Süleyman Erkan v. Turkey (26803/02)

Date	20080131
Article	3
Decision	violation

CHAMBER JUDGMENT SÜLEYMAN ERKAN v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Süleyman Erkan v. Turkey (application no. 26803/02).

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 concerning the applicant’s allegation that he was ill-treated in police custody; and,

· a violation of Article 3 (lack of an effective investigation) of the Convention concerning the failure of the authorities to carry out an effective investigation into the applicant’s allegation of ill-treatment.

Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)

1. Principal facts

The applicant, Süleyman Erkan, is a Turkish national who was born in 1969 and lives in Istanbul.

The case concerned Mr Erkan’s complaint that he was ill-treated in police custody and that the Turkish authorities failed to carry out an effective investigation into his allegations.

According to the Government, Mr Erkan was arrested on 8 September 1999 by police officers from the Turkish security forces on suspicion of membership of an illegal organisation, the PKK (the Kurdistan Workers’ Party). Mr Erkan allegedly resisted arrest and police officers had to use force to restrain him.

According to Mr Erkan, he was arrested on 5 September 1999. He claimed that, following his arrest, he was blindfolded and driven to the Anti-Terrorist Branch of the Istanbul Security Directorate where police officers beat him with a truncheon on the head and neck, punched and kicked him. He also submitted that he was threatened with death and that his testicles were squeezed.

Between 8 and 15 September 1999 Mr Erkan had six medical examinations. On 8 September a doctor in Haseki State Hospital noted bruising on the applicant’s lower abdominal area and recommended that he be examined by an urologist. On 14 September, another doctor at the hospital observed scarring on the applicant’s nose, left heel and elbow and confirmed the abdominal bruising. Those injuries were further confirmed in a report of 15 September by doctors of the Human Rights Foundation.

In the meantime, on 12 September 1999, the applicant, both before the prosecutor and investigating judge of Istanbul Security Court, denied the accusations against him and alleged that he had been ill-treated while in police custody. On the same day the judge ordered the applicant’s release due to lack of evidence.

On 14 September 1999 the applicant filed a complaint against the police officers of the Anti-Terrorist Branch of the Istanbul Security Directorate. He maintained his accusations of ill-treatment and stated that he had been detained on 5 and not 8 September 1999.

Fatih Public Prosecutor’s Office opened an investigation and subsequently interviewed two police officers who had been on duty at the time of the applicant’s detention. The first officer submitted that he had signed the applicant’s statement but had not taken part in his questioning. The second officer also denied the allegations. The applicant was also interviewed. He repeated that he had been ill-treated in police custody and that the date on the arrest report was wrong.

Ultimately, in February 2001, it was decided not to bring criminal proceedings against the police officers on the ground that there was no evidence other than the applicant’s allegations.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 15 March 2002.

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),
Alvina Gyulumyan (Armenian),
David Thór Björgvinsson (Icelandic),
Ineta Ziemele (Latvian), judges,

and also Santiago Quesada, Section Registrar.

3. Summary of the judgment2

Complaints

Relying on Articles 3 and 13 (right to an effective remedy), the applicant alleged that he was subjected to ill-treatment during police custody and that the authorities failed to carry out an effective investigation into those allegations.

Article 3

Concerning the alleged ill-treatment

The Court noted the medical reports concerning Mr Erkan’s injuries and the fact that the Government did not provide any explanation as to how those injuries had occurred or even suggest that they could have occurred prior to the applicant’s arrest.

Furthermore, the applicant had repeatedly insisted both before the Turkish authorities and the Court that he had been arrested on 5 and not 8 September 1999. During the domestic investigation, the authorities had not taken any steps to disprove that allegation. Indeed, in their observations to the Court, the Government had not even mentioned the arrest report.

Bearing in mind an authorities’ obligation to give a plausible explanation for injuries caused to people in their custody and to produce evidence to cast doubt on such allegations, especially if those allegations had been corroborated by medical reports, the Court found that the applicant’s injuries had been the result of treatment for which Turkey was responsible, in violation of Article 3.

Concerning the alleged lack of an effective investigation

At no stage of the investigation had the applicant or his lawyer been given the opportunity to confront or question the accused police officers. Moreover, that investigation had been opened solely against the police officers who had been involved in taking the applicant’s statement at the Security Directorate Building. In the Court’s view, it was striking that no statements had been taken from the officers who had arrested the applicant, in spite of the fact that the arrest report had stated that force had been used during the applicant’s arrest and the applicant himself had challenged the accuracy of that report. No statements had been taken either from the doctors who had drawn up the reports of 8 and 14 September 1999. Their opinions could have provided valuable information about the exact timing and cause of the applicant’s injuries.

Consequently, the Court concluded that the investigation into the applicant’s claim that he had been ill-treated had been inadequate, in further violation of Article 3.

Article 13

Given the finding of a violation under Article 3, the Court did not consider it necessary to examine separately the complaint under Article 13.