SECOND SECTION

CASE OF BÖBER v. TURKEY

(Application no. 62590/09)

JUDGMENT

STRASBOURG

9 April 2013

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 Böber v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Danutė Jočienė,
	Peer Lorenzen,
	Dragoljub Popović,
	Işıl Karakaş,
	Nebojša Vučinić,
	Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 62590/09) 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 Yasin Böber (“the applicant”), on 6 November 2009.
2.  The applicant was represented by Mr Y. Başara Filorinalı and Mr M. Filorinalı, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 23 June 2010 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
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1977 and lives in Istanbul.
5.  On 28 June 2003 two police officers went to the Beşiktaş district of Istanbul following a complaint by a woman, and imposed an administrative fine on a taxi driver. Subsequently, the policemen and the taxi driver commenced a verbal dispute in the presence of the applicant, who is also a taxi driver. The applicant told the police officers that he would pay the fine on his friend’s behalf. The police officers then pushed the applicant to the ground, handcuffed him and began kicking and punching him. He was subsequently put in the police car. One of the police officers closed the car door on the applicant’s leg.
6.  The applicant was arrested and taken to the Beşiktaş police station by the officers, as he was accused of having insulted them.
7.  The applicant was then taken to the Taksim Hospital. According to a medical report issued following X-rays and an orthopaedic examination of the applicant, his right leg was broken as a result of the incident.
8.  On 29 June 2003 the applicant was examined by a forensic expert at the Istanbul branch of the Forensic Medicine Institute. The doctor observed a bruise of 4 cm on the left scapula, two bruises of 3 cm and 1 cm on the front of the right shoulder, two grazes of 1.5 x 1 cm on both elbows, several grazes on the upper part of the right arm within an area measuring 5 x 4 cm, and five bruises of 1 to 1.5 cm in diameter on the right arm. The doctor also observed that the applicant’s right leg was in plaster up to his knee.
9.  The final report of the Forensic Medicine Institute dated 1 July 2003 confirmed that the applicant’s leg was broken and stated that the injuries rendered him unfit for fifteen days.
10.  On an unspecified date a criminal case was brought before the 12th Chamber of the Istanbul Criminal Court against the applicant for insulting the police officers. Subsequently, on 20 October 2003 the applicant lodged a petition with the trial court and requested that the police officers be punished for ill-treating him.
11.  On 31 January 2005 the 12th Chamber of the Istanbul Criminal Court acquitted the applicant of the charges against him in respect of one of the officers. As regards the second officer, who had closed the car door on the applicant’s leg, the court found that the applicant had insulted him. However, since the officer had overstepped his authority by his actions, the court decided not to convict the applicant.
12.  Meanwhile, on 4 May 2004 the Istanbul public prosecutor filed an indictment with the 1st Chamber of the Istanbul Criminal Court against the police officers, charging them with ill-treatment of the applicant. The applicant joined the proceedings as a civil party.
13.  On 23 December 2008 the 1st Chamber of the Istanbul Criminal Court convicted the police officers as charged. The court found, in the light of the medical reports that it had obtained, plus the witness statements and the submissions of the accused and the applicant, that the police officers had beaten the applicant and had closed the car door on his leg and had thus caused the injuries found on the applicant’s body on 28 and 29 June 2003. The court sentenced the accused police officers to two months and fifteen days’ imprisonment. Having regard to the fact that the police officers did not have criminal records and to the manner in which they had committed the offence in question, the first-instance court considered that the police officers would not commit any further offence. It therefore decided to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure (Law no. 5271).
14.  On 29 December 2008 the applicant lodged an objection to the judgment of the first-instance court. In his petition, the applicant noted that he would make more detailed submissions after he had been provided with a copy of the reasons for judgment, and requested that a hearing be held.
15.  On 21 April 2009 the Istanbul Assize Court dismissed the applicant’s objection of 29 December 2008 after obtaining the Istanbul public prosecutor’s opinion, without awaiting the applicant’s further submissions and without holding a hearing. As domestic legislation did not provide for an appeal, this decision was final.
16.  On 8 May 2009 the decision of the Istanbul Assize Court was notified to the applicant.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
17.  A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts).
18.  Suspension of the pronouncement of a judgment is regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows:
Article 231
“...
(5) If the accused has been convicted of the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender.
(6) Suspension of the pronouncement of the judgment may be decided provided that;
(a) the offender has never been found guilty of a wilful offence;
(b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and]
(c) the damage caused to the victim or to society is satisfied by way of restitution or compensation.
...
(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.
...
(10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued.
(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that [...] up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures.
(12) An objection to the decision to suspend the pronouncement of the judgment may be filed.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 3, 6 and 13 OF THE CONVENTION
19.  The applicant complained under Article 3 of the Convention that despite the serious nature of his injuries the police officers who had inflicted the ill-treatment on him had not been punished. He further maintained under Articles 6 §§ 1 and 3 of the Convention that the length of the proceedings against the police officers had been excessive. Under the same head, he contended that the Istanbul Assize Court had dismissed his objection to the judgment of 23 December 2008 without awaiting his submissions and without holding a hearing. Finally, the applicant alleged under Article 13 of the Convention that he had been denied an effective remedy in domestic law on account of the decision to suspend the pronouncement of the judgment against the police officers.
20.  The Government contested that argument.
21.  The Court considers that the applicant’s complaints should be examined from the standpoint of Article 3 of the Convention, which reads as follows, alone:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
22.  The Government claimed that the applicant had not lodged his application with the Court within the six-month time-limit. They submitted in this connection that the final decision in the case against the police officers had been given on 21 April 2009, whereas the applicant had brought the application on 6 November 2009. The Government further 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.
23.  The applicant replied that he had complied with the six-month time-limit, as the final decision dated 21 April 2009 had been served on him on 8 May 2009. He further submitted that on account of the excessive length of the case against the police officers, a compensation claim would not have been able to provide redress for the damage he had suffered.
24.  As to the Government’s objection regarding the six-month rule, the Court reiterates that where an applicant is automatically entitled to be served with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written decision (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V, and Saribek v. Turkey (dec.), no. 41055/98, 9 September 2004). The Court observes that the final decision in the case brought against the police officers was served on the applicant on 8 May 2009. The Court therefore considers that the present application, lodged on 6 November 2009, was introduced in conformity with the six-month time-limit. As regards the Government’s objection that the applicant failed to exhaust domestic remedies, the Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It reaffirms its earlier conclusions that the remedies referred to by the Government cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 of the Convention. The Court therefore finds no particular circumstances in the instant case which would require it to depart from its previous findings. Accordingly, the Court rejects the Government’s preliminary objections.
25.  The Court notes that the application 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
1.  The parties’ submissions
26.  The applicant submitted that he had been subjected to ill-treatment and that those who had been responsible for his ill-treatment had gone unpunished as a result of the suspension of the pronouncement of the judgment. He further complained about the length of the criminal proceedings against the police officers and the lack of a hearing in the assessment of his objection to the decision to suspend the pronouncement of the judgment.
27.  The Government submitted that there had been no violation of Article 3 of the Convention under its substantive limb and that the authorities had complied with their procedural obligations under this head. They argued that the suspension of the pronouncement of the judgment concerning the police officers had not been in breach of Article 3 of the Convention, as their sentences would be executed if they committed another wilful offence during the five-year supervision period.
2.  The Court’s assessment
a.  As regards the alleged ill-treatment of the applicant
28.  The Court reiterates that where allegations of ill-treatment are made under Article 3 of the Convention, it must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, 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. Though the Court is not bound by the findings of domestic authorities, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those authorities (see, among others, Yüksel Erdoğan and Others v. Turkey, no. 57049/00, § 87, 15 February 2007, and Eski v. Turkey, no. 8354/04, § 28, 5 June 2012).
29.  In assessing the treatment to which the applicant was subjected by the police officers, the Court observes that after acquainting itself with the evidence in the case file, in its judgment the Istanbul Criminal Court found it established that the applicant had been ill-treated by the accused police officers (see paragraph 13 above).
30.  The Court does not find any reason to depart from the findings of facts of the Istanbul Criminal Court. It therefore also concludes that the State is responsible under Article 3 of the Convention because the applicant was ill-treated by two police officers and, as a result, suffered the injuries detailed in the medical reports.
31.  It follows that there has been a violation of Article 3 of the Convention under its substantive limb on account of the inhuman treatment to which the applicant was subjected.
b.  As regards the alleged ineffectiveness of the investigation
32.  The Court 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 v. Turkey, no. 52067/99, § 65, ECHR 2006‑XII (extracts), and Derman v. Turkey, no. 21789/02, § 27, 31 May 2011).
33.  It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may also generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Batı and Others, cited above, § 136).
34.  The Court also reiterates 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 an amnesty or pardon should not be permissible. It further reiterates that where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that he or she should be suspended from duty during the investigation and trial, and should be dismissed if convicted (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004).
35.  Turning to the facts of the present case, the Court observes that an investigation was initiated into the applicant’s allegations of ill‑treatment. However, the ensuing criminal proceedings against the police officers concerned lasted for a period of almost five years, a delay that runs contrary to the promptness required to punish those responsible. There is no indication that the police officers were suspended from duty during that period or that the authorities took disciplinary action against them. What is more, at the end of the criminal proceedings, the Istanbul Criminal Court suspended the pronouncement of the judgment whereby it had sentenced two police officers for the ill-treatment they had inflicted upon the applicant (see paragraph 13 above). According to the Court’s case-law, suspension of such sentences undeniably falls into the category of the “measures” which are unacceptable, as its effect is to render convictions ineffective (see Eski, cited above § 36; Taylan v. Turkey, no. 32051/09, § 46, 3 July 2012; Okkalı, cited above, §§ 73-78; and Zeynep Özcan v. Turkey, no. 45906/99, §§ 40‑46, 20 February 2007). In this respect, the Court notes that the suspension of pronouncement of a judgment, regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), has a more far-reaching effect than the deferral of the execution of a sentence and results in impunity for the perpetrators. The difference arises because the use of the former measure removes the judgment with all its legal consequences, including the sentence, provided that the offender abides by the suspension order (see paragraph 18 above), whereas upon use of the latter measure, neither the sentence nor the judgment cease to exist. The Court therefore considers that the impugned court decision suggests that the judges exercised their discretion more in order to minimise the consequences of a serious unlawful act than to show that such acts could in no way be tolerated.
36.  There has accordingly been a violation of Article 3 of the Convention under its procedural limb.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  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
38.  The applicant claimed 12,000 euros (EUR) and EUR 50,000 in respect of pecuniary and non-pecuniary damage respectively.
39.  The Government contested these claims, submitting that the requested amounts were unsubstantiated and excessive.
40.  The Court observes that the applicant did not submit any relevant documents to prove the existence and the amount or value of the alleged pecuniary damage. It therefore rejects this claim. On the other hand, 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 19,500 in respect of non-pecuniary damage.
B.  Costs and expenses
41.  The applicant also claimed EUR 5,500 for costs and expenses incurred before the Court, including legal fees and translation expenses. The applicant submitted a timesheet to the Court, showing that a total of nineteen-and-a-half hours had been spent by his legal representative on the case.
42.  The Government contested this claim.
43.  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, the above criteria and the fact that time sheets have been accepted by the Court as supporting documents in a number of cases (see Çoşelav v. Turkey, no. 1413/07, § 89, 9 October 2012, and Beker v. Turkey, no. 27866/03, § 68, 24 March 2009 and the cases cited therein), the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.
C.  Default interest
44.  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
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention in its substantive aspect;

3.  Holds that there has been a violation of Article 3 of the Convention in its procedural aspect;

4.  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 the currency of the respondent State, at the rate applicable at 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 2,000 (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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President