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SECOND
SECTION
CASE OF SACETTİN YILDIZ v. TURKEY
(Application
no. 38419/02)
JUDGMENT
STRASBOURG
5 June
2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Sacettin Yıldız v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Ms D. Jočienė,
Mr D. Popović,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38419/02) 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 Sacettin Yıldız
(“the applicant”), on 3 October 2002.
- The
applicant was represented by Mr M. N. Ayhan, a lawyer practising in
Istanbul. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- The
applicant complained about his alleged ill-treatment in detention in
police custody, the lack of an investigation into his allegations of
ill-treatment and the unfairness of the criminal proceedings.
- On
9 May 2006 the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Istanbul.
- On
18 August 2001 the applicant was taken into custody by police
officers from the Peace and Order Department of the Istanbul Security
Directorate, on suspicion of being involved in the murder of two
sisters.
- According
to the applicant's version of the facts, during his questioning by
the police, despite his request, he was not provided with the
assistance of a lawyer. He was allegedly given electric shocks and
beaten on the soles of his feet by police officers.
- In
his statements dated 19 August 2001, drafted by the police, the
applicant confessed to his involvement in the murder and gave a
detailed explanation as to the facts of the incident.
- On
22 August 2001 the judge at the Kadıköy Magistrates' Court
authorised the extension of the applicant's detention in police
custody for three more days.
- On
24 August 2001, upon the Public Prosecutor's request, the applicant
was examined by a doctor from the Kadıköy Forensic Medicine
Department. According to the medical report, the applicant had a
purple and pink lesion of 15x13 cm under his right foot and
two lesions of 3x5 cm and 8x10cm under his left foot. The report
concluded that it would be appropriate for the applicant to rest for
ten days.
- Later
the same day, the applicant was taken to the office of the Kadıköy
Public Prosecutor, where he reiterated his earlier confessions and
assured him that he had not been ill-treated by the police officers.
When he was asked to comment on the medical report dated 24 August
2001, the applicant contended that his feet were in that condition
due to the fact that he had been wearing his shoes for too long.
- The
applicant reiterated these statements before the judge at the Kadıköy
Magistrates' Court, who ordered his detention on remand.
- According
to a forensic report dated August 2001, the applicant's fingerprints
did not match those found at the crime scene.
1. Criminal proceedings against the applicant
- On
18 September 2001 the Kadıköy Public Prosecutor filed an
indictment against the applicant and joined him as the seventh
accused in the murder case which was already pending before the
Kadıköy Assize Court.
- On
10 October 2001 the Istanbul Bar Association appointed a lawyer to
represent the applicant.
- On
25 October 2001 the applicant appeared before the Kadıköy
Assize Court for the first time. He denied all allegations against
him. He contended that during his detention in police custody he had
confessed to the crime under coercion. Moreover, he maintained that
the police had threatened to take him back to the police station if
he did not also confess before the Public Prosecutor and the judge at
the Magistrates' Court.
- At
the hearing on 8 August 2002, the intervening parties, who were the
parents of the victims, maintained that they believed that the
applicant was innocent.
- On
4 December 2003 the Assize Court convicted the applicant and another
accused, sentencing them to life imprisonment; it acquitted the other
accused. When convicting the applicant the court relied mainly on his
statements given at the police station, before the judge at the
Kadıköy Magistrates' Court and before the Kadıköy
Public Prosecutor.
- On
6 May 2005 the Court of Cassation upheld the decision of the Assize
Court. In its detailed decision, the Court of Cassation held that the
applicant's statements, which were taken at the preliminary stage of
the proceedings in accordance with the law, provided evidence of his
involvement in the murder.
2. Criminal proceedings concerning the applicant's
allegations of torture
- On
7 January 2002 the applicant filed a complaint with the Kadıköy
Public Prosecutor, complaining about the ill-treatment to which he
had allegedly been subjected during his detention in police custody.
He also submitted the medical report dated 24 August 2001.
- On
5 April 2002 the Istanbul Public Prosecutor issued a decision of
non-prosecution of the police officers. He held that the applicant,
in his statements given at the Kadıköy Public Prosecutor's
office, had confessed to having committed the murders and had
maintained that he had not been subjected to any form of
ill-treatment.
- On
3 May 2002 the applicant objected to the decision of non-prosecution
before the Eyüp Criminal Court.
- On
25 July 2002 the Eyüp Criminal Court dismissed his objection.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he was
ill-treated during his detention in police custody and that there was
no effective investigation in respect of his allegation. Article 3 of
the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government argued that it would have been open to the applicant to
sue the Ministry of Interior for damages in accordance with Article
13 of Law no. 2577 on administrative procedure.
- The
Court reiterates that the rule of exhaustion of domestic
remedies referred to in Article 35 § 1 of the Convention
obliges applicants to use first the remedies which are normally
available and sufficient in the domestic legal system to enable them
to obtain redress for the breaches alleged. The existence of the
remedies must be sufficiently certain, in practice as well as in
theory, failing which they will lack the requisite accessibility and
effectiveness. However, Article 35 § 1 does not require that
recourse should be had to remedies which are inadequate or
ineffective (see Aksoy v. Turkey judgment of 18 December 1996,
Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§
51-52).
- The
Court has already held that this remedy cannot be regarded as
sufficient for a Contracting State's obligations under Article 3 of
the Convention in cases like the present one, in that it is aimed at
awarding damages rather than identifying and punishing those
responsible (see, among many others, Assenov and Others v.
Bulgaria judgment of 28 October 1998, Reports 1998,
p. 3290, § 102; Kalın, Gezer and Ötebay v. Turkey
(dec.), nos 24849/94, 24850/94, 24941/94, 18 January 2000).
- Consequently,
it rejects the Government's preliminary objection of non-exhaustion.
- The
Court further concludes that this complaint is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. Concerning the alleged ill-treatment
- The
Government maintained that, in his statements given to the Kadıköy
Public Prosecutor, the applicant confessed to having committed the
murders and had maintained that he had not been subjected to any form
of ill-treatment. Nevertheless, the Public Prosecutor carried out an
adequate and effective investigation into his allegations of
ill-treatment by questioning the police officers.
31. The
Court reiterates that, where an individual is taken into custody in
good health but is found to be injured at the time of release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused and to produce evidence casting doubt on
the veracity of the victim's allegations, particularly if those
allegations are backed up by medical reports. Failing this, a clear
issue arises under Article 3 of the Convention (see Çolak and Filizer
v. Turkey, nos. 32578/96 and 32579/96, § 30,
8 January 2004).
32. In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001 VII).
Such proof may, however, follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (Ireland v. the United Kingdom, judgment
of 18 January 1978, Series A no. 25, pp. 64-65, § 161).
Where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
33. In
the instant case, the Court notes that the applicant was not
medically examined at the beginning of his detention. On 24 August
2000, at the end of his detention in police custody, he underwent a
medical examination at the Kadıköy Forensic Medicine
Department. According to the medical report there were serious
lesions on the soles of his feet. The report concluded that it would
be appropriate for the applicant to rest for ten days (see paragraph
10 above). The findings contained in the medical report were
consistent with the applicant's allegations of ill-treatment. In this
connection, the Court observes that the Government have not provided
a plausible explanation for the lesions identified on the applicant's
body.
34. In
the light of the circumstances of the case as a whole and in the
absence of a plausible explanation by the Government, the Court is
led to conclude that the injuries noted in the medical report were
the result of ill-treatment for which the State bore responsibility.
35. It
follows that there has been a substantive violation of Article 3 of
the Convention in this respect.
2. Concerning the alleged lack of an effective
investigation
36. The
applicant further maintained, under Article 3, that the authorities
had not conducted an adequate investigation into his complaints of
ill-treatment.
- The
Government submitted that, upon the applicant's petition concerning
his allegation of ill-treatment in custody, the Kadıköy
Public Prosecutor immediately initiated an investigation. He
questioned the police officers and subsequently issued a decision of
non-prosecution.
- Where
an individual raises an arguable claim that he or she has been
seriously ill-treated by the police in breach of Article 3, 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. This investigation should be
capable of leading to the identification and punishment of those
responsible (see Assenov and Others v. Bulgaria, judgment
of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3290, § 102, and Labita v.
Italy [GC], no. 26772/95, § 131, ECHR 2000 IV).
The minimum standards as to effectiveness defined by the Court's
case-law also include the requirements that the investigation be
independent, impartial and subject to public scrutiny, and that the
competent authorities act with exemplary diligence and promptness
(see, for example, Çelik and İmret v. Turkey,
no. 44093/98, § 55, 26 October 2004).
- Turning
to the present case, the Court notes that the Public Prosecutor
started an investigation as soon as the applicant filed a petition,
complaining that he was subjected to ill-treatment in police custody.
However, it appears from the case file that, when giving the decision
of non-prosecution, the Public Prosecutor only relied on the
applicant's statements dated 24 August 2001, in which he had
maintained that he had not been subjected to any form of
ill treatment and had claimed that his feet were in the
condition described in the medical report due to the fact that he had
been wearing his shoes for too long (see paragraph 21 above).
- The
Court observes that the Public Prosecutor disregarded the medical
report which noted that there were serious injuries on the soles of
the applicant's feet hardly compatible with wearing shoes for a long
time. Moreover, the case file does not reveal whether the Public
Prosecutor took the testimony of the applicant, the policemen or any
other possible witnesses.
- In
the light of the above, the Court concludes that the applicant's
claim that he was ill-treated during his arrest was not subject to an
effective investigation by the domestic authorities as required by
Article 3 of the Convention.
- There
has therefore been a procedural violation of Article 3 in this
regard.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3
(c) OF THE CONVENTION
- The
applicant complained that the proceedings against him were unfair,
particularly as he was deprived of his right to have the assistance
of a lawyer during the preliminary investigation.
The relevant parts of Article 6 of the Convention provide as
follows:
“1. In the determination of ...any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal established by
law....
3. Everyone charged with a criminal offence
has the following minimum rights...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require...”
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- The
Government contended that the police reminded the applicant of his
rights. However, he maintained that he did not wish to have legal
assistance during the preliminary investigation.
-
The Court reiterates that its duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of fact or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law (see Schenk
v. Switzerland, judgment of 12 July 1988, Series A
no. 140, p. 29, §§ 45-46).
- It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question and, where violation of another Convention right is
concerned, the nature of the violation found (see, among others,
Jalloh v. Germany [GC], no. 54810/00, § 95, 11 July
2006).
- In
this connection, as regards the nature of the Convention violation
found, the Court recalls that it has already held that the use of
evidence obtained in violation of Article 3 in criminal
proceedings could infringe the fairness of such proceedings even if
the admission of such evidence was not decisive in securing the
conviction (see Jalloh, cited above, § 99;
Söylemez v. Turkey, no. 46661/99, § 23, 21
September 2006; and, mutatis mutandis, Örs and Others v.
Turkey, no. 46213/99, § 60, 20 June 2006).
- In
the present case, the Court notes at the outset that it has
already found that the applicant was subjected to ill-treatment
in breach of Article 3 of the Convention while he was in police
custody (see paragraph 35 above). Furthermore, it is not
disputed between the parties that the applicant did not receive any
legal assistance during this custody period and that he had made
statements at the police station, before the Public Prosecutor and
before the judge at the Magistrate's Court in the absence of his
lawyer. The Court further observes that the applicant denied the
accuracy of those statements throughout the proceedings before the
Kadıköy Assize Court, alleging that he had been subjected
to ill-treatment.
- In
this connection, the Court observes that Turkish legislation does not
usually attach to any confessions obtained during questioning but
denied in court consequences which are decisive for the prospects of
the defence (Dikme v. Turkey, no. 20869/92, § 111,
ECHR 2000-VIII). However, not only did the Kadıköy Assize
Court examine the admissibility of the applicant's statements made
during the preliminary stage of the proceedings, before going on to
examine the merits of the case, but also used these statements as the
main evidence in its judgment convicting the applicant, despite his
denial of their accuracy.
- In
these circumstances, the Court finds that the use of the applicant's
statements obtained under torture during the preliminary
investigation, in the absence of his lawyer, in the criminal
proceedings brought against him rendered his trial as a whole unfair.
- It
follows that there has been a violation of Article 6 §§ 1
and 3 (c) of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant did not submit a claim for just satisfaction within the
specified time-limit. Accordingly, the Court considers that there is
no call to award him any sum on that account.
- Nevertheless,
the Court considers that where an individual, as in the instant case,
has been convicted in unfair proceedings of the present type, a
retrial or a reopening of the case, if requested, represents, in
principle an appropriate way of redressing the violation (see,
mutatis mutandis, Öcalan v. Turkey
[GC], no. 46221/99, § 210 in fine, ECHR
2005 IV).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a substantive
violation of Article 3 of the Convention on account of the
ill-treatment to which the applicant was subjected in police custody;
- Holds that there has been a procedural violation
of Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant's allegations that he was ill-treated by the police;
- Holds that that there has been a violation of
Article 6 §§ 1 and 3 (c) of the Convention.
Done in English, and notified in writing on 5 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
