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SECOND
SECTION
CASE OF SAYA AND OTHERS v. TURKEY
(Application
no. 4327/02)
JUDGMENT
STRASBOURG
7
October 2008
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 Saya and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4327/02) 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 eleven Turkish nationals, Mr Şeyho Saya,
Mr Hasan Ölgün, Mr Çetin Taş, Mr Müslüm
Atasoy, Ms Zöhre Taş, Mr Akın Doğan, Mr Nedim
Çifçi, Ms Hediye Kilinç, Mr Ali Murat Bilgiç,
Mr Bahattin Barış Bilgiç and Ms Zeynep Saya (“the
applicants”), on 20 November 2001.
- The
applicants were represented by Mr Şeyho Saya, the first
applicant, who is a lawyer practising in Adıyaman. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
6 September 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1964, 1969, 1964, 1971, 1961, 1965, 1971,
1975, 1964, 1971 and 1965 respectively, and live in Adıyaman.
- On
30 April 1999 the Adıyaman Governor authorised the holding of
May Day celebrations in the Adıyaman Amphitheatre, located in
the Hasancık District.
- On
1 May 1999 a group of people, including the applicants, gathered in
the building of the Health Workers' Trade Union and started to walk
towards the amphitheatre for the May Day celebrations. They were
stopped by police officers. Stating that they had obtained prior
authorisation from the Governor, the group attempted to continue its
march. The police then intervened to disperse the group; the
applicants were allegedly injured during this incident as a result of
the force used by the police. According to the incident report,
thirty-eight people, including the applicants, were arrested. The
applicants were subsequently taken to the Adıyaman State
Hospital, where they were examined by a doctor. The medical reports
in respect of Ms Zeynep Saya, Mr Hasan Ölgün, Mr Müslüm
Atasoy, Ms Zöhre Taş, Mr Nedim Çifçi and
Ms Hediye Kilinç stated that there were no signs of
ill-treatment on their bodies. As regards the remaining applicants,
the following findings were indicated in the respective medical
reports:
– Şeyho Saya: Tenderness on the back of the
right leg and on the back.
– Çetin Taş: Tenderness on the lower left
side of the chest and pain while breathing. Tenderness and pain on
the right side of the forehead. Possible fracture of the ribs on the
left side of the chest.
– Akın Doğan: Scratches on the back.
– Ali Murat Bilgiç:
Tenderness and bruises on the left shoulder and the left arm.
– Bahattin Barış Bilgiç:
Scratches on the right elbow, the right knee and hyperaemia on the
left side of the chest.
- The
applicants were then taken into custody. They were released the next
day.
- On
different dates in May 1999 the applicants filed criminal complaints
with the Adıyaman Public Prosecutor against those police
officers who had allegedly used excessive force during their arrest.
- On
17 June 1999 the Adıyaman Public Prosecutor transferred the case
file to the Adıyaman Provincial Administrative Council, seeking
authorisation to bring criminal proceedings against the accused
officers, pursuant to the provisions of Law on the prosecution of
Civil Servants.
- On
16 February 2000 the Adıyaman Provincial Administrative Council
found that there was not enough evidence to initiate criminal
proceedings against the accused officers and consequently refused to
do so. On 1 September 2000 the applicants appealed against this
decision. In their appeal petition, they invoked a breach of Article
11 of the Convention, arguing that the police interference had
breached their freedom of assembly. On 14 June 2001 the Supreme
Administrative Council upheld the decision of the Administrative
Council.
- In
the meantime, on 1 June 1999 the Adıyaman Public Prosecutor,
after examining a video recording of the incident, delivered a
decision not to prosecute with regard to seventy demonstrators –
including the applicants – who had been involved in the
incident on 1 May 1999. In reaching his decision, the Public
Prosecutor stated that the demonstrators had been stopped by the
police, although they had been walking silently along the pavement,
without presenting a danger to the public or engaging in any violent
activities. It was also indicated in the decision that, pursuant to
section 24 of the Assemblies and Marches Act (Law no. 2911), the
police were under an obligation to warn the group out loud to
disperse; however, it was observed from the recording of the incident
that they had failed to do so. In consequence, the public prosecutor
held that the accused had not violated Law no. 2911.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained under Article 3 of the Convention that the
force used during their arrest was excessive, disproportionate and
constituted ill-treatment. Article 3 provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Alleged ill-treatment of the applicants
1. In
respect of Ms Zeynep Saya, Mr Hasan Ölgün, Mr Müslüm
Atasoy, Ms Zöhre Taş, Mr Nedim Çifçi and
Ms Hediye Kilinç
- The
Government argued that the applicants Ms Zeynep Saya, Mr Hasan
Ölgün, Mr Müslüm Atasoy, Ms Zöhre Taş,
Mr Nedim Çifçi and Ms Hediye Kilinç could
not be considered to be victims in respect of Article 3 as they
had no medical reports in support of their allegations.
- The
Court recalls that allegations of ill-treatment must be supported by
appropriate evidence. To assess this evidence, it has generally
applied the standard of proof “beyond reasonable doubt”
(see Talat Tepe v. Turkey, no. 31247/96, § 48,
21 December 2004). Such proof may, however, follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Labita v. Italy
[GC], no. 26772/95, § 121, ECHR 2000 IV).
15. In
the instant case, the applicants Ms Zeynep Saya, Mr Hasan Ölgün,
Mr Müslüm Atasoy, Ms Zöhre Taş, Mr Nedim
Çifçi and Ms Hediye Kilinç complained
that they had been injured as a result of the excessive use of force
by the police to disperse the demonstration. Nonetheless, several
elements cast doubt on the veracity of the applicants' claims. The
Court observes in the first place that the medical reports dated 1
May 1999 do not indicate any signs of ill-treatment on their bodies.
Furthermore, although the applicants were released the day after the
incident, they did not submit any further medical reports in support
of their complaint or adduce any material which could add probative
weight to their allegations. There is therefore nothing in the case
file to show that these applicants were injured as alleged during the
incident (see Balçık and Others v. Turkey, no.
25/02, §§ 24 26, 29 November 2007).
- In
view of the above, the Court concludes that the applicants
Ms Zeynep Saya, Mr Hasan Ölgün, Mr Müslüm
Atasoy, Ms Zöhre Taş, Mr Nedim Çifçi and
Ms Hediye Kilinç have not substantiated their
claims and this part of the application must therefore be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
2. In respect of the remaining applicants
- The
Court notes that the Article 3 complaint lodged by Mr Şeyho
Saya, Mr Çetin Taş, Mr Akın Doğan, Mr Ali Murat
Bilgiç and Mr Bahattin Barış Bilgiç 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.
- As
the Court has underlined on many occasions, Article 3 enshrines one
of the most fundamental values of democratic societies, making no
provision for exceptions and no derogation from it is permissible
under Article 15 § 2 (see Selmouni v. France [GC],
no. 25803/94, § 95, ECHR 1999 V; Assenov and Others v.
Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998 VIII, p. 3288, § 93).
- As
stated above, in assessing evidence, the standard of proof “beyond
reasonable doubt” is generally applied (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64 65, § 161). However, such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000 VII).
Further, where allegations are made under Articles 2 and 3
of the Convention, the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, p. 24, §
32).
- The
Court observes that in the present case it is undisputed that the
injuries observed on the five applicants, namely Mr Şeyho Saya,
Mr Çetin Taş, Mr Akın Doğan, Mr Ali Murat
Bilgiç and Mr Bahattin Barış Bilgiç, were
caused as a result of the use of force by the police during the
incident on 1 May 1999. It therefore considers that the burden
rests on the Government to demonstrate with convincing arguments that
the use of force was not excessive.
- The
Court notes that, since prior authorisation had been obtained from
the Adıyaman Governor to celebrate May Day in the Adıyaman
Amphitheatre in the Hasancık District, several police officers
were deployed to secure the area. It also notes that the police
stopped the group as they were walking along the pavement towards the
amphitheatre. Thus, in the particular circumstances of the present
case, it cannot be said that the security forces were called upon to
react without prior preparation (see Rehbock v. Slovenia, no.
29462/95, § 72, ECHR 2000 XII). The Court further observes
that there is no evidence to suggest that the group presented a
danger to public order or engaged in acts of violence. In particular,
it takes note of the non-prosecution decision, dated 1 June 1999, in
which the Adıyaman Public Prosecutor held that the applicants
had not violated the Assemblies and Marches Act (Law no. 2911).
- In
these circumstances, the Court finds that the Government have failed
to furnish convincing or credible arguments which would provide a
basis to explain or to justify the degree of force used against the
applicants, whose injuries are corroborated by medical reports. As a
result, it concludes that the injuries sustained by Mr Şeyho
Saya, Mr Çetin Taş, Mr Akın Doğan, Mr Ali
Murat Bilgiç and Mr Bahattin Barış Bilgiç
were the result of treatment for which the State bore responsibility.
- It
follows that there has been a violation of Article 3 in respect of
Mr Şeyho Saya, Mr Çetin Taş, Mr Akın
Doğan, Mr Ali Murat Bilgiç and Mr Bahattin Barış
Bilgiç.
B. Alleged failure to conduct an effective
investigation
- The
applicants maintained that their allegations of ill-treatment were
not examined by an independent and impartial authority. In this
respect, they invoked Articles 3, 6 and 13 of the Convention.
- The
Court notes that this part of the application 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.
- The
Court observes that, following the applicants' complaint to the
Adıyaman Public Prosecutor, the case file was transferred to the
Adıyaman Provincial Administrative Council for the purpose of
obtaining authorisation to bring criminal proceedings against the
accused officers, pursuant to the provisions of Law on the
prosecution of Civil Servants. The Committee concluded that there was
no evidence in support of the applicants' allegations and decided in
consequence that no criminal proceedings should be initiated against
the accused police officers.
- The
Court reiterates its earlier findings 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 governor, an
executive officer linked to the very security forces under
investigation (see, inter alia, Ipek v. Turkey,
no. 25764/94, § 174, 17 February 2004; Talat Tepe,
cited above, § 84; Oğur v. Turkey [GC], no.
21594/93, § 91, ECHR 1999 III). In this regard, the
willingness of the investigators to give credence to the accounts
offered by their colleagues confirms the Court's previous findings.
- The
Court therefore concludes that the national authorities failed to
carry out an effective and independent investigation into the
applicants' allegations of ill-treatment.
- There
has accordingly been a procedural violation of this provision.
- In
these circumstances, the Court considers that no separate issue
arises under Articles 6 and 13 of the Convention (see Timur
v. Turkey, no. 29100/03, §§ 35 40, 26
June 2007).
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicants alleged that the police intervention in the meeting
constituted a violation of their freedom of assembly. In this
respect, they relied on Article 11 of the Convention and Article 2 of
Protocol No. 4.
- The
Court considers that the applicants' complaints should be examined
under Article 11, which provides:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others, ...
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. ...”
A. Admissibility
- The
Government asked the Court to dismiss this part of the application,
under Article 35 § 1 of the Convention, for failure to exhaust
domestic remedies. In this regard, they submitted that the applicants
had not relied on the provisions of the Convention in the domestic
proceedings. They also stated that the applicants could have brought
administrative and/or civil proceedings. Furthermore, the Government
argued that this part of the application was not lodged within the
six-month time-limit. In their view, the applicants should have
lodged their application with the Court within six months following
the date of the incident, that is, 1 May 1999.
- As
regards the first objection, the Court notes that the applicants
relied on Article 11 of the Convention in their appeal petition to
the Supreme Administrative Court, dated 1 September 2000, and alleged
a breach of their right to peaceful assembly. Therefore, this
objection cannot be upheld.
- In
respect of the second objection, the Court recalls that similar
objections based on the civil and administrative law remedies
referred to by the Government have already been examined and rejected
(see Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004). It finds no
particular circumstances in the instant case which would require it
to depart from this jurisprudence. In conclusion, this objection
cannot be upheld either.
- As
regards the objection concerning non-compliance with the six-month
time-limit, the Court observes that the applicants lodged their
application on 20 November 2001, within six months of the decision by
the Supreme Administrative Court. In the Court's view, it was not
unreasonable for the applicants to await the outcome of the
proceedings against the police officers. Accordingly, this objection
must also be dismissed.
- The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Whether there was an interference with the exercise
of the freedom of peaceful assembly
- The
Government maintained that there had been no interference with the
applicants' rights under Article 11 of the Convention.
- The
Court considers that the police intervention and the subsequent
arrest of the applicants for participating in the meeting
constituted, in itself, an interference with the applicants' rights
under Article 11.
2. Whether the interference was justified
- The
Government stated that the meeting in issue had been organised
unlawfully. They pointed out that the second paragraph of Article 11
imposed limits on the right of peaceful assembly in order to prevent
disorder.
- The
Court reiterates that an interference will constitute a breach of
Article 11 unless it is “prescribed by law”, pursues
one or more legitimate aims under paragraph 2 and is “necessary
in a democratic society” for the achievement of those aims.
- In
this connection, it is noted that the interference in the present
case had a legal basis, namely section 22 of the Assemblies and
Marches Act (Law no. 2911), and was thus “prescribed by law”
within the meaning of Article 11 § 2 of the Convention. As
regards a legitimate aim, the Government submitted that the
interference pursued the legitimate aim of preventing public disorder
and the Court finds no reason to differ.
- Turning
to the question of whether the interference was “necessary in a
democratic society, the Court refers in the first place to the
fundamental principles underlying its judgments relating to Article
11 (see Djavit An v. Turkey, no. 20652/92, §§
56 57, ECHR 2003 III; Plattform “Ärzte für
das Leben” v. Austria, judgment of 21 June 1988, Series A
no. 139, p. 12, § 32). It is clear from this case-law
that the authorities have a duty to take appropriate measures with
regard to lawful demonstrations in order to ensure their peaceful
conduct and the safety of all citizens (see Balçık
and Others, cited above, § 46; Oya Ataman v. Turkey,
no. 74552/01, § 35, ECHR 2006 ....).
- The
Court also notes that States must not only safeguard the right to
assemble peacefully, but also refrain from applying unreasonable
indirect restrictions upon that right. Finally, it considers that,
although the essential object of Article 11 is to protect the
individual against arbitrary interference by public authorities with
the exercise of the rights protected, there may in addition be
positive obligations to secure the effective enjoyment of these
rights (see Djavit An, cited above, § 57; Oya Ataman,
cited above, § 36; Balçık and Others,
cited above, § 47).
- It
appears from the evidence before the Court, in particular from the
decision not to prosecute issued by the Adıyaman Public
Prosecutor, that the applicants had obtained prior authorisation from
the Adıyaman Governor to celebrate May Day in the Adıyaman
Amphitheatre. While they were walking along the pavement, the police
stopped them and used force to disperse the group, without issuing a
prior warning. The applicants were subsequently arrested, but
released the following day.
- The
Court also notes from the decision of the Public Prosecutor that the
group had not presented a danger to public order, or engaged in acts
of violence. In the Court's view, where demonstrators do not engage
in acts of violence, it is important for the public authorities to
show a certain degree of tolerance towards peaceful gatherings if the
freedom of assembly guaranteed by Article 11 of the Convention is not
to be deprived of all substance (see Nurettin Aldemir and Others
v. Turkey, nos. 32124/02, 32126/02, 32129/02, 32132/02,
32133/02, 32137/02 and 32138/02, § 46, 18 December
2007).
- Accordingly,
the Court considers that in the instant case the forceful
intervention of the police was disproportionate and was not necessary
for the prevention of disorder within the meaning of the second
paragraph of Article 11 of the Convention.
- There
has therefore been a violation of Article 11 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants further alleged a breach of Articles 5 and 6 of the
Convention. They argued that their arrest was unlawful and that they
had been deprived of their right to legal assistance during their
police custody.
- The
Court has examined the applicants' complaints raised under Articles 5
and 6 of the Convention. However, having regard to all materials in
its possession, the Court finds nothing in the case file which might
disclose any appearance of a violation of these provisions. It
follows that this part of the application is manifestly-ill founded
and must be rejected, pursuant to Article 35 §§ 3 and 4 of
the Convention.
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
- The
applicants claimed 50,000 US Dollars each in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claims.
- The
Court considers that the applicants are sufficiently compensated by
the finding of a violation of Article 11 of the Convention (see Oya
Ataman, cited above, § 48). However, as regards the finding
of a substantive and procedural violation of Article 3 in respect of
five applicants, namely Mr Şeyho Saya, Mr Çetin Taş,
Mr Akın Doğan, Mr Ali Murat Bilgiç and Mr Bahattin
Barış Bilgiç, the Court, ruling on an equitable
basis, awards these five applicants EUR 3,000 each in respect of
non-pecuniary damage. Furthermore, in respect of Ms Zeynep Saya, Mr
Hasan Ölgün, Mr Müslüm Atasoy, Ms Zöhre
Taş, Mr Nedim Çifçi and Ms Hediye Kilinç,
the Court recalls that it has found a procedural violation of Article
3 and ruling on an equitable basis, awards EUR 1,000 to each of these
six applicants in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed 9,500 new Turkish Liras each for the costs
and expenses incurred before the Court. In respect of their claims,
they referred to the Istanbul Bar Association's scale of fees.
- The
Government contested this claim, as it was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicants have
not substantiated that they have actually incurred the costs claimed.
Accordingly, it makes no award under this head.
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 inadmissible the complaints concerning
the substantial aspect of Article 3 of the Convention in respect of
Ms Zeynep Saya, Mr Hasan Ölgün,
Mr Müslüm Atasoy, Ms Zöhre Taş, Mr Nedim Çifçi
and Ms Hediye Kilinç, with regard to the applicants'
right to liberty and security (Article 5) and their right to legal
assistance (Article 6);
- Declares admissible the remainder of the
application;
- Holds that there has been a substantive
violation of Article 3 of the Convention in respect of Mr Şeyho
Saya, Mr Çetin Taş, Mr Akın Doğan, Mr Ali
Murat Bilgiç and Mr Bahattin Barış Bilgiç;
- 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
applicants' allegations of ill-treatment;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that the finding of a violation of Article
11 in itself constitutes sufficient just satisfaction for the
non-pecuniary damage sustained by the applicants;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 3,000 (three thousand euros) each to
Mr Şeyho Saya, Mr Çetin Taş, Mr Akın
Doğan, Mr Ali Murat Bilgiç and Mr Bahattin Barış
Bilgiç; and EUR 1,000 (one thousand euros) each to Ms Zeynep
Saya, Mr Hasan Ölgün, Mr Müslüm Atasoy, Ms Zöhre
Taş, Mr Nedim Çifçi and Ms Hediye Kilinç
in respect of non-pecuniary damage, 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;
(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 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy
Registrar President
