Dur v. Turkey (34027/03)

Date	20080918
Article	3
Decision	violation

Three ill-treatment Chamber judgments concerning Turkey

The European Court of Human Rights has today notified in writing three Chamber judgments1 - available only in English - in the cases of Atalay v. Turkey (application no. 1249/03), Dur v. Turkey (no. 34027/03) and Türkan v. Turkey (no. 33086/04).

The Court held unanimously:

· that in all three cases there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights concerning the applicants’ ill-treatment by the police; and,

· that in the cases of Dur and Türkan there had also been a violation of Article 3 of the Convention on account of the authorities’ inadequate investigation into the applicants’ allegations of ill-treatment.

Under Article 41 (just satisfaction), in respect of non-pecuniary damage, the Court awarded 10,000 euros (EUR) to Mr Atalay, EUR 7,000 to Mrs Dur and EUR 5,000 to Mr Türkan. For costs and expenses, the Court awarded EUR 2,000 to Mr Atalay and EUR 2,534 (less EUR 850 granted by was of legal aid from the Council of Europe) to Mrs Dur.

1. Principal facts

The applicants are three Turkish nationals: Yunus Atalay, who was born in 1956 and lives in Istanbul; Hadiye Dur, who was born in 1973 and lives in Cologne (Germany); and, Mahfuz Türkan, who was born in 1968 and lives in Batman (Turkey).

All three cases concerned, in particular, the applicants’ allegations that they were ill-treated by the police.

Atalay

On 24 August 1995 Mr Atalay claimed that, standing outside his shop in Istanbul’s Beyoğlu district, he was beaten by three police officers because he refused to clean the letters “DHKP/C” (the Revolutionary People’s Liberation Party/Front, an illegal organisation) off a nearby wall. He was then taken into police custody where the officers continued to beat him.

According to the police incident report, “DHKP/C” had been on the wall of the applicant’s shop. When asked to clean it off, he had refused and ran away. Caught up with by the police, he had thrown stones at them and kicked and punched them.

On 25 August 1995 the applicant was examined by two doctors, first at the local hospital when taken there directly from the police station and later at the Forensic Medicine Institute. The first report noted bruising and lacerations on the applicant’s body and the second report that he had 15 separate injuries which required a ten-day period to heal. The applicant was released the same day from police custody.

On 10 October 1995 the applicant lodged a formal complaint in which he sought the prosecution of the three officers who had ill-treated him.

On 29 February 2000 those three officers were found guilty of ill-treatment. However, the convictions against two of the officers were quashed on appeal and the criminal proceedings against them subsequently suspended under Law No. 4616. The remaining police officer’s conviction became final as he did not appeal: his three-month sentence was reduced because the trial court considered that the applicant had provoked the police officers.

Dur

On 27 October 1998 Mrs Dur, a member of a civil-society movement “Mothers for Peace”, went with 42 other women to the provincial branch building of the Motherland Party (Anavatan Partisi) in Istanbul in order to meet the party’s leaders. The applicant claimed that, while they were waiting, the police threw a smoke bomb into the building. She was then hit on the back of her head with a truncheon and dragged by her hair down some stairs and out of the building. She was taken to Beyoğlu Police Headquarters where she spent the night in a cell with 10 other women. The police came to the cell several times to beat and insult the women.

The police submitted that the applicant and the other 42 women had occupied the Motherland Party premises and taken one of its employees hostage and beaten four party members. The security forces had therefore had to intervene and, when trying to lead the women out of the building, three of them, including the applicant, had violently resisted arrest.

The same day all 43 women were examined by a doctor at Beyoğlu Forensic Medicine Institute. The report concerning the applicant noted swelling on her neck and scalp.

The applicant lodged a formal complaint on 19 March 1999. An investigation was subsequently launched during which the applicant and a police officer, F.M.S., on duty at the time of the applicant’s arrest, were questioned. On 8 October 1999 the Beyoğlu Prosecutor decided not to prosecute F.M.S. due to lack of evidence and the fact that the applicant had participated in an illegal meeting and resisted the police. Istanbul Assize Court dismissed the applicant’s objection to that decision on 31 March 2003.

In the meantime, on 4 November 1999 Beyoğlu Assize Court acquitted the applicant and all of the 42 other women. The court found no evidence that the women had taken anyone hostage or damaged the Motherland Party’s premises in Istanbul. Nor had any of the party’s members lodged a complaint against them and no police officer had been injured during the incident despite the women’s alleged resistance.

Türkan

On 5 July 1998 Mr Türkan claimed that he was arrested while working at a tea shop in Istanbul’s Esenler Bus Terminal and taken to the building’s police station. His head covered, police officers kicked, punched and beat him. They then tried to strangle him and banged his head against a wall.

The police submitted that the applicant had been arrested for drunk and disorderly behaviour and in particular being involved in a fight in the bus terminal.

When released from police custody on 6 July 1998, the applicant sought medical help from the Human Rights Foundation of Turkey. He was subsequently examined by four different doctors from the Human Rights Foundation, Marmara Nuclear Medicine Institute, the Nuclear Medicine Department of the Cerrahpaşa Medical Faculty and a Committee of Experts of the Forensic Medicine Institute. All four doctors concluded that the injuries found on the applicant’s body had been caused by physical trauma and that he was unfit for work for five days.

On 21 July 1998 the applicant filed a complaint with Eyüp Chief Public Prosecutor’s Office. The authorities launched an investigation into his allegations and ultimately pressed charges against three police officers under Article 245 of the former Criminal Code for ill-treating the applicant. When interviewed the applicant gave a detailed description of the ill-treatment as well as of the police officers involved. In subsequent statements at hearings before Eyüp Criminal Court and Batman Assize Court he reiterated his complaints and again described in detail the ill-treatment to which he had been subjected. The three accused police officers were also questioned; they all denied the allegations against them and claimed that the bruising found on the applicant’s body had been caused by the fight in the bus terminal.

Ultimately, however, Eyüp Criminal Court suspended the proceedings against the officers under Law no. 4616. The applicant unsuccessfully challenged that decision.

2. Procedure and composition of the Court

The application in the case of Atalay was lodged with the European Court of Human Rights on 18 September 2002; in the case of Dur on 27 May 2003; and, in the case of Türkan on 9 July 2004.

Judgments were given by Chambers of seven judges, composed as follows:

Atalay and Dur

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.

Türkan

Françoise Tulkens (Belgian), President,
Antonella Mularoni (San Marinese),
Ireneu Cabral Barreto (Portuguese),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian),
Nona Tsotsoria (Georgian),
Işıl Karakaş (Turkish), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment3

Complaints

Relying on Article 3 (prohibition of inhuman or degrading treatment and lack of effective investigation), Article 6 § 1 (right to a fair trial) and Article 13 (right to an effective remedy), all three applicants alleged that they were subjected to ill-treatment by the police and that the investigations into their allegations were inadequate. Mr Atalay further complained that the Turkish authorities failed to punish those responsible for his ill-treatment.

Article 3

Ill-treatment

In the case of Atalay, the Court observed that the Government had not challenged the veracity of the applicant’s allegations of ill-treatment. Furthermore, Beyoğlu Criminal Court of First Instance’s decision of 29 February 2000 had amounted to acknowledgement that the applicant had been ill-treated.

Despite that decision and, even though a maximum of five years’ imprisonment could have been imposed on the police officer found guilty of ill-treating the applicant, he had been given a lenient three-month prison sentence. There had therefore been a clear disproportion between the gravity of the offence in question and the punishment imposed. Indeed, the sentence had even been reduced on the ground that the applicant had provoked the police officers. The Court reiterated the absolute nature of the prohibition of torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.

Furthermore, the criminal proceedings against the other two officers had been suspended. The Court found that the Turkish criminal-law system, as applied in the applicant’s case, had proven to be far from rigorous and had had no dissuasive effect. Nor had it provided adequate redress for the ill-treatment to which the applicant had been subjected.

The Court therefore concluded that there had been a violation of Article 3.

In the case of Dur, the Court first observed that the findings of the medical report of 27 October 1998 were consistent with the applicant’s allegations. Furthermore, the parties did not dispute that the applicant’s injuries had resulted from the use of force by the State security forces.

The Government’s justification for the use of that force had been refuted by Beyoğlu Assize Court’s judgment of 4 November 1999 according to which the applicant and other women had simply gone to the Motherland Party building in order to hold a meeting in their capacity as a civil-society movement. Nor did that court find evidence that the applicant or the other women had taken a hostage, beaten anyone, resisted arrest or attacked the police officers.

The Court therefore considered that the Turkish Government had failed to provide credible arguments to demonstrate that the use of force against the applicant had been indispensable and concluded that Turkey was responsible for the applicant’s injuries, in violation of Article 3.

Similarly, in the case of Türkan, the findings of the four medical reports submitted by the applicant were consistent with the applicant’s allegation that he had been beaten, kicked and punched.

Regrettably, however, there was no arrest protocol or medical report to indicate the conditions of the applicant’s arrest or his state of health at that point. The Court did not therefore find it convincing that the applicant’s injuries had been caused by a fight before his being taken into police custody.

Indeed, the applicant had been unequivocal in his statements to the investigating authorities about where, how and by whom he had been ill-treated. Nor had the judicial authorities subsequently made any attempt to question the people with whom the applicant had allegedly been in a fight or possible eyewitnesses.

Bearing in mind the Turkish authorities’ obligation to account for injuries caused to persons within their custody, and in the absence of any convincing explanation concerning the origin of the physical trauma noted in the applicant’s four medical reports, the Court considered that the Government had failed to provide a plausible explanation as to how the applicant’s injuries had occurred. It therefore concluded that those injuries had been the result of treatment for which the Turkish Government was responsible, in violation of Article 3.

Investigation

In the case of Dur the applicant had been examined by a doctor immediately after the incident on 27 October 1998. It was not, however, until five months later, when the applicant had lodged a complaint, that an investigation had been launched.

Moreover, there had been serious shortcomings in the way that investigation had been carried out. The public prosecutor had made no attempt to obtain statements from any other women who had been present at the time of the incident. Nor had he summoned other officers who had been on duty or identified other potential witnesses who had been at the Motherland Party’s building, other than the person who alleged having been taken hostage.

Moreover, the decision not to prosecute F.M.S. had been made on 8 October 1999 without even waiting for Beyoğlu Assize Court’s judgment which had established the facts surrounding the incident and had concluded that the applicant and the other women had not taken part in an illegal meeting or resisted the police. Even worse, Istanbul Assize Court later upheld the prosecutor’s decision even though Beyoğlu Assize Court had already acquitted the applicant.

The Court therefore found that the investigation into the applicant’s allegations of ill-treatment had not been adequate, in further violation of Article 3.

In the case of Türkan, the proceedings brought against the accused police officers had not produced any concrete results owing to the qualification of the alleged offence as ill-treatment under Article 245 of the Criminal Code which allowed for the criminal proceedings against the officers to be suspended. That had effectively amounted to letting the officers enjoy virtual impunity, despite the evidence against them. Consequently, the Turkish criminal-law system, as applied in the applicant’s case, had proven to be far from rigorous and had had no dissuasive effect.

Given the authorities’ failure to pursue the criminal proceedings against the officers which could have lead to the determination of their guilt and punishment, the Court did not consider that the proceedings had been sufficiently thorough and effective, in further violation of Article 3.

Articles 6 and 13

In the cases of Dur and Türkan the Court found that there was no need to examine separately the complaints under Articles 6 and 13.