SECOND SECTION
DECISION
Application no. 65159/17
Belgin DUMLU
against Turkey
The European Court of Human Rights (Second Section), sitting on 20 April 2021 as a Committee composed of:
Valeriu Griţco, President,
Branko Lubarda,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 1 August 2017,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Belgin Dumlu, is a Turkish national who was born in 1967 and lives in İzmir. She was represented before the Court by Ms T. Aslan, a lawyer practising in İzmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.Background to the case
4. On 9 September 2014 at around 11.30 p.m., while waiting at a bus stop in İzmir, the applicant was verbally harassed and then physically assaulted by an individual who subsequently fled. Passers-by called the police, who launched a search of the streets for the person fitting the initial description given by the applicant.
5. In the meantime, the applicant had been transferred to the emergency services of Bornova Hospital. A report of 10 September 2014, drawn up at 1.45 a.m. by Doctor Ü.K.A. on the basis of radiological examinations carried out in the meantime, stated that the applicant had redness and swelling on the left eye, redness on the upper part of the right arm, on the chest area and on the right side of the back, and loss of movement in the third finger of the right hand. The same report indicated that a final medical report was to be rendered by specialists in ophthalmology, orthopaedics and forensic medicine from Tepecik Hospital.
6. The applicant was then taken to the police station, where two officers took her statements as a victim and a complainant. According to a report drawn up between 3.06 and 3.50 a.m., the applicant gave details of the incident and a description of the suspect. She also lodged a complaint against Doctor Ü.K.A., because she considered that he had not examined her properly. The applicant signed a document stating that she had received copies of the documents issued by the police and Bornova Hospital, and that she undertook to provide a copy of the final forensic medical report mentioned above.
7. Subsequently, at the applicant’s request, the police dropped her off at her home.
8. On the same day, 10 September 2014, the applicant went to another hospital herself, Alsancak Hospital. Doctor M.A.B. indicated in writing that he could not issue the final medical report which the applicant had requested, because it related to a judicial matter for which the relevant request had been addressed to Tepecik Hospital.
9. The applicant then went to Tepecik Hospital, where she was examined at 11.36 a.m. by two ophthalmologists who indicated that the applicant had bleeding in her left eye, subconjunctival bleeding and dislocation of the iris. The doctors also drew up a treatment plan. On 11 September 2014 the applicant was examined by an orthopaedist at the same hospital. A report issued the next day by a forensic doctor at that hospital summarised the findings relating to the applicant and indicated that the injuries could not be treated by a simple medical intervention. That report was sent to the police station by a letter dated 15 September 2014.
10. On the same day, 15 September 2014, the police carried out an investigation in the street where the attack had taken place, in order to identify any witnesses and find recordings from shop surveillance cameras. These measures were unsuccessful.
11. On 27 October 2014 the prosecutor in charge of the investigation decided to set up a permanent search notice and asked the police for quarterly reports. According to the information in the case file, the investigation is ongoing, and the perpetrator remains unidentified.
12. The applicant’s medical treatment was continued for a period not specified in the file by an ophthalmologist at Tepecik Hospital. On 7 December 2014 the applicant was examined at Gazi University Hospital in Ankara, where doctors indicated that the visual acuity of her left eye had been reduced to 5%.Complaint against police officers
13. On 27 November 2014 the applicant lodged a complaint against the officers of the police station, explaining that they had shown general passivity in the face of the violence which she had suffered, and that they had not transferred her to Tepecik Hospital for an emergency intervention. She also alleged that the officers had insulted her by calling her a “drunk woman” and a “woman who behave[d] inappropriately”. On the same day, another prosecutor took a statement from the applicant. This prosecutor also requested a copy of the file of the investigation related to the assault.
14. On 9 January 2015 the prosecutor dismissed the case on the grounds that there was no evidence to support the allegations. That decision was confirmed by the İzmir Magistrates’ Court on 6 March 2015.Proceedings before the Constitutional Court
15. On 10 May 2015 the applicant lodged an application with the Constitutional Court. She complained of the ineffectiveness of both the investigation into the assault and the investigation against the police officers. She also complained of a discriminatory attitude towards her on the basis of her sex.
16. On 23 January 2017, with regard to the complaint of the ineffectiveness of the investigation into the assault on the applicant, the Constitutional Court found that the complaint was premature, as the investigation was ongoing. It considered that the complaint concerning the ineffectiveness of the investigation into the police officers’ negligence was incompatible ratione materiae, and emphasised that the applicant had not exhausted administrative or civil remedies in this regard. The Constitutional Court also considered that the applicant had not sufficiently substantiated her allegations about the misconduct towards her. The applicant was notified of that decision on 1 February 2017.
COMPLAINTS
17. As the victim of an assault committed by an unknown person, the applicant alleged that the police officers had been negligent in not immediately transferring her to the second hospital indicated by Doctor Ü.K.A. According to her, that delay had caused the deterioration in the visual acuity of her left eye. The applicant also complained that she had been subjected to degrading behaviour by police officers who had made value judgments based on her sex in connection with her presence outside late at night. Lastly, she complained that the investigation conducted into her allegations had been ineffective. She relied on Articles 3, 8, 13 and 14 of the Convention.
THE LAW
18. The Court considers that the applicant’s complaints should be examined under Article 3 and 14 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
19. For the general principles applicable in this case, the Court refers to its judgments in Ebcin v. Turkey (no. 19506/05, §§ 35-40, 1 February 2011), Y. v. Slovenia (no. 41107/10, §§ 97 and 101, ECHR 2015 (extracts)) and A and B v. Croatia (no. 7144/15, §§ 106-121, 20 June 2019).
20. The Government argued that the applicant had failed to lodge claims before the civil or administrative courts, which the nature of the case had required. They submitted judgments of the Supreme Administrative Court dated 18 April 2017 and 13 December 2018, delivered in separate proceedings regarding third parties, in which the administration had been ordered to pay compensation in view of the negligence of public officials and the delays that they had caused. The first judgment concerned a person’s delayed treatment in hospital which had caused him to experience a deterioration in his visual acuity, as in the present case. On the merits, the Government referred to the facts and argued that the police had reacted immediately and adequately. Moreover, as the applicant had not been in custody, she could have gone to any hospital for treatment without any formalities being completed, if she had considered her situation to be a medical emergency. Lastly, the applicant had not presented any document establishing that the deterioration in her visual capacity was due to a delay in medical treatment. As to the allegation of defamatory or inappropriate conduct on the part of the police officers, the Government emphasised that there was no evidence to support those allegations, and that the officers had even been kind enough to take the applicant to her home after registering her complaint.
21. The Court does not find it necessary to examine the argument of non-exhaustion of domestic remedies, since in any event it considers the application to be inadmissible for the following reasons.
22. As to the allegation of negligence of the police officers, the Court observes that, once contacted, the police quickly went out to the street where the applicant had been assaulted. They immediately launched a search of the neighbourhood in order to arrest the individual described by the applicant. At the same time, they transferred the applicant to a hospital. As the time of the initial medical report was approximately two hours after the events, and in the light of the radiological examinations carried out in the meantime, the Court concludes that the applicant was taken care of swiftly and adequately (see paragraphs 4 and 5 above).
23. The Court also notes that, as the Government pointed out, the applicant did not explain how she had been prevented from going to a hospital of her choice and receiving treatment. As the documents produced by the parties show, after the first medical intervention, Doctor Ü.K.A. indicated that the final report was to be drawn up by doctors at Tepecik Hospital. The applicant appears to have focused on this point and chosen to continue her efforts to have the criminal investigation file against her aggressor completed, instead of seeking treatment. Therefore, the Court concludes that if the deterioration in the visual acuity of her injured eye was due to a delay in her medical treatment, as alleged by the applicant but not established, it was solely due to her own choice. Accordingly, this part of the application is manifestly ill-founded.
24. As to the allegation of misconduct on the part of the police officers, the Court reiterates that allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Bouyid v. Belgium [GC], no. 23380/09, § 82, ECHR 2015). The Court also reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (ibid., § 86).
25. In the present case, the Court notes at the outset that the applicant was not in police custody. She was at the police station to file a complaint. Therefore, the circumstances are less likely to present a situation of vulnerability vis-à-vis the police officers. On the other hand, the course of the events also makes the applicant’s allegation less credible as the police launched immediately a search of the streets and transferred the applicant to a hospital. The Court notes in particular that the officers granted the applicant’s request to be taken home. These facts appear to indicate the provision of adequate care to the victim of an assault, rather than a situation in which cynical insinuations could have been made.
26. Lastly, even in the event that there was an inappropriate exchange of comments between the police officers and the applicant, there is nothing in the case file indicating that any such comments reached the minimum level of severity required for the application of Article 3 of the Convention, in the total absence of any physical or mental effects on the applicant (see Bouyid, cited above, §§ 86-90, and Öcalan v. Turkey (dec.), no. 12261/10, § 33, 4 September 2018; see also, mutatis mutandis, Bédat v. Switzerland [GC], no. 56925/08, § 72, 29 March 2016, in the context of Article 8). Consequently, this part of the application also is manifestly ill-founded.
27. In view of the foregoing, the Court also concludes that the applicant did not raise an arguable claim or made a credible assertion. Therefore, it cannot be said that the authorities were under a positive obligation to conduct an effective investigation into her allegations (see Igars v. Latvia (dec.), no. 11682/03, § 72, 5 February 2013).
28. For the same reasons, the Court also concludes that the material submitted to it does not disclose any appearance of a violation of Article 14 read in conjunction with Article 3 of the Convention.
29. It follows that the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 May 2021.
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Hasan Bakırcı Valeriu Griţco
Deputy Registrar President
Full & Egal Universal Law Academy