Information Note on the Court’s case-law No. 88
July-August 2006
Hüseyin Esen v. Turkey - 49048/99
Judgment 8.8.2006 [Section IV]
Article 13
Effective remedy
Effectiveness of criminal proceedings that had resulted in the conviction of police officers but which were subsequently discontinued under the statute of limitations: violation
Article 3
Torture
Ill-treatment in police custody amounting to torture: violation
Article 5
Article 5-3
Length of pre-trial detention
Unreasonable length of pre-trial detention without relevant and sufficient grounds: violation
Article 5-4
Take proceedings
Inability to secure an effective examination of the lawfulness of pre-trial detention: violation
Facts: On 9 September 1996 the applicant was arrested on suspicion of belonging to an illegal armed organisation and was taken into custody at police headquarters. The applicant alleged that, while in police custody, he had been subjected to various forms of ill‑treatment by police officers attempting to extract a confession from him. He had then signed under duress a statement confessing to membership of the illegal organisation and involvement in its activities. On 18 September 1996 the applicant was examined by a doctor from the Institute for Forensic Medicine, who noted several bruises and lesions to his chest and armpits. The doctor prescribed seven days’ sick leave for the applicant. The marks in question were consistent with the allegations of ill‑treatment made by the applicant. On the same day the applicant was brought before a judge, who ordered his detention pending trial. Criminal proceedings were instituted against the applicant, who was charged with involvement in armed action aimed at destroying the constitutional order and replacing it with a State based on Marxist‑Leninist principles. The applicant made several requests to be released. These were rejected by the state security court, which based its decisions on the contents of the case file, the evidence and the nature of the offence. The applicant was eventually granted provisional release on 30 January 2002. On 31 January 2003 the state security court found the applicant guilty as charged and sentenced him to 12 years and six months’ imprisonment. That decision was set aside by the Court of Cassation, which referred the case to an assize court, before which it is still pending. In the meantime, in 1996, the applicant and 16 co-defendants lodged complaints alleging ill‑treatment by the police officers who had questioned them in police custody. In April 2002 the assize court characterised the acts as torture and sentenced the police officers to terms of imprisonment ranging from 11 months and 20 days to one year and two months, and ordered that they be suspended from their posts. In May 2004, however, the Court of Cassation declared the criminal prosecution time-barred.
Law: Article 3 – The medical report drawn up at the end of the applicant’s time in police custody had reported signs of ill-treatment and prescribed seven days’ sick leave for the applicant. In addition, the assize court had characterised the acts to which the applicant had been subjected as torture. In those circumstances, the violence inflicted on the applicant, taken as a whole and having regard to its duration and purpose, had been particularly serious and cruel and capable of causing “severe” pain and suffering. It could therefore be characterised as torture.
Conclusion: violation (unanimously).
Article 13 – An investigation had been launched in response to the complaint lodged by the applicant, which had resulted in the conviction of the police officers concerned for torture. However, the criminal prosecution had become time-barred after five years, with the result that the police officers’ convictions had been quashed. The Court therefore had to determine whether the investigation and the criminal proceedings had been conducted with diligence and whether the judicial proceedings could be said to have been “effective” or not. In that connection, the Court noted that the assize court had waited almost five years after the complaint was lodged before delivering its judgment convicting the police officers, while the Court of Cassation had taken two years to examine the case. The Turkish Government had not produced any evidence to justify the lack of headway made by the proceedings. The Court considered that the judicial authorities had a duty to do everything in their power to ensure that the criminal proceedings were completed before the limitation period expired. A prompt response by the authorities in cases involving allegations of ill‑treatment could 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. In the applicant’s case, however, the police officers had been able to act with complete impunity in spite of the tangible evidence against them established by the court of first instance. In the circumstances, the Turkish authorities could not be considered to have acted promptly to ensure that the police officers implicated did not enjoy virtual impunity.
Conclusion: violation (unanimously).
Article 5(3) – The Court noted that the applicant had been held in detention pending trial for five years and four months. However, in the grounds of the orders for his continued detention, the judicial authorities had omitted to state exactly why the risk that the applicant might abscond or destroy evidence was still present after all that time. Furthermore, although “the state of the evidence” could be understood as indicating the existence and persistence of serious indications of guilt and, in general, those circumstances could be relevant factors, they could not on their own justify the continuation of the detention for such a long period.
Conclusion: violation (unanimously).
Article 5(4) – All the applicant’s requests for release had been rejected for identical reasons. He had therefore not had an effective remedy by which to challenge the lawfulness of his detention pending trial.
Conclusion: violation (unanimously).
Article 6(1) – The proceedings in issue had lasted for more than nine and a half years to date. Although they were relatively complex, no explanation had been provided as to why they had lasted so long. Having regard to the circumstances of the case, the length of the proceedings did not satisfy the “reasonable-time” requirement.
Conclusion: violation (unanimously).
Article 41 – EUR 10,000 in respect of non‑pecuniary damage.
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This summary by the Registry does not bind the Court.
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