failed to conduct an effective investigation into his
allegations of ill-treatment. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government denied the allegations.
A. Admissibility
- The
Government asked the Court to dismiss this complaint 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 he had
allegedly suffered by instituting an action in the administrative
courts. The Government further argued that the applicant had failed
to comply with the six-month time-limit, since the Beyoğlu
Assize Court had delivered its decision on 29 August 2001, whereas
the application was lodged on 15 March 2002; i.e. more than six
months later.
- As
regards the Government's preliminary objection concerning the
non-exhaustion of domestic remedies, the Court reiterates that it has
already examined and rejected the Government's preliminary objections
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 this objection.
- As
regards the preliminary objection concerning the six-month
time-limit, the Court observes that the decision of the Beyoğlu
Assize Court was served on the applicant's representative on 9
October 2001. As the application was lodged with the Court on 15
March 2002, less than six months later, it also rejects this part of
the Government's objections.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment of the applicant
- The
applicant alleged under Article 3 of the Convention that he had been
ill-treated during his custody. He also maintained that he had been
arrested on 5 September 1999, not on 8 September 1999 as indicated in
the arrest report. According to the applicant, he was beaten on the
head and neck by a truncheon, punched, kicked and his testicles were
squeezed during his interrogation at the Anti-Terror Branch of the
Istanbul Security Directorate Building. In this respect, the
applicant relied on medical reports dated 14 and 15 September 1999.
- The
Government denied the allegations.
- The
Court reiterates that where an individual is taken into custody in
good health, but is found to be injured by the time of release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused and to produce evidence casting doubt on
the victim's allegations, particularly if those allegations were
corroborated by medical reports. Otherwise, a clear issue will arise
under Article 3 of the Convention (see Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999 V; Aksoy v. Turkey,
judgment of 18 December 1996, Reports of Judgments and Decisions
1996 VI, p. 2278, § 62; Tomasi v. France, judgment
of 27 August 1992, Series A no. 241-A, pp. 40 41, §§
108 111; Ribitsch v. Austria, judgment of 4 December
1995, Series A no. 336, p. 26, § 34).
- 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, cited above, § 32; Avşar,
cited above, § 283).
- Turning
to the circumstances of the present case, the Court observes that,
when the applicant was medically examined on 8 September 1999, the
doctor who examined him noted in his report that there was an
ecchymosis of 9 x 3 cm on the left of the lower part of his abdominal
region. He further stated that there were marks of physical violence
on the applicant's body and considered that he should be examined by
an urologist. The medical report dated 12 September 1999, however,
indicated that there were no signs of ill-treatment on the
applicant's body. Nevertheless, the Court observes that the signs on
the applicant's body reappeared on 14 September 1999, when the doctor
who examined the applicant observed that there were two scarred
incisions of 0.5 cm each on his nose and on his left heel, a scarred
incision of 2-3 cm on his left elbow and an ecchymosis of 2 cm on his
abdominal region. The marks on the applicant's body were further
confirmed by the medical report dated 15 September 1999, which was
prepared by two medical experts from the Human Rights Foundation. In
their report, the experts concluded that there was a scabbed wound of
2 x 1 cm on the left elbow, a scabbed wound of 0.5 x 1 cm on the
right side of the lower lip, an old wound of 0.5 cm in diameter on
the forehead, a scabbed wound on the left heel, a dark brown
ecchymosis of 3 x 1 cm on the left lower part of the sternum,
haemorrhage on the upper part of the external part of the outer ear.
Having regard therefore to its inconsistency with the other medical
evidence, the Court attaches no weight to the findings of the report
dated 12 September 1999.
- The
Court notes that the applicant repeatedly insisted both before the
domestic authorities and the Court that he had been arrested on 5
September 1999 and not on 8 September 1999, as indicated in the
arrest report. However, during the domestic investigation, the
authorities did not take any steps to rebut this allegation. It is
also noted that, in their observations, the Government did not rely
on the disputed arrest report or put forward any explanation as to
cause of the injuries on the applicant's body. Furthermore, the Court
observes that it has not been alleged that the injuries observed on
the applicant's body dated from the period prior to his arrest.
- Reiterating
the authorities' obligation to account for injuries caused to persons
within their control in custody and considering the circumstances of
the case as a whole, the Court finds that these injuries were the
result of treatment for which the Government bore responsibility.
- There
has accordingly been a substantive violation of Article 3 of the
Convention.
2. Alleged lack of effective investigation
- The
applicant maintained that the domestic authorities had not conducted
an adequate investigation into his complaints of ill-treatment.
- The
Government denied this allegation. They stated that the domestic
authorities had conducted a serious investigation into the
applicant's allegations.
- 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 v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, § 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 Büyükçekmece Public Prosecutor
initiated criminal proceedings against two 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 notes that at no stage of the domestic investigation was the
applicant provided with the opportunity to confront the accused
police officers. Nor did his lawyer ever have the possibility of
putting questions to them. It also observes that the criminal
investigation in question was instigated solely against the police
officers who had been involved in taking the applicant's police
statement at the Security Directorate Building. In the Court's view,
it is remarkable that no statements were taken from the officers who
had arrested the applicant, despite the fact that the applicant
challenged before the domestic authorities the accuracy of the arrest
report, and in the arrest report it was indicated that the officers
had to use force to arrest the applicant. Furthermore, no statements
were taken from the doctors who indicated in their reports dated 8
September and 14 September 1999 respectively that there were signs of
ill-treatment on the applicant's body. The statements of these two
doctors could have provided valuable information to clarify the exact
cause and timing of injuries 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 13 OF THE CONVENTION
- The
applicant alleged under Article 13 that the domestic authorities
failed to conduct an effective investigation into his allegations of
ill treatment.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must likewise be declared admissible.
- However,
having regard to the finding relating to Article 3 (see paragraphs
40-42 above), the Court considers that it is not necessary to examine
separately whether, in this case, there has been a violation of
Article 13.
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 10,064 euros (EUR) in respect of pecuniary damage
and EUR 60,000 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 Court's finding of
a violation. Having regard to the nature of the violation found in
the present case and ruling on an equitable basis, it awards the
applicant EUR 5,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,843 for the costs and expenses incurred
before the Court. In respect of his claim, the applicant relied on
the Istanbul Bar Association's list of recommended minimum fees.
- The
Government contested the claim.
- 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, the applicant has not substantiated
that he has actually incurred the costs so claimed. Accordingly, the
Court makes no award under this head.
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 application admissible;
- 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 to;
- 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 allegations of ill-treatment;
4. Holds that there is no need to examine
separately the complaint under Article 13 of the Convention;
- 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) in respect of non-pecuniary damage; 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;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
