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SECOND
SECTION
CASE OF CEMAL YILMAZ v. TURKEY
(Application
no. 31298/05)
JUDGMENT
STRASBOURG
7
February 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 Cemal Yılmaz
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Isabelle Berro-Lefèvre,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Françoise Elens-Passos,
Deputy Section
Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31298/05)
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, Mr Cemal Yılmaz (“the applicant”),
on 11 August 2005.
2. The
applicant was represented by Mr Alp Tekin Ocak, a lawyer practising
in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
3. Relying
on Article 3 of the Convention the applicant alleged that he
had been subjected to ill-treatment by a number of police officers.
- On
12 June 2009 the application was
communicated 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 was born in 1969 and lives in Ordu.
- On
1 January 2004 the applicant was driving a van in Istanbul,
accompanied by his friend Mr V.S., when police officers travelling in
a police vehicle saw them and suspected that the van might have been
stolen. The police officers then indicated to the applicant to pull
over.
- According to the applicant, he stopped the van and he
and his friend got out and the police officers caught him after a
chase. Despite having thus been apprehended and despite the lack of
any further resistance on his part, the police officers slammed his
face on the ground before proceeding to hit him and kick him. He and
his friend were then taken to a police station where the police
officers handcuffed him and blindfolded him before continuing to beat
him up.
- According
to a report drawn up by three police officers who arrested the
applicant and his friend, by contrast, the applicant ignored the
police officers’ warnings to stop and continued to drive. When
he and his friend eventually stopped the vehicle and got out, they
started running. The police officers caught up with the applicant and
his friend, and had to use force in order to handcuff the applicant.
In the course of that use of force the applicant’s chin and
various other parts of his body were injured.
- The
same day the applicant was taken to Şişli Etfal Hospital
where he was examined by a doctor. Subsequently he was placed in a
cell in the police station.
- According
to the report drawn up at the hospital, the doctor observed a
bleeding wound, measuring 5x5 centimetres, on the applicant’s
chin. A plastic surgeon stitched the wound, and a neurosurgeon
carried out a further examination of the applicant’s head.
- At
the end of his police custody on 4 January 2004 the applicant was
examined by another doctor at the Şişli Etfal Hospital. The
one sentence in the doctor’s report reads that there were “no
signs of ill-treatment” on the applicant’s body.
- On
the same date the applicant was brought before a prosecutor. A letter
of referral drawn up by a police chief and addressed to the
prosecutor states that force had to be used to arrest the applicant
on 1 January 2004. The same day the applicant was brought before
the judge at the Bakırköy Magistrates’ Court who
ordered the applicant’s remand in prison.
- On
12 January 2004 the applicant and his friend V.S. lodged an official
complaint with the Istanbul prosecutor (“the prosecutor”),
accusing the police officers of ill-treatment during their arrest as
well as in police custody. In the complaint the applicant gave
details of the alleged ill-treatment, and requested to be examined,
inter alia, by the Third Specialist Commission of the Forensic
Medicine Institute so that the physical signs of ill-treatment could
be properly established.
- On
11 February 2004 the applicant was examined by a doctor at the
Bakırköy Forensic Medicine Institute. The applicant
informed the doctor about his complaints of ill-treatment which, he
alleged, had caused deterioration in his eye-sight. The doctor
recorded in a report the presence of the stitched wound on the
applicant’s chin, and asked the prosecutor for previous medical
reports to be forwarded to her with a view to preparing a “definitive
medical report”.
- On
10 March 2004 the prosecutor questioned the three police officers who
had arrested the applicant. In the three identical statements the
police officers were quoted as having denied the allegations of
ill-treatment, and as having told the prosecutor that while running
away from them the applicant had fallen to the ground, thereby
injuring himself.
- On
29 December 2004 the prosecutor decided not to prosecute the police
officers. The prosecutor considered that the injury on the
applicant’s chin which had been noted in the medical reports,
as well as the other injuries which had been noted in the arrest
report of 1 January 2004, had been the result of the lawful force
which had been used when arresting him. The prosecutor considered
that the fact that the applicant had not mentioned his complaints of
ill-treatment when he had been brought before the prosecutor or
before the Magistrates’ Court on 4 January 2004, was further
proof to show that his injuries had been caused as a result of the
lawful use of force.
- The
applicant lodged an objection against the prosecutor’s decision
and repeated his allegations of ill-treatment. He argued that the
prosecutor had not collected all the available evidence and had not
heard any eye-witnesses.
- On
9 March 2005 the Beyoğlu Assize Court dismissed the applicant’s
objection in its decision which was served on him on 25 March
2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- Relying
on Article 3 of the Convention the applicant complained that he had
been subjected to ill-treatment and that his allegations had not been
adequately examined by the national authorities. Article 3 of the
Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Government submitted, firstly, that the applicant had not respected
the six-month time-limit because he had not lodged his application
with the Court within six months from the date of the incident. They
also argued that the applicant had failed to exhaust the domestic
remedies available to him, within the meaning of Article 35 § 1
of the Convention. In this connection, they submitted that the
applicant could have brought a civil action against the police and
sought reparation for the harm he had allegedly suffered.
- Concerning
the Government’s objection to the admissibility of the
complaint based on the six-month time-limit, the Court observes that
before making his application to the Court the applicant introduced a
criminal complaint against the police officers at the national level.
The final decision concerning the applicant’s complaints of
ill-treatment was adopted by the Beyoğlu Assize Court on 9 March
2005. That decision was communicated to the applicant on 25 March
2005 and he lodged his application with the Court on 11 August 2005,
that is within the six-month period. The Court thus considers that
the Government’s objection to the admissibility of the
application in this regard cannot be entertained.
- As
for the Government’s objection based on the rule of exhaustion
of domestic remedies, the Court reiterates that it has already
examined and rejected the Government’s preliminary objections
in similar cases (see, most recently, Saçılık and
Others v. Turkey (partial just satisfaction), nos. 43044/05
and 45001/05, § 68, 5 July 2011 and
the cases cited therein).
- The
Court finds no particular circumstances in the instant case which
would require it to depart from its findings in the above-mentioned
case. It therefore rejects the Government’s preliminary
objection based on the rule of exhaustion of domestic remedies.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant maintained that he had been beaten up both during his
arrest and subsequently in the police station. Details of some of his
injuries, which were sufficiently serious, were provided in the
medical reports.
- He
also complained that the relevant international standards had not
been complied with by the doctors who had examined him. Thus, the
medical reports lacked details and only detailed one of his injuries.
The prosecutor, for his part, had failed to forward his previous
medical reports to the doctor to enable her to prepare the definitive
report.
- The
Government asserted that the applicant had hit his chin when he fell
to the ground. Moreover, the applicant had not complained about the
alleged ill-treatment to the judge who had ordered his detention or
to the judge who had subsequently conducted the criminal proceedings
against him. Thus, the applicant had not substantiated his allegation
that he had been ill-treated.
- The
Court observes at the outset that, according to the arrest report
signed by the three police officers on 1 January 2004 (see
paragraph 8 above), the police chief’s letter of referral
of 4 January 2004 (see paragraph 12 above), and the prosecutor’s
decision of 29 December 2004 (see paragraph 16 above), the three
police officers had used force against the applicant when arresting
him. Having regard to the fact that these three documents drawn up by
the national authorities contradict the Government’s
submissions, the Court cannot accept that the injury on the
applicant’s chin had been caused by him falling to the ground.
The only support for the Government’s submissions is to be
found in the statements given by the police officers (see paragraph
15 above), which, however, do not appear to have been taken seriously
by the prosecutor when he decided to close the investigation.
- The
Court further observes that, according to the above-mentioned report
drawn up by the police officers and the prosecutor’s decision,
the applicant suffered a number of injuries in the course of his
arrest (see paragraphs 8 and 16 above).
- Having
regard to the fact that neither the use of force by the police
officers nor the applicant’s resulting injuries are disputed by
the domestic authorities, the Court finds that the respondent
Government bear the burden of providing a plausible explanation for
those injuries.
- The Court considers that a plausible explanation for
injuries caused by agents of the State in the course of their law
enforcement duties can be said to have been provided when it is
proved to the Court’s satisfaction by the respondent Government
that their national authorities have conducted an effective
investigation capable of establishing the circumstances and the
nature of the force used. In particular, the Court will expect the
investigating authorities to have ascertained the actual cause of the
injuries and also to have established that the recourse to physical
force had been made strictly necessary as a result of the victim’s
own conduct (Ribitsch v. Austria, 4 December 1995, §
38, Series A no. 336 and the case cited therein) and that it was not
excessive (Ivan Vasilev v. Bulgaria, no. 48130/99, § 63,
12 April 2007 and the cases cited therein).
- The
Court will thus examine whether the investigation carried out by the
national authorities in the present case was capable of providing a
plausible explanation.
- The
Court notes at the outset that, although both the police officers and
the prosecutor accepted that the applicant had suffered a number of
injuries in the course of the arrest, only the injury on his chin is
mentioned in the medical reports (see paragraphs 10 and 14 above).
Furthermore, despite the fact that the injury on his chin was
observed by two separate doctors who examined the applicant on 1
January and 11 February 2004, the doctor who conducted the
examination on 4 January 2004 stated in his report that there were
“no signs of ill-treatment” on the applicant’s body
(see paragraph 11 above).
- Nevertheless
the prosecutor, who had all three reports in his possession at the
time of closing the investigation, did not question these crucial
discrepancies concerning the actual extent of the applicant’s
injuries. Furthermore, as pointed out by the applicant (see paragraph
27 above), the same prosecutor also seems to have failed to forward
all medical reports to the Forensic Medicine Institute to enable that
Institute to prepare its “definitive report” concerning
the applicant’s injuries (see paragraph 14 above).
- Furthermore,
the identical nature of the three statements made by the three police
officers before the prosecutor on 10 March 2004 does not allow for an
assessment to be made of their respective roles in the applicant’s
arrest. Indeed even when the police officers, who had stated in their
report that the injuries had been caused as a result of the use of
force (see paragraph 8 above), changed their story and told the
prosecutor that the applicant’s injuries had been sustained
when he had fallen to the ground (see paragraph 15 above), it did not
spur this particular prosecutor to ask the police officers any
questions.
- Moreover,
the Court cannot agree with the Government that the fact that the
applicant did not complain about the ill-treatment when he was
brought before the judge on 4 January 2004 showed that he had not
been ill-treated. The applicant made an official complaint against
the police officers on 12 January 2004, and subsequently filed an
objection against the prosecutor’s decision to close the
investigation (see paragraphs 13 and 17 above). Thus, the fact
that the applicant did not mention the ill-treatment to the judge on
4 January 2004 does not affect the credibility of the applicant’s
allegations of ill-treatment.
- The
prosecutor concluded in his decision closing the investigation that
the injuries were the result of lawful force that had been used by
the police officers when arresting the applicant (see paragraph 16
above). Having regard to the prosecutor’s failure to clarify
the important contradictions concerning the extent and the cause of
the injuries, and in the absence of any other documents or
information showing that any other examination had been carried out
by the same prosecutor or by any other national authority of the
cause and extent of the force used, the Court is unable to comprehend
exactly what evidence or information formed the basis of the
prosecutor’s conclusion.
- Owing
to the deficiency in the medical report which was drawn up at the end
of the applicant’s police custody, and which failed to mention
even the applicant’s existing injury on his chin (see paragraph
11 above), coupled with the prosecutor’s failure to question
the police officers who had held the applicant in police custody or
the applicant or his friend V.S., the Court cannot examine whether
the applicant was also subjected to ill-treatment whilst in police
custody.
- On
account of the defects identified above, the investigation was not
capable of establishing the true circumstances surrounding the use of
force against the applicant which resulted in various injuries. Thus,
the Court considers that the Government have failed to discharge
their burden of providing a plausible explanation.
- There
has accordingly been a 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
- The
applicant claimed 2,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000 in respect of non-pecuniary damage. In support of his
claim for pecuniary damage the applicant claimed that as a result of
the ill-treatment he had been unable to work for two months.
- The
Government argued that the claim for pecuniary damage had not been
supported by adequate evidence. They also asked the Court to dismiss
the claim for non-pecuniary damage because in their opinion the
“state of evidence was insufficient to substantiate [the]
claim”.
- The
Court observes that the applicant did not submit to the Court any
evidence in support of his claim for pecuniary damage; it therefore
rejects that claim. On the other hand, it awards the applicant EUR
9,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,050 for the costs and expenses incurred
before the domestic courts and before the Court. In support of his
claim the applicant submitted to the Court a time sheet, setting out
the hours spent by his legal representative on the case.
- The
Government considered the claim for costs and expenses to be
unsubstantiated.
- 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 2,000 covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand 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;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 7 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise Tulkens Deputy
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the separate opinion of Judge Sajó is
annexed to this judgment.
F.T.
F.E.P.
CONCURRING OPINION OF JUDGE SAJÓ
Whilst
I agree with the majority that Article 3 has been violated in the
present case, I find that the violation is of a procedural nature:
the Turkish authorities did not carry out a proper investigation in a
case where the information available was contradictory regarding the
origin of the injuries sustained by the applicant while under the
control of the police. To quote from the judgment: “The
Court considers that a plausible explanation for injuries caused by
agents of the State in the course of their law enforcement duties can
be said to have been provided when it is proved to the Court’s
satisfaction by the respondent Government that their national
authorities have conducted an effective investigation capable of
establishing the circumstances and the nature of the force used. In
particular, the Court will expect the investigating authorities to
have ascertained the actual cause of the injuries and also to have
established that the recourse to physical force had been made
strictly necessary as a result of the victim’s own conduct ...”
(see paragraph 32). The very issue for the Court was, therefore, a
procedural one and all it could conclude was that there had been no
proper investigation. In situations like the present where there is
evidence that the applicant resisted arrest and was likely to have
sustained injuries after he ran away from the police, the injuries
(which he reported to a judge with considerable delay) do not impose
a full burden of proof on the Government, as the applicant did not
substantiate that the injuries had originated from acts which were
independent of his resistance to arrest.
