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SECOND
SECTION
CASE OF MUSA YILMAZ v. TURKEY
(Application
no. 27566/06)
JUDGMENT
STRASBOURG
30
November 2010
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 Musa Yılmaz v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido Raimondi, judges,
and
Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27566/06) 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 Musa Yılmaz
(“the applicant”), on 20 June 2006.
- The
applicant was represented by Mrs F. Karakaş Doğan and
Mr A. Doğan, lawyers practising in İstanbul. The
Turkish Government (“the Government”) were
represented by their Agent.
- On
30 June 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Diyarbakır. He was
sixteen years old at the time of the events and according to the
official documents in the case file he had a criminal record
concerning ten different incidents, inter alia, of robbery and
pickpocketing.
- In
the application form the applicant submitted that he had been
subjected to ill-treatment while he was held in police custody. In
this connection, he claimed to have been blindfolded, punched,
kicked, hit with a truncheon, isolated, threatened, starved and sworn
at.
A. The applicant's detention in police custody and the
medical certificates concerning his alleged ill-treatment
- On
9 July 1998 Mr M.S. lodged a complaint with the Gaziosmanpaşa
police station, in Istanbul, that he had been robbed by three people
pointing a knife at him as he was leaving an exchange bureau. One of
the suspects, who was arrested shortly after the incident, was
identified by Mr M.S. This suspect gave the names of the applicant
and the other suspects involved in the robbery as well as that of the
hotel where they were staying. On 10 July 1998 the public prosecutor,
at the request of the police, extended this suspect's custody period
for four days.
- According
to the incident report drafted on 11 July 1998 at 2.30 a.m. and
signed by the applicant and two other suspects, when the police
officers arrived at the hotel room and asked for identification the
applicant and other suspects refused to comply and started cutting
themselves with razors and hitting their heads against the wardrobes
and they smashed the glass door of the hotel while trying to escape.
- The
police drafted a similar report at 3.00 a.m. which was signed by one
member of the hotel staff and the hotel owner.
- On
11 July 1998 at 10.45 a.m. Mr M.S. identified the applicant as one of
the individuals who had taken money from him that day. On the same
day the police took Mr M.S.'s statement.
- According
to the custody records the applicant was arrested and taken into
police custody on 11 July 1998 at 2 a.m. The applicant claims that he
was arrested on 8 July 1998.
- On
11 July 1998 at 6.50 p.m. the applicant was examined by a doctor at
Duygu Hospital who noted an old wound of 3 cm on the right side of
the applicant's head.
- On
the same day the applicant met his lawyer appointed by the bar, Mrs
F. Karakaş Doğan. After the meeting the applicant's lawyer
wrote to the Gaziosmanpaşa public prosecutor and the
Magistrates' Court; she stated that her client claimed to have been
arrested on 8 July 1998 and that therefore the legal detention period
had expired. She further maintained that the applicant had a head
injury and redness on his back and requested that he receive medical
treatment for his injuries.
- On
12 July 1998 Mr A.A., the owner of the hotel, gave a statement to the
police. In his testimony he submitted that he was told of the
incident by the receptionist who had escorted the police to the
suspects' room and that after the incident he noted that the glass
door of the hotel was broken and that there were bloodstains in the
hotel room.
- On
the same day the receptionist, Mr M.A.S., gave a statement to the
police where he maintained that he had witnessed, inter alia,
the applicant and other suspects cutting themselves and hitting their
heads against the wardrobes.
- On
13 July 1998 the applicant was examined by a doctor at the
Gaziosmanpaşa Forensic Medicine Institute who noted redness in
fifteen places on the applicant's back, swelling on the head and
redness on various parts of the applicant's legs.
- On
13 July 1998 the applicant was brought before the Gaziosmanpaşa
public prosecutor where he denied the accusations against him. He
admitted cutting and hurting himself in anger when the police asked
him to come with them at the hotel. The applicant's lawyer maintained
that the applicant was subjected to duress at the police station and
that he had physical injuries.
- On
13 July 1998 the applicant was brought before the Gaziosmanpaşa
Magistrates' Court where he denied the charges against him.
B. Investigation instigated into the alleged
ill-treatment and the ensuing criminal proceedings against police
officers
- On
an unspecified date the public prosecutor commenced an investigation
into the applicant's allegations of ill-treatment.
- On
15 September 1998 the Gaziosmanpaşa public prosecutor heard
evidence from Mrs F. Karakaş Doğan, who stated that when
she had arrived to meet with her client the police had informed her
that he was a psychopath and that he might attack her. When she
insisted on meeting her client she noted that the applicant had a
head injury. Moreover, she noted bruises on his abdomen and back. The
applicant had told her that he had been beaten.
- On
16 September 1998 the Gaziosmanpaşa public prosecutor heard
evidence from the applicant who maintained that he had been beaten by
a couple of police officers on the head and abdomen. He admitted that
he took drugs and alcohol on a regular basis and that prior to his
arrest he had taken drugs and wine and during the arrest he had got
angry and cut his arms, abdomen and neck.
- In
the meantime, on 24 July and 5 October 1998, the public prosecutor
heard evidence from five police officers on duty that day. They all
denied the accusations of ill-treatment and affirmed that the
applicant was a person who frequently committed crimes and had a
psychopathic personality.
- On
6 October 1998 the Gaziosmanpaşa public prosecutor filed a bill
of indictment with the Gaziosmanpaşa Criminal Court of First
Instance against four police officers for ill-treatment under Article
245 of the Criminal Code and abuse of office under Article 230 of the
Criminal Code.
- On
16 December 1998 the Gaziosmanpaşa Criminal Court of First
Instance considered that since the applicant claimed to have been
beaten in order to get him to confess to a crime, Article 243 of the
Criminal Code was applicable. It therefore declined jurisdiction
and transferred the case to Eyüp Assize Court.
- On
26 January 1999 the criminal proceedings against the accused police
officers commenced before the Eyüp Assize
Court. The applicant joined the proceedings as a civil party.
- On
23 March 1999 the court heard evidence from the applicant who
submitted that he had been blindfolded, hit on the head and abdomen
and that afterwards they had opened his eyes and thrown water over
his head.
26. On
15 September 1999, upon the request of the first-instance court, the
2nd Specialised Commission of the Forensic Medicine
Institute examined the applicant's medical reports. They considered
that the wound to the head was the result of a blunt object trauma
and that the redness noted in the medical reports could have been the
result of either a blunt object trauma or a metabolic reaction and
that it was impossible to distinguish medically between them.
- In
the hearing held on 2 March 2000, upon the request of the applicant's
lawyer, the court issued arrest warrants against the accused police
officers, who had not attended any of the hearings.
- On
21 April 2000 accused police officer Mr Z.A. was
heard by a rogatory court in Diyarbakır where he denied the
accusations against him.
- On
15 June 2000 accused police officer Mr G.S. was brought before the
court and, although it was not the date of the hearing, the latter
decided to hear him. The police officer denied the accusations
against him.
- On
12 July 2000 accused police officer H.Y.A. was heard by the court
where he denied the accusations against him. The applicant and his
lawyer were not present at the hearing.
- On
5 March 2002 accused police officer Mr M.H.S. was heard by a rogatory
court in Tavşanli where he denied the accusations against him.
- On
26 November 2002 the first-instance court acquitted the accused
police officers of the offence of ill-treatment and decided, pursuant
to Law no. 4616, to suspend the proceedings for the offence of abuse
of office. In its decision the court noted that the applicant's
statements were contradictory and that the medical evidence in the
case file was insufficient to convict the accused as charged.
- On
15 January 2003 the applicant appealed.
- On
24 October 2003 the principal public prosecutor at the Court of
Cassation submitted his written opinion to the latter where he
considered that the case should be quashed on account of insufficient
investigation.
- On
28 November 2005 the Court of Cassation upheld the judgment in
respect of the acquittal of one of the police officers and quashed it
in respect of the others on the ground that the five year statutory
time-limit for prosecuting them had expired. It therefore decided to
drop the public action brought against them. This decision was signed
by the principal public prosecutor at the Court of Cassation on 31
January 2006, arrived at the registry of the first-instance court on
6 March 2006 and was recorded in the log held by the Registry of the
Eyüp Assize Court on 10 March
2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Batı and Others v. Turkey (nos. 33097/96 and
57834/00, ECHR 2004-IV), and Zeynep Özcan v. Turkey (no.
45906/99, 20 February 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 3, 6 and 13 of the Convention
about the treatment to which he had been subjected while he was held
in police custody and about the manner in which the investigation and
the ensuing criminal proceedings concerning his allegations had been
conducted by the authorities, resulting in impunity.
- The
Court considers that these complaints should be examined from the
standpoint of Article 3 alone, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The Government asked the Court to dismiss the
application as being inadmissible for failure to comply with the
six-month rule (Article 35 § 1 of the Convention) because the
applicant had failed to lodge his application within six
months of the date on which the
Court of Cassation had rendered its decision.
- The
applicant contested the Government's arguments.
- The Court reaffirms its practice, in cases where the
domestic law does not provide for the service of a written copy of a
final domestic decision, that the six-month period laid down in
Article 35 § 1 begins to run from the date when the decision was
finalised, namely when the parties were definitely able to be
informed of its contents (see, among many others, Seher Karataş
v. Turkey, no. 33179/96, § 27, 9 July 2002, and Karatepe
v. Turkey (dec.), no. 43924/98, 3 April 2003). In a number
of cases where, as in the present case, the domestic law did not
provide for service, the Court has considered it appropriate to take
the date on which the final domestic decision was deposited with the
registry of the first-instance court as the starting point of the
six-month period (see, among others, Aydın and Şengül
v.
Turkey, no. 75845/01, §
14, 3 May 2007 and the cases cited therein). In the instant case the
“final decision” within the meaning of Article 35 §
1 of the Convention was the judgment of the Court of Cassation on 28
November 2005. This decision was at the disposal of the applicant and
his lawyer as of 6 March 2006 when the judgment arrived at the
registry of the first-instance court. The application was lodged with
the Court on 20 June 2006. In view of the above, the Court
considers that the application was introduced within the six-month
time-limit provided in Article 35 § 1 of the Convention. It
therefore rejects the Government's objection.
- Moreover,
the Court finds 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
- The
Government, referring to the reasoning of the first-instance court
and the various actions undertaken by the domestic authorities,
submitted that the investigation and the ensuing criminal proceedings
had been adequate.
- The
applicant maintained his allegations.
- The
Court reiterates the basic principles laid down in its judgments
concerning a State's obligations under Article
3 of the Convention (see, in particular,
Erdoğan Yağız v.
Turkey,
no. 27473/02, §§ 35-37, ECHR 2007-... (extracts);
Hacı Özen v. Turkey,
no. 46286/99, §§ 44-45, 12 April 2007; Mouisel
v. France, no. 67263/01, § 37,
ECHR 2002-IX; and Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII). It further
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, failing which a clear issue arises
under Article 3 of the Convention (see Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999-V, and Ribitsch v.
Austria, § 34, 4 December 1995, Series A no. 336).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Avşar v.
Turkey, no. 25657/94, § 282, ECHR 2001). Such
proof may, however, follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25).
Where the events in issue lie wholly or in large part within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see
Yananer v. Turkey, no. 6291/05,
§ 35, 16 July 2009).
- In
the instant case, the Court considers, in the absence of prima facie
evidence to the contrary, that the applicant was detained in police
custody for two days. It notes that the ill-treatment complained of
in general terms by the applicant, a minor, consisted of being
blindfolded, punched, kicked, hit with a truncheon, isolated,
threatened, starved and sworn at. In this connection, it considers
that the applicant's version of events, although very general, has
been consistent, save for minor details, both before the Court and
the domestic authorities.
- As
regards the applicant's head injury, as noted in the medical reports
of 11 July 1998 and 13 July 1998, the Court, in view of the amount of
circumstantial, concurring evidence in the case file, considers it
highly plausible that it was the result of the applicant hitting his
head against wardrobes during his arrest.
- However,
even noting the findings of the 2nd Specialised Commission
of the Forensic Medicine Institute, the Court observes that the
Government failed to provide any plausible explanation as to the
manner in which the redness noted on various parts of the applicant's
back and legs had been acquired. In this connection the Court
attaches decisive importance to the fact that these injuries were not
mentioned in the medical report of 11 July 1998, which rules out in
principle, the possibility that they occurred during the applicant's
arrest and to the very particular location and apparent widespread
nature of the applicant's back injuries, making it unlikely to be
self inflicted. Considering the circumstances of the case as a
whole, and the absence of a credible explanation from the Government
as to the cause of these injuries to the applicant, a minor, who was
throughout this whole time under the control of the State
authorities, the Court finds that it was the result of treatment for
which the Government bore responsibility.
- 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”
(see, in particular, Ay v. Turkey, no. 30951/96, §§
59-60, 22 March 2005). The minimum standards of effectiveness 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).
Moreover, when the official investigation leads to the institution of
proceedings in the national courts, the proceedings as a whole,
including the trial stage, must satisfy the requirements of the
prohibition of ill-treatment. While there is no absolute obligation
for all prosecutions to result in conviction or in a particular
sentence, the national courts should not under any circumstances be
prepared to allow grave attacks on physical and moral integrity to go
unpunished (see Okkalı v. Turkey, no. 52067/99, §
65, ECHR 2006 XII (extracts)).
- In this connection, the Court reaffirms that when an
agent of the State is accused of crimes that violate Article 3, the
criminal proceedings and sentencing must not be time-barred and the
granting of an amnesty or pardon should not be permissible (see
Erdoğan Yılmaz and Others v. Turkey, no.
19374/03, § 56, 14 October 2008). It further reiterates that
where a State agent has been charged with crimes involving torture or
ill treatment, it is of the utmost importance that he or she be
suspended from duty during the investigation and trial, and dismissed
if convicted (see Abdülsamet Yaman v. Turkey, no.
32446/96, § 55, 2 November 2004).
- The
Court has found above that the respondent State was responsible,
under Article 3 of the Convention, for the injuries sustained by the
applicant. An effective investigation was therefore required (see
Orhan Kur v. Turkey, no. 32577/02, § 47, 3 June
2008).
- In
the instant case, the Court observes that an investigation into the
applicant's allegations was initiated promptly by the public
prosecutor's office. This investigation led to the committal for
trial of four police officers identified by the public prosecutor as
those who were on duty during the applicant's detention. Moreover,
the applicant was able to participate effectively in these criminal
proceedings which resulted in the acquittal of one police officer and
the dropping of the charges in respect of others as the statutory
time-limit had elapsed.
- Nonetheless,
the Court observes that there were striking shortcomings in the way
the investigation was conducted by the domestic authorities, which
had repercussions on its effectiveness. Firstly, evidence obtained
during forensic examinations plays a crucial role during
investigations into detainees' allegations of ill-treatment (see
Salmanoğlu and Polattaş v. Turkey, no. 15828/03, §
79, 17 March 2009). In this connection, the Court cannot but note
that the medical reports established during the applicant's detention
in police custody were drafted in a cursory manner, for example
without any mention as regards size, colour or possible relationship
between the physical findings and the applicant's statements, and
fall significantly short of the standards recommended by both the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), which are regularly taken
into account by the Court in its examination of cases concerning
ill-treatment (see, inter alia, Akkoç v. Turkey,
nos. 22947/93 and 22948/93, § 118, ECHR 2000-X), and the
guidelines set out in the Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, “the Istanbul Protocol”,
submitted to the United Nations High Commissioner for Human Rights
(see Batı and Others, § 100, cited above).
Moreover, although the Assize Court sought to obtain additional
medical evidence, the time which elapsed during that time adversely
affected, in the Court's view, the possibility of the 2nd
Specialised Commission of the Forensic Medicine Institute
establishing the origins of the applicant's back and leg injuries,
particularly since their examination was limited to the applicant's
previous medical reports.
- Secondly,
the Court notes that the applicant was never requested to formally
identify the alleged perpetrators, either at the preliminary
investigation stage (by way of checking police photographs or by an
identification parade) or during the criminal proceedings. Nor was he
ever asked to give a detailed statement as regards their respective
roles in the alleged ill treatment. Thirdly, both the prosecutor
and the first-instance court failed to secure the testimonies of
potential eyewitnesses, such as the persons arrested together with
the applicant, others present at the police station or in detention
on the day of the events or the receptionist of the hotel.
- Finally,
the Turkish criminal-law system as applied in the instant case,
namely the discontinuation of the prosecution of three police
officers as time-barred following lengthy proceedings, during which
time none of the accused police officers was suspended from duty, has
proved to be far from rigorous and would have had no dissuasive
effect capable of ensuring the effective prevention of unlawful acts
such as those complained of by the applicant (see, amongst others,
Terzi and Erkmen v. Turkey,
no. 31300/05, § 34, 28 July 2009).
- In
the light of the foregoing, the Court finds that the criminal
investigation and the ensuing criminal proceedings concerning the
applicant's allegations of ill-treatment failed to meet the
requirements of thoroughness and effectiveness under Article 3 of the
Convention.
- There
has therefore been both a substantive and a procedural violation of
Article 3 of the Convention.
II. 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, costs and expenses
- The applicant claimed 40,000 euros (EUR) in respect of
non pecuniary damage. He further claimed, in total, EUR 17,000
for costs and expenses incurred both before the domestic courts and
before the Court. The applicant submitted some documentation for his
expenses before the Court such as the contract for fees concluded
between him and his lawyer.
- The Government contested the amounts.
- Having
regard to the nature of the violation found in the present case and
ruling on an equitable basis, the Court awards the applicant
EUR 12,000 in respect of non-pecuniary damage.
- 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 documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 3,000 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 application admissible;
- Holds that there has been both a substantive and
procedural violation of Article 3 of the Convention;
- Holds
(a) that the respondent State is to pay to the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into Turkish liras at the rate
applicable on the date of settlement:
(i) EUR
12,000 (twelve thousand euros), plus any tax that may be chargeable,
in respect of non pecuniary damage;
(ii) EUR
3,000 (three thousand euros) plus any tax that may be chargeable to
him, 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 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 30 November 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
