CASE OF AMİNE GÜZEL v. TURKEY

SECOND SECTION

CASE OF AMİNE GÜZEL v. TURKEY

(Application no. 41844/09)

JUDGMENT

STRASBOURG

17 September 2013

FINAL

17/12/2013

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

In the case of Amine Güzel v. Turkey,

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

Guido Raimondi, President,

Danutė Jočienė,

Dragoljub Popović,

András Sajó,

Işıl Karakaş,

Paulo Pinto de Albuquerque,

Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 27 August 2013,

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

PROCEDURE

1. The case originated in an application (no. 41844/09) 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, Ms Amine Güzel (“the applicant”), on 28 July 2009.

2. The applicant was represented by Mr B. Temel, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged that she had been subjected to ill-treatment during both her arrest and her time in police custody and complained that the investigation conducted into her allegation of ill-treatment had not been effective.

4. On 20 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1980 and lives in Diyarbakır.

6. On 25 February 2008 a group of people, including Members of Parliament, gathered in Diyarbakır to make a press statement against military operations that were being conducted by the Turkish security forces. According to the police records, the security forces had been informed of the demonstration and had taken the necessary measures beforehand. The records noted that following the statement and the speeches made by the Members of Parliament, the crowd started marching and shouting slogans praising the imprisoned leader of the PKK (the Kurdistan Workers’ Party, an illegal organisation). After some members of the group attacked police officers with stones, the security forces intervened, as a result of which the crowd dispersed, damaging a number of shop fronts on their way. The records stated that a few hours later the demonstrators regrouped once again, this time setting trash containers on fire and blocking traffic.

7. During the latter part of the events, the applicant was arrested together with four other people, three of whom were throwing stones at police officers, according to the arrest and seizure report drawn up by those officers later on. The report did not indicate anything as regards the acts conducted by the applicant except for stating that she had been taken to the Çarşı police station with the others.

8. The applicant alleged that during her time at the said police station, she was insulted, severely kicked and beaten until she was transferred to the Diyarbakır Training and Research Hospital, where she underwent a medical examination. The medical report drawn up afterwards indicated that the applicant had skin abrasions on her lower and upper lips, several red patches (erythema) on her legs (six or seven measuring 2x7 cm above her right knee, two with a 6 cm diameter above both her knees, two or three measuring 2x6 cm below her right knee, and another two or three of 2x5 cm on her left leg), swelling and erythema of 2x3 cm on her nose and her right cheek bone.

9. On the same day, the applicant was examined for a second time, this time by a doctor at the Diyarbakır Branch of the Forensic Medicine Institute. The medical report issued afterwards maintained that the applicant had claimed to have been beaten, taken to hospital several times and given serum there. It further stated that she had several bruises on different parts of her body (one measuring 20x30 cm on her right thigh, one of 8x4 cm above her right knee, one of 8x10 cm on her left thigh, one measuring 15x4 cm on her left leg, and one of 2x0.5 cm below her right eye) and that various parts of her head, chest and waist were painful to the touch. There were no bone fractures on the body or the skull, no trauma inside the skull and no major lesions, either vascular or on the internal organs. The report finally established that the injuries caused to the applicant were not life-threatening, but could not be treated with simple medical attention.

10. Following the medical examinations, upon an order of the Diyarbakır public prosecutor, the applicant was taken to the Anti-Terrorism Branch of the Diyarbakır Security Directorate.

11. The next day, on 26 February 2008, the applicant was transferred to the Diyarbakır Training and Research Hospital once again, where she was examined by a doctor and underwent two blood tests and an ultrasound.

12. On 27 February 2008 two medical reports were drawn up in respect of the applicant: one noting the signs of physical violence on her body, the other stating the results of the ultrasound test. According to the former report, there were widespread bruises on the front of the applicant’s legs and another bruise below her right eye. That report concluded that there were no newly sustained injuries on her body. As for the latter report, it stated that the ultrasound performed on the applicant had revealed a cyst of 2 cm on her right ovary.

13. The applicant was released three days later, on 28 February 2008. A medical report issued by the Mevlana Health Clinic just before her release indicated the same findings as those of the previous report and noted that the applicant had widespread bruises on her legs and one bruise under her right eye.

A. Investigation against the police officers involved

14. On 3 March 2008 the applicant filed a complaint with the Diyarbakır public prosecutor’s office. She maintained that, while she had been walking towards the gathering to find her son and get him to come away from it, she had been hit with a truncheon on her face by police officers, who had then dragged her along by the turtleneck collar of her sweater in such a way that she had choked. She alleged that at the Diyarbakır Çarşı police station, where she had been kept with four other people, she had been insulted, kicked and beaten with truncheons and clubs. She also stated that the ill-treatment had only taken place at the police station and that she had no complaints against the police officers at the Anti-Terrorism Branch.

15. On 5 March 2008, upon the request of the Diyarbakır public prosecutor, a doctor at the Diyarbakır Branch of the Forensic Medicine Institute drafted a preliminary report, summarising the findings of the first two medical examinations performed on the applicant.

16. On 25 July 2008 the Diyarbakır public prosecutor requested a detailed forensic medical report from the Forensic Medicine Institute.

17. Subsequently, on 7 August 2008 a final forensic medical report indicating the findings of the applicant’s medical examinations was submitted to the public prosecutor. That final report noted that although there were no bone fractures on the applicant’s body and the injuries found had not put her life at risk, they were not so light as to have been able to be treated with simple medical attention.

18. On 24 September 2008 the Diyarbakır public prosecutor issued a decision not to prosecute. On the basis of the arrest and seizure report drafted by the police officers and the indictment issued against the applicant, he stated that the injuries on the applicant’s body seemed to have been caused by force lawfully employed by the officers during her arrest, which had been within the scope of their duties. Referring to the final forensic medical report, he further stated that the injuries had been able to be treated with simple medical attention. Accordingly, he concluded that there was no concrete evidence in support of the applicant’s allegations that members of the security forces had ill‑treated and insulted her.

19. The applicant lodged an objection against the public prosecutor’s decision.

20. On 30 December 2008 the Siverek Assize Court rejected the applicant’s objection, holding that the police officers concerned had not exceeded the limits of legal force. In reaching that decision, the court noted that according to the medical reports drawn up in respect of the applicant, the injuries on her body had been able to be treated with simple medical attention. That decision was served on the applicant on 29 January 2009.

21. On 24 March 2011, upon the request of the Diyarbakır public prosecutor to that effect, the Siverek Assize Court annulled the decision not to prosecute and held that criminal proceedings should be initiated against the police officers concerned under Articles 86 and 256 of the Criminal Code (Law no. 5237), for intentionally causing bodily harm to the applicant in excess of the limits of legal force. The court stated that following the Court’s communication of the applicant’s case to the respondent Government, it had been realised that the Diyarbakır public prosecutor had mistakenly noted that the injuries on the applicant had been able to be treated with simple medical attention, whereas the medical reports had actually indicated otherwise.

22. Subsequently, on 7 April 2011 the police officers involved in the alleged acts were invited to the Diyarbakır public prosecutor’s office to give statements.

23. The proceedings against the officers appear to be pending.

B. Criminal proceedings against the applicant

24. On 19 March 2008 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court, accusing the applicant of disseminating propaganda on behalf of the illegal organisation, the PKK, and committing crimes on its behalf without being a member of that organisation, pursuant to section 7 of the Prevention of Terrorism Act (Law no. 3713) and Articles 220 and 314 of the Criminal Code respectively.

25. On 11 May 2010 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced her to seven years of imprisonment.

II. RELEVANT DOMESTIC LAW

26. The relevant articles of the Criminal Code (Law no. 5237) read as follows:

Article 86 – Intentional bodily harm

“1. Any person, who intentionally causes bodily harm to someone or damages their health or senses, shall be punished by imprisonment for one to three years.

2. If the offence is committed;

...

c. by a public official, in abuse of the powers vested in him,

...

he shall be sentenced to imprisonment for two to five years.”

Article 256 – Exceeding the limits of legal force

“The provisions of Article 86 shall be applied in cases where the public official with the power to use force exceeds the limits of legal force during the commission of his duty.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

27. The applicant argued that she had been subjected to ill-treatment during her arrest and while in police custody. She complained about the manner in which the Diyarbakır public prosecutor had conducted the investigation into her allegation of ill-treatment and the outcome of that investigation. She relied upon Articles 3, 6 and 14 of the Convention.

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

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

A. Admissibility

29. The Government argued that the application should be found inadmissible for non-exhaustion of domestic remedies, in that the investigation against the police officers involved in the applicant’s alleged ill-treatment was still pending.

30. The applicant disputed the Government’s argument, alleging that the initiation of criminal proceedings against the police officers following the communication of the present application to the Government had been aimed at rendering the application inadmissible. She also maintained that the said criminal proceedings would not be effective, as more than three years had passed since the date the alleged acts had taken place and it would not be possible for the domestic court to establish the facts due to the passage of time.

31. In so far as the Government’s preliminary objection concerns the substantive aspect of the complaint under Article 3 of the Convention, the Court notes that despite the Diyarbakır public prosecutor’s initial decision not to prosecute, which was upheld by the Siverek Assize Court shortly thereafter, that court subsequently annulled the said decision and decided to initiate criminal proceedings against the police officers concerned following the communication of the application to the respondent Government in January 2011. Accordingly, with that decision of the Assize Court, a new investigation into the matter began on 24 March 2011.

32. The Court observes that the investigation instigated against the police officers involved in the incident is still pending. In that respect, it draws a distinction between the instant case and those where the investigations into the applicants’ allegations of ill-treatment remained pending for periods of time so long as to render the said investigations ineffective (see Veli Tosun and Others v. Turkey, no. 62312/00, §§ 51-61, 16 January 2007; Fırat Can v. Turkey, no. 6644/08, §§ 43-50, 24 May 2011; and Tarkan Yavaş, cited above, §§ 35-38). In the present case, as opposed to the above-cited cases, there is no ongoing investigation in the traditional sense, since the criminal proceedings against the police officers involved began following the communication of the case to the respondent Government, more than two years after the Siverek Assize Court’s rejection of the applicant’s objection against the decision not to prosecute. The Court accordingly considers that the new investigation should be assessed separately.

33. The Court reiterates that the issue of exhaustion of domestic remedies requires a determination to be made of the effectiveness of the investigation at issue (see Aslan v. Turkey (dec.), no. 75307/01, 19 October 2004). However, it finds it impossible at this stage to reach a conclusion about the effectiveness of the new investigation, as the criminal proceedings against the police officers concerned have been pending for two years, which, in the circumstances of the instant case, it does not deem contrary to the competent authorities’ obligation to act with promptness as defined by the Court’s case-law (see, a contrario, Çelik and İmret v. Turkey, no. 44093/98, §§ 54-60, 26 October 2004).

34. It is to be recalled that in line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the effectiveness of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 164, ECHR 2009, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 141, ECHR 2012).

35. Having regard to the foregoing and without prejudice to the applicant’s right to lodge a fresh application under Article 34 of the Convention should the new investigation against the police officers concerned prove ineffective, the Court concludes that the complaint under the substantive aspect of Article 3 of the Convention is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, among others, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008, and M.V. v. Slovakia (dec.), no. 62079/09, 23 November 2010).

36. As regards the procedural aspect of the complaint, the Court notes that whether the investigation, to the extent that it concerns the period until the initiation of criminal proceedings against the police officers in 2011, could be regarded as effective under the Convention is directly linked to the substance of the applicant’s complaint. It therefore joins the Government’s preliminary objection on this point to the merits (see, among others, Veli Tosun and Others, cited above, §§ 39-40, and Tarkan Yavaş, cited above, § 27).

37. The Court notes that the complaint under the procedural aspect of Article 3 of the Convention 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

38. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

39. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may also generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among others, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts), and Çelik and İmret, cited above, § 55).

40. Turning to the facts of the present case, the Court observes that the Diyarbakır public prosecutor instigated an investigation into the applicant’s allegations of ill-treatment immediately after her request to that effect. Within a period of six months, the public prosecutor examined written documents, including the arrest and seizure report, the indictment against the applicant and two forensic medical reports indicating the findings of the medical examinations performed on her. The Court observes, however, that during that period, the public prosecutor neither took the statements of the police officers concerned, nor did he hear the applicant and the others present during her arrest. Paying due regard to the statements in the indictment and the police records, and finding that the injuries to the applicant had been able to be treated with simple medical attention, he concluded that the force used by the police on the applicant had been within legal limits. He accordingly issued a decision not to prosecute the police officers involved in the alleged acts (see paragraph 18 above).

41. At this point, the Court indicates that although the public prosecutor noted that the injuries found on the applicant’s body merely required simple medical attention, the final forensic medical report, which he relied on, noted otherwise (see paragraph 17 above). Moreover, the Siverek Assize Court reiterated the same mistake and used identical wording in rejecting the applicant’s objection against the decision not to prosecute.

42. The Court further considers that, notwithstanding the possible effectiveness of the new investigation started into the applicant’s allegations following the Court’s communication of the present case to the respondent Government, the authorities have failed to provide a prompt response, as it has been more than five years since the date the applicant filed a complaint with the Diyarbakır public prosecutor’s office, arguing that she had been subjected to ill-treatment.

43. In the light of the above, the Court concludes that the applicant’s claim that she was ill-treated during her arrest and while she was kept in police custody was neither diligently nor promptly investigated. Therefore, the investigation conducted into her allegations, until the instigation of the new investigation in 2011, cannot be considered as effective (see Aysu v. Turkey, no. 44021/07, §§ 41-42, 13 March 2012, and Tarkan Yavaş, cited above, §§ 35-38). The Court also dismisses the Government’s preliminary objection that the applicant failed to exhaust domestic remedies in view of the pending investigation against the police officers concerned (see Veli Tosun and Others, cited above, § 60; Fırat Can, cited above, § 49; and Tarkan Yavaş, cited above, § 37).

44. There has accordingly been a procedural violation of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

46. The applicant claimed EUR 23,000 in respect of pecuniary and non-pecuniary damage.

47. The applicant also claimed EUR 5,721 for costs and expenses, giving a breakdown of the number of hours of work for which her lawyer sought payment.

48. The Government contested these claims. They argued that there had been no violation of the Convention and that in any case, there was no causal link between the violations alleged and the damage sustained.

49. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 12,500 in respect of non-pecuniary damage.

50. As regards the costs and expenses, the Court reiterates that time sheets have been accepted in the past as supporting documents in a number of cases (see Çoşelav v. Turkey, no. 1413/07, § 89, 9 October 2012, and Beker v. Turkey, no. 27866/03, § 68, 24 March 2009). It accordingly considers it reasonable to award the sum of EUR 1,500 to the applicant for the proceedings before the Court.

51. 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. Joins the Government’s preliminary objection on the issue of exhaustion of domestic remedies in respect of the procedural aspect of Article 3 to the merits and dismisses it;

2. Declares the complaint concerning the procedural aspect of Article 3 of the Convention admissible and the remainder of the application inadmissible;

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 Turkish liras at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable to her, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to her, 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 amount 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 17 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

 

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