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SECOND
SECTION
CASE OF
ALİ GÜNEŞ v. TURKEY
(Application
no. 9829/07)
JUDGMENT
STRASBOURG
10 April
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 Ali Güneş v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9829/07)
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 Ali Güneş (“the applicant”),
on 13 January 2007.
- The
applicant was represented by Mr Kamil Tekin Sürek, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
3. The
applicant alleged, in particular, that he had been subjected to
ill-treatment in breach of Article 3 of the Convention.
- On
8 July 2010 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
THE CIRCUMSTANCES OF THE CASE
A. Introduction
- The
applicant was born in 1968 and lives in
Istanbul. He is a high school teacher, an
executive member of the Education and Science Workers’ Union
and a member of the Confederation of Public Workers’ Unions.
- The
2004 NATO summit took place in Istanbul from 28 to 29 June. The
Governor of Istanbul designated thirteen locations in Istanbul where
people would be allowed to hold demonstrations.
- As the remaining facts of the case are in dispute
between the parties, they will be set out separately. The facts as
presented by the applicant are set out in Section B below (paragraphs
8-10) and the Government’s submissions concerning the facts are
summarised in Section C below (paragraphs 11-13). The documentary
evidence and further factual elements submitted by the applicant and
the Government is summarised in Section D (paragraphs 14-27).
B. The applicant’s submissions on the facts
- On
28 June 2004 the applicant and a number of other teachers arrived at
the square outside the Mecidiyeköy Underground Station in
Istanbul, which is one of the thirteen locations referred to above,
to issue a press release.
- The
applicant and all his colleagues were unarmed and behaved in a
peaceful manner. Nevertheless, police officers who had been circling
the crowds grabbed the applicant and his friends by the arms, sprayed
them with tear gas and beat them up.
- The
police officers then took the applicant to a police station, where he
was kept for a period of eleven hours. He was subsequently brought
before a prosecutor, who ordered his release.
C. The Government’s submissions on the facts
- After
the applicant and other demonstrating teachers finished reading their
press release, police officers asked them to disperse. When the
demonstrators refused to do so, the police officers warned them that
they would be taken into custody. The group continued to refuse to
disperse and, instead, went on to stage a sit-in protest. They told
the police officers that they would continue with their protest until
their friends, who had been arrested elsewhere, had been released.
- When
the police continued to try to persuade them, the demonstrators
attacked the police with stones and sticks. They also damaged cars in
the vicinity and injured a number of police officers. As a result,
the police officers used tear gas in order to disperse them. The
applicant was taken to the police station, where he was kept for a
period of eleven hours before his release was ordered by a
prosecutor.
- On
the same day the applicant was examined by two doctors. The first
examination was carried out at 11.30 a.m. at the Haseki State
Hospital. The doctor noted that the applicant’s eyes were red,
and considered it necessary for the applicant to be examined by a
specialist doctor. The specialist doctor who examined the applicant
at Sağmalcılar Hospital at 6.45 p.m. on the same day
noted that there was no sign on the applicant’s body that he
had been subjected to ill-treatment.
D. Documentary evidence and further factual elements
submitted by the parties
- According
to a report prepared on 28 June 2004 by nine of the police officers
who had taken part in the incident, the spokesperson for the
demonstrators in Mecidiyeköy told the police officers that a
number of fellow union members had been arrested at another location
in Istanbul earlier in the day. The spokesperson added that the
demonstrators in Mecidiyeköy would not be dispersing unless and
until their friends had been released, and would instead march to
Taksim Square. When the police informed the spokesperson that this
would not be allowed and warned the demonstrators to disperse, the
demonstrators attacked the police officers with the sticks from their
banners, and proceeded to stage a sit-in protest. The Rapid Response
Force (Çevik Kuvvet) then dispersed the demonstrators
and arrested eleven persons, including the applicant, who refused to
disperse.
- The
incident was widely reported in the national press. In a photograph
published in the daily newspaper Sabah the applicant is
pictured between two police officers who are holding him by the arms,
and one of whom is spraying the applicant’s nose and mouth with
gas at very close range.
- At
11.30 a.m. on the same day the applicant was examined by a doctor at
Haseki Hospital, who noted redness in both eyes and referred him to a
specialist doctor. The ophthalmologist who examined the
applicant later that day at the same hospital observed hyperaemia in
both eyes, and recorded his findings in a report.
- At
6.45 p.m. on the same day the applicant was apparently examined by
another doctor. However, no entries were made by that doctor in the
sections of the report reserved for detailing the incident, the
applicant’s allegations and the doctor’s findings. These
parts of the report were simply crossed out by the doctor. Thus, the
report only mentions the name of the applicant, his date of birth,
the time of the medical examination and the name of the police
officer who accompanied him.
- It
appears that the applicant was examined by yet another doctor on the
same day. The doctor noted in his report (report no. 3015) that there
were ecchymosed areas measuring 8 centimetres and 5 x 8
centimetres below the applicant’s shoulders. The doctor also
noted that the applicant’s eyes were reddened.
- According
to medical reports submitted by the Government, the ten demonstrators
who had been arrested together with the applicant (see paragraph 14
above) also had various injuries on their bodies.
- The
applicant and the other demonstrators were brought before the
prosecutor and questioned. In his statement the applicant maintained
that he had not committed any offences but had simply exercised his
democratic rights. He also informed the prosecutor that the police
had used pepper spray against him. According to the statement, a
lawyer was present during the applicant’s questioning.
- On
7 September 2004 the applicant lodged an official complaint with the
Şişli prosecutor against the police officers. He argued
that when he and his colleagues had been preparing for their press
release at 10.00 a.m. on the day of the incident, a number of
police officers had attacked them with their truncheons and sprayed
them with tear gas. He complained that he had been beaten up with
truncheons and punched and kicked by the police officers even after
he had been arrested. He pointed out that the police officers
responsible could be identified from the photographs published in the
newspapers. The applicant argued that the police officers’
actions had been in violation of both the domestic legislation and
his rights under the Convention, including his rights to liberty and
security, freedom of expression and protection from ill-treatment.
- The
applicant subsequently found out in 2007 that before he had even
lodged his official complaint on 7 September 2004 a prosecutor had
already decided on 30 June 2004 not to prosecute the police officers.
In the prosecutor’s decision sixteen persons, including the
applicant, were referred to as “the complainants”. The
sixteen persons also included the ten demonstrators arrested together
with the applicant (see paragraph 14 above). The nine police officers
(see paragraph 14 above) were named as the defendants. The offence in
question was given as “ill-treatment”.
- The
prosecutor stated in his decision that the police officers had
allowed the demonstrators to read out their press release but that
when the demonstrators had wanted to march to Taksim square, they had
had to disperse them. In the opinion of the prosecutor the officers
had been carrying out their duties under the Act on the Powers and
Duties of the Police, and had not committed any offences. Despite the
fact that it was expressly stated in the decision that it was to be
communicated to the complainants, and that the complainants could
lodge objections against it, the prosecutor’s decision was not
communicated to the applicant.
- On
4 July 2007 the applicant wrote to the Şişli prosecutor and
asked for information about the investigation.
- In
his reply of 21 November 2007 the Şişli prosecutor
forwarded to the applicant’s legal representative a copy of the
decision adopted by his office on 30 June 2004.
- On
4 December 2007 the applicant lodged an objection against the
decision and drew attention to the prosecutor’s failure to have
regard to the medical reports described above (see paragraphs 16 and
18 above) and the photographs of him in the press.
- On
8 February 2008 the Beyoğlu Assize Court rejected the objection,
stating that the prosecutor’s decision of 30 June 2004 had been
in compliance with the applicable legislation and procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Article 3 of the Convention that, even
after he had been arrested by the police, he had been beaten up and
sprayed with harmful gases. Relying on Article 13 of the Convention,
he also complained that the national authorities had failed to
adequately examine his allegations against the police officers.
- The
Government contested that argument.
- The
Court deems it appropriate to examine both complaints solely from the
standpoint of Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government considered that the applicant had failed to make use of a
number of civil and administrative remedies in respect of his
complaints of ill-treatment.
32. The Court reiterates that it has already examined and
rejected similar preliminary objections made in similar cases (see,
in particular, Gazioğlu and Others v. Turkey, no.
29835/05, §§ 29-30, 17 May 2011, and the
cases cited therein). It finds no particular circumstances in
the instant case which would require it to depart from its findings
in the above-mentioned cases. It therefore rejects the Government’s
objection regarding the admissibility of the complaint.
- 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
Government considered the applicant’s allegations to be
baseless. According to the Government, when the applicant and his
fellow demonstrators had refused to obey the police officers’
orders to disperse, they had been warned not to violate the law.
However, when the group had insisted on continuing with their
protests which impeded the circulation of the traffic, the police
officers had formed a cordon around them and arrested them. No
struggle had taken place between the police and the demonstrators.
When the applicant had resisted the police officers’ attempts
to arrest him, the police officers had had to use force which could
not be considered excessive. Since the use of force by the police
officers had been proportionate to the aim of maintaining public
order, there had been no violation of Article 3 of the Convention.
- The
Government further submitted that an investigation had been
instigated by the Istanbul prosecutor immediately after complaints
had been made to his office. The prosecutor had questioned the police
officers and, in reaching his decision, had had regard to the
parties’ statements and the medical reports. The fact that the
outcome of the investigation had not been what the applicant had
expected did not mean that the investigation had been ineffective.
- The
Court observes at the outset that the applicant’s complaints of
ill-treatment are twofold. Firstly, he complained about having been
sprayed with tear gas by the police officers even after being
arrested. In respect of this complaint the applicant submitted to the
Court the photograph published in a national newspaper (see paragraph
15 above), and referred to the above-mentioned medical reports
showing that his eyes had been affected by the gas (see paragraph 16
above). Secondly, he complained about having been beaten up by the
police officers. In order to substantiate this second allegation he
relied on the medical report detailing his injuries (see paragraph 18
above).
- The
Court has already had occasion to examine the issue of the use of
“tear gas”, or “pepper spray”, for the
purposes of law enforcement, and recognised that the use of “pepper
spray” can produce effects such as respiratory problems,
nausea, vomiting, irritation of the respiratory tract, irritation of
the tear ducts and eyes, spasms, chest pain, dermatitis and
allergies. In strong doses it may cause necrosis of the tissue in the
respiratory or digestive tract, pulmonary oedema or internal
haemorrhaging (haemorrhaging of the suprarenal gland) (Oya Ataman
v. Turkey, no. 74552/01, §§ 17-18, ECHR
2006 XIII).
- In the same judgment the Court also observed that,
according to the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on their
Destruction of 13 January 1993 (“the CWC”), tear gas
is not considered a chemical weapon and its use is authorised for the
purpose of law enforcement, including domestic riot control (Article
II § 9 (d)). The CWC entered into force with regard to Turkey on
11 June 1997.
- The
Court notes that concerns have been expressed by the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (“the CPT”) over the use of such
gases in law enforcement. The CPT considers that:
“... [P]epper spray is a potentially dangerous
substance and should not be used in confined spaces. Even when used
in open spaces the CPT has serious reservations; if exceptionally it
needs to be used, there should be clearly defined safeguards in
place. For example, persons exposed to pepper spray should be granted
immediate access to a medical doctor and be offered an antidote.
Pepper spray should never be deployed against a prisoner who has
already been brought under control.” (CPT/Inf (2009) 25)
- In
its reports pertaining to its visits carried out in a number of
Member States of the Council of Europe the CPT has made the following
recommendations:
“... [A] clear directive governing the use of
pepper spray to be drawn up, which should include, as a minimum:
clear instructions as to when pepper spray may be used,
which should state explicitly that pepper spray should not be used in
a confined area;
the right of prisoners exposed to pepper spray to be
granted immediate access to a doctor and to be offered measures of
relief;
information regarding the qualifications, training and
skills of staff members authorised to use pepper spray;
an adequate reporting and inspection mechanism with
respect to the use of pepper spray...” (See, inter alia,
CPT/Inf (2009) 8)
- The
Court shares the CPT’s concerns and concurs with the
above-mentioned recommendations. It stresses, in particular, that
there can be no justification for the use of such gases against an
individual who has already been taken under the control of the law
enforcement authorities, as was the case in the present application.
- When
notice of the application was given to the respondent Government, the
Government were asked by the Court to clarify what justification
there was for the police officers to spray the applicant with gas
after he had been arrested. However, the Government did not respond
to that specific question and did not, therefore, seek to justify the
spraying of the applicant with pepper gas.
- Having
regard to the effects the gases cause and the potential health risks
they entail (see paragraph 37 above), the Court considers that the
unwarranted spraying of the applicant’s face in the
circumstances described above must have subjected him to intense
physical and mental suffering and was such as to arouse in him
feelings of fear, anguish and inferiority capable of humiliating and
debasing him (see, mutatis mutandis, Kudła v. Poland
[GC], no. 30210/96, § 92, ECHR 2000 XI). It thus
concludes that by spraying the applicant in such circumstances the
police officers subjected him to inhuman and degrading treatment
within the meaning of Article 3 of the Convention.
- Having
regard to the foregoing conclusion, the Court does not deem it
necessary to examine separately whether the applicant has also been
beaten up by the police officers.
- As
to the applicant’s complaint concerning the adequacy of the
investigation, as pointed out above the investigation was closed by
the prosecutor within forty-eight hours. Other than the prosecutor’s
decision to close the investigation (see paragraph 22 above), no
documents have been submitted to the Court to show that any steps
were taken by the authorities to investigate the allegations of
ill-treatment. The Court thus finds that the national authorities
have failed in their duty to carry out an effective investigation
into the applicant’s allegations of ill-treatment.
- In
the light of the foregoing the Court finds that there has been a
violation of Article 3 of the Convention on account of the spraying
of the applicant’s face with tear gas, as well as on account of
the failure to carry out an investigation into the applicant’s
allegations.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- Lastly,
relying on Article 5 of the Convention, the applicant complained that
he had been arrested by the police and deprived of his liberty in
breach of the domestic legislation and without any lawful ground.
- The
Court considers it appropriate to examine this complaint from the
standpoint of Article 5 § 1 of the Convention, which provides as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
- The
Government contested the applicant’s argument.
- The
Government considered that the applicant had failed to comply with
the six-month time limit because he had not introduced his
application within six months of his release from police custody on
28 June 2004.
- The
Court does not deem it necessary to deal with the Government’s
objection concerning the issue of the six-month rule; it considers
that this complaint is in any event manifestly ill-founded.
- The
Court observes at the outset that the applicant did not elaborate on
this complaint and did not single out any alleged irregularities in
the procedure concerning his arrest and detention.
- In
any event, the Court observes that the applicable procedure appears
to have been followed by the national authorities. The applicant’s
arrest was recorded in the police officers’ report (see
paragraph 14 above) and his transfer from the police station to
the prosecutor’s office was also recorded in an official
document signed by the applicant. He was subsequently questioned by
the prosecutor – in the presence of a legal representative –
in relation to his participation in the demonstration, and his
release was ordered on the same day.
- In
the light of the foregoing, the Court considers that this complaint
is manifestly ill-founded and must be rejected in accordance with
Article 35 § 3 of the Convention.
III. 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 non-pecuniary damage.
- The
Government considered this claim to be exaggerated and invited the
Court to reject it.
- Having
regard to the events leading to the violations found under Article 3
of the Convention, the Court awards the applicant
the sum claimed by him in full, that is EUR 10,000, in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 for the costs
and expenses incurred before the Court. In support of his claim the
applicant submitted to the Court a time sheet showing the time spent
by his legal representative on the case.
- In
the opinion of the Government the claim was unsupported and
exaggerated.
- 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 1,500 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints
under Article 3 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the spraying of the applicant’s
face with tear gas, as well as on account of the failure to carry out
an investigation into the applicant’s allegations;
- Holds
(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, the following amounts, plus any tax that
may be chargeable to the applicant, to be converted into Turkish
liras at the rate applicable on the date of settlement:
(i) EUR
10,000 (ten thousand euros) in respect of non-pecuniary damage; and
(ii) EUR
1,500 (one thousand five hundred euros), 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 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens Registrar President
