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SECOND
SECTION
CASE OF DERMAN v. TURKEY
(Application
no. 21789/02)
JUDGMENT
STRASBOURG
31 May
2011
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 Derman v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Françoise
Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21789/02) 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 Emrullah Derman (“the
applicant”), on 26 February 2002.
- The
applicant was represented by Mr S. Karahan, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- The
case was declared inadmissible by a committee of three judges on 29
June 2006 for non-exhaustion of domestic remedies, pursuant to
Article 35 §§ 1 and 4 of the Convention. Subsequently,
on 23 June 2009, the application was reopened and restored to the
list of cases pursuant to Rule 43 § 5 of the Rules of the
Court. On 19 November 2009 the President of the Second Section
decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Istanbul.
- The
applicant was a shopkeeper. On 14 January 1999, following a complaint
made by an individual, Y.G., the applicant was arrested by three
police officers in civilian clothes and taken to a police station on
suspicion of robbery. On the same day, the applicant was examined by
a doctor at the Haseki Hospital, who noted no signs of injury to his
body.
- At
the police station, the applicant was forced to sign
self-incriminating statements. When he refused to do so, he was
beaten up. More specifically, he was blindfolded, stripped naked,
insulted, hosed with water, beaten, and subjected to falaka
(beating on the soles of the feet).
- According
to a police report dated 16 January 1999, the applicant banged his
head on the walls of his cell and punched himself in the stomach.
- On
17 January 1999 the applicant was released from police custody.
Before he was released, he was taken to the Bakırköy Branch
of the Forensic Medicine Institute for a medical examination.
According to the medical report prepared by the Forensic Medicine
Institute, there were several injuries on the applicant’s body
and it was noted that he was unfit to work for seven days. The
medical report revealed that the applicant had a 20x15 cm reddish
purple bruise on the right shoulder blade, another 20 cm reddish
purple bruise on the left shoulder blade, a 13x14 cm purple bruise on
the left side of his waist, a 5x2 cm purple bruise on the right
side of his waist, a 16x6 cm purple bruise around the navel, and
several other small bruises.
- At
night on the same date, the applicant went to the emergency
department of the American Hospital. The doctor who examined him
noted in his report that the applicant had complained that he had
been subjected to ill-treatment whilst in police custody. According
to the report, the applicant had a 30x5 cm bruise on the right
shoulder blade, two bruises measuring 40x5 cm and 30x5 cm on the left
shoulder blade and a 25x7 cm bruise around the navel.
- On
18 January 1999 the applicant was further examined at the Marmara
University Hospital. It was noted that the applicant was unable to
work for two weeks, as he was suffering from psychological trauma
caused by having been ill-treated in police custody.
- On
an unspecified date, the applicant filed a criminal complaint with
the Bakırköy public prosecutor and alleged that he had been
ill-treated whilst in police custody. He requested the identification
and prosecution of the police officers responsible.
- By
an indictment dated 22 June 1999, the Bakırköy public
prosecutor initiated criminal proceedings in the Bakırköy
Assize Court against three police officers, accusing them of
ill-treatment of the applicant under Article 243 of the Criminal
Code. The applicant joined the proceedings as a civil party.
- During
the trial, the court heard evidence from the accused officers and the
applicant.
- On
28 December 2001 the Bakırköy Assize Court, on the basis of
the evidence in the case file, found the three police officers guilty
of ill-treating the applicant. The court found it established that
the police officers had intentionally ill-treated the applicant to
extract a confession. It therefore sentenced each of the accused to a
year’s imprisonment under Article 243 of the former Criminal
Code and banned them from public service for three months. Having
regard to the attitude of the police officers during the trial, the
court then reduced their sentence to ten months’ imprisonment.
Furthermore, the court decided to suspend their sentences pursuant to
Section 6 of Law No. 647 on the basis that they did not show any
likelihood of reoffending.
- On
an unspecified date, one of the convicted police officers filed an
appeal against the decision of the Bakırköy Assize Court.
However, on 1 December 2003 the Court of Cassation rejected his
appeal, as he had failed to submit his request in time.
- Subsequently,
on 17 November 2004 the applicant initiated proceedings before the
Istanbul Administrative Court, claiming compensation. On 13 October
2005 the Istanbul Administrative Court rejected the applicant’s
case, holding that he had failed to bring his case within the
one-year time-limit following the decision of the Bakırköy
Assize Court dated 28 December 2001. The applicant’s
appeal against this decision was rejected by the Supreme
Administrative Court on 30 January 2008.
- According
to the information in the case file, the applicant is still being
treated for psychological problems because of the ill-treatment he
suffered in 1999.
II. RELEVANT DOMESTIC LAW
18. A description of the relevant domestic law and practice in force
at the material time can be found in Okkalı v. Turkey,
no. 52067/99, §§ 47-49, ECHR 2006 XII (extracts); Batı
and Others v. Turkey, nos. 33097/96 and 57834/00, § 96-98,
ECHR 2004 IV (extracts); and Zeynep Özcan v. Turkey,
no. 45906/99, §§ 26-30, 20 February 2007; Ali and Ayşe
Duran v. Turkey, no. 42942/02, § 45, 8 April 2008).
- In
particular, Section 6 of Law no. 647 on the execution of sentences
reads as follows:
Section 6(1)
“The court may decide to suspend the
execution of a fine and/or a prison sentence of up to one year ... if
it is convinced, taking into account the offender’s criminal
record and potential to commit crime, that there is little risk of
any further offence being committed, and provided that the offender
has never been sentenced to anything other than a fine. The
reasons for suspending the sentence must be stated in the decision.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been subjected to torture whilst in police custody. He further
alleged that the ensuing criminal proceedings against the accused
police officers had been ineffective. Article 3 of the Convention
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 application should be rejected for
non-exhaustion of domestic remedies. In this connection, they stated
that the applicant should have brought compensation proceedings
before the administrative or civil courts to seek compensation for
the harm he had allegedly suffered.
- The
Court observes in the first place that the only remedies Article 35
of the Convention requires to be exhausted are those that are
available and sufficient and relate to the breaches alleged (see
Okkalı, cited above, § 57). It further
recalls that the obligations of the State under Article 3 cannot
be satisfied merely by awarding damages. For complaints about
treatment suffered in police custody, criminal proceedings are the
proper means of obtaining redress (see Okkalı, cited
above, § 58).
- In
the present case, a criminal action was indeed brought and led to the
conviction of three police officers for ill-treatment within the
meaning of Article 243 of the former Criminal Code (see paragraph 14
above). The Court should now determine whether in the particular
circumstances of the case the applicant should have exhausted the
remedies referred to by the Government. The Court notes that this
objection is closely linked to the Government’s positive
obligation to provide a sufficiently deterrent protection against
breaches of the absolute prohibition enshrined in Article 3.
Accordingly it decides to join it to the merits.
- The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
Court recalls that where allegations are made under Article 3 of the
Convention, it must apply a particularly thorough scrutiny. Where
domestic proceedings have taken place, however, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (see Gäfgen v. Germany
[GC], no. 22978/05, § 93 , ECHR 2010 .... ).
- In
assessing the treatment to which the applicant was subjected to
during his police custody, the Court notes that in its decision of
28 December 2001 the domestic court confirmed the applicant’s
allegations and established that the accused police officers had
intentionally ill-treated him to extract a confession (see paragraph
14 above). Furthermore, in their observations, the Government did not
challenge the applicant’s allegations. Consequently, the Court
finds it established that the applicant was ill-treated as alleged
during his police custody.
- Having
said that, the Court should focus on the positive obligation of the
State to provide a sufficiently deterrent protection against breaches
of the rights enshrined under Article 3 of the Convention. Within the
Convention system it has long been recognised that the right under
Article 3 not to be subjected to torture or to inhuman or
degrading treatment or punishment enshrines one of the fundamental
values of democratic society. It is an absolute right, permitting of
no exception in any circumstances (see Al-Adsani v. the United
Kingdom [GC], no. 35763/97, § 59, ECHR 2001 XI). The
Court also recalls that where an individual makes a credible
assertion that he has suffered treatment infringing Article 3 at the
hands of the police or other similar agents of the State, 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. Such an investigation should be
capable of leading to the identification and punishment of those
responsible (see Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000 IV). According to the established case-law,
this means that the domestic judicial authorities must on no account
be prepared to let the physical or psychological suffering inflicted
go unpunished. This is essential for maintaining the public’s
confidence in, and support for, the rule of law and for preventing
any appearance of the authorities’ tolerance of or collusion in
unlawful acts (see Okkalı, cited above, § 65). The
Court also recalls that when an agent of the State is accused of
crimes that violate Article 3, any ensuing criminal proceedings and
sentencing must not be time-barred and the granting of amnesty or
pardon should not be permissible (see, mutatis mutandis,
Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2
November 2004).
- Turning
to the facts of the present case, the Court notes that, as the
sentences of police officers, who were found guilty of ill-treating
the applicant to extract a confession (see paragraph 14 above), were
suspended, the way in which domestic law was applied in the present
case undeniably falls into the category of the “measures”
which are unacceptable according to the Court’s case-law, as
its effect was to render convictions ineffective (see Zeynep
Özcan, cited above, § 40-46, and Okkalı,
cited above, §§ 73-78). The Court considers that the
impugned court decision suggests that the judges exercised their
discretion more in order to minimise the consequences of an extremely
serious unlawful act than to show that such acts could in no way be
tolerated.
- Consequently,
the Court finds that, far from being rigorous, the criminal justice
system as applied in this case was not sufficiently dissuasive to
effectively prevent illegal acts of the type complained of by the
applicant.
- The
Court further notes that had the applicant exhausted the
administrative and/or civil remedies referred to by the Government,
he might have been awarded compensation. It recalls, however, that it
has decided to focus on the positive obligation of the State to
provide a sufficiently deterrent protection against breaches of the
rights enshrined in Article 3 of the Convention. Consequently, the
Government’s preliminary objection must be rejected.
- In
the light of the above, and having particularly regard to the fact
that the ill-treatment inflicted on the applicant had been classified
as torture by the domestic court, the Court concludes that there has
been a violation of Article 3 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant sought an award of just satisfaction for non-pecuniary
damage suffered and left its amount to the discretion of the Court.
As regards legal fees, the applicant submitted a fee agreement,
according to which he had undertaken to pay his representative 10,000
euros (EUR) plus 20% of any amount of just satisfaction awarded by
the Court.
- The
Government did not make any comment.
- The
Court finds that the applicant must have suffered pain and distress
which cannot be compensated for solely by the Court’s finding
of a violation. Having regard to the nature of the violation found
and ruling on an equitable basis, it awards the applicant EUR 42,000
in respect of non-pecuniary damage.
- As
regards costs and expenses, the Court may make an award in so far as
they were actually and necessarily incurred and are reasonable as to
quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1
October 2002). Making its own estimate based on the information
available, and ruling on an equitable basis, the Court awards the
applicant EUR 1,000 in this respect.
- The
Court considers it appropriate that 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
- Joins
to the merits the Government’s preliminary objection and
dismisses it;
- Declares
the application admissible;
- Holds that there has been a 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
42,000 (forty two thousand euros), plus any tax that may be
chargeable to him, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one 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 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 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
