CASE OF AKTÜRK v. TURKEY

SECOND SECTION

CASE OF AKTÜRK v. TURKEY

(Application no. 70945/10)

JUDGMENT

STRASBOURG

13 November 2014

FINAL

13/02/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Aktürk v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Nebojša Vučinić,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 14 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 70945/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ender Bulhaz Aktürk (“the applicant”), on 21 September 2010.

2. The applicant was represented by Ms O. Gümüştaş, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 18 June 2012 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1982 and is currently detained in the Tekirdağ F-type Prison.

5. According to the arrest report, signed by thirteen police officers, on 18 March 2009 at 2.15 p.m. the applicant was stopped by police officers for an identity check. He resisted and opened fire, killing a police officer. The other police officers used force to neutralise and arrest him. Several fake identity cards were found in the applicant’s bag.

6. At 5.15 p.m. the applicant was sent to the Bursa Şevket Yılmaz State Hospital for a medical examination. The medical report indicated that there were superficial grazes on the applicant’s back and bruises to the frontal region of his head, caused by blunt instrument trauma. It further specified that the abrasions on the applicant’s wrists could have been caused by handcuffs. The report concluded that the injuries on the applicant’s body were not life-threatening.

7. The applicant was then taken to the Kestel District Police Station. According to the form explaining the rights of arrested persons, the applicant was reminded of his rights, including his right to have the assistance of a lawyer, to remain silent, and to inform his family members of his arrest. According to a report signed by seven police officers, the police tried to conduct a fingerprint examination in order to identify the applicant, but he resisted, shouted slogans, tried hitting his head on the machine and kicked the nearby furniture. The applicant alleged that he had been beaten at the police station.

8. The applicant was subsequently transferred to the anti-terrorism branch of the Bursa Security Headquarters, where he was allegedly subjected to ill-treatment. According to the applicant, in the basement of the Bursa Security Headquarters, his testicles were squeezed and he was beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket.

9. According to a police report, on 19 March 2009 at about 7 p.m. the applicant was taken by four police officers to Istanbul, where he had offered to show the officers a house used as a cell by the MLKP (Marxist-Leninist Communist Party), an illegal organisation. It was reported that, as the applicant could not find the house, they returned to the Bursa Security Headquarters on 20 March 2009 at 4.15 a.m. This report was signed by four police officers, but the applicant declined to sign it.

10. On 20 March 2009 the applicant was questioned in the presence of his lawyer at the Bursa Security Headquarters in connection with the killing of a police officer and his alleged involvement in the MLKP. The applicant exercised his right to remain silent.

11. On the same day, the applicant was taken to the Bursa Forensic Medicine Institute. During his examination, the applicant complained that he had been ill-treated whilst in custody. He stated that he had been beaten, hung by his arms and hosed with cold water and alleged that ice cubes had been placed over his body. The medical examination revealed that the applicant had a haematoma under his left eyelid, a red-coloured bruise measuring 5 x 10 cm and swellings in his occipital region, and purple‑coloured bruises on his right eye and periorbital region. It was also noted that the applicant had several bruises on his left eyebrow, on the zygoma, on both sides of his mouth, between his eyebrows, on his left arm and both wrists, and also on his penis. The doctor noted that the bruises on the applicant’s wrists could have been sustained as a result of the use of handcuffs. It was further noted that the applicant had complained about shortness of breath, headaches and pain in his ribs. The doctor requested consultations from the thoracic surgery, neurosurgery and internal medicine departments.

12. Later on the same day, the applicant was interrogated, in the presence of his lawyer, by both the Kestel Public Prosecutor and the investigating judge at the Kestel Magistrates’ Court and exercised his right to remain silent. On the basis of the evidence in the case file, the judge ordered his detention on remand.

13. On 21 March 2009 at about 1.40 a.m. the applicant was taken to the emergency department of the Bursa Uludağ University Hospital. In the hospital he was examined by several doctors, specifically from the neurosurgery, general surgery, thoracic surgery and radiology departments. The radiology examinations did not reveal any abnormality in the bones, lungs or heart. The general surgeon indicated that there was no need for surgery. Finally, the thoracic surgeon noted in his report that the applicant had no respiratory problems but that he had several bruises on his body, specifically on his back. He also stated that no fractured ribs had been observed. According to the information in the file, the applicant left the emergency department at about 4 a.m.

14. Later on 21 March 2009 the applicant was also taken to the emergency service of the Bursa State Hospital as he had complained of a pain in his chest. Following consultation of doctors from general surgery, neurosurgery and radiology departments, a doctor from the emergency service issued a report concluding that the applicant’s eighth and ninth ribs had been fractured and that he was suffering from post-traumatic injury. He was accordingly admitted to the emergency department for monitoring and observation.

15. On 30 March 2009 the applicant filed a complaint with the Bursa Public Prosecutor and alleged that he had been ill-treated in custody. In his petition, the applicant maintained that he had been beaten at the Kestel Police Station. He also maintained that following his transfer to the Anti‑Terrorism Branch of the Bursa Security Headquarters, his testicles had been squeezed, he had been beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket. The applicant further stated that he could identify the police officers who had ill-treated him if he met them face to face.

16. Upon receiving the applicant’s complaint, the Bursa Public Prosecutor initiated an investigation into his ill-treatment allegations. In this connection, the applicant gave a statement on 31 March 2009, and claimed in a detailed account that he had been ill-treated during his custody. The applicant further maintained that he would be able to identify the police officers who had ill-treated him.

17. The public prosecutor interviewed seven police officers who had been on duty at the time of the applicant’s arrest and during his custody at the Kestel Police Station and the Anti-Terrorism Branch of the Bursa Security Headquarters. They all denied the accusations against them. The police officers who had arrested the applicant stated that they had used proportionate force to neutralise him.

18. At the request of the public prosecutor, on 8 April 2009 the applicant was once again taken to the Bursa Uludağ University Hospital for a medical examination. As the gendarme officer refused to leave the consultation room, the doctor did not perform the examination. The gendarme officer issued a report stating that the doctor had not complied with the Protocol for Prisons signed by the Ministries of Justice, Health and Interior, dated 6 January 2000 ‒ according to which a gendarme officer is obliged to stay in the consultation room during the medical examination in a hospital of a person who has been remanded in connection with terrorism‑related crimes ‑and the examination was then carried out in the absence of the gendarme officer. The doctor prepared a detailed report stating that there were several bruises on the front of his left arm which appeared to be self-inflicted. Similar marks were also noticed on his abdomen. Healed scars were observed on both wrists. Bruises on the fingers and right knee were also noted.

19. The doctor further ordered certain medical tests but according to the information in the case file, the prison authorities did not allow the applicant to go to the hospital on the appointment dates and transferred him to the Tekirdağ F‑type Prison.

20. On 15 April 2009 the Forensic Medicine Institute issued a medical report about the applicant based on the medical reports dated 20 March 2009 and 21 March 2009 issued by the Uludağ University Hospital. It was concluded that his injuries were not life-threatening and would heal with simple medical care. It was also noted that no fractured ribs had been observed. No reference was made to the medical report dated 21 March 2009 issued by the Bursa State Hospital.

21. In the course of the investigation, the public prosecutor also requested the video camera recordings taken during the applicant’s periods in custody in Kestel Police Station and the Bursa Security Headquarters. The Bursa Security Directorate informed the public prosecutor’s office that the camera recordings were only kept for eight days.

22. On 3 November 2009 the public prosecutor issued a non-prosecution decision. In his decision the prosecutor held that the injuries observed on the applicant’s body had been sustained during the scuffle at the time of his arrest. The prosecutor also concluded that the force used to neutralise the applicant had been in compliance with Article 16 of Law no. 2559 on the Duties and Powers of the Police.

23. On 1 December 2009 the applicant filed an objection against the public prosecutor’s decision. He repeated that he would be able to identify the police officers who had ill-treated him. On 23 March 2010 the Yalova Assize Court rejected the objection.

24. In the meantime, criminal proceedings were initiated against the applicant for killing a police officer. By a judgment delivered on 20 January 2012 the applicant was found guilty as charged and sentenced to life imprisonment. The case file contains no information regarding the current status of these proceedings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

25. The applicant alleged that he had been subjected to ill-treatment during his time in police custody. He also argued that no effective investigation had been conducted into the matter. In this connection, the applicant relied on Articles 3 and 13 of the Convention.

26. The Court considers that these complaints should be examined from the standpoint of Article 3 alone, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

27. The Government maintained that since the application form was twenty-four pages long, the applicant had failed to comply with Rule 47 of the Rules of the Court, which require that the application form should be concise. They therefore asked the Court to dismiss the case.

28. The Court points out that it has examined a similar objection in the case of Yüksel v. Turkey ((dec). no. 49756/09, §§ 40-42, 1 October 2013) and rejected it. It finds no reason to depart from that finding in the instant case. As a result, the Government’s arguments in this respect should not be taken into consideration.

29. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Substantive aspect

30. The applicant complained that he had been ill-treated during his police custody. In this connection, he maintained that he had been beaten at the Kestel Police Station and tortured at the Bursa Security Headquarters. He alleged that at the Bursa Security Headquarters, his testicles had been squeezed and he had been subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice‑covered blanket.

31. The Government denied the allegations and stated that the applicant had sustained the injuries which were recorded in the medical reports during the scuffle that broke out at the time of his arrest. In this connection, the Government pointed out that the applicant had shot and killed the police officer who was carrying out an identity check and that other police officers at the scene had had to use force to neutralise him.

32. At the outset, the Court reiterates the absolute nature of the prohibition of torture or inhuman or degrading treatment or punishment. The Court also recalls that allegations of ill-treatment must be supported by appropriate evidence (see Tanrıkulu and others v. Turkey (dec.), no. 45907/99, 22 October 2002). Furthermore, in assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts)). Such proof may, however, follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Güler and Öngel v. Turkey, nos. 29612/05 and 30668/05, § 26, 4 October 2011, and Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).

33. In that respect, where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how these injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations are corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, § 108-111, Series A no. 241‑A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; Aksoy v. Turkey, 18 December 1996, § 62, Reports of Judgments and Decisions 1996-VI; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).

34. In the present case the Court is faced with two conflicting versions of the facts. Although the applicant maintained that he had been ill-treated while in police custody, in their observations the Government stated that the police officers had had to use force because at the time of his arrest the applicant had resisted and had shot and killed a police officer. The Court observes in this connection that, according to the medical report issued on the day of his arrest, namely 18 March 2009, there were superficial grazes on the applicant’s back and bruises to the frontal region of his head. These injuries support the Government’s contention that the police officers had had to use force to neutralise the applicant. However, the second report, issued on 20 March 2009, revealed that the applicant had a haematoma under his left eyelid, a red-coloured bruise measuring 5 x 10 cm and swellings in his occipital region, and purple-coloured bruises on his right eye and periorbital region. It was also noted that the applicant had several bruises on his left eyebrow, on the zygoma, on both sides of his mouth, between his eyebrows, on his left arm and both wrists, and also on his penis. The doctor noted that the bruises on the applicant’s wrists could have been sustained as a result of the use of handcuffs. It was further noted that the applicant had complained about shortness of breath, headaches and pain in his ribs. Consultations from the thoracic surgery, neurosurgery and internal medicine departments were requested. Consequently, on 21 March 2009 the applicant was taken to the Emergency Service of the Uludağ University Hospital, where he was examined by several doctors from the radiology, general surgery, thoracic surgery and neurosurgery departments. In the final report, it was noted that there were no fractures to the applicant’s body. According to the documents in the case-file, on the same day the applicant was also taken to the Bursa State Hospital, where he was examined by several doctors. The medical report prepared by the doctor in the emergency department noted that the applicant’s eighth and ninth ribs were fractured and it was concluded that the applicant was suffering from post-traumatic injury and he was admitted to the emergency department for monitoring and observation. The Court considers that these new findings matched at least the applicant’s allegation of having been beaten during his police custody. It further notes that the applicant remained in detention during this time and therefore reiterates that the domestic authorities were under an obligation to provide a plausible explanation for these injuries. However, the Government have failed to the so.

35. In the absence of a plausible explanation from the Government as to the cause of the new injuries sustained by this applicant, the Court finds that these injuries were the result of ill-treatment for which the Government bore responsibility.

36. There has therefore been a substantive violation of Article 3 of the Convention on account of the inhuman and degrading treatment to which the applicant was subjected.

2. Procedural aspect

37. The applicant maintained that there had been no effective investigation into his allegations of ill-treatment. In particular, he referred to the lack of details in the first medical report. He further maintained that if he had been given an opportunity, he would have been able to confront the police officers who had allegedly ill-treated him.

38. The Government contested the allegations.

39. The Court reiterates that Article 3 of the Convention requires the authorities to carry out an effective official investigation into allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria, 28 October 1998, § 101‑102, Reports 1998‑VIII). In the present case, in the light of the contents of the medical reports compiled about the applicant’s condition (see paragraphs 6, 11, 13 and 14 above), the Court considers that the domestic authorities were under an obligation to conduct an effective investigation regarding his allegations of ill-treatment.

40. The Court observes that, following the applicant’s complaint, the Kestel Public Prosecutor immediately initiated an investigation into the applicant’s ill-treatment allegations. However, for the reasons explained below, there appear to be several shortcomings in the investigation.

41. In this connection, the Court firstly notes that the applicant‑who had repeatedly stated that he would be able to recognise the police officers who had ill-treated him ‒ was not given an opportunity to confront the accused officers. The Court further notes that the public prosecutor did not seek any additional medical opinion from the doctors who had examined the applicant during his police custody nor did he try to find a plausible explanation for the new injuries which were recorded in the medical reports of 20 and 21 March 2009, while the applicant was still under the control of the authorities. In the Court’s view, an additional expert opinion from the Forensic Medicine Institute on the cause and timing of the injuries on the applicant’s body could have provided helpful information regarding the applicant’s allegation that he had been ill-treated while in police custody. In this connection, the Court further notes that in the public prosecutor’s non‑prosecution decision there appears to be no mention of the medical report drawn up by the Bursa State Hospital on 21 March 2009 stating that the applicant’s eighth and ninth ribs were fractured. Taking these shortcomings into account, the Court concludes that the public prosecutor failed to establish the reason for the differences between the medical reports and the real cause of the injuries observed on the applicant’s body.

42. In view of the foregoing, the Court holds that those procedural shortcomings had adverse repercussions on the effectiveness of the investigation into the applicant’s allegations of ill-treatment.

43. There has therefore been a violation of Article 3 of the Convention under its procedural limb.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

44. The applicant alleged under Article 5 of the Convention that during his police custody, he had not been informed of his right to contact his family and that he had been deprived of his right to legal assistance. He also referred to Article 14 of the Convention, without substantiating the allegation.

45. In the light of all the material in its possession, the Court finds that these allegations by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols. It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

46. The applicant claimed 40,000 euros (forty thousand euros (EUR)) in respect of non-pecuniary damage.

47. The Government contested the claim.

48. Considering that the applicant must have suffered pain and distress which cannot be compensated solely by the finding of a violation, and ruling on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

49. The applicant also claimed 7,080 Turkish liras (TRY) (approximately EUR 2,400) for the costs and expenses incurred before the Court. In support of this claim, he submitted a copy of the invoice from his lawyer.

50. The Government contested the claim.

51. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking into account the documents in its possession and the above criteria, the Court considers it reasonable to award the full amount claimed by the applicant covering costs under all heads.

C. Default interest

52. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,UNANIMOUSLY,

1. Declares the complaints concerning Article 3 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive aspect;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

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