EU & Human Rights

YAZICI AND OTHERS v. TURKEY (No. 2) - 45046/05 - Chamber Judgment

[2013] ECHR 369European Court of Human Rights2013

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This judgment will become final in the circumstances set out in Article 44 � 2 of the Convention. It may be subject to editorial revision.

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, �� Neboj�a Vučinić, �� Paulo Pinto de Albuquerque, judges, and Stanley Naismith , Section Registrar ,

(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

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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,
�� Neboj�a 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 Ey�p 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 Ey�p 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 Ey�p 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 Y�ksel v. Turkey (dec.), no. 40154/98, 2 December 2003, and G�ler and �ngel 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 decided 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 G�ler and �ngel, 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 Ey�p 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 �ağlayan 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 Karag�z 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

YAZICI AND OTHERS v. TURKEY (No. 2) - 45046/05 - Chamber Judgment

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YAZICI AND OTHERS v. TURKEY (No. 2) - 45046/05 - Chamber Judgment

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