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SECOND
SECTION
CASE OF DUR v. TURKEY
(Application
no. 34027/03)
JUDGMENT
STRASBOURG
18
September 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 Dur v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34027/03) 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 a Turkish national, Mrs Hadiye Dur
(“the applicant”), on 27 May 2003.
- The
applicant, who had been granted legal aid, was represented by Mrs F.
Karakaş Doğan and Mrs E. Keskin, lawyers practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
14 September 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 1973 and lives in Cologne, Germany.
A. The arrest of the applicant and the medical
certificates concerning the allegedly excessive use of force against
her
1. Facts as presented by the applicant
- On
27 October 1998 at 1 p.m. a group of 43 women belonging to “Mothers
for Peace”, including the applicant, arrived at the provincial
branch of the Motherland Party (Anavatan Partisi (ANAP)) in
Istanbul in order to meet that party’s provincial leaders. Two
women who received them at the entrance of the building stated that
there was a press conference in progress, asked them to wait in the
waiting room, which was on the third floor of the building, and left.
- Five
to ten minutes later, police officers arrived in the waiting room,
threw a smoke bomb inside and entered. A police officer hit the
applicant on the back of her head with a truncheon, grabbed her hair
and dragged her down the stairs. She was then put in a police vehicle
and taken to the Beyoğlu police headquarters.
- On
the same day at 3.50 p.m. the applicant, along with the other 42
women, was examined by a doctor at the Beyoğlu branch of the
Forensic Medicine Institute. According to the medical report, the
applicant had oedemas on her neck and scalp. The
doctor considered that the injuries rendered the applicant unfit to
work for three days.
- The
applicant spent the night in a cell with 10 other women at the police
headquarters. Police officers came to the cell two or three times and
insulted and beat the detainees each time.
- On
28 October 1998 the applicant was examined by the same doctor at the
Beyoğlu branch of the Forensic Medicine Institute, who noted no
new injuries on the applicant’s body.
- On
the same day, the applicant and the other 42 women were brought
before the Beyoğlu Magistrates’ Court. They were
questioned about whether they had deprived Y.U., the person who was
in charge of the coffee bar in the waiting room, of his liberty and
whether they had resisted the police officers who had arrested them.
They all contended that they had neither deprived Y.U. of his liberty
nor resisted the police officers. The court remanded five women in
custody and ordered the release of the others, including the
applicant.
2. Facts as presented by the Government
- On
27 October 1998 a group of 43 women, including the applicant, entered
the premises of the provincial branch of the Motherland Party in
Istanbul after a press conference had been held by the party’s
Vice-President. They occupied the premises with the aim of protesting
against a meeting which would be held there and attended by the party
members. The security forces attempted to lead the women out of the
building in order to prevent possible clashes between them and the
party members. Three of the women, including the applicant, resisted
the police and used physical violence. All 43 women were then
arrested and taken to the Beyoğlu branch of the Forensic
Medicine Institute for a medical examination. Subsequently, they were
taken to the Beyoğlu police headquarters.
- The
police took statements from Y.U., who maintained that the women who
had occupied the premises had beaten four party members and deprived
him of his liberty. He further stated that they had resisted the
police officers during the arrest.
B. Criminal proceedings against the applicant
- On
2 November 1998 the Beyoğlu public prosecutor filed a bill of
indictment with the Beyoğlu Assize Court, charging all 43 women
with resisting the police and depriving Y.U. of his liberty for
ideological reasons.
- On
4 November 1999 the Beyoğlu Assize Court acquitted the applicant
and the other accused. In its judgment, the trial court noted that
the accused women were members of “Mothers for Peace” and
that they had visited the Motherland Party in order to hold a meeting
with the members of that party with a view to informing them of their
problems. The court further noted that there was no evidence in the
case file demonstrating that the members of “Mothers for Peace”
had committed an offence. In particular, they had not deprived Y.U.
of his liberty or damaged the building. Nor had they had any objects
on their person which could have been used to commit offences.
Furthermore, no complaint had been lodged against them by the party
members who had allegedly been beaten by them. The court further
observed that there was no evidence that the accused had resisted the
police as no officer had been injured in the course of the arrest. On
the contrary, some of the women, including the applicant, had
sustained injuries.
- According
to the information in the case file, no appeal was lodged against the
judgment of 4 November 1999.
C. Investigation into the applicant’s allegations
of ill-treatment
- On
19 March 1999 the applicant lodged a complaint with the
Beyoğlu public prosecutor’s office, alleging that
physical force had been used by the police officers during her arrest
and requesting that an investigation be initiated.
- On
an unspecified date the Beyoğlu public prosecutor initiated an
investigation. Within the context of this investigation, on 26 May
1999 the applicant made statements to the public prosecutor and
reiterated her allegations. On the same day, she was examined by a
doctor, who noted that there were no injuries on her body. On 30
September 1999 the public prosecutor took statements from a police
officer, F.M.S., who denied the allegation of having ill-treated the
applicant.
-
On 8 October 1999 the Beyoğlu public prosecutor issued
a decision not to prosecute F.M.S. in respect of the applicant’s
allegation. In his decision, the prosecutor noted that there was
insufficient evidence to suggest that F.M.S. had ill-treated the
applicant, who had participated in an illegal meeting and resisted
the police. The public prosecutor considered that the force employed
by the police had not been excessive and that they had acted
within the scope of their duties.
- The
decision of 8 October 1999 was not served on the applicant or her
representatives. One of the applicant’s representatives
obtained a copy of the decision from the Fatih public prosecutor’s
office in October 2002.
- On
31 October 2002 the applicant filed an objection against the decision
of 8 October 1999.
- On
31 March 2003 the Istanbul Assize Court dismissed the applicant’s
objection, holding that the decision of 8 October 1999 was in
accordance with the law.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law in force at the material
time can be found in Balçık and Others v. Turkey
(no. 25/02, § 19, 29 November 2007), Batı
and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-99,
ECHR 2004 IV), Elci and Others v. Turkey (nos. 23145/93
and 25091/94, § 577, 13 November 2003) and Altay
v. Turkey (no. 22279/93, § 31, 22 May 2001).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE
CONVENTION
- The
applicant complained that the treatment to which she had been
subjected during her arrest amounted to a violation of Article 3 of
the Convention. She further maintained under Articles 3, 6 and 13 of
the Convention that there had been no adequate
or effective investigation into her allegations of ill treatment.
The
Court finds it appropriate to examine these complaints under
Article 3 of the Convention alone. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government argued that the applicant had failed to exhaust the
domestic remedies available to her, within the meaning of Article 35
§ 1 of the Convention. In this connection, they argued that the
applicant could have sought reparation for the harm allegedly
suffered by instituting an action in the civil or administrative
courts.
- The
applicant disputed the Government’s argument.
- The
Court reiterates that it has already examined and dismissed the
Government’s preliminary objections in similar cases (see, for
example, Balçık and Others, cited above, § 22;
Eser Ceylan v. Turkey, no. 14166/02, § 23,
13 December 2007). It finds no particular circumstances in the
instant case requiring it to depart from its findings in the
above-mentioned applications. Consequently, it dismisses this aspect
of the Government’s preliminary objection.
- The
Government further submitted that the applicant’s allegations
were deceitful as she had waited three years before enquiring about
the developments in the investigation conducted by the Beyoğlu
public prosecutor. Pointing out that the decision of 8 October 1999
was available at the registry of the public prosecutor’s
office, they queried why the applicant had not been informed of it
earlier than October 2002. They maintained that the applicant should
have lodged her application within six months after her arrest.
- Although
the Government did not argue, in their submissions, that the
applicant had failed to lodge her application in time but rather that
the application was manifestly ill-founded, the Court considers that
these arguments essentially concern the applicant’s compliance
with the six month rule under Article 35 § 1 of the
Convention.
- In
this connection, the Court reiterates that, where an applicant is
entitled to be served ex officio with a written copy of the
final domestic decision, the object and purpose of Article 35 §
1 of the Convention are best fulfilled by counting the six-month
period as running from the date of service of the written judgment
(see Worm v. Austria, judgment of 29 August 1997, Reports
of Judgments and Decisions 1997-V, p. 1547, § 33;
Mahmut Aslan v. Turkey, no. 74507/01, § 16,
2 October 2007).
- In
the instant case, it is not disputed that the applicant learned of
the Beyoğlu public prosecutor’s decision in October 2002.
Contrary to Article 164 of the former Code of Criminal
Procedure, in force at the relevant time, which provides for
notification of public prosecutors’ decisions not to prosecute
to the accused and the complainants, that decision was never served
on the applicant or her legal representatives. Moreover, the
Government have failed to provide the Court with any explanations on
this point. On the contrary, in their submissions they implied that
the applicant had not acted with due diligence.
- Furthermore,
the Istanbul Assize Court did not dismiss the applicant’s
objection on the ground that it had been submitted too late but
conducted an examination of the merits of her objection. The Court
therefore considers that the “final decision” within the
meaning of Article 35 § 1 of the Convention was the
Istanbul Assize Court’s decision of 31
March 2003 and that, by lodging her application on 27 May
2003, the applicant complied with the six-month rule. Consequently,
it dismisses this aspect of the Government’s preliminary
objection.
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. As to the responsibility of
the respondent State in the light of the substantive aspect of
Article 3 of the Convention
(a) The parties’ submissions
- The
applicant maintained that the physical force employed by the officers
during the police raid at the provincial branch of the Motherland
Party constituted ill-treatment. She submitted in this connection
that she had been hit on the back of her head with a truncheon and
dragged down the stairs.
- The
Government maintained that the applicant and the other 42 women had
started a violent demonstration which required the security forces’
intervention and that they had resisted the arrest. They contended
that the force employed against the applicant and the other women had
been proportionate in such circumstances.
(b) The Court’s assessment
- The
Court reiterates that Article 3 does not prohibit the use of force in
certain well-defined circumstances, such as to effect an arrest.
However, such force may be used only if indispensable and must not be
excessive (see, among other authorities, Rehbock v. Slovenia,
no. 29462/95, §§ 68-78, ECHR 2000-XII; Krastanov
v. Bulgaria, no. 50222/99, §§ 52-53, 30 September
2004; Günaydın v. Turkey, no. 27526/95, §§ 30-32,
13 October 2005; Eser Ceylan, cited above, §
28).
- In
the instant case, the applicant claimed, in particular, that a police
officer had hit her on the back of her head with a truncheon, grabbed
her hair and dragged her down the stairs (see paragraph 6 above). In
the Court’s opinion, the findings of the medical report, namely
oedemas on the applicant’s neck and scalp, are consistent with
the applicant’s allegations. It finds the applicant’s
injuries sufficiently serious to fall within the scope of Article 3.
- The
Court further notes that it is not disputed between the parties that
the applicant’s injuries resulted from the use of force by the
State security forces in the performance of their duties. The Court
therefore considers that the burden rests on the Government to
demonstrate with convincing arguments that the use of force was
indispensable and not excessive (see Balçık and
Others, cited above, § 31).
- The
Court observes in this connection that the Government submitted
arguments and documents according to which the group of 43 women,
including the applicant, occupied the Motherland Party premises,
where they deprived someone of his liberty and beat four others (see
paragraphs 11 and 12 above). However, their version of the facts was
refuted by the Beyoğlu Assize Court’s judgment of 4
November 1999. According to that judgment, neither the applicant nor
the other women had deprived Y.U. of his liberty or beaten anyone as
alleged. Nor had they attacked the police officers or resisted
arrest. They went to the Motherland Party in order to hold a meeting
with the party members in their capacity as a civil-society movement.
Having regard to the circumstances of the case, in particular the
conclusions of the Beyoğlu Assize Court, the Court considers
that the Government have failed to furnish credible arguments serving
to explain or to demonstrate that the force used against the
applicant was indispensable.
- The
Court concludes that the State is responsible, under Article 3 of the
Convention, for the injuries sustained by the applicant on
27 October 1998. It follows that there has been a violation
of Article 3 of the Convention under its substantive limb.
2. As to the responsibility of the respondent State in
the light of the procedural aspect of Article 3 of the Convention
(a) The parties’ submissions
- The
applicant maintained that the authorities had not conducted an
effective investigation into her allegations despite their
seriousness, as corroborated by the medical report of 27 October
1998. She submitted, in particular, that the failure of the Beyoğlu
public prosecutor and the Istanbul Assize Court to examine the file
of the case which had been before the Beyoğlu Assize Court
demonstrated that her ill-treatment at the hands of the police had
been tolerated by the national authorities.
- The
Government submitted in reply that the Beyoğlu public prosecutor
had immediately initiated an investigation into the applicant’s
allegations, collected all the relevant evidence and conducted an
adequate examination.
(b) The Court’s assessment
- The
Court reiterates that where an individual raises an arguable claim
that she or he has been subjected to ill-treatment by the police or
other such agents of the State 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, as with that
under Article 2, should be capable of leading to the
identification and punishment of those responsible, including
effective access for the complainant to the investigatory procedure
(see Assenov and Others v. Bulgaria, judgment of 28 October
1998, Reports 1998 VIII, § 102; Aksoy v.
Turkey, judgment of 18 December 1996, Reports 1996-VI,
§ 98; Labita v. Italy [GC], no. 26772/95,
§ 131, ECHR 2000-IV).
- The
Court observes at the outset that the applicant underwent a medical
examination immediately after the event giving rise to the present
application. The report drawn up by the doctor who examined the
applicant showed that the applicant had oedemas on her neck and
scalp. However, the Beyoğlu public prosecutor’s office did
not initiate an investigation regarding the applicant’s
injuries despite Article 153 of the former Code of Criminal Procedure
which stated that a public prosecutor who was informed by any means
whatsoever of a situation that gave rise to the suspicion that an
offence had been committed was obliged to investigate the facts in
order to decide whether or not there should be a prosecution. It was
not until five months later, upon the complaint lodged by the
applicant, that the Beyoğlu public prosecutor initiated an
investigation into the applicant’s allegations of
ill-treatment.
- The
Beyoğlu public prosecutor then took statements from the
applicant and one of the police officers, F.M.S., who had been on
duty at the time of the applicant’s arrest. He also ordered a
medical examination of the applicant. The investigation ended when
the Assize Court upheld the decision of the public prosecutor not to
prosecute.
- The
Court observes, however, that there were serious shortcomings in the
way the investigation was conducted. Firstly, the public prosecutor
did not attempt to obtain statements from any other women who had
been at the Motherland Party’s premises at the time of the
incident. Nor did he summon other officers who had been on duty or
identify potential witnesses who worked at the Motherland Party’s
provincial branch in Istanbul, other than a certain Y.U. Moreover,
the public prosecutor issued his decision not to prosecute F.M.S. on
8 October 1999, before the Beyoğlu
Assize Court gave its judgment acquitting the applicant. In the
Court’s view, the Beyoğlu public prosecutor should have
awaited the outcome of the criminal proceedings against the applicant
before holding that she had participated
in an illegal meeting and resisted the police, or deciding not to
bring criminal proceedings in respect of her allegations. The Court
further finds it noteworthy that the Istanbul Assize Court upheld
that decision of the Beyoğlu public
prosecutor even though another criminal court had, in the meantime,
established the facts surrounding the incident and concluded that the
applicant and the other women had not taken part in an illegal
meeting or resisted the police.
- In
the light of the foregoing, the Court finds that the investigation
into the applicant’s allegations of ill-treatment cannot be
described as adequate and was therefore in breach of the State’s
procedural obligations under Article 3 of the Convention.
- It
follows that there has been a violation of Article 3 under its
procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant maintained under Article 13 of the Convention that she had
had no opportunity, was unable in
the absence of an effective investigation, to bring compensation
proceedings against the officers who had ill treated her.
- The
Government contested this allegation.
- The
Court notes that this complaint is linked to the ones examined above
and must likewise be declared admissible.
- However,
having regard to the facts of the case, the submissions of the
parties and its finding of a violation of
Article 3 of the Convention under both its substantive and procedural
limbs (see paragraphs 39 and 47 above), the Court considers that it
has examined the main legal questions raised in the present
application. It concludes therefore that there
is no need to make a separate ruling on the applicant’s
complaint under Article 13 of the Convention (Juhnke v.
Turkey, no. 52515/99, § 99, 13 May 2008; Uzun
v. Turkey,
no. 37410/97, § 64, 10 May 2007).
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 euros (EUR) in respect of
non pecuniary damage. She further claimed EUR 2,000 in respect
of pecuniary damage.
- The
Government contested these claims.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court finds that she has failed to substantiate her claim under this
head, and accordingly dismisses it. However, the Court finds that the
applicant must have suffered pain and distress which cannot be
compensated solely by its 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 7,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 5,500 new Turkish liras (TRY) (approximately
EUR 3,000) for the legal expenses incurred before the Court and EUR
2,000 for other expenses, such as stationery, photocopying and postal
costs. The applicant documented those expenses on the basis of the
legal fees agreement concluded with her lawyer according to which the
applicant would pay TRY 5,500 to the lawyer if the case before the
Court was successful. Regarding her other expenses, the applicant
submitted invoices disclosing that she had disbursed the
overall amount of EUR 34.
- The
Government submitted that the applicant had failed to substantiate
her claims.
- 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 were reasonable as to quantum. In the present case,
regard being had to the information in its possession, in particular
the legal fees agreement, and the above
criteria, the Court considers it reasonable to award the sum of EUR
2,534 covering her costs before the Court, less the EUR 850 which the
applicant received in legal aid from the Council of Europe.
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 violation of Article
3 of the Convention under both its substantive
and procedural limbs;
- Holds that there is no need to examine
separately the complaint under Article 13 of the Convention
concerning the alleged inability of the applicant to bring
compensation proceedings against the officers who had subjected her
to ill treatment;
- 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:
(i) EUR
7,000 (seven thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR 2,534 (two thousand five hundred and thirty-four
euros) in respect of costs and expenses, plus any tax that may be
chargeable to the applicant, less EUR 850 (eight hundred and fifty
euros) granted by way of legal aid;
(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 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
