Dönmüş and Kaplan v. Turkey (9908/03)

Date	20080131
Article	3, 13
Decision	violation

CHAMBER JUDGMENT DÖNMÜŞ AND KAPLAN v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Dönmüş and Kaplan v. Turkey (application no. 9908/03).

The Court held unanimously that there had been:

· a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights as regards the ill-treatment to which the applicants were subjected on police premises; and

· a violation of Article 13 (lack of an effective investigation) as regards the Turkish authorities’ failure to carry out an effective investigation.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 8,000 euros (EUR) each in respect of non-pecuniary damage and EUR 2,800 jointly for costs and expenses. (The judgment is available only in French.)

1. Principal facts

The applicants, Mehmet Sait Dönmüş and Mehmet Ali Kaplan, are Turkish nationals who were born in 1959 and 1973 and live in Turkey and Finland respectively.

They were arrested on 30 June 2000 on suspicion of aiding and abetting an illegal organisation, following searches of their homes, and were both taken into police custody.

The Government disputed the applicants’ allegations.

Mr Dönmüş alleged that after being arrested, he had been taken to the gendarmerie station in Silvan (Turkey), where gendarmes had tied his hands behind his back and blindfolded him. He had received electric shocks through one of the toes on his right foot, his right thumb and his penis for about three hours. He had then been led into another room, where he had stayed sitting on a stool until the following day. Mr Kaplan stated that the Silvan gendarmes had likewise tied his hands behind his back and blindfolded him and had squeezed his testicles. He also alleged that he had been beaten and insulted.

The applicants explained that they had been questioned by the public prosecutor at Diyarbakır State Security Court on 5 July 2000 and released later that day.

The applicants underwent medical examinations on 30 June and 1, 2, 3, 5 and 7 July 2000. The medical reports drawn up on 1 July noted the presence of a scab-covered scratch on Mr Dönmüş’s right elbow and wrists and a red patch measuring 5 cm by 6 cm in Mr Kaplan’s lumbar region. The reports of 11 July noted the presence of injuries that had partly healed and were partly covered with scabs on Mr Dönmüş’s wrists and injuries to Mr Kaplan’s left elbow. They were prescribed sick-leave for three days and one day respectively. However, the other medical reports did not mention any signs of assault on the applicants’ bodies.

On 25 October 2000 the public prosecutor instituted proceedings against two gendarmes, İdris Yıldırım and Tuncay Beden, for ill-treatment. The gendarmes were acquitted in April 2001 by the Diyarbakır Assize Court, whose decision was based in particular on statements by the gendarmes and the applicants and on the medical reports. Mr Dönmüş and Mr Kaplan stated that the gendarmes standing trial were not the same ones who had subjected them to ill-treatment.

On 23 September 2002 the Assize Court lodged a criminal complaint with the Diyarbakır public prosecutor’s office with a view to identifying the officers from the gendarmerie intelligence branch and the security police. The criminal proceedings are currently pending before the Silvan public prosecutor’s office.

Alongside those proceedings, the applicants lodged a complaint on 7 July 2000 against the Regional Director of Health, Dr Emirhan Yardan, alleging that he had pressured medical staff into amending the medical reports. On 15 January 2001 Dr Yardan was found guilty as charged and was sentenced to ten months’ imprisonment, converted into a fine, and was barred from the civil service for two months and 15 days, the latter penalty being suspended.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 27 February 2003.

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

Boštjan M. Zupančič (Slovenian), President,
Corneliu Bîrsan (Romanian),
Rıza Türmen (Turkish),
Elisabet Fura-Sandström (Swedish),
Egbert Myjer (Dutch),
Ineta Ziemele (Latvian),
Isabelle Berro-Lefèvre (Monegasque), judges,

and also Santiago Quesada, Section Registrar.

3. Summary of the judgment2

Complaints

Relying on Articles 3 (prohibition of inhuman or degrading treatment) and 13 (right to an effective remedy), the applicants alleged that they had been ill-treated while in custody at the gendarmerie station and that they had not had an effective remedy in respect of their allegations.

Article 3

As to the alleged ill-treatment

The Court reiterated that any injuries sustained by a person who was in custody entirely under the control of police officers gave rise to strong presumptions of fact, and that it was the Government’s duty to provide a plausible explanation of how those injuries were caused.

In the applicants’ case the Court observed that the Turkish Government had not provided any plausible explanation as to the discrepancy between the various medical reports. It also emphasized the importance of the conviction of the Regional Director of Health. In addition, it noted that marks had been observed on the applicants’ bodies in the reports drawn up on 11 July 2000 and that it had not been argued that they dated from before the applicants’ time in police custody. The initial medical examinations had therefore not been carried out properly.

Furthermore, neither the criminal investigation by the public prosecutor’s office nor the criminal proceedings before Diyarbakır Assize Court had provided any explanations as to the cause of the injuries. The second set of criminal proceedings was still pending before the Silvan public prosecutor’s office.

The Court accordingly concluded that the injuries found on the applicants’ bodies, which were corroborated by unrebutted physical evidence, constituted a violation of Article 3.

As to the alleged lack of an effective investigation

The Court reiterated that where an individual made a credible assertion that he had suffered treatment infringing Article 3 at the hands of the police, there should be an effective official investigation capable of leading to the identification and punishment of those responsible.

With regard to the criminal investigation conducted in the applicants’ case, the public prosecutor’s office had not taken the trouble to interview the officers of the gendarmerie intelligence branch and the security police who had questioned the applicants. The Court considered that the public prosecutor’s office should have identified and interviewed them at the time of the preliminary investigation, before the case had even come to trial. Furthermore, the gendarmes who had been acquitted had stated, when giving evidence, that they had not been responsible for the ill-treatment to which the applicants had been subjected.

The Court further noted that more than seven years after the events, there had still been no progress in the second investigation initiated by the public prosecutor’s office.

It therefore held that the investigations carried out had not been sufficiently thorough and effective, in breach of Article 3.

Article 13

Having regard to its finding of a violation of Article 3 on account of the lack of an effective investigation, the Court considered that there was no need for a separate examination of the complaint under Article 13.