[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF MEHMET ÜMİT ERDEM v. TURKEY
(Application
no. 42234/02)
JUDGMENT
STRASBOURG
17 July
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 Mehmet Ümit Erdem v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall, President,
Elisabet
Fura-Sandström,
Boštjan
M. Zupančič,
Ineta
Ziemele,
Luis
López Guerra,
Işıl
Karakaş,
Ann
Power, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42234/02) 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 Mehmet Ümit Erdem
(“the applicant”), on 7 October 2002.
- The
applicant was represented by Mr A.T. Ocak, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
2 May 2007 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 1976 and lives in Istanbul where he practises
as a lawyer.
A. The events of 14 October 2001
- According
to the official documents, including transcription of data from the
police camera, a number of political parties and non governmental
organisations wanted to hold an anti-war gathering in Istanbul's
Şişli Square on 14 October 2001. However, the Istanbul
Governor did not permit it. On that day, at around 11.30 a.m., a
group of about 500 people carrying the flags of these parties started
to walk towards the ferry boat station at the Kadıköy
Square. The organisers were warned, with megaphones, that the
gathering was unlawful, that they could not make press statements at
that place and that if they did not disperse the police would have to
resort to force. The crowd were shouting out slogans like “Yankee
go home”, “No to imperialist and colonial war”,
“Terrorist America”, “Money for education and
health and not for war”, “the Middle East will be the
grave of imperialism”. As Mr L.T., head of the EMEP party,
despite warnings, continued to make an oral press statement, the
Rapid Response Force (Çevik Kuvvet) intervened and
arrested forty-six persons who had resisted dispersing.
- In
the application form, the applicant claimed that he was in the crowd
that day when police officers from the Rapid Response Force used
excessive force on them. He submitted that, although he did not
resist, the police, without any prior warning, sprayed pepper gas in
his face, hit him with their truncheons and kicked him. As a result
of having been sprayed with pepper gas, the applicant had a burning
sensation in his eyes and face and had difficulty breathing. After
having been kicked and beaten up with truncheons, he felt pain in his
arms, legs, chest and ribs. Afterwards, the applicant stayed
in the Kadıköy area in order to assist the injured and to
note the names of persons who were being taken into custody.
He then witnessed a high-ranking police officer beating up a person
and taking him into custody. The same officer then started swearing
at the applicant and pushed him about. A number of police officers
then sent the applicant away from the area.
B. The criminal investigation of the applicant's
complaint of ill treatment
- Approximately
two hours after the incident, the applicant went to the office of the
Kadıköy prosecutor and made an official complaint about the
treatment to which he had been subjected by police officers and asked
to be referred to a hospital. In particular, he stated that while the
press release was being read, the rapid response forces had, without
prior warning, started spraying pepper gas and hitting them. He
submitted that he had received blows to his back and had been kicked.
The applicant claimed that since the police officers had masks it was
not possible for him to identify the perpetrators.
- The
same day the applicant was examined by a doctor at the Numune
hospital who found 3 x 15 cm of hyperaemia (increases of blood flow
in tissue) in an area on the right side of the applicant's back,
sensitivity in the right femur and pain in his right shoulder. He was
transferred to an orthopaedist who noted ecchymotic regions on the
applicant's right arm and back. The applicant was also examined by
another doctor at another hospital who found hyperaemic regions on
the right arm and costal-vertebral region. It appears that a number
of X-rays were also taken on this day.
- The
following day the applicant was examined by the Kadıköy
branch of the Forensic Medicine Directorate. The doctor found no
trauma apart from pain in the applicant's right shoulder.
-
On 22 October 2001 a doctor who examined the applicant's X rays
noted that he had a closed fracture on the right eleventh costal
cartilage.
- On
5 November 2001 the Kadıköy public prosecutor requested
authorisation from the Istanbul governor in order to be able to
prosecute the police officers allegedly responsible for the
applicant's ill-treatment. This request was made pursuant to Law No.
4483 on the Trial of State Employees and other Public Servants.
- On
19 November 2001 the applicant was examined by a doctor who found
that the applicant was suffering from lumbago and recommended ten
days' rest.
- On
11 December 2001 an Istanbul deputy police chief was appointed to
carry out a preliminary investigation on behalf of the governor of
the applicant's allegations of ill-treatment.
- On
the same day the deputy police chief prepared his report and
submitted it to the governor's office. It recommended that
authorisation for prosecution should be declined. It appears from the
report that, in the course of its preparation, the police chief had
regard to an incident report of 14 October 2001, drawn up by the
police officers who had taken part in dispersing the crowd, as well
as verbatim records of video footage of the incident. According to
the police chief's report, police officers had had to use force to
disperse the demonstrators as the demonstrators had failed to comply
with an order to disperse. The applicant was not “one of the
persons who had been taken into custody after the incidents”.
The report further stated that the police officers who had taken part
in the incident had since been reminded about how to perform their
functions during a demonstration.
- On
24 December 2001 the Istanbul governor, on the basis of the
information contained in the deputy police chief's report and
statements, declined to grant the necessary authorisation for their
prosecution.
- On
18 January 2002, and within the relevant time limit, the applicant
lodged an objection to the governor's decision with the Regional
Administrative Court. The applicant submitted, inter alia,
that one of the chiefs of the Rapid Response Force had sworn at him
before he was forcefully removed from the area by police officers and
that he would be able to recognise this man if he ever saw him again.
Referring to his medical reports, the applicant claimed that he was
still under treatment.
-
In the meantime, on 8 January 2002, the Kadıköy prosecutor
decided, on the basis of the governor's decision of 21 November 2001,
not to bring any criminal proceedings against the security forces at
the Rapid Force Department of the Istanbul Security Headquarters. An
objection by the applicant to this decision was dismissed by the
Üsküdar Assize Court on 15 March 2002.
- On
2 May 2002 the Istanbul Regional Administrative Court upheld the
Istanbul Governor's decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Şimşek and Others v. Turkey (nos.
35072/97 and 37194/97, §§ 82-84 and 86-87, 26 July
2005), and in Balçık and Others v. Turkey,
(no. 25/02, §§ 17-19, 29 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the treatment he had been subjected to on
14 October 2001 amounted to inhuman and degrading treatment, in
violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court notes that this complaint 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. The parties' submissions
- The
Government first claimed that it had not been shown that the
applicant had actually taken part in the demonstration and been
injured as a result of the lawful force used by the police officers.
Secondly, they noted that even if the applicant had been injured by
the police officers the findings of the medical reports established
on the day of the event do not disclose that any excessive force was
used on the applicant. In addition, the Government maintained that an
effective investigation had been conducted into the circumstances of
the case. In this connection, they referred to the steps taken by the
authorities.
- The
applicant maintained that the police officers had used
disproportionate force on people who had been participating in a
peaceful demonstration. In this connection, he alleged that the
treatment he had received that day amounted to torture and degrading
treatment. He further submitted that the authorities had failed to
investigate the case properly. In particular, no investigation was
conducted into the acts of the police officer named Şükrü.
2. The Court's assessment
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. To assess this evidence, it has generally
applied the standard of proof “beyond reasonable doubt”
(see 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 (see Labita v. Italy
[GC], no. 26772/95, § 121, ECHR 2000-IV).
- The Court finds that the applicant's injuries (see
paragraph 8), whether caused by the police or by someone else, were
sufficiently serious to bring them within the scope of Article 3. It
remains to be considered whether the State should be held responsible
under Article 3 in respect of these
injuries. In the instant case, the Government have disputed the
presence of the applicant at the scene of the demonstration where the
police had recourse to force (see, for example, a contrario,
Necdet Bulut v. Turkey, no. 77092/01, § 24,
20 November 2007, Eser Ceylan v. Turkey,
no. 14166/02, § 30, 13 December 2007, and Balçık
and Others, cited above, § 30). The applicant, apart
from his allegations, has not provided any prima facie evidence, such
as witness testimonies, in support of his presence at the scene in
question. In view of the above and in the absence of any documents in
the case file which can place the applicant where he claims to have
been, the Court considers that there is an insufficient factual and
evidentiary basis on which to conclude “beyond reasonable
doubt” that the State was responsible for the injuries
sustained by the applicant on 14 October 2001 (see Balçık
and Others, cited above, § 25).
- However, the Court reiterates that Article 3 of the
Convention also requires the authorities to investigate allegations
of ill-treatment when they are “arguable” and “raise
a reasonable suspicion”, even if such treatment is administered
by private individuals (see, in particular, Ay v. Turkey,
no. 30951/96, §§ 59-60, 22 March 2005). The minimum
standards applicable, as defined by the Court's case-law, include the
requirements that the investigation be independent, impartial and
subject to public scrutiny, and that the competent authorities act
with exemplary diligence and promptness (see, for example, Çelik
and İmret v. Turkey, no. 44093/98, § 55, 26
October 2004). In addition, for an investigation to be considered
effective, the authorities must take whatever reasonable steps they
can to secure the evidence concerning the incident, including, inter
alia, a detailed statement concerning the allegations from the
alleged victim, eyewitness testimony, forensic evidence and, where
appropriate, additional medical reports (see, in particular, Batı
and Others v. Turkey (nos. 33097/96 and 57834/00, § 134,
ECHR 2004-IV (extracts)).
- The
Court considers that the applicant's testimony, the seriousness of
his allegations, and the medical reports attesting the injuries
sustained by him together raise a reasonable suspicion that he could
have been subjected to ill-treatment as alleged. An investigation was
therefore required.
- The
Court notes that, in the instant case, the investigation file
initiated by the public prosecutor was transferred to the office of
the Istanbul Governor in accordance with the provisions of Law No.
4483. A preliminary investigation was carried out by a deputy police
chief. In this connection, the Court is struck by the fact that the
deputy police chief was able to conclude the preliminary
investigation and submit his recommendation report on the very day of
his appointment (see paragraphs 13-14). Subsequently, the
Governor, on the basis of the information gathered during the
preliminary investigation, decided that no prosecution should be
brought against the accused police officers (see paragraph 15 above).
- The
Court reiterates its earlier finding in a number of cases that the
investigation carried out by an administrative entity such as the
governor's office cannot be regarded as independent since they are
chaired by the governor, who is himself responsible for the security
forces whose conduct was in issue in that case. Furthermore, the
investigations which they instigated were often carried out by
security forces linked hierarchically to the units concerned in the
incident (see, among other authorities, Kurnaz and Others
v. Turkey, no. 36672/97, § 62, 24 July 2007 and the cases
referred to therein). The Court finds no reason to reach a different
conclusion in the present case. In the Court's opinion, the decision
to entrust the Governor's office with the investigation into the
responsibility of the security forces for the alleged injuries caused
to the applicant on 14 October 2001 must call into question the
possibility of making any independent determination on what happened
at the material time.
- In
the light of the above, the Court concludes that the domestic
authorities failed to conduct an independent investigation into the
circumstances surrounding the injuries sustained by the applicant on
14 October 2001.
- There
has therefore been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE
CONVENTION
- The
applicant further complained that the above events, particularly the
excessive force used by the security forces, constituted a violation
of his rights under Articles 10 and 11 of the Convention.
- The
Court considers that these complaints should be examined from the
standpoint of Article 11 alone.
- In
view of its conclusions above (see paragraph 25) the Court is not
persuaded that, in the circumstances of the instant case, the
applicant has shown that he was subjected to an interference with his
rights under this head. 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.
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, in total, 31,320 euros (EUR) in respect of
pecuniary and non-pecuniary damage. In support of his pecuniary
damage claim the applicant submitted two hospital receipts for
27,000,000 Turkish liras (approximately EUR 19).
- The
Government contested the amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 5,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,644 for costs and expenses incurred
before the Court. He submitted a breakdown of costs drawn up by his
legal representative and one postal receipt.
- The
Government contested the amount.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award 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 under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention on account of the injuries sustained by
the applicant on 14 October 2001;
- Holds that there has been a violation of Article
3 of the Convention on account of the failure of the authorities to
conduct an independent investigation into the circumstances
surrounding the injuries sustained by the applicant on 14 October
2001;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
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:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the
applicant, 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 17 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
