In the case of Biçici v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Sally Dollé, Section
Registrar,
Having deliberated in private on 4 May 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
30357/05) 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, Ms Kiraz Biçici (“the applicant”), on
6 August 2005.
The applicant was represented by Ms K.
Doğru, a lawyer practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
The applicant alleged that police officers had
used excessive force in order to disperse participants in a press conference
and inflicted ill-treatment on her during her arrest, thus violating her rights
protected under Articles 3, 6 § 1, 11 and 13 of the Convention.
On 4 March 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 1955 and lives in Istanbul.
A. The applicant's arrest and alleged ill-treatment by
the police during a demonstration in Istanbul
On 29 October 2003, while attempting to
participate in a demonstration in the form of “a press conference” held on Istiklal
Street in the Beyoğlu district of Istanbul, the applicant was arrested, together
with some 50 to 60 other participants, by police officers at approximately
4.10 p.m. The applicant alleged that the police officers had used
disproportionate force to disperse the crowd and to arrest the demonstrators,
whereas the Government claimed that the demonstrators had resisted the police
and had refused to disperse.
Following her arrest the applicant was taken to
hospital for a medical examination. The doctor who examined her reported that there were no signs of injury on the applicant's body. The
doctor noted, however, that the applicant complained of pain in her right upper
arm.
. On
the same date, at 7.30 p.m., the applicant was questioned by the Beyoğlu
public prosecutor. The applicant informed the public prosecutor
that she had been subjected to ill-treatment by the police, who had used
disproportionate force during her arrest. She claimed that she had attended the
meeting, organised by a group called “the Peace Mothers' Initiative”, as the
President of the Istanbul Human Rights Association, and that she had been
arrested by the police for no reason. She stated that she had merely exercised
her legal rights and that she had not breached the
Meetings and Demonstration Marches Act (Law no. 2911).
. The
applicant was released from police custody on the same day, after being
questioned by the Beyoğlu public prosecutor.
B. Criminal proceedings against the police officers
. On
6 November 2003 the applicant lodged a complaint with the Beyoğlu public
prosecutor against the police officers who had been involved in the incident
and had arrested her. She complained, inter
alia, of the unlawfulness of her arrest and the excessive use of force by the police during the arrest.
On the same date the applicant was referred to
the Istanbul branch of the Forensic Medical Institute
by the Beyoğlu public prosecutor. The doctor who examined the
applicant noted a 2 x 6 cm ecchymosis on the back of
her left leg and concluded that the injury rendered the applicant unfit for
work for five days. The doctor further noted that the applicant was suffering
from pain in her right shoulder and right arm.
On 12 November 2004 the Beyoğlu public prosecutor
issued a decision not to prosecute the police officers who had been on duty at the
press conference of 29 October 2003. Relying on the incident report prepared by
the police officers, the public prosecutor noted that, despite
warnings by the police, the demonstrators, who had gathered illegally without
obtaining permission and had disturbed public order by blocking the pedestrian
zone and tramway, had refused to disperse and the police had therefore been
obliged to use some degree of force to disperse them and restore public order. The
public prosecutor considered that the force used by the security forces had been in line with section 24 of the Meetings and
Demonstration Marches Act and had been justified
in the circumstances. In the public prosecutor's opinion, the applicant's
injuries were the result of a proportionate use of force which did not amount to ill-treatment or abuse of
authority.
. On
23 December 2004 the applicant lodged an appeal with the Istanbul Assize Court against
the above-mentioned decision of the public prosecutor. She claimed that on 29
October 2003 police officers had beaten her during her arrest, causing injuries
rendering her unfit for work for five days, as corroborated by the medical
report from the hospital. She further alleged that the participants had not
blocked the tramway or pedestrian traffic. She therefore asked the Assize Court to order the prosecuting authorities to bring charges against the police
officers.
. On
30 December 2004, having regard to the content of the file and the reasons
given by the Beyoğlu public prosecutor, the Istanbul Assize Court dismissed
the applicant's appeal.
The Istanbul Assize Court's decision was served
on the applicant on 16 February 2005.
C. Criminal proceedings against the applicant
. In
the meantime, on 7 November 2003, the Beyoğlu public prosecutor had brought charges against thirteen
demonstrators, including the applicant, for violation of the Meetings and
Demonstration Marches Act. In her defence submissions before the court, the
applicant claimed that, in participating in the demonstration, she had merely
been exercising her democratic rights.
. In
a judgment dated 19 December 2006, the Beyoğlu Assize Court acquitted the
applicant and her co-accused of the above-mentioned charges. The court held as
follows:
“[It] was alleged that the accused had breached the Meetings
and Demonstration Marches Act on the day of the incident. Having regard to the
content of the case file, there is no convincing evidence indicating with
sufficient certainty that the accused committed the alleged offence. It appears
from the incident report that the security forces took measures following an
intelligence report that the Peace Mothers' Initiative, Gök-Der, Tuad and
Yakay-Der associations were to hold a demonstration in front of the post office
in the Galatasaray district. After the gathering of the group (demonstrators),
the chair of the association Yakay-Der stated that they would stage a sit-in in
front of the Galatasaray post office. Following a police warning [that the
meeting was unlawful], the demonstrators told the police that they would make a
press statement and then disperse. However, the police teams did not release
the group and continued to keep them within a circle; they then arrested them
without giving a proper warning that could be heard by everyone (no evidence was
provided to substantiate the assertion that a warning was given). For these
reasons, no evidence was adduced to indicate that the accused committed the
alleged offence in contravention of the said Act and that [their action] went beyond
the exercise of their democratic rights. It is thus considered that the actions
of the accused were merely an exercise of their democratic rights [to freedom
of assembly]. The [accused] are therefore acquitted of the charges brought
against them...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic
law can be found in the case of Nurettin Aldemir and Others v. Turkey
(nos. 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02,
§§ 20-23, 18 December 2007).
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
The Government submitted that the applicant had
failed to comply with the requirements of Article 35 § 1 of the Convention
since she had not exhausted all available domestic remedies in respect of her
complaints and had not filed her application with the Court within the six-month
time-limit. In the Government's opinion, the applicant could have availed
herself of the remedies provided for by civil and administrative law in respect
of her complaints of ill-treatment. Furthermore, she should have raised her
complaint under Article 11 before the domestic authorities. Moreover, she
should have lodged her application within six months of the alleged ill-treatment.
The Government also maintained that the
applicant could no longer claim to be the victim of a violation of Articles 3
and 11 of the Convention, given that she had not been ill-treated and that she
had been acquitted of the charges brought against her.
The applicant maintained her allegations.
Regarding the Government's reference to civil and administrative remedies,
the Court reiterates that it has already examined and rejected similar
preliminary objections made in other cases (see, in particular, Atalay
v. Turkey, no. 1249/03, § 28, 18 September 2008
and the case cited therein). The
Court reaffirms its earlier conclusions that the remedies
referred to by the Government cannot be regarded as sufficient where a Contracting State's obligations under Article 3 of the Convention are concerned, as
their purpose is the award of damages rather than the identification and punishment
of those responsible. The Court finds no particular circumstances in the
instant case which would require it to depart from its established case-law. It
therefore rejects the Government's preliminary objection in respect of civil and administrative remedies.
As to the alleged failure to raise the complaint
under Article 11 of the Convention before the domestic authorities, the Court
observes that the applicant can be considered to have raised the substance of
this complaint when questioned by the public prosecutor and during the
proceedings before the Beyoğlu Assize Court, where she referred to the exercise
of her legal and democratic rights (see paragraphs 8 and 16).
As regards the applicant's alleged failure to
observe the six-month time-limit in respect of her complaint of ill-treatment,
the Court reiterates that, where an applicant is entitled to be served with a
written copy of the final domestic decision, the object and purpose of Article
35 § 1 of the Convention are best served by counting the six-month period as
running from the date of service of the written judgment (see Worm
v. Austria, 29 August 1997, § 33, Reports
of Judgments and Decisions 1997-V). In the instant case, the final
domestic decision in respect of the allegations of ill-treatment was
served on the applicant on 16 February 2005 and the application was submitted
to the Court on 6 August 2005; this is clearly within the six-month time-limit.
Accordingly, this objection must also be dismissed.
As to the objection concerning the applicant's alleged
lack of victim status, the Court considers that it raises a question which is
closely linked to the merits of the complaints under Articles 3 and 11. It
therefore joins the Government's preliminary objection to the merits (see Bączkowski
and Others v. Poland, no. 1543/06, §§ 45-48, 3 May 2007).
In view of the above, 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.
II. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF
THE CONVENTION
The applicant complained that she had been
subjected to ill-treatment during her arrest and that the national authorities
had failed to conduct an effective investigation into her complaints, in
violation of Articles 3, 6 and 13 of the Convention.
Article 3 reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 6 § 1 provides, in so
far as relevant:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing within a reasonable time by an
independent and impartial tribunal established by law.”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Government submitted that the applicant had
failed to adduce concrete evidence capable of proving that she had been
subjected to ill-treatment, as alleged. In their view, the force used by
the police officers against the demonstrators had been proportionate to the aim
pursued.
A. Alleged ill-treatment of the applicant
As the Court has underlined on many occasions,
Article 3 enshrines one of the most fundamental values of democratic societies;
it makes no provision for exceptions and no derogation from it is permissible
under Article 15 § 2 (see Selmouni v. France [GC], no. 25803/94, §
95, ECHR 1999-V, and Assenov and Others v. Bulgaria, 28
October 1998, § 93, Reports 1998-VIII).
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 Ireland v. the United Kingdom, 18 January 1978, § 161,
Series A no. 25). 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). Furthermore, where allegations are made under
Articles 2 and 3 of the Convention the Court must apply a
particularly thorough scrutiny (see Ribitsch v. Austria, 4 December
1995, § 32, Series A no. 336).
The Court notes that, following her arrest on 29
October 2003, the applicant underwent a medical examination which revealed no
trace of ill-treatment on her body. However, on the same day, when taken to
the Beyoğlu public prosecutor's office, she stated that she had been
subjected to ill-treatment by the police during her arrest and lodged a formal
complaint against the police officers involved (see paragraphs 7 and 8).
On 6 November 2003, eight days after her
release, the applicant lodged another formal complaint with the Beyoğlu public
prosecutor against the police officers who had allegedly used excessive force or
otherwise ill-treated her when arresting her on 29 October 2003. The public prosecutor
in turn referred the applicant to the Istanbul branch of the Forensic Medical
Institute, where the medical expert who examined her noted a 2 x 6 cm
ecchymosis on the back of her left leg which rendered her unfit for work for
five days (see paragraphs 10 and 11 above).
The Court notes that although this second
medical report was issued eight days after the applicant's release from
custody, the public prosecutor did not hesitate to accept it as evidence of the
applicant's allegations and did not question the causal link between the
ecchymosis identified in the report and the alleged ill-treatment. Nor did the public
prosecutor refer to the discrepancy between the two medical reports.
In these circumstances, the Court considers that
the medical report issued on 6 November 2003 appears to have evidentiary value
and may thus be used as evidence for the purpose of an examination of the
applicant's allegations under Article 3 of the Convention. It therefore
considers that the burden rests on the Government to demonstrate by convincing
arguments that the use of force was not excessive.
This being so, the Court notes that the
Beyoğlu Assize Court established that the police had been informed about
the planned demonstration and had taken the necessary measures at the scene of
the incident (see paragraph 17 above). Thus, in the particular circumstances of
the present case, it cannot be said that the police were called upon to react
without prior preparation (see Rehbock v. Slovenia, no. 29462/95, §
72, ECHR 2000-XII). They may therefore have been expected to show a
degree of patience and tolerance before attempting to disperse a crowd which
did not present a danger to public order and was not engaging in acts of
violence.
In this connection, the Court had regard to the Beyoğlu Assize Court's judgment, which found that the police officers had proceeded to
arrest the demonstrators without giving a proper warning (ibid.). It thus
appears that the hasty response of the police to the peaceful gathering of the
demonstrators resulted in mayhem, and the ensuing use of disproportionate force
by the police officers resulted in the injury of some of the demonstrators,
including the applicant.
In the light of the above findings, the Court considers
that the Government have failed to furnish convincing or credible arguments
which would provide a basis to explain or justify the degree of force used
against the applicant, whose injuries are corroborated by a medical report. As
a result, it concludes that the injuries sustained by the applicant were the
result of treatment for which the State bears responsibility.
It follows that there has been a violation of
Article 3 under its substantive limb.
B. Alleged failure to conduct an effective
investigation
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. Moreover, 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 addition, the Court
reiterates that the rights enshrined in the Convention are practical and
effective, and not theoretical or illusory. Therefore, in such cases, an
effective investigation must be able to lead to the identification and
punishment of those responsible (see Orhan
Kur v. Turkey, no. 32577/02, § 46, 3 June 2008).
. 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.
. In the instant case, the
Court observes that an investigation into the applicant's allegations was
initiated by the Beyoğlu public prosecutor's office (see paragraphs 10-12
above). The investigation ended on 30 December 2004 when the Assize Court upheld the decision of the public prosecutor not to prosecute the police
officers for ill-treatment. The Court, having examined the documents contained
in the case file, considers that there were serious shortcomings in the way the
investigation was conducted by the public prosecutor which had repercussions on
its effectiveness.
Firstly, it appears that in the course of the
investigation the public prosecutor never sought to obtain evidence from the
accused police officers. Rather, he relied solely on the incident report
prepared by the police officers in concluding that the force used by them had
been proportionate. Secondly, the Court notes that there was no serious attempt
on the part of the public prosecutor to elucidate the identities of the police
officers who were on duty. In this connection, it appears that the applicant
was never requested to identify the police officers who she claimed had
ill-treated her during arrest, either by checking police photographs or through
an identification parade. Thirdly, the prosecutor also appears to have failed
to secure the testimonies of potential eyewitnesses, such as the persons
arrested together with the applicant on the day of the events.
In the light of the above, the Court concludes
that the national authorities failed to carry out an effective and independent
investigation into the applicant's allegations of ill-treatment.
There has accordingly been a procedural
violation of Article 3 of the Convention.
In view of the foregoing factors and conclusions,
the Court dismisses the Government's objection that the applicant lacked victim
status (see paragraph 25 above).
In the circumstances, the Court considers that
no separate issue arises under Articles 6 and 13 of the Convention (see Saya
and Others v. Turkey, no. 4327/02, § 30, 7 October 2008).
III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The applicant alleged that the intervention of
the police at the meeting constituted a violation of her right to freedom of
assembly protected by Article 11 of the Convention, which provides:
“1. Everyone
has the right to freedom of peaceful assembly and to freedom of association
with others, ...
2. No restrictions shall be placed on the exercise
of these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. ...”
1. Whether
there was an interference with the exercise of the freedom of peaceful assembly
The Government maintained that there had been no
interference with the applicant's rights under Article 11 of the Convention.
The Court considers that the intervention of the
police which led to the subsequent arrest of the applicant for participating in
the meeting constituted, in itself, an interference with the applicant's rights
under Article 11.
2. Whether the interference was justified
The Government stated that the meeting in issue
had been organised unlawfully. They pointed out that the second paragraph of
Article 11 imposes limits on the right of peaceful assembly in order to
prevent disorder.
The Court reiterates that an interference will
constitute a breach of Article 11 unless it is “prescribed by law”,
pursues one or more legitimate aim under paragraph 2 of that provision and is
“necessary in a democratic society” for the achievement of those aims.
In this connection, it is noted that the
interference in the present case had a legal basis, namely section 22 of the Meetings
and Demonstration Marches Act, and was thus “prescribed by law” within the
meaning of Article 11 § 2 of the Convention. As regards a legitimate aim,
the Government submitted that the interference pursued the legitimate aim of
preventing public disorder, and the Court finds no reason to differ.
Turning to the question of whether the
interference was “necessary in a democratic society, the Court refers, firstly,
to the fundamental principles underlying its judgments relating to Article 11
(see Djavit An v. Turkey, no. 20652/92, §§ 56-57, ECHR
2003-III, and Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, § 32, Series A no. 139). It is clear from this case-law that the
authorities have a duty to take appropriate measures with regard to lawful
demonstrations in order to ensure their peaceful conduct and the safety of all
citizens (see Balçık and Others, cited above,
§ 46, and Oya Ataman v. Turkey, no. 74552/01, § 35, ECHR 2006-XIII).
The Court notes that States must not only
safeguard the right to assemble peacefully, but also refrain from imposing unreasonable
indirect restrictions on that right. Finally, it considers that although the
essential aim of Article 11 is to protect the individual against arbitrary
interference by public authorities with the exercise of the rights protected,
there may in addition be positive obligations to secure the effective enjoyment
of those rights (see Djavit An, cited above, § 57; Oya Ataman,
cited above, § 36; and Balçık and Others, cited above, § 47).
In the instant case, the police officers arrested the applicant,
together with a number of other people taking part in the demonstration, on the
ground that she had breached the Meetings and Demonstration Marches Act. However,
having regard to the findings of the Beyoğlu Assize Court, the Court
observes that the applicant and the other demonstrators did not breach this law,
contrary to the allegations of the Government (see paragraph 17 above). The
Assize Court found that, while the participants had been gathering at a public
place in order to make a press statement on issues of public interest, the
police officers had stopped them, kept them in a circle and used force to
disperse the group, without issuing a prior warning (ibid.). It considered that
the acts of the demonstrators, including the applicant, should be seen as an exercise
of their democratic right to freedom of assembly, and it therefore acquitted
them.
It can also be seen from the judgment of the Beyoğlu Assize Court that the group did not present a danger to public order, or engage
in acts of violence. In this connection, the Court reiterates its earlier
considerations that where demonstrators do not engage in acts of violence it is
important for the public authorities to show a certain degree of tolerance
towards peaceful gatherings if the freedom of assembly guaranteed by Article 11
of the Convention is not to be deprived of all substance (see Nurettin
Aldemir and Others v. Turkey, nos. 32124/02, 32126/02, 32129/02,
32132/02, 32133/02, 32137/02 and 32138/02, § 46, 18 December 2007).
In the light of the foregoing, the Court agrees
with the conclusions reached by the domestic courts and considers that, in the
circumstances of the present case, the forceful intervention of the police officers
was disproportionate and unnecessary for the prevention of disorder within the
meaning of the second paragraph of Article 11 of the Convention.
There has accordingly been a violation of
Article 11 of the Convention.
In view of the above finding, the Court again dismisses
the Government's objection that the applicant lacked victim status (see
paragraph 25 above).
IV. 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 10,000 euros (EUR) in
respect of pecuniary damage and EUR 20,000 for non-pecuniary damage.
The Government contended that these claims were
excessive and unjustified.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, in view of the violation found under Articles 3
and 11 of the Convention, it considers that the applicant may be taken to have
suffered a certain amount of distress. Ruling on an equitable basis, as
required by Article 41 of the Convention, the Court awards the applicant
EUR 20,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 4,500 for the
costs and expenses incurred before the Court.
The Government submitted that the amount claimed
was unsubstantiated.
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 are reasonable
as to quantum. In the present case, the Court notes that the applicant did no
more than refer to the Istanbul Bar Association's scale of fees in respect of
her legal representative's claims and failed to submit any supporting
documents. The Court therefore makes no award under this head (see Balçık
and Others, cited above, § 65).
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
1. Declares the application admissible unanimously;
2. Holds, by four votes to three, that
there has been a substantive violation of Article 3 of the Convention;
3. Holds unanimously that there has been a procedural
violation of Article 3 of the Convention;
4. Holds unanimously that there has been a
violation of Article 11 of the Convention;
5. Holds unanimously that there is no need to
examine separately the complaints under Articles 6 and 13 of the Convention;
6. Holds, by four votes to three,
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 20,000
(twenty thousand euros), plus any tax that may be chargeable, in respect of pecuniary
and non-pecuniary damage, to be converted into Turkish liras at the rate
applicable on the date of settlement:
(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;
7. Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and
notified in writing on 27 May 2010, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judges D.
Jočiené, N. Tsotsoria and I. Karakaş is annexed to this judgment.
F.T.
S.D.
JOINT PARTLY DISSENTING OPINION OF JUDGES JOČIENĖ,
TSOTSORIA AND KARAKAŞ
We do not share the majority's opinion that there was a
violation of Article 3 of the Convention under its substantive limb in the
present case.
As the majority point out in paragraph 30 of the judgment,
allegations of ill-treatment must be supported by appropriate evidence.
To assess this evidence, the Court has generally applied the standard of proof
“beyond reasonable doubt” (Ireland v. the United Kingdom, 18 January
1978, § 161, Series A no. 25). However, in order to fall within the
scope of Article 3 of the Convention, the alleged ill-treatment must attain a
minimum level of severity (ibid., § 162).
In our view, in the present case, first of all, proof of the
applicant's ill-treatment did not follow from the coexistence of sufficiently
strong, clear and concordant inferences (see, for example, Labita v. Italy
[GC], § 121, ECHR 2000-IV), and, secondly, the treatment of which the applicant
complained did not attain the minimum level of severity for Article 3 of the
Convention to be applicable.
Following the applicant's arrest on 29 October 2003, she had a
medical examination in the hospital (resulting in two reports), which revealed
no trace of ill-treatment on her body. She complained only of pain in her
right upper arm. On the same day, she was released from police custody, after
being questioned by the public prosecutor.
Eight days after she was arrested and released, the applicant
underwent a further medical examination on 6 November 2003. The report drawn up
on that occasion indicated “a 2 x 6 cm ecchymosis on the back of her leg”.
Although the medical reports issued when she was arrested did not indicate any
sign of ill-treatment, the public prosecutor initiated an investigation but
decided not to prosecute. With regard to her allegations of ill-treatment
during the demonstration, we consider that the applicant has not made an
arguable claim.
Even assuming that the acceptance of the second report, which
should be of no evidentiary value, by the prosecutor in order to examine the
applicant's allegations of ill-treatment placed the burden of proof on the
Government, we consider that in this case the Court has forgotten to apply the
principle of “minimum level of severity”. The very limited injury sustained by
the applicant after a demonstration - a small bruise on the leg eight days
after her release - should not be sufficient for the Court to find a
substantive violation of Article 3.
This explains why we also voted against the Court's award in
respect of non-pecuniary damage.
