SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30637/06
by Esra ARMAĞANCI
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 September 2011 as a Committee composed of:
Dragoljub Popović, President,
András Sajó,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 11 July 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Esra Armağancı, is a Turkish national who was born in 1978 and lives in Ankara. She was represented before the Court by Ms F. Karakaş Doğan and Ms E. Keskin, lawyers practising in Istanbul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 August 1999 the applicant and her friend M.A. were stopped by two police officers while distributing an illegal magazine in Küçükçekmece, Istanbul. After some struggle with the police, the applicant was arrested and put in the police car. The applicant alleges that she was sexually harassed by the officer who carried out her arrest, namely M.S., who squeezed her breasts, touched her between the legs and swore at her while shoving her in the police car. In the meantime, the applicant’s friend M.A. was shot in the leg by the other police officer, C.S., while he was trying to escape arrest.
The applicant was taken to the Bakırköy State Hospital after arrest for a medical examination. No sign of physical injury was observed on her body.
The applicant was subsequently handed over to the anti-terrorism branch of the Istanbul police headquarters (“the anti-terrorism branch”), where she claims to have been subjected to torture until her release on 16 August 1999. The applicant alleges, in particular, that she was blindfolded, beaten, subjected to sleep deprivation, splashed with water and made to stand before the air conditioning unit.
On 15 August 1999 the police officers at the anti-terrorism branch sought to interrogate the applicant, but she refused to make any statements.
On 16 August 1999, following her release from police custody, the applicant was subjected to a medical examination at the forensic medicine institute. The doctor who examined the applicant noted an ecchymosis of 3 x 3 cm on her right hip, an ecchymosis of 2 x 1 cm on the left upper inner leg, an ecchymosis of 1 x 1 cm on the right upper inner arm and of 3 x 2 cm on the right lower inner arm, an ecchymosis of 2 x 2 cm on the left lower inner arm and of 1 x 1 cm on the left lower inner arm.
Later on the same day the applicant was interrogated by the public prosecutor at the Istanbul State Security Court where she complained, in detail, of having been sexually assaulted at the time of her arrest. When she was asked about the report of the forensic medicine institute, she accepted the findings in the report and stated simply that she was ill-treated by the police. She then said that she had nothing further to add.
It appears that on the same day, following her release, the applicant also applied to the Human Rights Foundation, a non-governmental organisation, where she complained of the alleged ill-treatment she had been subjected to in police custody, as well as of the alleged sexual assault by M.S.
On 9 February 2000 the Küçükçekmece public prosecutor filed a bill of indictment with the Küçükçekmece Criminal Court, charging the police officer M.S. with abuse of office under Article 240 of the former Criminal Code (“the Criminal Code”) in accordance with the applicant’s allegations of sexual assault. The public prosecutor also indicted the officer C.S. with causing actual bodily harm to applicant’s friend M.A., under Article 456 (1) of the Criminal Code. No charges were made against any other police officers.
In the statement she made before the first-instance court on 11 July 2000, the applicant requested the punishment of M.S. for sexual harassment. She made no mention of any adverse treatment she had received at the anti‑terrorism branch. At the third hearing held on 28 March 2001 the lawyer of the applicant and her friend requested that the offences of the police officers M.S. and C.S. be reclassified as “torture”, as defined in Article 243 of the former Criminal Code. The lawyer similarly did not make any allegations about the conduct of the police officers at the anti-terrorism branch at any point during the proceedings.
In the meantime, on 6 November 2000 the applicant joined the criminal proceedings against the police officers as a civil party (müdahil), yet she did not request any compensation.
On 28 April 2003 the Küçükçekmece Criminal Court acquitted M.S. of the charge of abuse of office in the absence of sufficient evidence to substantiate the applicant’s allegations of sexual harassment.
The applicant appealed against the judgment on the same date. According to the documents in the case file, no specific grounds of appeal were submitted to the Court of Cassation.
On 15 March 2006 the Court of Cassation upheld the Küçükçekmece Criminal Court’s judgment. This decision was deposited with the registry of the first-instance court on 30 May 2006.
COMPLAINTS
The applicant complained under Article 3 of the Convention that she had been subjected to torture during her detention in police custody, starting from the moment of her arrest.
She further maintained under Article 13 of the Convention that she had been denied an effective remedy in respect of her complaint of torture. She claimed in this regard that criminal proceedings had been brought against only one police officer in connection with the ill-treatment she had received, which had resulted in his acquittal, and that these proceedings had not been concluded within a reasonable time.
THE LAW
The Court considers in the first place that the applicant’s complaints under Articles 3 and 13 of the Convention should be examined from the standpoint of Article 3 alone.
A. Alleged sexual assault at the time of the applicant’s arrest
1. The applicant alleged that she had been sexually assaulted by police officer M.S., who had grabbed her breasts, touched her between the legs and sworn at her while conducting her arrest.
The Court notes that sexual assault by a police officer while in detention may be considered as “degrading” treatment within the meaning of Article 3 of the Convention, in view of the inherent humiliation, debasement and distress involved. It is, however, also reiterated that in assessing evidence in a claim of violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt” (Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts).
The Court notes that in the instant case, there is no evidence available which could enable a finding beyond reasonable doubt that the applicant was subjected to sexual assault by a police officer at the time of her arrest. The fact that the treatment in question is particularly difficult to prove in the absence of any witnesses does not lower the standard of proof adopted under Article 3 of the Convention.
It is moreover noted that the applicant’s allegations of sexual assault were duly examined by the domestic judicial authorities, who similarly dismissed them for lack of evidence after taking all the necessary investigative steps. The applicant’s complaints of sexual harassment and the ineffectiveness of the investigations into these allegations are, therefore, unsubstantiated.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The Court further notes that the applicant’s complaint regarding the ineffectiveness of the investigation on account of the excessive length of the criminal proceedings against M.S. may not be examined under Article 6 of the Convention either. It is observed in this regard that although the applicant joined the criminal proceedings in question as a civil party, she did not request compensation from the judicial authorities, nor did she reserve her right to do so. The Court, therefore, holds that Article 6 of the Convention is not applicable in the circumstances of the present case (Beyazgül v. Turkey, no. 27849/03, §§ 30-44, 22 September 2009).
It follows that the complaint regarding the excessive length of the proceedings against the police officer must be rejected for being incompatible ratione materiae with the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Alleged ill-treatment of the applicant at the anti-terrorism branch
The applicant complained before the Court that she had been ill-treated during her detention at the anti-terrorism branch, which had allegedly involved being blindfolded, beaten, deprived of sleep and made to stand before the air conditioning unit after being doused with water. She claimed that the findings in the forensic medicine institute’s report of 16 August 1999 corroborated her allegations.
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see, amongst many others, Ete v. Turkey (dec.), no. 29315/02, 13 June 2006).
The Court observes that the applicant in the present case raised no complaints before the domestic authorities about the ill-treatment she had allegedly received while in detention at the anti-terrorism branch. The applicant merely stated before the public prosecutor that she had been ill‑treated by the police, without elaborating in any way what the ill‑treatment involved, where and when it had taken place, that is whether at the time of or subsequent to her arrest, and who the perpetrators were. Although she spoke to the Human Rights Foundation about the treatment she had allegedly been subjected to in detention, she did not repeat this before any State authorities for reasons that are unknown to the Court. The Court notes in this connection that during the subsequent proceedings before the first-instance court and the Court of Cassation, she did not mention, even in substance, any adverse treatment she had encountered while detained in police custody. The applicant instead confined her complaints to the alleged incident of sexual assault throughout the domestic proceedings. Moreover, when the Küçükçekmece public prosecutor indicted solely M.S. in relation to her complaints, neither the applicant nor her lawyer raised any objections against the indictment or sought the extension of the investigation to include police officers at the anti-terrorism branch where the applicant was detained for four days. The applicant’s lawyer only once requested that the offences of the indicted police officers M.S. and C.S. be reclassified as “torture”, but again, she did not demand the punishment of any other police officers in relation to the applicant’s alleged ill-treatment in detention.
The Court moreover notes that the applicant did not submit any reasons for failing to comply with the requirement to exhaust domestic remedies by raising and pursuing her complaints first before domestic authorities. Nor is there anything in the case file to suggest that the applicant was prevented from doing so by intimidation or otherwise, considering especially that she raised the complaints regarding her alleged sexual assault at every possible opportunity without any hesitation.
In these circumstances, the Court considers that the applicant did not take all the steps that could reasonably be expected of her to bring her complaints to the attention of the domestic authorities (see Aslan v. Turkey (dec.), no. 38940/02, 1 June 2006; Tilki v. Turkey (dec.), no. 39420/08, 6 July 2010).
It follows that the applicant has failed to exhaust domestic remedies and that this part of the application must be rejected as being inadmissible under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosDragoljub Popović
Deputy RegistrarPresident
Full & Egal Universal Law Academy