Ali and Ayşe Duran v. Turkey (42942/02)
| Date | 20080408 |
|---|---|
| Article | 2, 3 |
| Decision | violation |
CHAMBER JUDGMENT ALİ AND AYŞE DURAN v. TURKEY
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Ali and Ayşe Duran v. Turkey (application no. 42942/02).
The Court held unanimously that there had been a violation of Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights in that Turkey failed to protect the life and physical and moral integrity of the applicants’ son, Bayram Duran.
Under Article 41 (just satisfaction) of the Convention, the Court awarded 22,000 euros (EUR) in respect of pecuniary damage to be kept by the applicants for Bayram Duran’s son, Erdem Duran. The Court awarded each applicant EUR 10,000 in respect of non-pecuniary damage and, jointly, EUR 4,000 for costs and expenses, less EUR 850 granted by way of legal aid from the Council of Europe. (The judgment is available only in English.)
1. Principal facts
The applicants, Ali Duran and Ayşe Duran, are Turkish nationals who were born in 1933 and 1945, respectively. They live in Istanbul.
The case concerned the applicants’ complaint that their son Bayram Duran, aged 26, was tortured to death in police custody and that the police officers responsible, although convicted, only received a suspended prison sentence.
On 15 October 1994 the applicants’ son was arrested on suspicion of robbery and taken into police custody. He was found dead in his cell early the next morning. A report immediately drawn up by the police, the prosecution authorities, and a medical expert, concluded that Bayram Duran’s body showed no sign of ill-treatment. Police officers who had been on duty at the time also stated that the applicants’ son had not been tortured: he had been found dead in his cell when they had gone there to offer him a cup of tea. The report also noted that the cell, which had cigarette butts on the floor and spider’s webs on the walls, had not been cleaned for a week.
On 29 December 1994 the Gaziosmanpaşa Public Prosecutor decided not to prosecute. That decision was based on an autopsy report which concluded that the applicants’ son had died from a heart attack.
Subsequently, a further report indicated that a haemorrhage found on Bayram Duran’s left shoulder and his conditions of detention had caused him stress which had led to the heart attack. As a result, criminal proceedings were brought against seven police officers.
In the ensuing proceedings, all the accused police officers consistently denied that they had ill-treated the applicants’ son.
Ultimately, on 6 September 2000 Denzili Assize Court found that four of the accused police officers had beaten the applicants’ son and unintentionally killed him. They were each sentenced to five years’ imprisonment, later reduced under Article 59 of the Criminal Code to two years, nine months’ and ten days given that some of officers had helped the authorities with their enquiries.
On 25 March 2002 the assize court reconsidered the case, as it had been remitted on procedural grounds, and upheld the judgment of 6 September 2000. In those proceedings, the accused police officers once again denied the allegations against them.
Finally, on 10 June 2003 the Court of Cassation dismissed the applicants’ appeal, in which they had submitted that the police officers should have been dismissed from their posts and convicted of homicide as a result of torture.
The four police officers convicted of killing Bayram Duran have never served time in prison as, under Law no. 4616 concerning offences committed before 23 April 1999, execution of their sentences was suspended. It appears, however, that three of them have since been dismissed from their posts.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 6 September 2002 and declared partly inadmissible on 25 January 2007.
Judgment was given by a Chamber of seven judges, composed as follows:
Josep Casadevall (Andorran), President,
Elisabet Fura-Sandström (Swedish),
Rıza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Boštjan M. Zupančič (Slovenian),
Alvina Gyulumyan (Armenian),
Egbert Myjer (Dutch), judges,
and also Santiago Quesada, Section Registrar.
3. Summary of the judgment2
Complaints
Relying, in particular, on Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment), the applicants complained that their son was tortured to death in police custody and that the police officers responsible, although convicted, only received a suspended prison sentence.
Decision of the Court
Articles 2 and 3
The Court noted that Denizli Assize Court had established, and both parties agreed, that the applicants’ son had been beaten by four police officers and had subsequently died.
The Court therefore decided to assess whether the judicial authorities, as the guardians of laws laid down to protect the lives and physical and moral integrity of persons within their jurisdiction, had been determined to sanction those responsible for the death of Bayram Duran.
The convicted police officers had benefited from a reduction of their prison sentences as their statements had supposedly helped the authorities with their enquiries. That was surprising given that the police officers had made no statements other than to persistently deny the allegations against them. The Court therefore considered that the assize court had used its power of discretion to lessen the consequences of a serious criminal act rather than to show that such acts could in no way be tolerated.
Indeed, the convicted police officers had ultimately never served their prison sentences. The Court reiterated that it had already held that, where an agent of the State had been charged with crimes involving ill treatment, it was of the utmost importance that criminal proceedings and sentencing were not time-barred and that measures such as the granting of an amnesty or pardon should not be allowed. Suspending the execution of the convicted police officers’ prison sentences under Law no. 4616 was comparable to a partial amnesty and, effectively, amounted to letting the officers enjoy virtual impunity.
It appeared that, although Denizli Assize Court had failed to make a ruling concerning the officers’ dismissal, three of them had been removed from service following their conviction. That measure was insufficient to compensate for the fact that the officers’ sentences had never been executed. Nor were any disciplinary measures ever taken against the officers.
The Court therefore found that there had been a clear disproportion between the gravity of the offence in question and the punishment imposed. The Turkish criminal law system, as applied in the applicants’ case, had proven to be far from rigorous and had had little dissuasive effect. The Court therefore concluded that Turkey had failed to protect the life and physical and moral integrity of the applicants’ son, in violation of Articles 2 and 3.
Given that finding, the Court further held that it was not necessary to examine separately whether there had been a violation of Article 3 on account of the conditions of detention to which Bayram Duran had been held.