Nurgül Doğan v. Turkey (72194/01)

Date	20080708
Article	3
Decision	violation

CHAMBER JUDGMENT NURGÜL DOĞAN v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Nurgül Doğan v. Turkey (application no. 72194/01).

The Court held by six votes to one that there had been:

· a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the ill-treatment to which the applicant was subjected in police custody; and,

· a violation of Article 3 of the Convention on account of the Turkish authorities’ failure to carry out an effective investigation into the applicant’s allegations of ill-treatment.

Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,500 for costs and expenses (less the sum of EUR 850 received from the Council of Europe in legal aid). (The judgment is available only in French.)

1. Principal facts

The applicant, Nurgül Doğan, is a Turkish national who was born in 1965 and lives in Istanbul.

On 22 February 1999 she was arrested during an identity check and was taken into custody at the anti-terrorist branch of the Istanbul security police. Criminal proceedings were subsequently brought against her for belonging to an armed group, the EKİM-TKİB.

The applicant asserted that while in police custody she had placed between two blocks of ice for 24 hours. She had also been sprayed with water and had not eaten or drunk anything in protest against what she considered to be her unjust arrest.

On 24 February 1999 the applicant was examined by a forensic medical expert, who observed in a report dated 25 February that she had a bruise on the underside of her right wrist, two bruises on the outer left arm and a bruise on the outer left thigh. He noted the presence of signs of violence and certified the applicant unfit to work for one day.

Later that day, the applicant stated before the public prosecutor at the Istanbul National Security Court, and subsequently before a judge, that she had been ill-treated by the officers of the anti-terrorist branch of the security police who had questioned her during her time in custody.

On 5 January 2000, further to a criminal complaint lodged by the applicant in September 1999, the public prosecutor charged two police officers in the Istanbul Assize Court.

On 20 November 2000 the Assize Court acquitted the police officers for lack of sufficient evidence against them, holding in particular that, although the medical certificate of 25 February 1999 attested that the applicant had been subjected to violence, it was impossible to conclude that the marks observed had been caused by the accused. It further noted that it was impossible to secure the applicant’s attendance at the trial or even to take evidence from her, in spite of the summonses that had been sent to her.

Although an appeal on points of law lay against that judgment, the applicant was unable to use that remedy since she had not applied to join the proceedings as an intervening party.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 10 May 2001.

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

Françoise Tulkens (Belgian), President,
Antonella Mularoni (San Marinese),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian),
András Sajó (Hungarian),
Işıl Karakaş (Turkish), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment2

Complaints

Relying in particular on Article 3 (prohibition of torture and inhuman or degrading treatment), Ms Doğan alleged that she had been ill-treated while in police custody and that the authorities had failed to conduct an effective investigation into her allegations.

Article 3

As to the alleged ill-treatment

The Court noted that the medical certificate, drawn up entirely independently by a forensic medical expert, attested that there were signs of violence on the applicant’s body.

It observed, firstly, that in its judgment of 20 November 2000 the Assize Court had acquitted the accused for lack of evidence against them, without addressing the cause of the injuries. The Turkish Government, for their part, had merely provided an explanation of how one of the bruises mentioned in the medical report might have been caused. They had stated that the mark on the applicant’s right wrist could have resulted from her wrists being tightly handcuffed behind her back. As to the remaining bruises, the Government had simply suggested that they might have been caused by the applicant’s hunger strike or a fall. They had not, however, provided the slightest evidence to substantiate those arguments and to cast doubt on the applicant’s version of events, despite her absence from the trial.

The Court acknowledged that not all the applicant’s allegations could be regarded as established and that her account was not fully consistent with the conclusions reached in the medical report. It was also true that her absence from the trial had lessened the court’s ability to establish the facts that had given rise to the present case. However, the Court could not attach decisive weight to those factors, seeing that the forensic medical expert, after mentioning in his report the marks found on the applicant’s body, had concluded that they resulted from violence and had certified her unfit for work for one day. The Court further noted that the applicant had lodged a criminal complaint and had on several occasions given detailed descriptions of the treatment to which she claimed to have been subjected.

In view of the above, the Court considered that the Turkish Government had been unable to provide a plausible explanation either as to the medical report drawn up after the applicant’s time in police custody or as to the cause of the injuries found on her body. It therefore held that the Turkish State bore responsibility for those injuries, in violation of Article 3.

As to the investigation

The Court reiterated that it could generally be seen as essential for the authorities to launch an investigation promptly in order to maintain public confidence in their adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts.

The Court observed that the applicant, who had simply lodged a formal complaint, had not taken part in the criminal proceedings against the police officers and had not applied to join the proceedings as an intervening party. However, despite the fact that since 25 February 1999 there had been sufficiently precise indications for the authorities to consider that ill-treatment might have occurred, not until 5 January 2000, some 11 months after the facts, had they taken any action by bringing a prosecution, and only then after the applicant’s complaint had been lodged.

The Court therefore concluded that the Turkish authorities had failed to conduct an effective investigation into Ms Doğan’s allegations and that there had therefore been a further violation of Article 3.

Judge Popović expressed a dissenting opinion, which is annexed to the judgment.