Orhan Kur v. Turkey (32577/02)

Date	20080603
Article	3
Decision	violation

CHAMBER JUDGMENT ORHAN KUR v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Orhan Kur v. Turkey (application no. 32577/02).

The Court held unanimously that there had been:

· a violation of Article 3 (prohibition of torture and or inhuman or degrading treatment) of the European Convention on Human Rights concerning the applicant’s ill-treatment by the police; and,

· a violation of Article 3 (lack of an effective remedy) on account of the inadequacy of the investigation and criminal proceedings concerning the applicant’s allegation of ill-treatment.

As the applicant had not submitted any claim under Article 41 (just satisfaction) of the Convention, the Court held that it was unnecessary to make any such award (The judgment is available only in English.)

1. Principal facts

The applicant, Orhan Kur, is a Turkish national who was born in 1980 and lives in İzmir (Turkey).

The case concerned the applicant’s complaint that he was beaten on the soles of his feet (falaka) by the police.

On 28 July 1997 Orhan Kur, 17-years-old at the time, was on his way home late at night when he stopped to watch a fight in the street. The police arrested him along with several other adolescents and took them to Balçova Police Station. At the station, the applicant claimed that three police officers decided to teach the youths a lesson by hitting their hands with a truncheon. When it was the applicant’s turn, he asked the officers to not hit his hands as he had recently had surgery. The applicant alleged that he was therefore subjected to falaka. Afterwards, he was released without any formalities.

The applicant tried to hide the incident from his family but his father, realising that his son’s feet were swollen and that he had difficulty walking, immediately took him to casualty. He was examined by a doctor whose report recorded that the applicant had a blue-purple coloured bruise of 2x3x2 cm on the sole of his left foot. The findings of that report were confirmed on 30 July 1997 at İzmir Forensic Medical Institute by another doctor who noted sensitivity and light reddish and purplish bruising on the soles of the applicant’s feet.

The Turkish Government denied that the applicant was ever taken to Balçova Police Station or subjected to ill-treatment.

On 30 July 1997 the applicant filed a petition with İzmir Public Prosecutor’s Office in which he gave a detailed description of the incident. He subsequently repeated his allegations on lodging an official complaint in August 1997, when the case was transferred to Balçova District Administrative Council in January 1998 and at a hearing before İzmir Criminal Court of First Instance in June 1999. In the course of those proceedings, he also identified on two separate occasions two of the three police officers who had ill-treated him.

In August 1998 Balçova District Administrative Council decided not to open an investigation due to lack of evidence. That decision was subsequently overruled and criminal proceedings were brought against the police officers. In December 2000 the criminal court decided, under Law no. 4616, that those proceedings should be suspended and discontinued as long as the officers did not commit any similar or more serious offence over the next five years. In September 2006 the criminal proceedings against the officers were effectively discontinued.

In the meantime, however, in October 1998 the three accused police officers were suspended from duty for four months following disciplinary proceedings against them for ill-treating the applicant.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 20 August 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgian), President,
Ireneu Cabral Barreto (Portuguese),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
András Sajó (Hungarian),
Nona Tsotsoria (Georgian),
Işıl Karakaş (Turkish), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment2

Complaints

The applicant complained that he was ill-treated by the police on 28 July 1998 and that the investigation and criminal proceedings concerning his allegations were inadequate. He relied, in particular, on Article 3 (prohibition of inhuman or degrading treatment and lack of an effective investigation).

Article 3

Concerning the alleged ill-treatment

The applicant’s version of events had been constant both before the European Court and the domestic authorities. Furthermore, the medical reports of 28 and 30 July 1997 confirmed the applicant’s description of his ill treatment, particularly as concerned the type and colour of his injuries. The applicant had identified on two occasions two of the three police officers who had ill-treated him and those officers had even been disciplined for having ill-treated him.

As the Turkish Government had not provided any plausible explanation as to the cause of the applicant’s injuries, the Court found it established beyond reasonable doubt that the applicant had been taken to Balçova Police Station on the night of 28 July 1997 and subjected to falaka. Consequently, the Court concluded that Turkey had been responsible for the applicant’s injuries, in violation of Article 3.

Concerning the investigation

The Court recalled that it had already expressed doubts in a number of previous cases as to the effectiveness of investigations carried out by administrative councils, as their composition had lacked the requisite independence from governors. It therefore also considered questionable Balçova District Administrative Council’s decision to not bring proceedings against the police officers. That decision had been overruled and criminal proceedings had eventually been brought against the officers. However, those proceedings had not produced any result due to the application of Law no. 4616, which had created virtual impunity for the police officers concerned.

Consequently, the Court considered that the criminal-law system, as applied in the applicant’s case, had been far from rigorous and had had no dissuasive or preventive effect. It did not therefore find that the proceedings concerning the applicant’s allegations of ill-treatment had been thorough and effective, in further violation of Article 3.