CASE OF ERTUŞ v. TURKEY

SECOND SECTION

CASE OF ERTUŞ v. TURKEY

(Application no. 37871/08)

JUDGMENT

STRASBOURG

5 November 2013

FINAL

05/02/2014

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

In the case of Ertuş 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 8 October 2013,

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

PROCEDURE

1. The case originated in an application (no. 37871/08) 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 three Turkish nationals, Mr Hüseyin Ertuş, Mrs Aysel Ertuş and Mr Cüneyt Ertuş (“the applicant”), on 30 July 2008. The first two applicants are the parents of the third applicant.

2. The applicants were represented by Mr F. Timur, a lawyer practising in Hakkari. The Turkish Government (“the Government”) were represented by their Agent.

3. On 22 June 2010 the Court declared the application inadmissible in so far as it concerned the first two applicants. It further decided to communicate the third applicant’s complaints that he had been ill-treated during his arrest and that his allegations of ill-treatment had not been examined thoroughly by the domestic authorities; and declared his remaining complaints inadmissible. The Court 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

4. The applicant was born in 1993 and lives in Hakkari.

5. On 22 March 2008 the applicant, who was fifteen years old at the time, was arrested for participating in an unlawful demonstration in support of an illegal organisation, the PKK (the Workers’ Party of Kurdistan). According to the arrest report signed by the applicant, a group of three hundred people gathered by the Atatürk statue in Hakkari city centre shouting slogans in support of the illegal organisation. They then attacked the statue with stones and sticks. The police intervened and started chasing the demonstrators, who set up a barricade in the street and burned car tyres. The arrest report stated that the applicant had been among the people arrested during the incident.

6. In video footage submitted by the applicant, he is seen in the street crying, and a plain-clothes police officer is seen holding him by the right arm. The officer is then seen twisting his arm behind his back, which forces him to bend forward. While this is happening another police officer calls the applicant “dishonourable” (şerefsiz). There appear to be no other demonstrators present and besides the police officer holding the applicant, there appear to be at least four other officers next to him.

7. On the same day the applicant was examined by a doctor at the Hakkari Forensic Medicine Institute, who noted no signs of ill-treatment on his body.

8. On 23 March 2008 the applicant underwent another medical examination. The report drawn up in respect of the applicant again indicated no signs of ill-treatment on his body.

9. The applicant was subsequently brought before the Hakkari public prosecutor and the Hakkari Magistrates’ Court respectively. In the presence of his lawyer, he denied the accusations against him, specifically stating that he had neither participated in the unlawful demonstration nor shown resistance to the police officers, and maintained that he had been walking through the city centre when he was apprehended. Following his interrogation, the investigating judge ordered his immediate release.

10. The public prosecutor filed an objection against the decision of the investigating judge. On 25 March 2008 the Hakkari Criminal Court found in line with the public prosecutor and ordered the applicant’s pre-trial detention. He was rearrested and detained the same day. Before being taken to prison, the applicant was examined by a doctor at the Hakkari State Hospital, who noted no signs of ill-treatment on his body.

11. On 28 March 2008 the applicant’s parents filed a criminal complaint against the police officers involved in his arrest, alleging that as a result of the excessive force used during his arrest, their son’s arm had been broken. On the same day the applicant was taken to the Hakkari State Hospital for a medical examination. The doctors ordered X-rays of his head, shoulders, arms, wrists and hands. According to the medical reports, the applicant had no fractures, but had an old scar measuring 2 x 1 cm on his vertex (the top of his head) as a result of an earlier fall, and a scabbed wound of 2 x 1 cm on the second phalanx (finger bone) of his right hand index finger.

12. On 31 March 2008 the applicant was examined again, this time by the prison doctor, who reported a minimal oedema (slight swelling) on his right elbow resulting from a soft issue injury and noted the presence of healing wounds on the distal phalanges of his right hand ring and little fingers.

13. The Hakkari public prosecutor initiated an investigation into the applicant’s parents’ allegations of ill-treatment. On 17 April 2008 he decided not to bring criminal proceedings against the police officers who had arrested the applicant. In his decision he explained that he had examined the video-recording of the applicant’s arrest and concluded that the police officers had not used excessive force. He further observed that the medical reports drawn up on 22 and 23 March 2008, the first and last days of his time in police custody, and the subsequent report dated 25 March 2008, issued the first day of his pre-trial detention, revealed no signs of ill‑treatment on his body. Furthermore, although the applicant alleged that his arm had been broken, the X-rays did not show any fracture. The Hakkari public prosecutor also took into consideration that the applicant, who was represented by a lawyer during his interrogation on 23 March 2008, had not mentioned that he had been ill-treated or that his arm had been injured. Furthermore, he had been released that day and until his subsequent pre-trial detention on 25 March 2008 his parents had not complained of any ill‑treatment or noticed that the arm of their son had been fractured. The public prosecutor also referred to photographs and news articles published by several media organisations regarding the applicant’s allegations of ill‑treatment. He noted that upon the instructions of the terrorist organisation, some of the media organisations had started a campaign against the security forces, alleging that a young person’s arm had been fractured by the police. In this connection, the names and even the addresses of the officers who had arrested the applicant had been published and the incident was being used to create an uprising against the security forces. Furthermore, it also transpired that a bank account had been opened in the name of the applicant’s family to which charitable donations had been made. The prosecutor’s decision indicated that investigations into these events were pending. Lastly, he concluded that the applicant’s allegations had been made to debase the police officers, and that there was no evidence in support of his claims.

14. On 11 April 2008 the applicant was released.

15. Between 21 and 30 April 2008 the applicant underwent a number of medical examinations at the İzmir Branch of the Human Rights Foundation. The applicant told the doctors that his police custody had lasted for three days and during this time he had been subjected to ill-treatment. A medical report issued on 8 May 2008 mainly focused on his allegations of ill‑treatment during police custody and indicated that he had an oedema in his left ear and nose as well as effusion (swelling) on the right elbow resulting from trauma. He was also found to be suffering from severe depression and post-traumatic stress disorder. The doctors concluded that his physical and psychological condition was directly linked to his treatment during arrest and detention.

16. On 9 May 2008 the applicant lodged an objection with the Van Assize Court challenging the decision of the Hakkari public prosecutor dated 17 April 2008. He alleged that he had been subjected to ill-treatment during his arrest and submitted the medical report of 8 May 2008 in support of his allegations.

17. On 27 May 2008 the Van Assize Court dismissed the objection.

18. On 30 May 2008 the public prosecutor initiated criminal proceedings against the applicant in the Van Assize Court under Law no. 2911 (Assemblies and Marches Act) for taking part in an illegal demonstration. On 9 June 2010 he was acquitted of all charges on account of a lack of evidence.

19. In the meantime, in May 2009 the applicant lodged a claim with the Van Administrative Court for compensation in respect of the pecuniary and non-pecuniary damage he had suffered on account of his ill-treatment on 22 March 2008. On 3 May 2010 that claim was dismissed.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

20. The applicant alleged that he had been ill-treated during his arrest. He also complained that his allegations of ill-treatment had not been examined thoroughly by the domestic authorities. In this connection, the applicant relied on Articles 3 and 13 of the Convention.

21. The Government contested the allegations.

22. The Court considers that they 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

23. The Government asked the Court to dismiss this complaint for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. In this regard, they stated that the applicant had not waited for the outcome of proceedings before the Van Administrative Court before lodging his application with the Court. In the alternative, they asked the Court to dismiss the application for non‑compliance with the six-month time-limit, as in their view the applicant should have lodged his application with the Court within six months of his arrest.

24. The Court reiterates that according to its established case-law, compensation proceedings initiated before the administrative courts cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 (see Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It follows that in the present case the final domestic court decision regarding the applicant’s complaints was the decision of the Van Assize Court dated 27 May 2008. Since the application was lodged with the Court on 30 July 2008, both the Government’s preliminary objections should be dismissed.

25. The Court notes that the remainder 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. The substantive aspect of Article 3

26. As the Court has pointed out on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). In this connection, it also notes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention.

27. The Court further reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita, cited above, § 121). The Court further emphasises that, in respect of a person who is placed under the control of the authorities, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336). Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (ibid., § 34, and see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

28. In the present case, the Court observes that the applicant alleged before the domestic courts that as a result of the excessive force used during his arrest, he had suffered an injury to his right arm. Since his claims regarding ill-treatment during police custody and subsequent pre-trial detention were never raised during the domestic proceedings, the Court will limit its examination to determining whether the force used during his arrest was strictly necessary and proportionate. In this connection, the Court reiterates that Article 3 does not prohibit the use of force in certain well‑defined circumstances. However, such force may be used only if absolutely necessary and must not be excessive (see Rehbock v. Slovenia, no. 29462/95, §§ 66-78, ECHR 2000‑XII).

29. The Court notes that although the applicant alleged that he had been injured as a result of the force used during his arrest, several elements cast doubt on the veracity of his claims. In this connection, the Court observes that the medical reports dated 22 and 23 March 2008, taken on the first and last days of his time in police custody, did not reveal any signs of ill‑treatment on his body. The Court further notes that the applicant was released on 23 March 2008, and until his subsequent detention on 25 March stayed with his parents. During this time he did not seek medical attention or obtain a medical report regarding the injury to his arm. Furthermore, he underwent another medical examination on 25 March when he was admitted to prison, which again revealed no signs of injury on his body. In this connection, the Court notes that the applicant’s parents filed a criminal complaint with the public prosecutor on 28 March, six days after his arrest on 22 March, and alleged that the applicant’s arm had been broken by the police officers who had arrested him. He was then transferred to a hospital on the order of the prosecutor and the X-rays revealed no fracture to his arm. The only injuries found on the applicant’s body were an old scar, measuring 2 x 1 cm on his vertex as a result of an earlier fall, and a scabbed wound of 2 x 1 cm on the second phalanx of his right hand index finger.

30. The Court further observes from the case file that at no stage of the domestic proceedings or during the Strasbourg proceedings did the applicant challenge the veracity of the initial reports or allege that the doctors who issued them had failed to examine his injuries (see Coşar v. Turkey, no. 22568/05, § 33, 26 March 2013). While in the video footage the applicant is seen crying in the street and a plain-clothes police officer is seen twisting his arm behind his back, the Court considers that based on the medical reports, which revealed no signs of injury on the applicant’s body on the first and last days of his time in police custody, the force used against the applicant did not attain the minimum level of severity to fall within the meaning of Article 3 of the Convention.

31. It follows that there has been no violation of Article 3 of the Convention under its substantive limb.

2. The procedural aspect of Article 3

32. 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 of Judgments and Decisions 1998‑VIII).

33. In the present case, the Court has not established, on account of a lack of evidence, that the applicant was ill-treated as alleged. Nevertheless, as it has held in previous cases, that does not preclude his complaint in relation to Article 3 from being “arguable” for the purposes of the State’s positive obligation to investigate (see, Böke and Kandemir v. Turkey, nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009).

34. According to the information in the case file, following the complaint lodged on 28 March 2008 the Hakkari public prosecutor initiated an investigation. The Court notes however that none of the police officers involved in the applicant’s arrest were interviewed as suspects. Furthermore, the applicant was never questioned by the prosecutor or given an opportunity to confront the accused officers. In his lengthy decision not to prosecute, the prosecutor merely acted on the assumption that the purpose of the applicant’s allegations of ill-treatment was to debase the police officers.

35. In view of the foregoing, the Court considers that the applicant’s allegations of ill-treatment were not investigated diligently and the investigation cannot be considered to be effective. It therefore concludes that the authorities failed to conduct an effective investigation into the applicant’s allegations of ill-treatment.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

37. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage and EUR 200,000 in respect of non-pecuniary damage.

38. The Government contested the claims.

39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have suffered pain and distress which cannot be compensated solely by the finding of a violation. Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

40. The applicant’s representative further claimed EUR 10,850 for his fee for thirty hours of legal work, in respect of which he submitted a time sheet. He also claimed EUR 567 for costs and expenses but did not submit any invoices or other documents in support of his claim.

41. 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. As regards the lawyer’s fee, 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 with further references). It accordingly considers it reasonable to award the sum of EUR 2,000 for the lawyer’s fee. As regards the remainder of the applicant’s claim for costs and expenses, the Court notes that he has not substantiated it. Accordingly, it makes no award under this head.

C. Default interest

42. 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

1. Declares unanimously the remainder of the application admissible;

2. Holds by four votes to three that there has been no violation of Article 3 of the Convention under its substantive aspect;

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

4. Holds unanimously

(a) that the respondent State is to pay the applicant, within three months of 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand 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 unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges D. Popović, I. Karakaş and P. Pinto de Albuquerque is annexed to this judgment.

G.R.A.
S.H.N.

JOINT PARTLY DISSENTING OPINION OF JUDGES POPOVIĆ, KARAKAŞ AND PINTO DE ALBUQUERQUE

We do not share the view of the majority that there has been no violation of Article 3 of the Convention under its substantive limb. We adduce five reasons to conclude that there was a violation of the said Article.

Firstly, the applicant was a minor at the time of the events.

Secondly, it is undisputed between the parties that he showed no resistance to the police officers when he was arrested. In this connection the video footage submitted by the parties, which the Court had the benefit of watching, shows that the applicant was scared and crying in the street and that a police officer was holding him by the right arm. The officer then forcefully twisted his arm behind his back, which forced the applicant to bend forward. It is clear that this act caused a lot of pain to the minor, who was not showing any resistance to the police. Moreover, on 31 March 2008 the prison doctor reported a minimal oedema on the applicant’s right elbow resulting from a soft tissue injury, and noted the presence of healing wounds on the distal phalanges of his right hand ring and little fingers. The findings of this medical report confirm the force used against the applicant during his arrest.

Thirdly, the applicant was alone when he was arrested. In addition, he was much smaller than the police officer who was holding him. Besides the police officer twisting the applicant’s right arm, there appeared to be at least four other officers next to him. Hence, the applicant did not represent at any stage a danger to the police officers, who had a clear physical advantage over him.

Fourthly, while this was happening, another police officer called the applicant “dishonourable”. This verbal abuse of the applicant was degrading.

Fifthly, although criminal proceedings were subsequently initiated against the applicant for taking part in an illegal demonstration, he was acquitted of all charges on account of a lack of evidence. As a result, there is no information in the case file to indicate that he had participated in the demonstration or had been among the demonstrators who confronted the police.

These facts must be interpreted in the light of the international standards.

The international standards for the treatment of juvenile offenders or suspects are set by the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“The Havana Rules”), 1990, the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), 1990, the Guidelines for Action on Children in the Criminal Justice System recommended by Economic and Social Council resolution 1997/30 of 21 July 1997, and, at the European level, by the Committee of Ministers of the Council of Europe Guidelines on child-friendly justice, 2011. All these texts call for a child-friendly and sensitive approach to offenders or suspects who are minors and, particularly, for careful treatment of the special needs and particular vulnerability of minors by judges, prosecutors, police and other law-enforcement agents. For example, paragraph 27 of the European Guidelines on child-friendly justice states: “Police should respect the personal rights and dignity of all children and have regard to their vulnerability, that is, take account of their age and maturity and any special needs of those who may be under a physical or mental disability or have communication difficulties.”

In the light of these standards we conclude that the force used by the police against the applicant, who was a minor, had not participated in any unlawful act, did not resist arrest and did not represent any danger to the police officers, was totally unjustified. The use of force during his arrest was not necessary.

Thus, we are of the view that the injuries sustained by the applicant were the result of treatment for which the State bears responsibility. Having regard to the nature and degree of the applicant’s injuries resulting from the excessive use of force, we consider that the treatment in question reached a sufficient level of severity to be characterised as degrading treatment.

Accordingly, we conclude that there has been a violation of Article 3 of the Convention under its substantive limb also.

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