SECOND SECTION
CASE OF
İBRAHİM ERGÜN v. TURKEY
(Application no.
238/06)
JUDGMENT
STRASBOURG
24 July 2012
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 İbrahimErgün v.
Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
FrançoiseTulkens, President,
DanutėJočienė,
DragoljubPopović,
AndrásSajó,
IşılKarakaş,
PauloPinto de Albuquerque,
HelenKeller, judges,
andStanley Naismith, Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
238/06) 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 İbrahim Ergün (“the
applicant”), on 30 September 2005. The applicant was represented by
Mr F. N. Ertekin, Mr K. Öztürk, Mr T. Ayçık and Ms F.
Kılıçgün, lawyers practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
On 11 May 2009the 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
THE CIRCUMSTANCES OF THE CASE
The applicant,born in 1967, is a lawyer and lives
in Istanbul.
A. The applicant’s arrest during a press conference
and alleged ill‑treatment by the police
At approximately 12 noon on 16 September 2000,
while attempting to participate in a demonstration in the form of “a press
conference” held in Taksim, Istanbul, by members of the Contemporary Lawyers’
Association, the applicant was arrested, with some fifty others. The applicant
alleged that the large number of police officers on duty at the site of the
demonstration, who were wearing special uniforms, had used disproportionate
force to disperse the crowd and arrest the potential demonstrators. He claimed
in particular that the police had kicked and punched him, beaten him with a
stick, and sprayed tear gas in his face inside the police bus following his
arrest. The Government, on the other hand, argued that the demonstrators had
resisted the police and had refused to disperse despite numerous warnings.
The applicant was subsequently taken to the
police station, along with the others who had been arrested, apparently for an
identity check.
At 3.30 p.m. on the same day the applicant
wastaken to the Beyoğlu branch of the Forensic Medicine Institute for a
medical examination. The doctor who examined the applicant reportedbruisingon
hisinner left knee, left ankle and inner left arm. He also noted that the
injuries would render the applicant unfit for work for three days.
The applicant was released from police custody
after the medicalexamination at the Forensic Medicine Institute.
On 18 September 2000 the applicant sought a
medical examination at the Istanbul branch of the Human Rights Foundation of
Turkey, in order to have the bruises which had developed on his body after his
arrest recorded by an independent medical expert. The two doctorswhoexamined
the applicant noted the following on his body: a 4 x 6 cm yellow‑green
bruise on the left part of the chest, a 2 x 1 cm yellow-green bruise on the
left buttock, a spotted haemorrhage measuring 1.5 x 10 cm behind the left knee,
a bleeding yellow-green bruise accompanied by a spotted haemorrhage measuring 3
x 3 cm on the left calf, a 4 x 0.5 cm graze on the left ankle, a 0.3 x 0.6
cm graze behind the left ankle, a scabbed wound 0.5 cm in diameter,with an area
of hyperaemia 0.5 cm in width around the wound, on the right ankle. The
applicant stated to the doctorsthat he had been kicked and punched and beaten
with sticks by the police and had had tear gas sprayed in his face. He further
stated that he had been coughing and had a burning sensation in his throat on
account of the tear gas. The doctorsreported that the injuries on the applicant’s
body and his complaints regarding his throat matched his account of events, but
they did not note any physical findings indicating if and how the applicant had
been affected by the tear gas.
B. Criminal proceedings against the police officers
On 18 September 2000 twenty-seven members of the
Contemporary Lawyers’ Association, including the applicant, lodged a criminal
complaint with the Beyoğlu public prosecutor against the Istanbul
governor, the deputy chief of police of Istanbul and the police officers on
duty at the time of their demonstration. They alleged that they had all been
ill‑treated by the police during their arrest, on the orders of the
governor and the deputy chief of police.
It appears that on the same date the
Beyoğlu public prosecutor took statements from only four of the
complainants. The applicant was not summoned for a statement.
On 26 September 2000 the Beyoğlu public
prosecutor requested the Ministry of the Interior to decide whether it would
grant authorisation for prosecution of the governor and the deputy chief of
police. There is no further information in the case file in relation to this
request.
On an unspecified date the public prosecutor
further requested the Istanbul governor to decide whether authorisation would
be granted to prosecute the six police officers who had been identified from
various photographs and video footage as having carried out the complainants’
arrests. Only five of the lawyers who had lodged the criminal complaint on 18
September 2000 were indicated as complainants, not including the applicant.
On 21 December 2000 the Istanbul governor
decided not to grant authorisation for the prosecution ofthe six police
officers,due to lack of sufficient evidence in support of the allegations of
ill-treatment. The governor indicated in his decision that despite warnings by
the police the demonstrators, who had gathered illegally without obtaining
permission, had refused to disperse, and the police had therefore been obliged
to use some degree of force to disperse them and restore public order.
On an unspecified date two of the complainants
objected to the decision of 21 December 2000.
On 17 April 2001 the Istanbul Regional
Administrative Court upheld the objection, holding that the evidence in the
case file was sufficiently strong to require an investigation. It therefore
decided to grant authorisation for the prosecution of the relevant police
officers.
On 11 May 2001 the Beyoğlu public
prosecutor filed a bill of indictment with the Beyoğlu Criminal Court
against the six police officers in question, charging them with ill-treatment
under Article 245 of the former Criminal Code. Only five of the twenty-seven
lawyers who had filed the complaint of 18 September 2000 were indicated as
complainants in the bill of indictment, and they did not include the applicant.
On 14 January 2003 the applicant lodged a
petition with the Beyoğlu public prosecutor’s office requesting
information as to the outcome of the investigation of his complaints.
The public prosecutor informed the applicant on
the same date that criminal proceedings had been brought against four female
and two male police officers(case no. 2001/1035 E.)following complaints by five
lawyers from the Contemporary Lawyers’ Association. The public prosecutor did
not give any information as to why no action had been taken onhis complaints.
On 4 February 2003 the applicant made an
application to the BeyoğluCriminal Court, requesting leave to join the
criminal proceedings which were pending against the six police officers as a
civil party, in the absence of any separate proceedings in connection with his
complaints.
Also on4 February 2003 the Beyoğlu Criminal
Court dismissed the applicant’s request to join the proceedings, as his name
was not included in the bill of indictment as a victim.
On 6 March 2003 the Beyoğlu public
prosecutor took a statement from the applicant for the first time, in relation
to the complaints he had made on 18 September 2000. In his statement, the
applicant complained that the relevant authorities had failed to take any
action on his complaints for two and a half years, and requested the
identification and punishment of the officers responsible for this delay.
On 10 March 2003 the Beyoğlu public
prosecutor filed a further bill of indictment with the Beyoğlu Criminal
Court against the same six police officerspreviously indicted under case no.
2001/1035 E., this time charging them with inflicting ill‑treatment on
the applicant.The public prosecutor relied on the findings in the medical
reports of 16 and 18September 2000 as evidence of ill-treatment.
On an unspecified date the applicant’s case was
joined to case no. 2001/1035 E.
At a hearing held on 1 July 2003 the applicant
stated that he had not been given an opportunity by the public prosecutor to
identify the police officers who had ill‑treated him. He stated that none
of the four female officers charged in respect of his complaints had used any
force against him. He was not 100% sure about the remaining two male officers,
no confrontation procedure having taken place with the latter or with any
witnesses.
At the next hearing,
held on 23 October 2003, only one of the defendant male officers was present,
namely G.F.K. The applicant stated that G.F.K. resembled one of the police
officers who had kicked him during the demonstration, but he could not be
100%certain after so much time had passed.
On 28 September 2004 the Beyoğlu Criminal
Court acquitted the police officers of the charges of ill-treatment of the
applicant, as the applicant could notidentify them asthe perpetrators. The
court held in relation to one of the male defendants, A.C., that he had been on
leave on the date of the demonstration.
On 17 November 2004 the applicant appealed to
the Court of Cassation. He stated that he had informed the first-instance court
from the very beginning that the four female defendants had not used any force
against him. Moreover, at the hearing held on 23 October 2003, he had been able
to identify one of the male defendants, G.F.K., albeit with some doubts, which
should nevertheless have been sufficient to convict G.F.K. when combined with
other evidence. As regards the defendant A.C., he protested about how it could
happen that a police officer initially identified by the authorities as having
been on duty could later be found to have been on leave on the relevant day.
Lastly, he complained that the public prosecutor had made no efforts to duly
identify the officers who had ill‑treated him, or to collect the relevant
evidencein a timely manner, in orderto bring about their punishment. The
additional indictment prepared in his respect three years after the incident
was, therefore,no more than a mere formality.
On 6 November 2006 the Court of Cassation upheld
the judgment of 28 September 2004 in so far as it concerned the applicant, without
responding to any of his objections.
C. Criminal charges against the applicant
In the meantime, on 17 November 2000, the
Beyoğlu public prosecutor had brought charges against demonstrators who
had been arrested on 16 September 2000, including the applicant, for violation
of the Meetings and Demonstration Marches Act (Law no. 2911).
In a judgment dated 28 March 2001, the
Beyoğlu Criminal Court acquitted the applicant and his co-accused of the
above-mentioned charges, finding that the demonstrators had exercised their
democratic rights without committing any offences. The first-instance court
also noted that the police had learned in advance that the press conference was
being planned and had therefore taken the necessary security measures.
D. Compensation claims by the applicant for unlawful
detention
On 4 June 2001 the applicant brought a case
before the Eyüp Assize Court seeking compensation under Law no. 466 on the
payment of compensation to persons unlawfully arrested or detained,(“the
Unlawful Detention (Compensation) Act”) in relation to his arrest and detention
for approximately five hours on 16September 2000.
On 21 October 2002 the Eyüp Assize Court
rejected the applicant’s request. It held that the applicant had been taken to
the police station merelyto determine his identity, without being taken into
detention, and that he had been released as soon as he had had a medical
examination. He was therefore not entitled to seek compensation under Law no.
466.
On 25 February 2005 the Court of Cassation
upheld the judgment of the Eyüp Assize Court. The Court of Cassation’s decision
was served on the applicant on 11 April 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained under Article 3 of the
Convention that the force used by the police against him during and immediately
after his arrest had constituted ill-treatment. He further complained under
Article 13 of the Convention that the authorities had failed to conduct an
effective investigation of his complaints of ill-treatment.
The Court considers that these complaints should
be examined from the standpoint of Article 3 alone.
A. Admissibility
The Court notes that this part of 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
1. The responsibility of the respondent State in the
light of the substantive aspect of Article 3 of the Convention
a. The parties’ submissions
The Government argued that the applicant had not
been ill-treated by police officers at the time of his arrest or afterwards.
They submitted that according to the findings in the medical report of 18
September 2000 the bruises noted on the applicant’s body were all yellow and
green in colour, which indicated that they had occurred five to twelve days
before the medical examination and thus preceded the demonstration.
The applicant claimed that the Government’s
allegations on the age of his bruiseslacked any scientific basis.The two
independent medical experts who had examined him on 18 September 2000 had
opined that the bruises noted on his body corresponded to the treatment he had
claimed to have received on 16 September 2000. The silence of the earlier
report of the Forensic Medicine Institute on issues such as the colour, timing
or possible causes of the bruises could not be used to his detriment, as the
quality of the Forensic Medicine Institute’s reports wasthe responsibility of
the State.
b. The Court’s assessment
i. General principles
The Court reiterates at the outset that Article
3 of the Convention prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the victim’s
behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV).
The Court also 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, cited above, § 121).
The Court considers in particular that medical
reports obtained from public or privately owned or run medical establishments may
be admitted in evidence by the Court in its examination of allegations of
ill-treatment (see, inter alia, Türkan v. Turkey, no. 33086/04, §
44, 18 September 2008),unless they fall significantly short of the standards
recommended by the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) (see, inter alia, Akkoç v.
Turkey, nos. 22947/93 and 22948/93, § 118, ECHR 2000-X), and the guidelines
set out in the Istanbul Protocol (see Batı and Others v. Turkey,
nos. 33097/96 and 57834/00, §100, ECHR 2004‑IV (extracts)).
In the presence of such evidence, the burden
therefore rests on the Government to demonstrate by convincing arguments that
the use of force during arrest was rendered strictly necessary by the applicant’s
own behaviour and that the force used by members of the security forces was not
excessive (see Ribitsch v. Austria, 4 December 1995, § 38, Series A
no. 336; Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April2007;
Biçici v. Turkey, no. 30357/05,
§ 34, 27 May 2010; and Gazioğlu and Others v. Turkey, no.
29835/05, §43, 17 May 2011).
Furthermore, a mere presumption that the applicant could have been injured
before his arrest, uncorroborated by any other evidence, cannot be considered a
satisfactory and convincing explanation on the part of the Government (see Mammadov
v. Azerbaijan, no. 34445/04, § 64, 11 January 2007).
ii. Application of these principles in the present
case
– Use of tear gas
The Court observes that none of the medical
reports in the case file noted any illeffects of the gas on the applicant, such
as respiratory problems, nausea, vomiting, irritation of the respiratory tract,
irritation of the tear ducts and eyes, spasms, thoracic pain, dermatitis or
allergies. In short, there is no evidence whatsoever to substantiate his
allegations that he had suffered because of the use of tear gas.
– Other ill-treatment
The Court notes that both medical reports obtained
on 16 and 18 September 2000 indicate unambiguously that the applicant had
received injuries to certain parts of his body, which, takentogether, were
sufficiently severe to exceed the minimum level of severity under Article 3 of
the Convention. However, the Court further notes that the causes of the
applicant’s injuries are disputed between the parties, the applicant arguing
that they occurred at the time of his arrest at the demonstration and the
Government claiming that they pre-dated the demonstration. It therefore falls
to the Court to determine whether the State bore responsibility for the
injuries sustained by the applicant and whether the applicant’s allegations of
ill-treatment may thus be upheld in these circumstances.
The Court notes that, following his arrest on 16
September 2000, the applicant was taken for a medical examination at the
Beyoğlu branch of the Forensic Medicine Institute, which revealed bruising
on his inner left knee, left ankle and inner left arm.The Court observes that
the medical report in question lacks details such as the extent and dimensions
of the injuries and the applicants’ own account of how the injuries had been
caused. Nevertheless, despite itsbrevity, the report doesestablish that the
applicant was subjected to some use of force, which rendered him unfit for work
for three days. The Court, therefore, considers that the medical report in
question can be relied on as evidence of ill‑treatment.
The Court further notes that on 18 September
2000, that is two days after theincidents concerned, the applicant underwent
another medical examination at the Istanbul branch of the Human Rights
Foundation of Turkey, a privateorganisation, in order to have the injuries that
developed on his body in the meantime fully recorded. The two medical experts
who examined the applicant noted a number of yellow-green bruises, including
some with spotted haemorrhage, and various grazes on his chest, left buttock,
left knee, left calf and ankles, which they found to be consistent with the
applicant’s account of events.
The Court notes that both medical reports were
used by the public prosecutor as evidence of the applicant’s ill-treatment in
the bill of indictment dated 10 March 2003. Neither at the initial
investigation stage nor during the subsequent proceedings before the
Beyoğlu Criminal Court was there a dispute as to the causes or timing of
the applicant’s injuries, suggesting that the marks noted on his body could
have dated from a period prior to his arrest or could have originated in a
self-inflicted act by the applicant. Nor have the domestic authorities sought
to challenge the accuracy and authenticity of the reports which the Government
now dispute before the Court.
The Court also notes that the Government have
failed to provide an explanation as to why, if the applicant’s bruises
identified in the second medical check were really five to twelve days old at
the time, as they alleged, they were not all mentioned in the Forensic Medicine
Institute’s initial report, and why the second report referred to more
injuries. In the absence of any explanations from the Government, the Court
considers that the Forensic Medicine Institute’s failure to identify some of
the bruises later observed on the applicant’s body may be due to the proximity
in time of the alleged ill-treatment and the initial medical check, at which
time not all bruises had developed and become visible.As an alternative, such
an omission may be a result of the superficiality of the examination conducted
by the Forensic Medicine Institute, for which the applicant may not be
reproached.
In the light of the foregoingconsiderations, the
Court concludes that the Government have failed to establish with any medical
evidence that the applicant’s injuries occurred prior tothe time of his arrest
on 16September2000. The Court has to determine next whether the circumstances
of the case could justify recourse to such physical force by police officers.
The Court notes from the Beyoğlu Criminal
Court’s judgment of 28 March 2001that the police had been informed about
the demonstration and had had sufficient time to take the necessary measures at
the scene of the demonstration (see paragraph 30 above).In other words, they
were not called upon to react without prior preparation (see Rehbock v.
Slovenia, no. 29462/95, § 72, ECHR 2000-XII). They should 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, as noted by the Beyoğlu Criminal Court in
its judgment. The Government, similarly, did not claim that the applicant, or
the demonstrators in general, had attacked the police officers, nor did they
submit incident reports or other evidence that could suggest such disorderly
behaviour. It thus appears that the police acted hastily and used
disproportionate force, which resulted in injuries to some of the
demonstrators, including the applicant.
In the light of the above findings, the Court
considers that the Government have failed to furnish any information
ordocuments which would provide a basis to explain or justify the degree of
force used against the applicant. As a result, it concludes that the injuries
sustained by the applicant were the result of unjustified treatment for which
the State bears responsibility.
It follows that there has been a violation of
Article 3 under its substantive limb on account of the inhuman and degrading
treatment to which the applicantwas subjected at the time of his arrest by the police,
who used disproportionate force against him.
2. The responsibility of the respondent State in the
light of the procedural aspect of Article 3 of the Convention
a. The parties’ submissions
The Government contended that the applicant’s
allegations had been subjected to effective examination,because an
investigation of his complaints had been initiated, and criminal proceedings
had been instituted against the implicated police officers. The criminal
proceedings, however, had ended with the acquittalof the relevant police
officers for lack of evidence that they had ill-treated the applicant.
The applicant maintained that the investigation
of his complaints had been ineffective. He claimed in particular that the
public prosecutor had taken no action on his complaints for two and a half
years, and when he finally had, the investigation that followed was perfunctory
and superficial, and did not constitute a serious attempt to find out what had
happened to him on the day of the demonstration.
b. The Court’s assessment
i. General principles
The Court reiterates that Article 3 of the
Convention 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).
ii. Application of these principles in the present
case
The Court observes that in the instant case the
applicant lodged an official complaint of ill-treatment with the Beyoğlu
public prosecutor on 18 September 2000, together with a number of other
demonstrators. It was, however, not until 6 March 2003 that the public
prosecutor summoned the applicant for a statement. Although the public
prosecutor had taken some investigative steps in relation to the complaints of
some other demonstrators relatively rapidly, the Court observes his complete
inaction vis-à-vis the applicant’s complaints for almost two and a half
years. In the absence of any explanations from the Government to justify this
long delay, the Court concludes that the investigation lacked promptness.
As to the quality of the investigation, the
Court notes a number of serious shortcomings in the way the investigation and
the ensuing criminal proceedings were conducted. The Court notes at the outset
that the applicant was at no point given the opportunity to identify the police
officers who he said had used disproportionate force against him, either by
checking photographs or through an identification parade. There were,
similarly, no other attempts on the part of the public prosecutor, such as
examining photographs or video footage from the demonstration, to elucidate the
identities of the relevant police officers or to collect any other evidence in
connection with the applicant’s complaints. The Court notes that the public
prosecutor instead incorporated the applicant’s complaints in the ongoing
proceedings against the six police officers (case no. 2001/1035 E.), who had
been charged with offences against other demonstrators, without consulting the
applicant as to their identities or carrying out any further research into his
complaints.
The Court further observes that the applicant
had informed the Beyoğlu Criminal Court, as early as at the first hearing
he attended on 1 July 2003, that he had never been asked by the public
prosecutor to identify the perpetrators, but that he was nevertheless certain
that none of the four female officers brought to trial in relation to his
complaints had used any force against him. He had also stated that he did not
know if the remaining two police officers, who were not present at the hearing
on that day, had been involved in his ill-treatment, as he had not been
confronted with them, or with any other police officers for that matter.
Despite these clear statements by the applicant, which demonstrated the utter
inadequacy of the investigation, the Court notes that the Beyoğlu Criminal
Court did not requestthe public prosecutor to conduct an additional
investigation of the applicant’s complaints, with the aim of identifying and
punishing the real perpetrators of the crimes committed against the applicant.
Instead, the first-instance court acquitted the six police officers in respect
of the applicant’s complaints, on the ground that the applicant had failed to
identify them as perpetrators, without acknowledging that the charges had been
brought against the wrong officers to start with.The mistaken indictment of
A.C., who had apparently been on leave on the day of the demonstration,
similarly demonstrates the haphazard way in which the investigation was
conducted from the beginning.
In the light of the foregoing, the Court finds
that the investigation of the applicant’s complaints of ill-treatment was
inadequate and 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Theapplicant complained under Article 5 §§ 1 and
5 and Articles 13 and 14 of the Convention that his arrest and detention
had not been lawful, that he had not had any effective legal remedy whereby he
could object to his detention andobtain compensation for it.
The Court considers at the outset that the
complaint concerning the lack of an effective means of obtaining compensation
for unlawful detention should be examined under Article 5 § 5 alone, which
constitutes lex specialis in relation to the more general requirements
of Article 13 (see Andrei Georgiev v. Bulgaria, no. 61507/00, § 70, 26
July 2007).
As regards the complaint under Article 5 § 1 of
the Convention, the Court notes that the applicant was released from detention
on 16 September 2000. The application was not lodged however until 30 September
2005, more than six months later. The Court reiterateson this point that a
compensation claim under Law no. 466could not constitute a remedy to be used
because of the court’s lack of jurisdiction to order release if detention is
unlawful or to award reparation for a breach of the Convention if the detention
complies with domestic law (see, for example,Öcalan v. Turkey [GC], no.
46221/99, § 71, ECHR 2005‑IV).
It follows that the complaint under Article 5 §
1 of the Conventionwas lodged out of time and must be rejected under Article 35
§§ 1 and 4 of the Convention.
In the light of the above finding under Article
5 § 1 of the Convention, the Court is of the opinion that no issues arise under
Articles 5 § 5 and 14 of the Convention.It follows that the remaining
complaints under Articles 5 § 5 and 14 must also be rejected under Article 35
§§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
The applicant claimed 870 euros (EUR) in respect
of pecuniary damage, for loss of income due to his injuries and medical
expenses. He also claimed EUR 50,000 in respect of non-pecuniary damage.
The Government contested these claims as
unsubstantiated and excessive.
The Court observes that the applicant did not
submit any relevant documents to prove the existence and the amount or value of
the alleged damage. It therefore rejects this claim. However, the Court considers it appropriate in equity to award the
applicant EUR 19,500 in respect of non‑pecuniary damage.
The applicant also claimed EUR 7,327 for costs
and expenses incurred before the Court, including legal fees, translation and
postal and stationery expenses, and EUR 200 for those incurred during the
domestic proceedings. The applicant submitted a receipt of 3,540 Turkish liras
(TRY) (approximately EUR 1,590) for the legal fees incurred before the Court,
an invoice of TRY 1,534 (approximately EUR 690) in relation to his translation
expenses and a number of postal receipts. He also submitted the Istanbul Bar
Association’s recommended fee list in respect of his claims for legal fees.
The Government contested these 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 are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,500 to cover costs under all heads (see Société
Colas Est and Others v. France, no. 37971/97, § 56, ECHR 2002-III).
B. 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
1. Declaresthe complaint concerning the
alleged ill-treatment of the applicant during his arrest and the failure of the
authorities to conduct an effective investigation into this claim admissible,
and the remainder of the application inadmissible;
2. Holds that there has been a substantive
violation of Article 3 of the Convention on account of the inhuman and
degrading treatment to which the applicant was subjected during his arrest;
3. Holds that there has been a procedural
violation of Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation of the applicant’s
allegations of ill-treatment during his arrest;
4. Holds
(a) that the respondent State is to pay the
applicant, within three monthsof 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 19,500 (nineteen thousand five hundred
euros), plus any tax that may be chargeable,in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 July 2012, pursuant
to Rule77§§2 and3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
