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FOURTH
SECTION
CASE OF KURNAZ AND OTHERS v. TURKEY
(Application
no. 36672/97)
JUDGMENT
STRASBOURG
24
July 2007
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 Kurnaz and Others v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr S. Pavlovschi,
Mrs P. Hirvelä, judges,
and
Mrs F. Araci, Deputy Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36672/97) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Turkish national, Mr Mehmet
Kurnaz on 10 May 1997.
- By
a letter of 24 June 1998, the Registry was informed of the death of
Mr Mehmet Kurnaz on 22 December 1997. His parents, Mr Ömer
Kurnaz and Mrs Ayşe Kurnaz, and his brothers and sister, Mr
Mustafa Kurnaz, Mr Osman Kurnaz and Mrs Kamile Kurnaz Savlı
declared their intention to pursue the application (“the
applicants”).
- The
applicants were represented by Mr Ç. Manav, Mr S. Özden,
Mr Y. Erbay, lawyers practising in Antalya and Mrs Ş.
Akkaya and Mr T. Akkaya, lawyers practising in İzmir.
The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- The
applicants alleged that Mehmet Kurnaz had been subjected to
ill treatment while he was held in detention, that the
authorities were responsible for his subsequent death and that he had
been denied an effective domestic remedy. They alleged a violation of
Articles 2, 3 and 13 of the Convention.
- The
application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 §
2 of Protocol No. 11).
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Fourth Section (Rule 52 § 1).
- By
a decision of 7 December 2004 the Court declared the application
admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
application was initially introduced by Mehmet Kurnaz who was born in
1956 and was living in Antalya. Following his death on 22 December
1997, his parents, brothers and sister (hereinafter: “the
applicants”) expressed their intention to pursue the
application on 30 June 1998. The applicants were born in 1927,
1929, 1954, 1950 and 1958 respectively and live in Antalya.
A. Background
- Mehmet
Kurnaz was a member of the United Socialist Party (Birleşik
Sosyalist Partisi) at the time of the events in question. The
applicants claimed that he was in poor health as a result of the
ill-treatment he had received during his previous periods of police
custody.
- Between
22 May and 19 June 1986 Mehmet Kurnaz was treated at the Faculty of
Medicine of Ege University (hereinafter: “Ege Hospital”)
for pain in his left leg. The doctors noted that he suffered from an
obstruction of the popliteal artery in his left leg and that this
could have resulted from an application of pressure to the leg.
- On
12 February 1987 Mehmet Kurnaz was diagnosed as suffering from
Buerger’s disease. On 16 February 1987 he was operated on
(femorotibial posterior bypass) at Ege Hospital.
- On
21 August 1995 Mehmet Kurnaz applied to the İzmir branch of the
Human Rights Association of Turkey for treatment. The medical report
issued in respect of Mehmet Kurnaz noted that he suffered from
Leriche syndrome, chronic renal insufficiency and hypertensive heart
disease. It was recommended that Mehmet Kurnaz immediately begin
medical treatment, preferably while interned at a hospital, and that
he remain in a stress-free and calm environment. In this same report
it was also mentioned that Mehmet Kurnaz had stated that he had been
subjected to various types of ill-treatment during his six periods of
detention in custody between the years 1973 and 1982. As regards
Mehmet Kurnaz’s medical history, it was noted that he suffered
from popliteal artery thrombosis and
as a result had undergone bypass operations in 1985 and
1986. In 1994 Mehmet Kurnaz was diagnosed as suffering from chronic
renal insufficiency. His medical history
also referred to the fact that he had smoked a packet of cigarettes a
day over twenty years.
B. The incident in Buca prison and the investigation
instigated by the authorities into the circumstances surrounding the
incident
- On
1 September 1995 Mehmet Kurnaz was remanded in custody. On the same
day he was brought before the Antalya Forensic Medicine Institute for
a medical examination. The doctor noted that there were no physical
signs of ill-treatment on the applicant’s body.
- On
11 September 1995 he was transferred to Buca prison.
- On
21 September 1995 Mehmet Kurnaz was wounded with a blow to his head
during a prison riot and was hospitalised for treatment. The
applicants claim that he was deliberately attacked by prison officers
and gendarmes. The Government deny this.
- On
21 September 1995, at around 16.25 p.m., Mehmet Kurnaz was admitted
to İzmir Atatürk State Hospital. According to the
provisional medical report issued the same day, he had sustained
facial trauma, ecchimoses and oedema and in particular had a cut of 4
cm on his left frontal lobe and 5 cm on his left parietal lobe.
- Mehmet
Kurnaz remained in hospital until 25 October 1995. The applicants
alleged that he had been chained to his bed during this time.
- According
to the investigation conducted by three public prosecutors at the
İzmir prosecutor’s office (hereinafter: “the
prosecutors”), the events had unfolded as follows; detainees
awaiting trial for alleged membership of an illegal armed
organisation or accused of aiding and abetting that organisation,
namely the DHKP/C (Turkish People’s Liberation Party/Front)
were held together in dormitory no. 6. They made a certain
number of demands. When these demands were not met, they refused to
be counted by prison officers. The detainees failed to comply despite
warnings and as a result gendarmeries were enlisted to enter
dormitory no. 6 by force. The detainees piled metal cupboards against
the steel door and the gendarmes had to use welders to force their
entry into the dormitory. Once inside, the gendarmes used tear and
smoke gas and pressurised water to quell the detainees who broke
windows and started a fire. The detainees attacked the gendarmes with
metal door handles. During the intervention, fifteen gendarmes were
injured in varying degrees by a sharp object. Forty detainees,
including Mehmet Kurnaz, were injured in various ways and three
detainees subsequently died.
- On
12 October 1995 the prosecutors decided not to prosecute the prison
officers due to a lack of evidence. They submitted, in particular,
that it was established that only gendarmes had entered the
dormitories and used force and that there was no evidence to show
that prison officers had intervened in the riot or ill-treated the
detainees. As regards the gendarmes, the prosecutors gave a decision
of incompetence ratione materiae and transferred the
investigation file to the İzmir Governor’s Office.
- On
the same day, the prosecutors filed a joint bill of indictment
against the detainees, including Mehmet Kurnaz, accusing them of
rioting. The charges were brought under Article 304 of the Criminal
Code. The indictment refers to a number of documents, which are not
included in the case file, including photographs and statements of
the detainees.
- Meanwhile,
on an unspecified date, criminal proceedings had commenced against
the applicant before the İzmir State Security Court. He was
accused of membership of an illegal organisation. In a hearing held
on 25 October 1995 Mehmet Kurnaz was brought before the İzmir
State Security Court with the help of gendarmes as he was unable to
stand or to walk. The court ordered his release pending trial.
- Upon
his release, Mehmet Kurnaz was examined by a doctor who noted
coloured lesions of various shapes and sizes and bruises on his body.
The doctor also noted that Mehmet Kurnaz was unable to respond to
questions and that his face was swollen. It is to be noted that these
findings are typewritten and do not bear the signature of the doctor
concerned.
- On
10 November 1995 Mehmet Kurnaz’s lawyers filed a petition with
the court complaining about the extensive injuries sustained by him
at Buca prison.
- On
2 August 1996 the public prosecutor at the İzmir public
prosecutor’s office decided not to investigate Mehmet Kurnaz’s
allegations of ill treatment on the ground that there was
already a decision of non prosecution against the prison
officers in respect of the same event and that the case file against
the gendarmes was before the İzmir Governor’s Office.
Mehmet Kurnaz’s objection against this decision was dismissed
by the İzmir Assize Court on 31 October 1996. He was notified of
the dismissal on 14 November 1996.
C. Subsequent events
- According
to the supervision notes (Gözlem Kağıdı)
of Dr Aktekin at Akdeniz University Hospital (hereinafter:“Akdeniz
hospital”), dated 22 January 1996, Mehmet Kurnaz
complained of loss of feeling and numbness in his legs and that he
had difficulty walking. She noted that Mehmet Kurnaz suffered from
memory loss and that his CAT scan results revealed inflammation on
his left temporal lobe. She considered these findings to be the
result of the head injury received by Mehmet Kurnaz.
- On
24 January 1996 the Antalya Assize Court, acting as proxy, requested
the Forensic Medicine Institute to assess whether Mehmet Kurnaz could
give a statement before the court. The Forensic Medicine Institute,
relying on the medical reports issued in respect of the applicant at
Akdeniz hospital, submitted that until the completion of his medical
treatment, Mehmet Kurnaz’s state of health would not allow him
to give a statement.
- Between
29 February and 7 March 1996 Mehmet Kurnaz was hospitalised at
Akdeniz hospital for medical supervision of his chronic renal
insufficiency and hypertension.
- Between
16 April and 26 April 1996 Mehmet Kurnaz was hospitalised at Akdeniz
hospital so that an AV fistula (vascular access for haemodialysis)
could be performed on him in order to prepare him for haemodialysis
treatment.
- On
2 May 1996 Mehmet Kurnaz commenced haemodialysis treatment twice a
week at Akdeniz hospital.
- Between
6 June and 11 June 1996 Mehmet Kurnaz was hospitalised at Akdeniz
hospital on the ground that he had an infection in his subclavian
vein as a result of the AV fistula.
- On
22 October 1996 İzmir State Security Court acquitted Mehmet
Kurnaz of the charges against him.
- According
to the medical report of Akdeniz hospital, dated 4 February
1997, Mehmet Kurnaz had widespread hyperplastic arteriosclerosis,
serious aorta iliac arterioscleroris and
obstruction as well as widespread atrophy and infract in the brain.
Therefore renal transplantation was not possible.
- On
22 December 1997 Mehmet Kurnaz died of renal insufficiency.
- The
criminal proceedings against the prisoners were suspended pursuant to
Law no. 4616 on Conditional Release, Deferral of Procedure and
Punishments on 25 December 2000.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Gömi and Others v. Turkey, no. 35962/97, §§
42-45, 21 December 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants held the State responsible for Mehmet Kurnaz’s death
as they considered that his health had deteriorated significantly
after the ill treatment he had received in Buca prison. They
invoked Article 2 of the Convention, which provides, insofar as
relevant, as follows:
“Everyone’s right to life shall be protected
by law.”
- The
Government disputed the applicants’ arguments. Relying on the
medical reports contained in the case file, the Government maintained
that Mehmet Kurnaz had died - two years after the events complained
of - from a condition unrelated to the injuries sustained during the
prison riot.
- The
applicants maintained that Mehmet Kurnaz’s death was the result
of a complex process arising from the ill-treatment he had received
in prison and the lengthy treatments he had to undergo upon his
release. They insisted that there had been a deliberate attack on
Mehmet Kurnaz’s life by the prison authorities and that it was
not possible for him to have participated in a riot which took place
on the day of his arrival. They claimed that, following the
authorities’ attack on the detainees, Mehmet Kurnaz was left to
die in prison. The applicants complained that, despite the fact that
Mehmet Kurnaz had never been convicted, he had been consistently
placed in detention on account of his criminal record which had been
unlawfully compiled. They alleged that Mehmet Kurnaz had been
ill treated in custody, had been hit on the head by gendarmes
with a metal handle and had been chained to the hospital bed during
his treatment there. The applicants pointed out that, following his
release, Mehmet Kurnaz had to be treated with haemodialysis until the
end of his life. They submitted photographs of Mehmet Kurnaz
allegedly taken after he was released from custody.
- The
Court reiterates the basic principles laid down in its judgments
concerning Article 2 (see, in particular, McCann and Others v. the
United Kingdom, judgment of 27 September 1995, Series A no. 324,
pp. 45-46, §§ 146-147, Salman v. Turkey [GC],
no. 21986/93, § 97, ECHR 2000 VII, Kılıç
v. Turkey, no. 22492/93, § 62, ECHR 2000-III, and Velikova
v. Bulgaria, no. 41488/98, § 68, ECHR 2000-VI). It will
examine the present case in the light of these principles.
- In
assessing evidence, the Court adopts the standard of proof “beyond
reasonable doubt” (see Orhan v. Turkey, no. 25656/94, §
264, 18 June 2002). Such proof may follow from the coexistence
of sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see, among many others, Şimşek
and Others v. Turkey, nos. 35072/97 and 37194/97, §
100, 26 July 2005).
- Moreover,
the Court considers that it is only in exceptional circumstances that
physical ill-treatment inflicted by State officials which does not
result in death may disclose a violation of Article 2 of the
Convention (see İlhan v. Turkey [GC], no. 22277/93, §
76, ECHR 2000 VII).
- In
the instant case, there is no dispute between the parties as to the
cause of death of Mehmet Kurnaz. What is in dispute, however, is
whether or not the national authorities can be held responsible for
his death resulting from renal insufficiency on 22 December
1997.
- The
Court observes that on 21 September 1995 Mehmet Kurnaz received a
blow to his head which resulted in a serious head injury
(see paragraph 17). In the Court’s opinion, there is no
doubt that this injury contributed, in general, to the deterioration
of Mehmet Kurnaz’s health (see paragraphs 26-27). However,
the Court notes that Mehmet Kurnaz was suffering from a number of
conditions, including chronic renal insufficiency, prior to his
incarceration in Buca prison (see paragraphs 12 14). There
is no convincing evidence in the case file to lend support to the
applicants’ allegations that Mehmet Kurnaz’s poor health
at that time had resulted from the alleged ill treatment he had
received during his previous periods in detention. Nor is there any
indication that Mehmet Kurnaz was denied adequate medical assistance
during the time that he was in detention. In addition, the Court
cannot ignore the fact that Mehmet Kurnaz died two years after the
incident in Buca prison, following lengthy treatment.
- In
light of the above, the Court considers that there is an insufficient
factual and evidentiary basis on which to conclude “beyond
reasonable doubt” that the State was responsible for Mehmet
Kurnaz’s death from renal insufficiency on 22 December
1997.
- There
has, accordingly, been no violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that the treatment to which Mehmet Kurnaz had
been subjected while in detention amounted to torture and inhuman
treatment, in violation of Article 3 of the Convention, which reads
as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the incident at Buca prison was serious.
They pointed out that the prisoners had piled up metal cupboards
behind the dormitory door and had broken windows, burned beds and
used metal handles from the cupboards to attack the gendarmes and
prison officers. The Government maintained that Mehmet Kurnaz had
actively taken part in the riot which took place ten days after he
had been transferred to the prison. They stated that he had received
all the necessary medical treatment immediately after he was injured.
The Government further submitted that an effective investigation had
been conducted into the circumstances surrounding the incident in
Buca prison.
- The
applicants maintained their allegations. They noted that no adequate
investigation had been conducted into Mehmet Kurnaz’s complaint
of ill-treatment.
- As
the Court has stressed many times, Article 3 enshrines one of the
fundamental values of democratic society. Even in the most difficult
of circumstances, such as the fight against terrorism or crime, the
Convention prohibits in absolute terms torture or inhuman or
degrading treatment or punishment. Unlike most of the substantive
clauses of the Convention and of Protocols Nos. 1 and 4, Article 3
makes no provision for exceptions and no derogation from it is
permissible under Article 15 of the Convention even in the event of a
public emergency threatening the life of the nation (see, among many
other authorities, Assenov and Others v. Bulgaria, judgment of
28 October 1998, Reports of Judgments and Decisions 1998 VIII,
p. 3288, § 93). To fall within the scope of Article 3
ill-treatment must attain a minimum level of severity. The assessment
of this minimum is relative: it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and/or
mental effects and, in some cases, the sex, age and state of health
of the victim (see Mouisel v. France, no. 67263/01, § 37,
ECHR 2002 IX). Moreover, allegations of ill-treatment must be
supported by appropriate evidence (see, in particular, Tanrıkulu
and Others v. Turkey (dec.), no. 45907/99, 22 October 2002).
- At
the outset the Court observes that the documentary evidence submitted
by the parties does not permit it to conclude beyond reasonable doubt
that, prior to or after the incident at Buca prison on 21 September
1996, Mehmet Kurnaz was subjected to any kind of ill-treatment, the
severity of which was above the Article 3 threshold. Nor is there any
prima facie evidence to support the applicants’
allegations that Mehmet Kurnaz was the deliberate target of an attack
by prison officers and gendarmes during the riot.
- The
Court notes, in addition, that Article 3 does not prohibit the use of
force in certain well-defined circumstances such as to effect an
arrest. However, such force may be used only if indispensable and
must not be excessive (see, among others, Klaas v. Germany,
judgment of 22 September 1993, Series A no. 269, p. 17, §
30; Rehbock v. Slovenia, no. 29462/95, §§ 68 78,
ECHR 2000 XII; Altay v. Turkey, no. 22279/93, § 54,
22 May 2001; Hulki Güneş v. Turkey, no.
28490/95, § 70, ECHR 2003 VII (extracts); Krastanov v.
Bulgaria, no. 50222/99, §§ 52 and 53, 30 September
2004; and Günaydın v. Turkey, no. 27526/95,
§§ 30 32, 13 October 2005).
- In
the instant case the applicant sustained various injuries, in
particular, serious blows to the head during the incident on
21 September 1995. The Government have not denied that the
applicant’s injuries as shown by the medical report of 21
September 1995 resulted from the use of force by the State
authorities in the performance of their duties. They have, however,
stressed the mitigating circumstances surrounding the incident.
- The
Court recognises the potential for violence in a prison setting. It
accepts that disobedience on the part of inmates may well quickly
degenerate into a riot, necessitating firm intervention by the
security forces. The Court recalls that in its judgment of Gömi
and Others, cited above, § 77, it did not find the
force used by security forces against the applicants in order to
quell prison riots, in the particular circumstances of that case, to
be excessive. Security forces had used tear gas, pressurised water
and truncheons against the applicants. However, in that case, the
riots in question were sporadic, widespread and had included the
taking of hostages by the prisoners (Ibid, §§ 13-18
and 22-23).
- In
the instant case, however, the Court notes that the incident was at
all times confined to dormitory no. 6 and that it commenced with the
detainees refusal to be counted by prison officers on the ground that
some of their demands had not been met. There was thus some warning
of impending difficulties and it may be noted that the escalation of
violence occurred only after the gendarmes forcibly entered the
dormitory. Therefore Mehmet Kurnaz was not injured in the course of a
random and widespread insurrection which might have given rise to
unexpected developments to which the gendarmes had been called upon
to react without prior preparation (see, mutatis mutandis,
Rehbock, cited above, § 72). In these circumstances, the
Court considers that the burden rests on the Government to
demonstrate with convincing arguments that the use of force, which
resulted in the applicant’s injuries, was not excessive (see,
mutatis mutandis, Matko v. Slovenia, no. 43393/98,
§104, 2 November 2006).
- The
Court observes that during the incident most of the detainees and
gendarmes sustained injuries of varying degrees and subsequently
three detainees died. However, the Government have not provided any
information showing that the operation launched by the gendarmes was
properly regulated and organised in such a way as to minimise to the
greatest extent possible any risk of serious bodily harm to the
detainees. For example there is no indication in the case file that
serious attempts were made by the prison authorities to restore order
in dormitory no. 6 prior to entering by force. In this connection,
the Court reiterates that when prison authorities have recourse to
outside help to deal with an incident within the confines of the
prison, there should exist some form of independent monitoring of the
action taken in order to ensure accountability for the force used
including the issue of its proportionality (see Satık and
Others v. Turkey, no. 31866/96, § 58, 10 October 2000).
- More
decisively, in their observations, the Government merely stated that
force had to be used against the detainees, including Mehmet Kurnaz,
without providing any explanation or documentation which could shed
light on the exact nature of the force inflicted on him. Taking into
account the fact that the official documents contained in the case
file do not mention that the gendarmes used truncheons or any other
equipment which could inflict the injury sustained by the applicant
during the intervention, the Court cannot rule out that Mehmet Kurnaz
was hit on the head with a metal handle by gendarmes as claimed by
the applicants (see paragraph 39 above).
- Finally,
the Court finds that the head injuries sustained by Mehmet Kurnaz,
who was already in poor health, on 21 September 1995 at Buca prison,
led to severe pain and suffering. In addition, they had lasting
consequences for his health (see paragraph 26 above).
- In
light of the above, the Court concludes that the force used against
the applicant on 21 September 1995 at Buca prison was excessive and
that therefore the State is responsible, under Article 3 of the
Convention, for the injuries sustained by him.
60. The
Court recalls that Article 3 of the Convention also requires the
authorities to investigate allegations of ill-treatment when they are
“arguable” and “raise a reasonable suspicion”
(see Assenov and Others v. Bulgaria, cited above, pp.
3289-90, §§ 101-02, and Labita v. Italy [GC],
no. 26772/95, § 131, ECHR 2000 IV).
- The
Court has found above that the respondent State was responsible,
under Article 3 of the Convention, for the
injuries sustained by Mehmet Kurnaz on 21 September 1995 at Buca
prison. An effective investigation was therefore required. The
minimum standards as to effectiveness defined by the Court’s
case-law include the requirements that the investigation be
independent, impartial and subject to public scrutiny, and that the
competent authorities act with exemplary diligence and promptness
(see, for example, Çelik and İmret v. Turkey,
no. 44093/98, § 55, 26 October 2004).
- Turning to the present case, the Court notes that an
investigation into the incident at Buca prison was initiated promptly
by the public prosecutor’s office. This investigation led to a
decision of non-prosecution concerning prison officers since the
prosecutors found that only gendarmes had entered the dormitory and
used force (see paragraph 20). However, the case file against the
gendarmes was transferred to the İzmir Governor’s Office
pursuant to the Law on the prosecution of civil servants. The case
file does not reveal the outcome of this procedure. In any event, the
Court reiterates its earlier finding in a number of cases that the
investigation carried out by the administrative councils cannot be
regarded as independent since they are chaired by the governors, or
their deputies, and composed of local representatives of the
executive, who are hierarchically dependent on the governors (see,
among other authorities, Ibid, § 60, Talat Tepe v.
Turkey, no. 31247/96, § 84, 21 December 2004, and
Güleç v. Turkey, judgment of 27 July 1998,
Reports 1998 IV, § 80, Oğur v. Turkey
[GC], no. 21594/93, § 91, ECHR 1999 III, Yöyler
v. Turkey, no. 26973/95, § 93, 24 July 2003, and Kurt
v. Turkey (dec.), no. 37038/97, 12 June 2003). The Court finds no
reason to reach a different conclusion in the present case.
- In
the light of the above, the Court concludes that the domestic
authorities failed to conduct an effective and independent
investigation into the circumstances surrounding the injuries
sustained by the applicant on 21 September 1995.
- There
has therefore been both a substantive and a procedural violation of
Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH
ARTICLES 2 AND 3 OF THE CONVENTION
- The
applicants submitted that Mehmet Kurnaz did not have an effective
domestic remedy in respect of his grievances. They relied on Article
13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court considers that the complaint under this head should be examined
in conjunction with Article 3 of the Convention alone.
- In
view of the submissions of the parties and of the grounds on which it
has found a violation of Article 3 in relation to its procedural
aspect (see paragraphs 62 above), the Court further considers that no
separate issue arises under Article 13 of the Convention (see,
mutatis mutandis, Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, §§ 120-123, ECHR 2005 ...,
and Makaratzis v. Greece [GC], no. 50385/99, § 86, ECHR
2004 XI).
IV. 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
- As
regards pecuniary damage the first two applicants claimed, in total,
120,000 euros (EUR) for costs and expenses incurred during Mehmet
Kurnaz’s upbringing and education. The applicants further
claimed EUR 60,000 for the reimbursement of the medical expenses
incurred by them. In support of the latter claims, the applicants
submitted Mehmet Kurnaz’s medical reports, prescriptions and
analysis as well as a few receipts. As for non-pecuniary damage the
first two applicants claimed, in total, EUR 120,000 in respect of
non-pecuniary damage. The other applicants claimed, in total, EUR
135,000 in respect of non-pecuniary damage. Finally, the applicants
requested the publication of the Court’s judgment in a Turkish
newspaper.
- The
Government contested these claims. In particular, they maintained
that all of Mehmet Kurnaz’s medical expenses between 31 August
1995 and 25 October 1995 had been met by the State pursuant to the
Regulation on the Administration of Prisons and Detention Centres and
the Execution of Sentences.
- As
regards the pecuniary damage alleged to have been sustained by the
applicants, in respect of certain claims the Court can discern no
causal link between the violations found and the pecuniary damage
requested. The Court further notes that in support of their remaining
claims the applicants failed to produce any relevant documents. The
Court accordingly dismisses the claim for pecuniary damage.
- On the other hand, the Court notes that it has found a
dual violation of Article 3 the
Convention. Having regard to the circumstances of the present case,
and deciding on an equitable basis, it awards the applicants,
jointly, EUR 10,000 in respect of non-pecuniary damage.
- Finally,
the Court finds not appropriate to rule on the publication of the
present judgment in a Turkish newspaper.
B. Costs and expenses
- The
applicants claimed, in total, EUR 250,000 in respect of
representation fees and costs and expenses.
- The
Government contested these claims
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicants EUR 3,000.
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
- Holds that there has been no violation of
Article 2 of the Convention;
- Holds that there has been a violation of
Article 3 of the Convention on account of the injuries sustained
by the applicant on 21 September 1995 in Buca prison;
- Holds that there has been a violation of
Article 3 of the Convention on account of the failure of the
authorities to conduct an effective and independent investigation
into the circumstances surrounding the injuries sustained by the
applicant on 21 September 1995 in Buca prison;
4. Holds that no separate issue arises under
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR
10,000 (ten thousand euros), jointly, in respect of non pecuniary
damage;
(ii) EUR
3,000 (three thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 24 July 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Araci Nicolas Bratza
Deputy Registrar President
