CASE OF ESKİ v. TURKEY

SECOND SECTION

CASE OF ESKİ v. TURKEY

(Application no. 8354/04)

JUDGMENT

This version was rectified on 10 July 2012

under Rule 81 of the Rules of Court

STRASBOURG 

5 June 2012

FINAL

05/09/2012

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

In the case of Eski v. Turkey,

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

Françoise Tulkens, President,
Danutė Jočienė,
Dragoljub Popović,
Işıl Karakaş,
Guido Raimondi,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 15 May 2012,

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

PROCEDURE

1. The case originated in an application (no. 8354/04) 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 Gökhan Eski (“the applicant”), on 6 February 2004.

2. The applicant was represented by Mr S. Cengiz, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.

3. On 1 October 2009 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

4. The applicant was born in 1975 and lives in İzmir.

5. On 29 December 2002 at midnight, the applicant, who was drunk, had a fight with his friend in a taxi. The driver of the taxi stopped in front of a police station and the applicant’s friend entered the station to make a complaint. The applicant followed.

6. According to the applicant, when they entered the police station, his friend complained to the police officers that the applicant had stolen his cell phone. Stepping on the applicant’s foot, a police officer told the applicant to return his friend’s cell phone. The applicant pushed him back. Subsequently, several police officers attacked the applicant. He was blindfolded, handcuffed and beaten with wooden sticks and truncheons for half an hour.

7. At 1.40 a.m. the applicant was taken to the Buca Health Clinic. The doctor who examined the applicant noted the presence of a widespread bruise on his back, bruises on both legs, bruises on his left arm, swelling on the right side of his forehead, and swelling on his right arm and fingers. Suspecting that the applicant’s right hand could be fractured, he ordered the applicant’s transfer to a hospital.

8. According to the report of the Izmir Training Hospital issued at 2.15 a.m., there was swelling on the applicant’s right wrist and sensitivity on his left knee. An x-ray revealed that the applicant’s right arm was broken.

9. The report of the İzmir Forensic Medicine Institute, drafted on 30 December 2002 at 3.47 a.m., which took into account the two medical reports drafted on the same night, stated that the applicant had numerous widespread bruises on his back, a swelling and a bruise on the right side of his forehead, bruises on the back of his legs, a bruised region on his upper left arm and a swelling and a bruise on one of his fingers on the right hand. It was also noted that the applicant’s right arm had been fractured. The report concluded that the injuries rendered the applicant unfit for work for fifteen days.

10. The toxicology report of 30 December 2002 noted that the applicant had 0.98 per mille of alcohol in his blood.

11. On 2 January 2003 the applicant’s lawyer visited him in prison and noted the signs of ill-treatment on his body. On that day, the applicant submitted to his lawyer a detailed account of the alleged ill-treatment.

12. On 24 January 2003 the applicant lodged an official complaint with the İzmir public prosecutor’s office, requesting the prosecution of the police officers who had ill-treated him.

13. On 5 February 2003 the applicant was examined by a doctor at the İzmir Forensic Medicine Institute. The report which was produced took into account the applicant’s previous medical reports and X-rays and noted that his right arm was still bandaged and that his injuries were still visible. It was concluded that the injuries rendered the applicant unfit for work for fifteen days.

14. On 12 March 2003 the İzmir public prosecutor filed an indictment against ten police officers, accusing them of ill-treating the applicant. The applicant joined the proceedings as a civil party.

15. On 29 June 2004 the İzmir Criminal Court, on the basis of witness statements and medical reports, found four police officers guilty of ill‑treating the applicant under Article 245 of the Criminal Code. Six other police officers on duty that day were acquitted. The court found it established that when the applicant arrived at the police station he was drunk. He started swearing and threatening the officers, threw himself right and left and hit a couple of police officers. In order to stop him, the police officers handcuffed, blindfolded and gagged the applicant. One police officer, M.G.I., hit the applicant with a truncheon. He also told the other police officers to hit the applicant. Three other police officers consequently hit the applicant with truncheons. Based on this finding, the court held that the actions of the four police officers who had beaten the applicant had constituted a breach of Article 245 of the Criminal Code. Considering that the swearing and threats of the applicant amounted to provocation within the meaning of Article 51 of the Criminal Code, the court then reduced their sentences and accordingly sentenced each of them to a fine. Furthermore, the court decided to suspend the execution of their sentences pursuant to Section 6 of Law no. 647 on the basis that the accused officers did not show any likelihood of reoffending.

16. On 7 March 2007 the Court of Cassation upheld the first-instance court’s judgment as regards the acquittal decisions and quashed the judgment as to the convictions for a reconsideration of the case in the light of the new Code of Criminal Procedure (Law no. 5271) which had entered into force on 1 June 2005.

17. The case was accordingly remitted to the İzmir Criminal Court. On 17 January 2008 the İzmir Criminal Court once again found the four accused police officers guilty of ill-treating the applicant, and sentenced them each to a fine. The court further suspended the execution of their sentence pursuant to Law no. 647, considering that they were unlikely to break the law again. Upon appeal, on 17 September 2008 the Court of Cassation quashed that judgment as well, maintaining that the first-instance court should have considered whether the pronouncement of the judgment could have been suspended for a period of five years pursuant to Article 231 of the Code of Criminal Procedure.

18. On 9 March 2009 the İzmir Criminal Court once again found it established that the accused four police officers had ill-treated the applicant. Accordingly, pursuant to Article 245 of the Criminal Code it initially sentenced them each to three months’ imprisonment. Considering that the swearing and threats of the applicant amounted to provocation within the meaning of Article 51 of the Criminal Code, the court then reduced their sentences to twenty five days’ imprisonment and banned them from public service for twenty five days. The court subsequently suspended the pronouncement of the judgment in accordance with Article 231 of the Code of Criminal Procedure. The applicant’s objection was dismissed on 20 March 2009.

II. RELEVANT DOMESTIC LAW AND PRACTICE

19. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004‑IV (extracts)).

20. The deferral of the execution of a sentence is governed by Section 6 of Law no. 647 on the Execution of Sentences, which in so far as relevant reads:

“The court may decide to defer the execution of a fine and/or a prison sentence of up to one year... if it is convinced, taking into account the offender’s criminal record and potential to commit crime, that there is little risk of any further offence being committed, and provided that the offender has never been sentenced to anything other than a fine. The reasons for deferring the execution of a sentence must be stated in the decision.”

21. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows:

“...

(5) If the accused, who had been tried for the charges against him, was sentenced to a judicial fine or to imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment does not have any legal consequences for the offender.

(6) Suspension of the pronouncement of the judgment may be decided provided that;

a) the offender has never been found guilty of a wilful offence,

b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed,

c) the damage caused to the victim or to society is repaired by way of restitution or compensation.

...

(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.

...

(10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment, of which the pronouncement has been suspended, will be cancelled and the case discontinued.

(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court imposes the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of the imprisonment or commute it to other optional measures.

(12) An objection may be filed against the decision to suspend the pronouncement of the judgment.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22. The applicant alleged that he had been subjected to ill-treatment while in police custody. He also complained about the length of the criminal proceedings against the accused police officers and the suspension of the pronouncement of the judgment pursuant to Article 231 of the Code of Criminal Procedure. In respect of his complaints, the applicant relied on Articles 3, 6 and 13 of the Convention.

23. 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

24. The Government argued that the application should be rejected for non-exhaustion of domestic remedies. In this connection, they stated that the applicant should have brought compensation proceedings before the administrative or civil courts to seek compensation for the harm he had allegedly suffered.

25. The Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It reaffirms its earlier conclusions that the remedies referred to by the Government cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 of the Convention. The Court therefore finds no particular circumstances in the instant case which would require it to depart from its previous findings. Accordingly, it rejects the Government’s preliminary objection.

26. The Court notes that 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

27. The Government contested the applicant’s allegations. In particular, they maintained that his allegations were unsubstantiated.

28. The Court recalls that where allegations of ill-treatment are made under Article 3 of the Convention, it must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010, and Derman v. Turkey, no. 21789/02, § 25, 31 May 2011).

29. In assessing the treatment to which the applicant was subjected by the police officers, the Court observes that after acquainting itself with the evidence in the case file, in its judgment the Izmir Criminal Court found it established that the applicant had been ill-treated by four of the accused police officers (see paragraphs 15-18 above).

30. In the light of the foregoing, the Court also concludes that the State is responsible under Article 3 of the Convention because the applicant was ill-treated by four police officers who were acting in the course of their duty and as a result suffered the injuries detailed in the medical reports. It therefore follows that there has been a substantive violation of Article 3 of the Convention on account of the inhuman treatment to which the applicant was subjected.

2. The procedural aspect of Article 3

31. The Government argued that the suspension of the pronouncement of the judgment against the police officers pursuant to Article 231 of Law no. 5271 could not be regarded as an amnesty law. In this connection, they maintained that the sentences of the police officers would be executed if they committed another wilful offence during the five-year period following the judgment.

32. The Court recalls 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). According to the established case-law, this means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006‑XII (extracts), and Derman, cited above, § 27).

33. 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 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 Batı and Others, cited above, § 136).

34. The Court also recalls that when an agent of the State is accused of crimes that violate Article 3, any ensuing criminal proceedings and sentencing must not be time-barred and the granting of amnesty or pardon should not be permissible. It further reiterates that where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that he or she be suspended from duty during the investigation and trial, and should be dismissed if convicted (see, mutatis mutandis, Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004, and Serdar Güzel v. Turkey, no. 39414/06, § 42, 15 March 2011).

35. Turning to the facts of the present case, the Court observes that upon the complaint of the applicant, on 12 March 2003 the public prosecutor initiated criminal proceedings against the accused police officers. These proceedings were terminated on 9 March 2009, after almost six years, a delay that runs contrary to the promptness required to punish those responsible. There is also no indication in the case file that the police officers were suspended from duty during that period. Nor did the authorities take any disciplinary action against them.

36. The next issue to be decided by the Court is whether and to what extent the national authorities have done everything within their powers to prosecute and punish the police officers responsible for the applicant’s ill-treatment and whether they have imposed adequate and deterrent sanctions on them. In this connection, the Court reiterates the absolute nature of the prohibition of torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Accordingly, provocation can never be regarded as justification for the infliction of severe ill-treatment on an individual, in breach of Article 3 of the Convention (Atalay, cited above, § 43). In this connection, the Court firstly notes that the İzmir Criminal Court considered that the swearing and threats of the applicant at the police officers had amounted to provocation within the meaning of Article 51 of the former Criminal Code, and as a result the sentences of the police officers, who were found guilty of ill-treatment, were reduced. Secondly, the pronouncement of the judgment was suspended pursuant to Article 231 of the Criminal Procedure Code (see paragraphs 17 and 18 above). In the Court’s opinion, these two shortcomings cannot be considered as compatible with the Convention standard of protection from ill-treatment. According to the Court’s case-law, suspension of such sentences undeniably falls into the category of the “measures” which are unacceptable as its effect is to render convictions ineffective (see Okkalı, cited above, §§ 73-78, and Zeynep Özcan v. Turkey, no. 45906/99, §§ 40-46, 20 February 2007). In this respect, the Court notes that the suspension of the pronouncement of the judgment, regulated by Article 231 of the Code on Criminal Procedure (Law no. 5271), has a stronger effect than the deferral of the execution of the sentence and results in the impunity of the perpetrators. That is because the former’s application removes the judgment with all its legal consequences, including the sentence, provided that the offender abides by the suspension order, whereas in the latter, neither the sentence nor the judgment ceases to exist. The Court considers therefore that the impugned court decision suggests that the judges exercised their discretion to minimise the consequences of an extremely serious unlawful act rather than show that such acts could in no way be tolerated. In the light of the foregoing, the Court considers that as a result of the shortcomings observed in the prosecution of the police officers, combined with the fact that no disciplinary measures had been taken against them, the Contracting State failed to fulfil its procedural obligation under Article 3 of the Convention.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

38. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

39. The Government contested the claim.

40. The Court finds that the applicant must have suffered pain and distress which cannot be compensated for solely by the Court’s finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 19,500 in respect of non-pecuniary damage.

B. Costs and expenses

41. The applicant’s representative stated that he had received EUR 883 in legal aid from the Izmir Bar Association. In this connection, he maintained that pursuant to the legal aid rules of the Izmir Bar, the applicant would have to pay back this amount to the Izmir Bar if at the end of the proceedings the applicant were awarded just satisfaction by the Court. He would further need to pay 5% of the total compensation amount to the legal aid board of the Izmir Bar[1]. The applicant’s representative also claimed EUR 78 for the costs and expenses incurred before the Court.

42. The Government contested the claims.

43. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000, covering costs under all heads.

C. Default interest

44. 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 application admissible;

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

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

4. Holds

(a) that the respondent State is to pay to 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 Turkish liras at the rate applicable on the date of settlement:

(i) EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable to him, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros) plus any tax that may be chargeable to him, 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 5 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithFrançoise Tulkens
RegistrarPresident

[1]1. Rectified on 10 July 2012. The sentence “He would further need to pay 5% of the total compensation amount to his representative as a legal fee.” has been changed into “He would further need to pay 5% of the total compensation amount to the legal aid board of the Izmir Bar.”

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