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SECOND
SECTION
CASE OF DİRİ v. TURKEY
(Application
no. 68351/01)
JUDGMENT
STRASBOURG
31
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 Diri v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr D. Popović, judges,
and Mrs F.
Elens-passos, Deputy Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 68351/01) 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 Sabri Diri (“the
applicant”), on 2 March 2001.
- The
applicant, who had been granted legal aid, was represented by
Mr Elban and Mr Kırdök, lawyers practising in
Istanbul. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- The
applicant alleged in particular that he had been ill-treated during
his detention in the Tekirdağ F-Type Prison and that the
authorities had failed to conduct an effective investigation into his
allegations. He invoked Articles 3 and 13 of the Convention.
- On
15 April 2001 the applicant asked the Court to request the Turkish
Government, under Rule 39 of the Rules of Court, to order a medical
examination of the applicant, with a view to establishing the traces
of falaka.
- On
31 May 2001 the President of the Third Section of the Court decided
to apply Rule 39 of the Rules of Court and informed the respondent
Government that it was desirable, in the interests of the parties and
the proper conduct of the proceedings before the Court, to conduct a
medical examination of the applicant, in particular a Magnetic
Resonance Imaging (MRI) scan and/or a bone scintigraphy.
- On
20 January 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and currently lives in Switzerland.
Background to the case
- The
applicant, convicted of membership of an illegal organisation, was
serving his prison sentence in the Ümraniye E-Type Prison in
Istanbul at the time of the events.
- In
December 2000 a large number of prisoners, including the applicant,
started a hunger strike to protest against the F-Type prisons. On 19
December 2000 the security forces conducted an operation in several
prisons to stop the protests. In the course of these operations,
numerous prisoners and members of the security forces were wounded
and 32 persons died. Following these events, on 22 December 2000 the
applicant was transferred from Ümraniye E-Type Prison to the
Kocaeli Kandıra F-Type Prison, together with several other
prisoners. The Government stated that the applicant showed resistance
to the security forces during the operation in the Ümraniye
E-Type Prison. In a medical report issued by the Kocaeli Kandıra
F-Type Prison doctors on 22 December 2000, it was noted that the
applicant had scars on the right side of his jaw and nose; bruises on
his eye lids, a round hyperaemic oedema on his head measuring 3 cm
and sensitivity on his abdomen. The report concluded that the
applicant was unfit to work for one week. The applicant maintained
that he was beaten on admission to the Kandıra F-Type Prison.
The applicant's detention in the Tekirdağ F-Type Prison
- On
23 February 2001 the applicant was transferred to the Tekirdağ F Type
Prison. On admission to the prison, he was allegedly strip searched
and beaten and his hair and moustache forcibly cut. He also stated
that he was put in a cell alone and was forced to listen to loud
music. According to the applicant, as he refused to stand up and
shout his name during the daily headcounts, he was subjected to
ill-treatment by the prison guards, in particular falaka
(beating on the soles of the feet).
- On
24 February 2001 and 3 March 2001, respectively, the applicant was
examined by the prison doctor, who did not find any signs of
ill-treatment on the applicant's body.
- On
4 March 2001 the applicant's lawyer filed a petition with the
Tekirdağ public prosecutor's office and complained about the
ill-treatment which the applicant had suffered in the Tekirdağ
prison. He also requested that the applicant be examined by a
forensic doctor.
- The
Tekirdağ public prosecutor initiated an investigation into the
applicant's allegations. Upon the order of the public
prosecutor, on 8 March 2001 the applicant was examined once again by
the prison doctor, who reported that there were no signs of
ill-treatment on his body. On the same day, the Tekirdağ
public prosecutor took a statement from the applicant. Before the
prosecutor, the applicant explained that, on admission to the
Tekirdağ Prison, the prison personnel had shaved his hair and
moustache by force and that he had been stripped naked. He further
maintained that he had been placed in a single cell and subjected to
falaka twice.
- On
14 March 2001 the public prosecutor issued a decision of
non prosecution relying on the medical reports dated 24
February, 3 March and 8 March 2001, according to which
there was no sign of ill-treatment on the applicant's body.
- On
6 April 2001 the applicant filed an appeal against the decision of
the public prosecutor.
- On
19 April 2001 the Kırklareli Assize Court rejected the
applicant's appeal.
- Following
the introduction of the present application, on 31 May 2001 the Court
requested the Government to conduct further medical examinations on
the applicant, namely a bone scintigraphy and a Magnetic Resonance
Imaging scan (MRI).
- On
26 June 2001 the Government submitted two medical reports dated 13
and 14 June 2001 which had been drawn up as a result of the MRI scan
and the bone scintigraphy respectively.
The
MRI report dated 13 June 2001 stated the following:
“Bone signal intensity was normal. Bone contours
were regular. Achilles tendon signal characteristics and thickness
were normal.
No pathology in the soft tissues was detected.
Result: Normal
Note: An increased intensity observed in the fat
suppression sequences in the medial regions of both feet is
attributed to the coil artefact.”
The
bone scintigraphy report dated 14 June 2001 read as follows:
“Examination
of dynamic, blood flow and blood pool images of both feet taken
following intravenous injection of 20mCi Tc-99m MDP and of delayed
static and anterior/posterior images of the whole body taken four
hours later revealed the following:
In
both feet, blood flow was normal; increased activity uptake was
observed in the blood pool phase in the areas of the lower extremity
of the left tibia and the ankle.
The
delayed static images revealed increased radiopharmaceutical uptake
in the lower extremities of both tibias and in the bones of the big
toe (more noticeable in the right foot). Increased
radiopharmaceutical uptake was also observed in the left-tibia joint
and the upper fibula.
Apart
from in the regions indicated above, radiopharmaceutical distribution
and uptake in the skeletal system fell within normal limits.
Both
kidneys were visualised slightly.
Conclusion:
The increased radiopharmaceutical uptake in the regions described
above is indicative of traumatism.”
- On
19 July 2001, taking into account the applicant's poor health due to
the hunger strike, the authorities released him from prison for six
months.
- On
25 September 2001 the Tekirdağ public prosecutor requested the
Forensic Medicine Institute to make an assessment of the applicant's
bone scintigraphy result, in particular to indicate the cause of the
findings mentioned in the report.
- In
the meantime, on 16 October 2001 having regard to the findings
indicated in the bone scintigraphy, the International Law Department
of the Ministry of Justice consulted the Directorate General of
Criminal Law Issues as to whether a writ of mandamus (yazılı
emir) should be issued to restart the investigation into the
applicant's allegations of ill-treatment. On 17 October 2001 the
General Directorate of Criminal Law Issues wrote to the Tekirdağ
public prosecutor, requesting his opinion on the matter. In his reply
dated 28 December 2001, the public prosecutor argued that, as the
bone scintigraphy test did not reveal the exact cause or the timing
of the injuries, a writ of mandamus to quash the decision of the
Kırklareli Assize Court could not be issued in the circumstances
of the present case.
- On 30 November 2001 the Forensic Medicine Institute
replied that the findings mentioned in the bone scintigraphy report
could not have resulted from rheumatism or the hunger strike, but
were caused by a trauma.
- On
7 December 2001 the Tekirdağ public prosecutor asked the
Forensic Medicine Institute to clarify whether it was possible to
determine the date when these injuries had been sustained.
- On
12 December 2001 the Forensic Medicine Institute replied that it was
not possible to make such an assessment.
- The
applicant returned to the Tekirdağ F-Type Prison on 5 April
2002, but was released once again on 12 April 2002 for another six
months.
- On
2 September 2006 the applicant's lawyer requested an additional
expert report from Dr Şebnem Korur Fincancı, a forensic
expert. Dr Fincancı was asked to evaluate the findings of
the bone scintigraphy test dated 14 June 2001 and to assess whether
the findings indicated in the report matched the applicant's
allegation of falaka. In this connection, Dr Fincancı
was provided with a written statement by the applicant, in which he
gave a detailed description of the ill-treatment to which he had been
subjected in the Tekirdağ F-Type Prison. In this statement, the
applicant explained that, as a protest against the F-Type prison
system, he had refused to stand up and shout his name out during the
daily headcounts. When he did not obey the warnings of the prison
guards, a large group of guards entered his cell and started beating
him, while two guards held his arms and another two secured his feet.
Then one guard sat on the applicant's abdomen and another placed his
hand over the applicant's mouth. After they had tied his feet with a
belt, several guards struck his feet with their belts.
- In
her report dated 11 September 2006, Dr Fincancı concluded that
when the static and dynamic images of the bone scintigraphy test were
examined together, the findings in the report corresponded to the
applicant's allegation of falaka. She further opined that the
trauma complained of was inflicted on the applicant about three
months prior to the test. While drafting her report, Dr Fincancı
had regard to the applicant's previous medical reports dated 22
December 2000, 24 February 2001, 3 March 2001 and 8 March
2001.
- In
response to the report of Dr Fincancı, the Government submitted
another report issued by the Forensic Medicine Institute dated 9
January 2007 which contradicted Dr Fincancı, stating that the
findings in the bone scintigraphy test did not reveal the cause of
the injuries on the applicant's feet and that it was not possible to
make an evaluation as to when these injuries could have been
sustained.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained in the first place that the prison conditions in
the Tekirdağ F-Type Prison breached Article 3. He maintained in
particular that on admission to the prison he had been strip searched
and his hair and moustache forcibly cut. He also maintained that he
had been kept alone in a cell and forced to listen to loud music.
Secondly, the applicant complained that he had been beaten and
subjected twice to falaka, when he refused to participate in
the daily headcounts. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested those arguments.
A. Concerning the conditions of detention
- The
applicant complained under Article 3 that, on admission to the
Tekirdağ F-Type Prison, he had been strip searched and his hair
and moustache forcibly shaved; he had been kept in a cell alone and
subjected to loud music.
- The
Court recalls that it has in the past examined similar complaints and
declared them inadmissible (see, Gündoğan v. Turkey
(dec.), no. 29/02, 13 December 2005; Yılmaz Karakaş
v. Turkey (dec.), no. 68909/01, 9 November 2004). It
finds no particular circumstances in the instant case, nor any
elements apt to disclose treatment of the prohibited severity, which
would require it to depart from this jurisprudence.
- In
view of the above, the Court concludes that the applicant has not
laid the basis of an arguable claim and that this part of the
application should therefore be declared inadmissible as being
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of
the Convention.
B. Concerning the alleged ill-treatment
1. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
a) The alleged ill-treatment
i. General principles
- The
Court reiterates that Article 3 of the Convention ranks as one of the
most fundamental provisions in the Convention, from which no
derogation is permitted. It also enshrines one of the basic values of
the democratic societies making up the Council of Europe. The object
and purpose of the Convention as an instrument for the protection of
individual human rights requires that these provisions be interpreted
and applied so as to make its safeguards practical and effective (see
Avşar v. Turkey, no. 25657/94, § 390, ECHR
2001-VII (extracts)).
- Furthermore,
the Court reiterates that, in respect of a person deprived of
liberty, recourse to physical force which has not been made strictly
necessary by the individual's own conduct diminishes human dignity
and is in principle an infringement of the right set forth in
Article 3 (see Ribitsch v. Austria, judgment of 4
December 1995, Series A no. 336, p. 26, § 38; Krastanov v.
Bulgaria, no. 50222/99, § 53, 30 September 2004).
- Where allegations are made under Article 3 of the
Convention, the Court must conduct a particularly thorough scrutiny
(see Ülkü Ekinci v. Turkey, no. 27602/95,
§ 135, 16 July 2002) and will do so on the basis of all the
material submitted by the parties.
- In
assessing evidence, the Court has adopted the standard of proof
“beyond reasonable doubt” (see Orhan v. Turkey,
no. 25656/94, § 264, 18 June 2002; Avşar, cited
above, § 282). Such proof may, however, follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Ülkü
Ekinci, cited above, § 142).
- Furthermore,
where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
ii. Submissions of the parties
- In
the present case, the applicant complained that he had been subjected
to falaka twice, when he resisted standing up and shouting his
name out during the daily headcounts.
-
The Government denied that the applicant had been ill-treated. They
stated that the applicant must have sustained these injuries in the
course of the incidents that took place in December 2000 in the
Ümraniye E-Type Prison. They also stated that the applicant's
allegation that he had been subjected to falaka in the
Tekirdag F-Type Prison was unsubstantiated since there was
twenty-four hour video surveillance in that prison. The Government
further explained that the applicant had been examined three times by
the prison doctor who had found no traces of ill-treatment on his
body. They argued that, since there were no traces on his body, the
doctor was not required to transfer the applicant to a hospital for
further tests. Any such obligation in that regard would, in the
Government's opinion, impose an excessive burden on the authorities.
They also maintained that, although the bone scintigraphy results
revealed that the applicant's feet had been exposed to trauma, in
their view this did not necessarily mean that the applicant had been
subjected to falaka as alleged. A trauma could have been
caused by stress or insufficiency fractures. In this connection, the
Government referred to the fact that the applicant had been on a
hunger strike for a long time and that his bones had been weakened
due to improper nourishment and a lack of physical exercise. In the
absence of any concrete evidence proving the origin and the timing of
the injuries, the Government maintained that the applicant's
ill-treatment allegations should be considered as unsubstantiated.
iii. The assessment of the Court
- In
line with the above-mentioned case-law, the Court remains free to
make its own assessment in the light of all the material before it
(see, mutatis mutandis, Selmouni v. France [GC], no.
25803/94, § 86, ECHR 1999 V).
- The
Court notes that the findings indicated in the bone scintigraphy
report dated 14 June 2001 and the medical report issued by the
Forensic Medicine Institute on 30 November 2001 are consistent with
the applicant's allegation that he had been subjected to falaka
in the Tekirdağ F-Type Prison. As clearly indicated in these
reports, the injuries to the applicant's feet could not have been
caused by rheumatism or the result of his hunger strike. They could
only have been sustained by trauma. The Court takes note of the
Government's observations that these injuries must have been caused
during the incidents which took place in the Ümraniye E-Type
Prison in December 2000. In this connection, it refers to the medical
report dated 22 December 2000, which noted several injuries on
the applicant's body. The Court does not see any reason why the
doctors who examined the applicant on 22 December 2000 would not have
reported the injuries to the applicant's feet if they had been
sustained on that occasion. It further notes that the Government
maintained that the trauma could have been caused by stress fractures
or insufficiency fractures; however these submissions are not
supported by any convincing evidence. As a result, the Court
concludes that the injuries to the applicant's feet must be
attributable to a form of ill-treatment for which the authorities at
Tekirdağ bore responsibility.
- As
to the seriousness of the treatment in question, the Court reiterates
that, under its case-law in this sphere (see, among other
authorities, Selmouni, cited above, §§ 96-97),
in order to determine whether a particular form of ill-treatment
should be qualified as torture, it must have regard to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. It appears that it was the intention
that the Convention should, by means of this distinction, attach a
special stigma to deliberate inhuman treatment causing very serious
and cruel suffering.
- In
this connection, the Court considers that the treatment complained of
was inflicted on the applicant intentionally by the prison guards
with the purpose of punishing him and of breaking his physical and
moral resistance to the prison administration. In these
circumstances, the Court finds that this act was particularly serious
and cruel and capable of causing severe pain and suffering. It is
therefore concludes that this sort of ill-treatment amounted to
torture within the meaning of Article 3 of the Convention.
- There
has consequently been a violation of Article 3 on that account.
b) The alleged inadequacy of
the investigation
- The
applicant further maintained, under Article 3, that the authorities
had not conducted an adequate investigation into his complaints of
ill-treatment.
- The
Government denied this allegation. They stated that the domestic
authorities had conducted a serious investigation into the
applicant's allegations.
- 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. As with an investigation under Article 2, such
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see, among other authorities, Labita v. Italy [GC],
no. 26772/95, § 131, ECHR 2000-IV).
- Turning
to the facts of the present case, the Court observes that the
applicant brought his complaints of ill-treatment to the attention of
the authorities by filing a complaint with the Tekirdağ public
prosecutor on 4 March 2001 (paragraph 12 above). In his
petition, the applicant also requested to be examined by a forensic
doctor. On 8 March 2001, upon the order of the public prosecutor, the
applicant was once again examined by the same prison doctor, who did
not report any signs of ill-treatment on the applicant's body. The
same day, a short statement was taken from the applicant, who
repeated his allegations of ill-treatment. At this point, the Court
notes with regret that the public prosecutor omitted to request any
further medical examination, to take statements from the accused
prison guards or to question witnesses and the prison doctor who had
drafted the three medical reports dated 24 February 2001, 3 March
2001 and 8 March 2001, before delivering his decision of
non-prosecution. In delivering his decision, the prosecutor limited
himself to the three medical reports which merely stated that there
was no sign of ill-treatment on the applicant's body. The Court
recalls in this connection that proper medical examinations are an
essential safeguard against ill-treatment. The forensic doctor must
enjoy formal and de facto independence, have been provided
with specialised training and been allocated a mandate which is
sufficiently broad in scope (see, Akkoç v. Turkey,
nos. 22947/93 and 22948/93, § 55 and § 118, ECHR
2000 X). In the instant case, the medical reports dated 3 and 8
March 2001, which were drafted by the prison's own doctor, provided
limited medical information and did not include any explanation by
the applicant as regards his complaints.
- The
Court also finds it noteworthy that, after the bone scintigraphy
results dated 14 June 2001 and the subsequent report of the Forensic
Medicine Institute dated 30 November 2001, which confirmed that the
injuries to the applicant's feet could only have been sustained by a
trauma, the public prosecutor, who had the authority under Article
167 of the Criminal Code to restart the domestic investigation into
the applicant's allegations of ill-treatment, took no further action.
It is further noted that, although the International Law Department
of the Ministry of Justice consulted the Directorate General of
Criminal Law Issues as to whether a writ of mandamus should be issued
to restart the investigation into the applicant's allegations of
ill-treatment, the public prosecutor gave a negative opinion on this
proposal, stating that the bone scintigraphy results did not indicate
the cause or the timing of these injuries. The Court considers that,
had the public prosecutor restarted the domestic investigation on the
basis of this new evidence, he could have collected valuable
information as to how and when these injuries might have been
sustained.
- In
the light of the above, the Court concludes that the applicant's
claim that he was subjected to falaka during his detention in
the Tekirdağ F-Type Prison was not subject to an effective
investigation by the domestic authorities as required by Article 3 of
the Convention.
- There
has therefore been a procedural violation of Article 3 in this
regard.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
54 The
applicant alleged under Article 13 that the domestic authorities
failed to conduct an effective investigation into his allegations of
ill-treatment.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must likewise be declared admissible.
- However,
having regard to the finding relating to Article 3 (see paragraphs
49-53 above), the Court considers that it is not necessary to
examine separately whether, in this case, there has been a violation
of Article 13.
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 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court finds that the applicant must have suffered pain and distress
which cannot be compensated 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 15,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed a total of EUR 9,826.18 for the costs and
expenses incurred before the domestic courts and for those incurred
before the Strasbourg Court.
- The
Government contested this claim.
- The Court may make an award in respect of costs and
expenses in so far that they were actually and necessarily incurred
and were reasonable as to quantum (see Sawicka v. Poland, no.
37645/97, § 54, 1 October 2002). Making its own estimate based
on the information available, and ruling on an equitable basis, the
Court awards the applicant a global sum of EUR 2,500 in respect
of costs and expenses less the sum of EUR 850 received in legal aid
from the Council of Europe.
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 complaint concerning the prison
conditions inadmissible and the remainder of the application
admissible;
- Holds that there has been a substantive
violation of Article 3 of the Convention on account of the
applicant's torture in the Tekirdağ F-Type Prison;
- Holds that there has been a procedural violation
of Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant's allegations that he was tortured in the Tekirdağ
F-Type Prison;
- Holds that there is no need to examine
separately the complaint under Article 13 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 New Turkish liras at the rate applicable
at the date of settlement and free of any taxes or charges that may
be payable:
(i) EUR
15,000 (fifteen thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros) in respect of costs and
expenses, less the EUR 850 (eight hundred and fifty euros) received
in legal aid;
(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 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-passos F. Tulkens
Deputy Registrar President
