[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF
GÜMÜŞSOY v. TURKEY
(Application
no. 51143/07)
JUDGMENT
STRASBOURG
11 October
2011
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 Gümüşsoy v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
Giorgio
Malinverni,
Işıl Karakaş,
Paulo
Pinto de Albuquerque, judges,
and Stanley
Naismith, Section
Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 51143/07)
against the Republic of Turkey lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Turkish national, Mr Şafak Gümüşsoy (“the
applicant”), on 9 November 2007.
2. The
applicant was represented by Ms G. Tuncer, a lawyer practising in
İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
18 June 2010 the President of the Second Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in
İstanbul.
- The
applicant is the editor and owner of Devrimci Mücadele
Birliği (Revolutionary Struggle Union), a monthly political
magazine. At about 12.30 p.m. on 29 November 2001, with a search
warrant issued by the Istanbul State Security Court, police officers
from the Anti-Terrorist Branch of the Istanbul Security Headquarters
conducted a search of the journal’s office. An identity check
was carried out and the police arrested four persons, including the
applicant, who were present in the office at the time. According to
the search and arrest report signed by seven police officers, the
applicant resisted the officers. He was subsequently handcuffed and
put in a minibus to be taken to the Security Headquarters building.
The applicant alleged that he had been beaten and insulted in the car
by three police officers. In particular, he stated that one officer,
A.Ç., had head-butted him and broken his nose.
- At
7 p.m. the same day the applicant was taken to Haseki Hospital where
he was examined by a doctor. In his report, the doctor noted bruises
under the applicant’s eyes and swelling on the bridge of his
nose. The applicant was transferred to the Ear, Nose and Throat
Service for consultation. The doctor examined the applicant at 9 p.m.
the same day, noted the injury to the applicant’s nose and
requested an X-ray.
- On
30 November 2001 the X-ray of the applicant’s nose revealed
that it was broken.
- On
3 December 2001 the applicant was examined once again at the State
Security Court branch of the Forensic Medicine Institute. The doctor
who examined him explained in his report that the applicant had
complained that he had been subjected to ill-treatment in police
custody. It was reported that the applicant had stated that he was
beaten up in the minibus while he was being taken to the Security
Headquarters, and that he had been under psychological pressure while
he was in police custody. Referring to the X ray of 30 November
2001, which showed that the applicant’s nose had been broken,
the doctor concluded that he was unfit to work for ten days.
- On
the same day the applicant was released by order of the public
prosecutor.
- On
an unspecified date, the applicant lodged a criminal complaint with
the Beyoğlu Public Prosecutor, alleging that he had been
ill-treated while in police custody.
- On
5 December 2001 the applicant was examined once again at the Beyoğlu
branch of the Forensic Medicine Institute. It was noted that he had
bruising under his eyes and swelling on his nose. In a final report
of 14 December 2001, the Beyoğlu branch of the Forensic
Medicine Institute, with reference to the X-ray of 30 November 2001,
concluded that the applicant’s nose had been broken, and stated
that he was unfit to work for fifteen days.
- On
21 December 2001 the Beyoğlu Public Prosecutor declared lack of
jurisdiction and transferred the case file to the Fatih Public
Prosecutor’s Office. The Fatih Public Prosecutor conducted two
separate investigations into the applicant’s complaints. In
file no. 2001/28563, an investigation was commenced in respect of two
police officers who had been on duty at the Anti-Terrorist Branch of
the Istanbul Security Headquarters on the day of the applicant’s
arrest. In connection with this investigation, the public prosecutor
gave a decision on 17 January 2002 that he would not prosecute these
two officers, for lack of evidence.
- In
file no. 2002/1953, the Fatih Public Prosecutor conducted an
investigation into the events which took place during the applicant’s
arrest and his transfer to the Security Headquarters building. On 17
January 2002 the Fatih Public Prosecutor decided to transfer the case
back to the Beyoğlu Public Prosecutor’s Office.
Accordingly, on 15 February 2002, the Beyoğlu Public Prosecutor
filed an indictment with the Beyoğlu Criminal Court against
seven police officers, accusing them of ill-treating the applicant
under Article 245 of the former Criminal Code. The applicant joined
the proceedings as a civil party.
- During
the proceedings, the applicant lodged an objection, stating that the
case should be dealt with by the Beyoğlu Assize Court, as the
police officers’ actions had amounted to torture. On 17 March
2002 the Beyoğlu Criminal Court declared that it did not have
jurisdiction and transferred the case to the Beyoğlu Assize
Court. In a hearing held on 17 September 2002, the applicant
identified police officer A.Ç. as the person who had broken
his nose.
- On
6 April 2007, on the basis of medical reports and witness statements,
the Beyoğlu Assize Court found it established that Officer A.Ç.
had broken the applicant’s nose by head-butting him.
Considering that the use of force had not been proportionate, the
court found the police officer guilty of ill-treating the applicant
under Article 245 of the former Criminal Code. Having regard to the
duration of the treatment, the court decided that the act did not
amount to torture, since it had not been systematic. In conclusion,
A.Ç. was sentenced to six months’ imprisonment and
banned from public service for three months. The court then converted
his sentence to a fine, having had regard to the fact that he did not
have a criminal record. Furthermore, the court decided to suspend his
sentence under Law no. 647, considering that he was unlikely to
break the law again. The other six police officers were acquitted of
the charges against them.
- The
applicant appealed against this decision.
- On
24 February 2010 the Court of Cassation, noting that the statutory
time-limit for the offence had expired, decided to drop the criminal
proceedings against the accused police officer.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law and practice in force at the
material time can be found in Okkalı v. Turkey (no.
52067/99, §§ 47 49, ECHR 2006 XII
(extracts)), and Batı and Others v. Turkey (nos. 33097/96
and 57834/00, §§ 96-98, ECHR 2004 IV (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been subjected to ill-treatment during his arrest and subsequently
during his custody at the Security Directorate Building. He also
alleged that the domestic authorities had failed to carry out an
effective investigation capable of leading to the punishment of those
responsible for the treatment. In respect of his complaints, the
applicant relied on Articles 3, 6 and 13 of the Convention.
- The
Court considers that these complaints should be examined from the
standpoint of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Alleged ill-treatment of the applicant while in
custody at the Security Headquarters
- The
applicant complained that while he was in police custody at the
Security Headquarters he had been subjected to ill-treatment. In this
connection, he maintained that he was kept in a dirty and
unventilated place, deprived of sleep, made to listen to loud music,
sworn at and threatened.
- The
Government did not make any comments on this part of the application.
- The
Court observes at the outset that the applicant’s allegations
regarding his ill-treatment at the Security Headquarters were
examined by the Fatih Public Prosecutor and subsequently a decision
not to prosecute was delivered on 17 January 2002, on account of lack
of evidence. It is not clear from the documents submitted by the
parties whether the applicant lodged an appeal against this decision.
Nevertheless, even assuming that the applicant has exhausted domestic
remedies and complied with the six month time-limit, the Court
notes that this part of the application is in any case inadmissible
for the following reasons.
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. To assess this evidence, the Court 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).
- In
the instant case, however, the Court notes that the applicant’s
allegations are of a general nature and he has not laid the basis of
an arguable claim regarding his complaints.
- Consequently,
this part of the application should be declared inadmissible as
manifestly ill-founded within the meaning of Article 35 §§ 3
and 4 of the Convention.
B. Alleged ill-treatment of the applicant during his
arrest
1. Admissibility
- The
Government firstly stated that as the domestic proceedings were still
pending before the domestic courts when the application was
introduced, the application should be rejected for non-compliance
with the six-month time-limit. They 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 against the Ministry of the
Interior before the administrative courts.
- As
regards the Government’s objection relating to the six-month
time-limit, the Court observes that the proceedings against the
accused police officers were terminated on 24 February 2010 by the
decision of the Court of Cassation. Since the application was
introduced on 9 November 2007, the Government’s objection
regarding the six-month time-limit cannot be upheld.
- As
regards the objection regarding the exhaustion of domestic remedies,
the Court reiterates that it has already examined and rejected the
Government’s preliminary objections in similar cases (see, in
particular, Fazıl Ahmet Tamer and Others v. Turkey, no.
19028/02, §§ 71-76, 24 July 2007). It finds no particular
circumstances in the instant case which would require it to depart
from its previous findings. Accordingly, the Court also rejects this
preliminary objection.
- 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.
2. Merits
- The
applicant alleged that the police officers had ill-treated him during
his arrest. In particular, he stated that one of the police officers
had head-butted him in the police car and broken his nose. He also
complained about the manner in which the investigation and the
criminal proceedings had been conducted by the authorities, resulting
in impunity because of the imposition of the time-limit.
- The
Government maintained that the treatment that the applicant
complained of had not attained the level of severity proscribed by
Article 3 of the Convention. Furthermore, as the applicant had
resisted the police officers during the arrest, the force used had
been justified. As to the procedural limb of Article 3, the
Government contended that no responsibility could be attributed to
the domestic authorities.
(a) The substantive aspect of Article 3
- At
the outset, the Court reiterates the basic principles laid down in
its judgments concerning Article 3 (see, amongst many others, Diri
v. Turkey, no. 68351/01, §§ 35-39, 31 July 2007;
Çolak and Filizer v. Turkey, nos. 32578/96 and
32579/96, § 30, 8 January 2004; and Çamdereli
v. Turkey, no. 28433/02, §§ 35-37, 17 July 2008).
It will examine the present cases in the light of these principles.
- The
Court also observes 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 Rehbock v. Slovenia, no. 29462/95, §§
66-78, ECHR 2000 XII). In the instant case, the applicant
alleged that he had been ill treated during his arrest. In
particular, he complained that a police officer, Mr A.Ç., had
headbutted him in the police car, breaking his nose. Subsequent
medical reports further confirmed that the applicant’s nose had
been broken. The Court finds that this injury is sufficient to bring
it within the scope of Article 3. It also observes that after
acquainting itself with the evidence in the case file, in its
decision the Beyoğlu Assize Court also found it established that
Officer A.Ç. had broken the applicant’s nose by
head-butting him. Considering that the use of force had been
disproportionate, the domestic court found the police officer guilty
of ill treating the applicant under Article 245 of the former
Criminal Code. Although the criminal proceedings were subsequently
dropped as time barred, in the instant case no cogent evidence
has been provided to lead the Court to depart from the findings of
the first-instance court in this respect.
- In
the light of the above, the Court concludes that the force used
against the applicant was excessive and that the State is responsible
under Article 3 of the Convention because the applicant’s
injury was caused by a police officer who was acting in the course of
his duty. It follows that there has been a substantive violation of
Article 3 of the Convention on account of the inhuman and degrading
treatment to which the applicant was subjected.
(b) The procedural aspect of Article 3
- The
Court reiterates that, in a number of similar cases where
prosecutions have been time-barred following lengthy proceedings, it
has noted that the criminal law system has proved to be far from
rigorous and lacking in the dissuasive effect capable of ensuring the
effective prevention of unlawful acts such as those complained of by
the applicants (see Karagöz and Others v. Turkey, nos.
14352/05, 38484/05 and 38513/05, §§ 53 55,
13 July 2010, and Fazıl Ahmet Tamer and Others v.
Turkey, cited above, §§ 91 100).
- In
the present case, the Court observes that the public prosecutor
initiated a prompt investigation after the incident and the applicant
identified Officer A.Ç. on 17 September 2002 as the person who
had broken his nose. However, the first-instance court and the Court
of Cassation delivered their decisions in 2007 and 2010 respectively.
Due to this delay, the criminal proceedings against the accused
police officers were dropped as time-barred.
- In
view of the above, the Court concludes that, far
from being rigorous, the criminal justice system as applied in this
case was not sufficiently dissuasive to effectively prevent illegal
acts of the type complained of by the applicant.
- Accordingly,
there has been a procedural violation of Article 3 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant requested 80,000 euros (EUR) in compensation for
non-pecuniary damage. As regards legal fees, the applicant’s
representative claimed EUR 7,330 covering fifty-three hours’
legal work spent in the domestic proceedings and the presentation of
the present case before the Court. She also claimed EUR 160 for
expenses, without submitting any invoices.
- The
Government contested the claims.
- 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 11,700
in respect of non pecuniary damage.
- As
regards costs and expenses, the Court may make an award in so far as
they were actually and necessarily incurred and are 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 EUR 4,000 in this respect.
- 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 complaint concerning the alleged
ill-treatment of the applicant during his arrest and the failure of
the authorities to conduct an effective investigation into this claim
admissible, and the remainder of the application inadmissible;
- Holds that there has been a substantive
violation of Article 3 of the Convention on account of the inhuman
and degrading treatment to which the applicant was subjected during
his arrest;
- 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 ill treated by the
police during his arrest;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Turkish liras at the rate applicable on the date of
settlement:
(i) EUR
11,700 (eleven thousand seven hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii) EUR
4,000 (four thousand euros) plus any tax that may be chargeable to
him, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens Registrar President
