CASE OF TÜZÜN v. TURKEY

SECOND SECTION

CASE OF TÜZÜN v. TURKEY

(Application no. 24164/07)

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 Tüzün v. Turkey,

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

Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Lawrence Early, Acting Section Registrar,

Having deliberated in private on 15 October 2013,

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

PROCEDURE

1. The case originated in an application (no. 24164/07) 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 Kamuran Tüzün (“the applicant”), on 29 May 2007.

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

3. On 24 June 2010 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

4. The applicant was born in 1984 and lives in İzmir.

A. The applicant’s arrest, the use of allegedly excessive force and medical certificates

5. On an unspecified date the İzmir police received an anonymous telephone message which concerned the applicant.

6. On 30 May 2006 the İzmir police received another phone call from the same person stating that the applicant was in the house of a certain S.T., brother of the applicant’s fiancée.

7. According to the house search and seizure report drafted on the same day at 1.30 p.m., the İzmir police conducted a drug-related operation targeting S.T.’s house, under the supervision of the İzmir public prosecutor. The report stated that the applicant had given a false name and resisted the police when the officers showed him their search warrant. According to the report, the applicant physically attacked and injured two officers. He then fell and hit his head on the door. Four officers handcuffed him by pinning him to the floor by the arms and shoulders. During the search, the officers found ecstasy pills in the house. They also found a weapon hidden under a sofa. The report was signed by nine police officers, the applicant and the applicant’s fiancée, Ş.T. The applicant was subsequently arrested and placed in police custody.

8. At 1 p.m. on the same day the applicant was examined by a doctor at the Alsancak State Hospital, who observed a two-centimetre-long laceration on the scalp with an oedema around it on the left parietal region, a bruise on the front of his neck (under the chin), a minor erythema on his right cheek, and pain and another slight erythema in the right lumbar region.

9. On the same day A.T.E. and M.A., two police officers from the team that had effected the applicant’s arrest, were also examined by the same doctor. The doctor observed an erythema in the abdominal region, three bruises and erythemas on the right of the back, and erythemas on both arms of A.T.E.’s body. As regards M.A., the doctor noted an erythema of 20 cm on the left arm and a bruise of 5 cm x 5 cm on the left side of the abdominal region.

10. At 8.40 p.m. on the same day A.T.E. and M.A gave statements to police officers in their capacity as complainants and victims. They submitted that the applicant had resisted arrest and had insulted and physically attacked them. According to the officers, the applicant had fallen and hit his head on the door and had then been arrested. At 10 p.m. the applicant gave statements to the police and alleged that he had been beaten by police officers and injured during his arrest.

11. On 31 May 2006 the applicant was once again examined by a doctor, who noted a red lesion measuring 2 cm x 2 cm on his right upper arm and a complaint of intense pain in the right part of his back.

12. On the same day the applicant was brought before the İzmir Magistrates’ Court. The judge informed him that he was charged with insulting and resisting the police officers as well as causing them injuries. The applicant denied the allegation that he had insulted and resisted the police officers. He maintained that he had been hit on the head by police officers with a weapon and beaten with truncheons and guns during the house search. The judge subsequently ordered the applicant’s pre-trial detention.

B. Criminal proceedings against the applicant

13. On 20 June 2006 the İzmir public prosecutor filed a bill of indictment with the İzmir Criminal Court against the applicant charging him with resisting the police, insulting public officials and possession of firearms without a licence.

14. During the trial, the İzmir Criminal Court took statements from the two police officers who had affected the applicant’s arrest, the applicant and other police officers who had arrested him. The police officers maintained before the court that they had been kicked and punched by the applicant, who had resisted arrest, and that they had obtained medical reports in support of their allegations. They further maintained that the applicant had insulted them in Kurdish and in Turkish. The applicant claimed that he had not resisted arrest or insulted the officers and that in any case he had been unable to resist arrest on account of the number of arresting officers.

15. On 25 January 2007 the İzmir Criminal Court convicted the applicant of the aforementioned offences and sentenced him to a total of two years and nine months’ imprisonment. The court found it established – on the basis of the arrest and search report, medical reports, the expert assessments of the firearm, and the statements of the complainants, the applicant and witnesses – that the applicant had insulted and resisted the police officers and had been in possession of an unlicensed firearm.

16. On 5 November 2009 the Court of Cassation quashed the judgment of 25 January 2007, holding that the first-instance court should have examined whether it was appropriate to suspend the delivery of the judgment (hükmün açıklanmasının geri bırakılması).

17. On 10 March 2010 the first-instance court once again convicted the applicant of the same offences and sentenced him to a total of two years and nine months’ imprisonment and a fine of 450 Turkish liras.

18. According to the information obtained by the Registry from the website of the Court of Cassation, on 22 May 2012 the Court of Cassation upheld the judgment of 10 March 2010.

C. Investigation into the police officers

19. In the meantime, on 25 July 2006 the applicant applied to the İzmir public prosecutor’s office requesting that the police officers who had arrested him be punished for injuring him by using excessive force during his arrest.

20. On 29 August 2006 the İzmir public prosecutor issued a decision not to bring criminal proceedings against the arresting police officers as he found it established that the applicant had insulted and physically attacked the officers and resisted arrest. The public prosecutor noted that the applicant, A.T.E. and M.A. had fallen during the struggle and sustained injuries. According to the public prosecutor, the police officers had handcuffed the applicant by using force when he was on the floor. He found that there was no concrete evidence other than the complainant’s allegations that the members of the security forces had ill‑treated him. The public prosecutor considered that the force employed by the police had not been excessive and that the officers had acted within the scope of their duties. The public prosecutor did not question the applicant, the accused police officers or any other witnesses before giving his decision.

21. On 10 October 2006 the applicant objected to the decision of 29 August 2006.

22. On 8 January 2007 the Karşıyaka Assize Court dismissed the objection.

D. Disciplinary proceedings against the police officers

23. On an unspecified date, an investigator initiated a disciplinary investigation in respect of A.T.E. and M.A. Within the context of this investigation, between 4 September and 27 October 2006 the investigator took statements from the applicant, his fiancée, Ş.T., A.T.E. and M.A. and two other police officers who had effected the applicant’s arrest. The applicant and his fiancée stated that the applicant had been beaten by the police officers. The applicant stated that he had not insulted or attacked the arresting officers and that he had been hit with sticks and firearms. The police officers, on the other hand, maintained that the applicant had insulted them, had chanted slogans, had kicked and punched A.T.E. and M.A. and had fallen and hit his head on the door during the struggle.

24. On 18 January 2007 the Provincial Police Disciplinary Board attached to the İzmir governor’s office held that there was no reason to subject A.T.E. and M.A. to disciplinary sanctions and considered that they had acted within the scope of their duties during the arrest.

THE LAW

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

25. The applicant complained under Article 3 of the Convention that the force used during his arrest had been excessive and disproportionate and had constituted ill-treatment. The applicant further alleged a violation of Article 13 of the Convention on account of the ineffectiveness of the investigation into his ill-treatment.

The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention alone.

Article 3 reads as follows:

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

26. The Government contested the applicant’s argument.

A. Admissibility

27. The Government submitted at the outset that the applicant did not have victim status as the injuries noted in the medical reports could not be considered to have occurred as a result of treatment which had attained a sufficient level of severity. The Government further argued that the application should be rejected for non-exhaustion of domestic remedies. In this connection, they stated that the applicant should have brought proceedings before the administrative or civil courts to seek compensation for the harm he had allegedly suffered. They lastly argued that the applicant had failed to comply with the six-month time-limit, without substantiating that allegation.

28. The applicant submitted that he had sustained injuries, which were documented by medical reports, as a result of use of force by the police. He further maintained that he had lodged a complaint with the public prosecutor’s office and had lodged an appeal against his decision, and had thus exhausted the domestic remedies. The applicant lastly submitted that he had lodged his application with the Court within the time-limit.

29. As regards the Government’s objection regarding the applicant’s victim status, the Court observes that, according to the medical reports issued after the applicant’s arrest, he had sustained injuries to his head, neck, face and lumbar region. The Court is of the opinion that the injuries noted in the medical reports are sufficient to bring the applicant’s treatment within the scope of Article 3 of the Convention. It will examine below whether the applicant was subjected to ill-treatment by the police as he alleged, or whether the use of force was proportionate and necessary on account of the applicant’s own conduct. The Court accordingly dismisses the Government’s preliminary objection under this head.

30. Regarding the Government’s reference to civil and administrative remedies, the Court reiterates that it has already examined and rejected similar preliminary objections in other, similar cases (see, in particular, Güler and Öngel v. Turkey, nos. 29612/05 and 30668/05, § 21, 4 October 2011; Atalay v. Turkey, no. 1249/03, § 28, 18 September 2008; and Gazioğlu and Others v. Turkey, no. 29835/05, §§ 29 and 30, 17 May 2011 and the cases cited therein). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned cases. It therefore dismisses the Government’s preliminary objection in respect of civil and administrative remedies.

31. Finally, as to the Government’s objection concerning the six-month time-limit, the Court observes that the Karşıyaka Assize Court dismissed the applicant’s objection to the İzmir public prosecutor’s decision on 8 January 2007 and the application was lodged with the Court on 29 May 2007. Accordingly, the Court dismisses the Government’s objection that the application was submitted to the Court out of time.

32. 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 responsibility of the respondent State in the light of the substantive aspect of Article 3 of the Convention

33. The Government submitted that the facts of the case as a whole did not support the allegations that the injuries observed on the applicant’s body, which in their opinion had not attained the level of severity proscribed by Article 3, had been caused by treatment for which the Government bore responsibility. They submitted that it was likely that the injuries noted in the medical reports had occurred as a result of the applicant’s reckless conduct and resistance when he had fallen and hit his head on the door. Moreover, if any force had been used against the applicant by the police, such use of force had been proportionate and had been made strictly necessary by the applicant’s own conduct.

34. The applicant maintained his allegation that he had been beaten by the police despite the fact that he had not resisted arrest.

35. The Court observes at the outset that it is not disputed between the parties that the applicant sustained the injuries noted in the medical reports during his arrest. In this connection the Court reiterates that, according to its case-law, Article 3 does not prohibit the use of force for effecting an arrest. However, such force may be used only if unavoidable and must not be excessive (see Gazioğlu, cited above, § 41, and Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007 and the cases cited therein).

36. The Court further observes that the factual circumstances of the applicant’s arrest were examined by the İzmir Criminal Court and the Police Disciplinary Board. Both the court and the disciplinary board obtained the arrest and search report, medical reports, and the statements by the arresting officers and the applicant before giving their decisions. The disciplinary board also obtained a statement from the applicant’s fiancée. The contents of both the criminal case and disciplinary investigation files laid the basis for the examination by the Court.

37. Against this background, the Court notes that, according to the medical reports issued following the applicant’s arrest, both the applicant and two of the arresting police officers sustained injuries. The Court considers, in the light of the contents of those medical reports, that the injuries observed on both the applicant and the police officers appear to have been superficial, with no lasting consequences, and that the findings were consistent with the police officers’ account that a physical confrontation had taken place between the applicant and the police. The Court finds that the injuries noted in the medical reports issued in respect of the applicant are not consistent with the applicant’s submissions that he was hit with sticks and firearms and kicked. In the Court’s opinion, the treatment that was described by the applicant would have left more serious marks on his body. Moreover, the injury on his head, a two-centimetre-long laceration, is consistent with the allegation that the applicant had hit his head on the door while resisting arrest. The Court accordingly finds that the applicant was not beaten during the arrest but was injured while struggling with the police officers - as they alleged - as a result of the force used by them. Having regard to the above, the Court considers that there is no evidence to support the applicant’s allegation that he was beaten by the police during his arrest. Furthermore, in view, in particular, of the fact that two police officers also sustained injuries to various parts of their bodies during the arrest, the Court finds that there is nothing in the case file to show that the force used by the police was unnecessary or disproportionate.

38. Accordingly, there has been no violation of Article 3 of the Convention under its substantive limb.

2. The responsibility of the respondent State in the light of the procedural aspect of Article 3 of the Convention

39. The Government contended that the applicant’s allegations had been subjected to an effective examination, since an investigation had been initiated promptly. They further submitted that, in reaching his decision, the public prosecutor had taken into account the applicant’s complaint, his statements to the police, the statements by the police officers and the contents of the medical reports. Moreover, a disciplinary investigation had also been initiated following the applicant’s complaint of ill-treatment.

40. The applicant maintained that his allegations had not been subjected to an effective investigation as the İzmir public prosecutor had given the decision of 29 August 2006 without conducting an investigation. In particular, he had failed to take statements from him, his fiancée or the police officers before giving his decision.

41. 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). In the present case, in the light of the contents of the medical reports issued in respect of the applicant (see paragraphs 8 and 11 above), the Court considers that the domestic authorities were under an obligation to conduct an effective investigation regarding his allegations of ill-treatment.

42. In this connection, the Court notes at the outset that it has examined the responsibility of the respondent State under the substantive limb of Article 3 in the light of the contents of the file of the case before the İzmir Criminal Court and the disciplinary investigation file (see paragraph 40 above). While the documents in the case before the İzmir Criminal Court enable the Court to make its own assessment of the factual circumstances of the applicant’s arrest, the proceedings before that court cannot be regarded as relevant in respect of the applicant’s complaint under this head: the subject matter of the case before the İzmir Criminal Court was the applicant’s alleged resistance to the police during his arrest and his possession of a firearm without a licence and not the applicant’s allegations that he had been subjected to ill-treatment. Moreover, the İzmir Criminal Court delivered its first judgment on the merits of the case after the İzmir public prosecutor’s decision not to bring criminal proceedings against the arresting police officers had been given (see paragraphs 15 and 20 above). The Court further notes that, subsequent to the applicant’s complaints of ill-treatment, an investigator took statements from the parties and the witnesses and collected documentary evidence within the context of the disciplinary proceedings before the Police Disciplinary Board. However, these steps were also taken after the İzmir public prosecutor’s decision (see paragraphs 20-24 above). Besides, those proceedings only concerned the disciplinary responsibility of the police officers.

43. In these circumstances, the Court finds that the official investigation that should be taken into account in examining the responsibility of the Government under the procedural limb of Article 3 is the investigation conducted by the İzmir public prosecutor into the applicant’s allegations of ill-treatment, which ended with the prosecutor’s decision of 29 August 2006.

44. Against this background, the Court observes that during the investigation initiated following the applicant’s complaints, the İzmir public prosecutor failed to obtain the applicant’s statements in person. He also failed to take statements from the accused police officers. Nor did he question any witnesses, including the applicant’s fiancée who had been with the applicant at the time of his arrest. It appears that the public prosecutor based his decision solely on the house search and seizure report and the statements made by A.T.E. and M.A. on 30 May 2006 (see paragraphs 7, 10 and 20 above).

45. In the light of the above, the Court concludes that the applicant’s allegations of ill-treatment were not effectively investigated by the domestic authorities as required by Article 3 of the Convention.

46. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. 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.”

A. Damage

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

49. The Government contested this claim.

50. In view of the violation found under Article 3 of the Convention, the Court finds that the applicant must have suffered some non-pecuniary damage which cannot be compensated for solely by the Court’s finding of a violation. It therefore awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

51. The applicant also claimed EUR 5,000 for the costs and expenses incurred before the Court. In support of his claim, he submitted a receipt demonstrating that he had paid this sum to his legal representative.

52. The Government considered the claim to be unjustified, and urged the Court not to make any awards.

53. 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 1,500 under this head.

C. Default interest

54. 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 no violation of Article 3 of the Convention under its substantive limb;

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

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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five 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 5 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence EarlyGuido Raimondi
Acting RegistrarPresident

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