SECOND SECTION
CASE OF
YAZICI AND OTHERS v. TURKEY (no. 2)
(Application no.
45046/05)
JUDGMENT
STRASBOURG
23 April 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Yazıcı and Others v. Turkey (no. 2),
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 2 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
45046/05) 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 three Turkish nationals, Mr Osman Yazıcı, Mr
Erkan Polat and Mr Kadir Sağın (“the applicants”), on 2 December 2005.
The applicants were represented by Mrs F.
Karakaş Doğan, a lawyer practising in Istanbul. The Turkish
Government (“the Government”) were represented by their Agent.
On 23 April 2010 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants, who were born in 1982, 1975 and
1979 respectively, reside in Istanbul.
On 13 July 1998 the first two applicants were arrested
and taken into custody at Gaziosmanpaşa police station on suspicion of
their involvement in a robbery. Subsequently, on 15 July 1998 the third
applicant was taken into custody in connection with the same offence.
The applicants alleged that during their police
custody, they had been subjected to various forms of ill-treatment. In
particular, they stated that they had been blindfolded, stripped naked, hung by
their arms, given electric shocks, harassed, threatened, punched, kicked,
beaten with truncheons and other blunt objects, and subjected to falaka
(whipping on the soles of the feet).
On 18 July 1998 the applicants were examined at a
hospital. The doctor who examined them reported that there were no signs of
physical violence on their bodies. According to the applicants, the doctor was
a friend of the police officer who had accompanied them to the hospital, and he
had drafted the report without carrying out a medical examination.
On 19 July 1998 the applicants were interrogated
by the public prosecutor and the investigating judge. The second and third
applicants alleged before the investigating judge that they had been
ill-treated during their time in police custody. The applicants were then
remanded in custody upon the order of the investigating judge.
On the same date, the applicants filed a criminal
complaint with the public prosecutor and complained of ill-treatment. The
public prosecutor initiated an investigation and ordered that the applicants be
taken to the Gaziosmanpaşa Health Clinic for a medical examination. The
doctor who examined the applicants noted the following injuries:
(a) Mr Yazıcı had three parallel
bruises on his back measuring 1x10 cm and a bruise inside his left cheek
measuring 1 cm;
(b) Mr Polat had two bruises measuring 1x10 cm
on his back and a wound measuring 1x2 cm on the back of his right foot; and
(c) Mr Sağın had four bruises measuring
1x10 cm on his back and a wound measuring 1x1cm on the outer side of his right
foot.
On 10 May 1999 the Gaziosmanpaşa Forensic
Medicine Institute issued a report regarding the applicants’ injuries. Based on
the findings indicated in the medical report of 19 July 1998, it was concluded
that the first and second applicants were unfit to work for five days and the
third applicant for seven days.
On 1 October 1999 the prosecutor at the Eyüp Assize Court filed an indictment against three police officers, accusing them of torture
pursuant to Article 243 of the former Criminal Code.
On 13 October 1999 the criminal proceedings
before the Eyüp Assize Court commenced. The applicants joined the proceedings
as civil parties.
On 21 December 2000 Law no. 4616 on conditional
release was enacted. This law provided for the suspension of proceedings or of
the execution of sentences in respect of crimes committed before 23 April 1999
and for which the maximum penalty did not exceed ten years’ imprisonment.
Section 5(a) of Law no. 4616 stipulated that the execution of sentences in
respect of offences proscribed by, amongst others, Article 243 of the former
Criminal Code could not be suspended.
On 25 October 2005 the Eyüp Assize Court decided
that the acts allegedly committed by the accused police officers fell within
the scope of Article 245 of the former Criminal Code, regarding ill-treatment.
It therefore decided that pursuant to section 1(4) of Law no. 4616, the
criminal proceedings should be suspended and subsequently discontinued if no
offence of the same or a more serious kind was committed by the offenders
within a five-year period.
On 8 November 2007 the Court of Cassation
quashed the judgment of the first-instance court on the grounds that the statutory
time-limit had expired. Accordingly, the criminal proceedings against the
police officers were discontinued.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained that they had been
subjected to ill-treatment while in police custody. They further alleged that
the ensuing criminal proceedings against the accused police officers had been
ineffective. In this connection, they relied on Articles 3 and 13 of the
Convention.
The Court considers that these complaints should
be examined from the standpoint of Article 3 alone, which reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government maintained that the application
should be rejected for non-exhaustion of domestic remedies. In this connection,
they first argued that the domestic proceedings had still been pending when the
application was introduced. In the alternative, they argued that the applicants
should have brought compensation proceedings before the administrative courts.
As regards the
Government’s first objection, the Court reiterates that applicants are
required, in principle, to exhaust the different domestic remedies available to
them before they apply to the Court. However, the last stage in the exhaustion
of these remedies may be reached after the lodging of the application but
before the Court is called upon to pronounce on the issue of admissibility (see
Mehmet Emin Yüksel v. Turkey (dec.), no. 40154/98, 2 December
2003, and Güler and Öngel v. Turkey, nos. 29612/05 and
30668/05, § 19, 4 October 2011). The Court notes that the final decision in the
prosecution of the accused police officers was delivered on 8 November 2007,
before the Court had delivecidred on the admissibility of the present application.
The Government’s first objection must accordingly be dismissed. As
regards the second objection, the Court reiterates that it has already examined
and rejected the Government’s similar preliminary objections in previous cases (see, in particular, Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It reaffirms its earlier
conclusions that the remedy referred to by the Government cannot be regarded as
sufficient for a Contracting State’s obligations under Article 3 of the
Convention. The Court therefore finds no particular circumstances in the
instant case which would require it to depart from its previous findings.
Accordingly, this objection cannot be upheld.
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The
substantive aspect of Article 3
The Government argued that the facts of the present
case fell outside the scope of Article 3. They pointed out that the findings
indicated in the medical reports did not prove beyond reasonable doubt that the
applicants had been ill-treated, as alleged.
The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence (see Tanrıkulu
and others v. Turkey (dec.), no. 45907/99, 22 October 2002). In
assessing evidence, the Court has generally applied the standard of proof
“beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282,
ECHR 2001-VII (extracts)). Such proof may, however, follow from the
co-existence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact (see Güler and Öngel, cited above,
§ 26, and Ireland v. the United Kingdom, 18 January 1978,
§ 161, Series A no. 25). 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).
In that respect, where an individual is taken
into custody in good health but is found to be injured by the time of release,
it is incumbent on the State to provide a plausible explanation of how these
injuries were caused and to produce evidence casting doubt on the victim’s
allegations, particularly if those allegations are corroborated by medical
reports, failing which a clear issue arises under Article 3 of the Convention
(see Tomasi v. France, 27 August 1992, § 108-111, Series A no. 241-A;
Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; Aksoy
v. Turkey, 18 December 1996, § 62, Reports of Judgments and
Decisions 1996-VI; and Selmouni v. France [GC], no. 25803/94, § 87,
ECHR 1999-V).
The Court observes that in its judgment dated 25
October 2005, the Eyüp Assize Court concluded that the acts of the accused
police officers fell within the scope of Article 245 of the former Criminal
Code, relating to ill-treatment. In this connection, the Court further takes
note of the fact that the applicants were not examined by a doctor immediately
after their arrest. Such an examination would have been the appropriate step
for the authorities to have taken (see Çağlayan v. Turkey, no. 30461/02, § 41, 21 October 2008). Moreover, although the medical report
issued on 18 January 1998 revealed no signs of violence on their bodies,
the subsequent report drafted the following day noted several bruises on the
applicants. These findings matched at least the
applicants’ allegation of having been beaten and kicked. In this connection,
the Court notes that the applicants remained in detention during this time and
therefore reiterates that the domestic authorities were under an obligation to
provide a plausible explanation for these injuries. However, in their
observations the Government failed to do so, stating solely that the findings
in the medical reports did not prove beyond reasonable doubt that the
applicants had been ill-treated, as alleged.
Having regard to the above, the Court concludes
that the injuries observed on the applicants were the result of treatment for
which the Government bore responsibility.
It follows that there has been a substantive
violation of Article 3 on account of the inhuman and degrading treatment to
which the applicants were subjected.
2. The
procedural aspect of Article 3
The Court reiterates that, in a number of
similar cases where prosecutions have become time-barred following lengthy
proceedings, it has noted that the criminal law system has proved to be far
from rigorous and to be 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, no. 19028/02, §§ 91-100, 24 July 2007).
In the present case, the Court observes that upon
the applicants’ complaint, the public prosecutor promptly initiated an investigation
in 1998. He subsequently filed an indictment with the assize court in 1999.
However, the first-instance court and the Court of Cassation delivered their
decisions in 2005 and 2007 respectively. Due to this delay, the criminal
proceedings against the accused police officers were dropped as being time-barred.
In view of the foregoing, 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 applicants.
Accordingly, there has also been a procedural violation of Article 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The applicants each requested 10,000 euros (EUR)
in respect of compensation for pecuniary damage and EUR 50,000 for
non-pecuniary damage. Referring to the Istanbul Bar Association’s scale of
legal fees, the applicants’ representative further claimed EUR 5,000 in legal
fees for each of the applicants. In this respect, she also submitted a legal representation
agreement. The applicants’ representative also claimed EUR 5,000 for other costs
and expenses, without submitting an invoice in support of her claim.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. As regards non-pecuniary damage, the Court finds that the
applicants 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 applicants
EUR 19,500 each in respect of non-pecuniary damage.
Finally, as regards legal fees, 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 are reasonable as to quantum. In the present case,
regard being had to the documents in its possession and the above criteria, the
Court considers it reasonable to award the sum of EUR 5,000 jointly to the
applicants under this head.
The Court further
considers it appropriate that the default interest rate should be based on the
marginal lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural aspects;
3. Holds
(a) that the respondent State is to pay the applicants,
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 19,500 (nineteen thousand five hundred euros)
each, plus any tax that may be chargeable to them, in respect of non-pecuniary
damage;
(ii) EUR 5,000 (five thousand euros) jointly, plus
any tax that may be chargeable to them, 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;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 23 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
