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THIRD
SECTION
CASE OF GARBUL v. TURKEY
(Application
no. 64447/01)
JUDGMENT
STRASBOURG
19 July
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 Garbul v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr S.
Quesada, Section Registrar,
Having
deliberated in private on 28 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 64447/01) 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 Hikmettin Garbul
(“the applicant”), on 28 July 1999.
- The
applicant, who had been granted legal aid, was represented by Mr A.
Terece, a lawyer practising in İzmir. The Turkish Government
(“the Government”) did not designate an Agent for
the purposes of the proceedings before the Court.
- On
20 October 2005 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaints concerning the alleged ill-treatment of the applicant
during police custody and his right to a fair hearing by an
independent and impartial tribunal. 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and was serving his sentence in Aydın
prison at the time of his application to the Court.
A. The detention in police custody and the medical
certificates concerning the alleged ill-treatment of the applicant
- On
an unspecified date an arrest warrant was issued in respect of the
applicant because of his alleged involvement with the PKK, an illegal
armed organisation. After receiving an anonymous phone call, police
officers arrested the applicant on 2 July 1997 at around 02.00 a.m.
The police also searched the house where the applicant stayed. The
search and seizure protocol drafted by the police officers and signed
by the applicant indicates that he consented to the search.
- The
applicant alleged that he was arrested and taken into custody on 30
June 1997 from his house in the Eskiizmir district and that while he
was in custody he was subjected to various forms of torture. In
particular, he submitted that he was beaten, sworn at, threatened,
blindfolded, given electric shocks and hosed with pressurized water.
He further claimed that his mother fainted when the police officers
started to beat him at his home at the time of his arrest.
- According to the medical report drawn up on 2 July 1997
at around 11.40 a.m. the applicant complained of blows to his chest.
The doctor found that the applicant had a 1 cm graze on the right
side of his forehead and a hyperaemic region (redness) in the middle
of his chest.
- The
applicant was interrogated by the police officers at the Anti-terror
branch of the Izmir Security Directorate on 3 July 1997.
- According
to the medical report drafted on 3 July 1997 the applicant complained
of blows to his chest. The doctor found that the applicant had a 1 cm
graze on the right side of his forehead and a hyperaemic region
(redness) in the middle of his chest and a graze of 1 cm on his right
leg.
B. Criminal proceedings against the applicant
- On
3 July 1997 the applicant was brought before the public prosecutor at
the Izmir State Security Court. The applicant stated to the
prosecutor, inter alia, that Agit (code name) threatened him
and told him to collect money for the PKK while he was working as a
musician at wedding ceremonies and that he had to give money from his
own pocket. He further gave information about some people and denied
knowing Mr M.K, Mr F.Ö, Mr S.T or Mr F.K. He stated that if he
did some things it was because he was forced to do so and that he was
a victim. When he was asked about his previous statements given to
the police, he claimed that these statements were his true
statements.
- On
the same day, the applicant was brought before the Izmir State
Security Court. The applicant reiterated, inter alia, that he
was threatened and forced by Agit and some other PKK militants to
collect money and to conduct a one minute silence to Kurdistan
martyrs during wedding ceremonies. He submitted that he was not a
member of the organization. He acknowledged his previous statements
given to the public prosecutor and denied his statements given to the
police. He claimed that they were not his and that he had just signed
them. The court ordered his remand in custody.
- The
applicant alleges that during his transfer to prison he was beaten
and sworn at by the soldiers.
- On
an unspecified date, the public prosecutor at the Izmir State
Security Court filed a bill of indictment accusing the applicant of
aiding and abetting an illegal organisation. He requested that the
applicant be convicted and sentenced under Article 169 of the
Criminal Code.
- On
an unspecified date, the criminal proceedings against the applicant
commenced before the Izmir State Security Court.
- On
19 August 1997 the Izmir State Security Court decided that the case
brought against the applicant be joined to the case brought against
twenty five other suspects. In that hearing the applicant's
representative submitted that the applicant's statements had been
taken under duress and the applicant had only given money to Agit
because he mistook him for the organiser of a wedding.
- In
a hearing held on 31 March 1998 the applicant stated that he did not
accept the statements of some of the co-accused, claiming that they
had given these statements under torture.
- Following
the decision of the court to join another case-file to the trial, the
public prosecutor, on 12 March 1998, accused the applicant of
membership of an illegal organisation and requested that he be
convicted and charged under Article 168 § 2 and Article 5 of Law
no. 3713.
- On
21 May 1998 the Izmir State Security Court, referring to the
statements of Mr A.P., a photo identification report, statements of
Mr S.Ç. (“Agit”) and Mr S.T., the gun found buried
in the applicant's garden and the findings of the ballistic report in
this respect, held that it had been established that the applicant
had entered into a permanent hierarchical and organic relationship
with the organization. The court, referring to the aforementioned
evidence, stated that it did not find the applicant's denials
convincing. The applicant was convicted under Article 168 §
2 and Article 5 of Law no. 3713 and sentenced to twelve
years and six months' imprisonment.
- The
applicant appealed. In his petition, he submitted, inter alia,
that the court had taken into account, in his view, statements given
under duress. He also suggested that the statements of those who
accused him had been obtained through illegal methods, in violation
of Article 135 (a) of the Criminal Code.
- On
23 February 1999 the Court of Cassation upheld the judgment of the
first-instance court.
C. Relevant Procedure before the Court
- By
a letter dated 28 July 1999 the applicant lodged an application with
the Court. By letters dated 14 November 1999, 17 February 2000,
12 July 2000 and 29 September 2000 the Registry requested the
applicant to submit supporting documents in respect of his complaint
pertaining to his alleged ill-treatment.
D. Investigation instigated into the applicant's
alleged ill-treatment
- On
1 November 2000 the applicant filed a complaint with the İzmir
public prosecutor (hereinafter: “the prosecutor”) against
the police officers at the anti-terror branch of the Izmir Security
Directorate (hereinafter: “the police”). The applicant
submitted, inter alia, that while he was held in police
custody between 30 June and 2 July 1997 he had been subjected to
torture. He gave details of the alleged ill-treatment and claimed
that when he was brought before the doctor for a medical examination,
two police officers were in the room. He further submitted that the
police were also next to him while he gave his statements to the
public prosecutor and the court on 3 July 1997. Finally, he claimed
that he had been beaten and sworn at during his arrest in the
presence of his family members and that he was also beaten while he
was transferred to remand in custody. He claimed that he did not know
their names but would be able to recognise some of them if he saw
them.
- On
an unspecified date the prosecutor heard the applicant who repeated
that he had been ill-treated while he was held in detention.
- On
11 December 2000 the prosecutor decided not to initiate criminal
proceedings against the police on account of lack of evidence. In
particular, the prosecutor noted that the findings of the medical
report issued at the end of the applicant's stay in custody (3 July
1997) mirrored those in the medical report drawn up on the day of his
arrest (2 July 1997). In this decision, the prosecutor noted that the
applicant was caught while hiding in a house in theYamanlar district.
- On
7 February 2001 the Karşıyaka Assize Court dismissed the
applicant's objections.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments: Batı and Others v.
Turkey (nos. 33097/96 and 57834/00, §§ 96 100,
3 June 2004), Özel v. Turkey (no. 42739/98,
§§ 20-21, 7 November 2002), and Gençel v.
Turkey (no. 53431/99, §§ 11-12, 23 October
2003).
- Law
no. 5190 of 16 June 2004, published in the Official Journal on
30 June 2004, abolished the State Security Courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the treatment to which he was subjected
while he was held in police custody amounted to torture, in violation
of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government noted that the applicant had lodged his complaint with the
Court before he had applied to the public prosecutor. They therefore
asked the Court to dismiss the application as being inadmissible for
failure to comply with the requirement of exhaustion of domestic
remedies under Article 35 § 1 of the Convention.
As to the merits, the Government maintained that the applicant's
allegations were unsubstantiated.
- The
applicant did not specifically deal with the Government's preliminary
objection under this head. As to the merits, he submitted, inter
alia, that he had been subjected to various types and degrees of
ill treatment starting from the moment of his arrest. He alleged
that he and his family members had been beaten, that he had been
stripped naked, blindfolded and made to stand in the same position
for a long time. He further claimed that he had been threatened,
hosed with pressured water and given electric shocks to various parts
of his body including his genitals. He further pointed out the
deficiencies of medical reports in Turkey and challenged the veracity
of the medical reports issued in his respect.
- The
Court considers it unnecessary to determine whether the applicant has
exhausted domestic remedies within the meaning of Article 35 §
1 of the Convention, since the application is anyway inadmissible for
the following reasons.
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence (see, in particular, Tanrıkulu and
Others v. Turkey (dec.), no. 45907/99, 22 October 2002). To
assess this evidence, the Court adopts the standard of proof “beyond
reasonable doubt”, but adds that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Ireland v.
the United Kingdom, judgment of 18 January 1978, Series A no. 25,
pp. 64-65, § 161 in fine).
- In
the instant case the Court notes, firstly, that the facts surrounding
the arrest and detention of the applicant are in dispute between the
parties. The applicant alleges that he was arrested at his house in
Eskiizmir and detained on 30 June 1997. The Government deny this. The
Court observes that, according to official documents, including the
arrest protocol which was signed by him, the applicant was arrested
at a house in the Yamanlar district on 2 July 1997. Taking into
account the fact that the applicant never sought to challenge the
place and date of his arrest during the criminal proceedings against
him and raised this matter with the domestic authorities only on 1
November 2000, i.e. three years and four months after the alleged
events, the Court finds no reason to dispute the findings of the
prosecutor, namely that the applicant was arrested at a house in the
Yamanlar district on 2 July 1997 (see paragraph 24).
- In
the instant case, the ill-treatment complained of by the applicant
consisted of beatings, electric shock treatment to various parts of
his body, including his genitals, and being hosed with pressurized
water. Nonetheless, several elements cast doubt on the veracity of
the applicant's claims.
- The
medical report drawn up at the end of the applicant's stay in custody
(3 July 1997) records only a slight graze on the forehead and right
leg and an area of redness on the chest, without any indication as to
its size and colour. Apart from the minor graze to the right leg,
this medical report is identical to the medical report issued in
respect of the applicant on the day of his arrest, some nine hours
later (2 July 2003). The Court considers that the indications noted
in these medical reports are insufficient to substantiate the severe
ill-treatment described by the applicant (see Ahmet Mete v. Turkey
(no. 2), no. 30465/02, § 33, 12 December 2006). In this
respect, the Court notes that any ill treatment inflicted in the
way alleged by the applicant would have left serious marks on his
body and would have been observed by the doctor who examined him at
the end of his detention in police custody, less than forty-eight
hours before he was formally remanded in custody (see Tanrıkulu
and Others v. Turkey (dec.), nos. 29918/96, 29919/96 and
30169/96, 24 February 2005). Therefore the findings of the medical
reports issued on 2 and 3 July 1997 do not confirm or match the
applicant's description of ill-treatment.
- The
Court is aware of the lack of details of the medical reports issued
in respect of the applicant. However, it notes that there is no
material in the case file which could call into question the findings
in this report or add probative weight to the applicant's
allegations. In particular, it notes that there is no indication in
the case file that the applicant requested and had been refused
permission to see another doctor at the end of his custody period.
- Moreover,
even assuming that the injuries noted in the medical report of 2 July
1997 were sustained by the applicant during arrest, their nature does
not demonstrate beyond reasonable doubt that any excessive force was
exercised on him when he was lawfully arrested on that date. In
addition, even if the applicant was subjected to threats and/or
verbal abuse as alleged, and as a result he felt apprehension or
disquiet, the Court recalls that such feelings are not sufficient to
amount to degrading treatment, within the meaning of Article 3 (see,
in particular, Hüsniye Tekin v. Turkey, no. 50971/99,
§ 48, 25 October 2005, and Çevik v. Turkey
(dec.), no. 57406/00, 10 October 2006).
- In
conclusion, the material submitted by the applicant is not sufficient
to enable the Court to find beyond all reasonable doubt that he was
subjected to treatment which amounted to torture, inhuman or
degrading treatment during his arrest and while he was detained.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been denied a fair hearing by an
independent and impartial tribunal on account of the presence of a
military judge sitting on the bench of the State Security Court which
tried and convicted him. He further submitted that he was convicted
despite the fact that there was no evidence to support the charges
against him. The applicant relied on Article 6 of the Convention.
- The
Court considers that these complaints should be examined from the
standpoint of Article 6 § 1, which in so far as relevant
provides:
“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.”
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
1. Independence and impartiality of the State Security
Court
- The
Court has examined a large number of cases raising similar issues to
those in the present case and found a violation of Article 6 § 1
of the Convention (see Özel, cited above, §§
33-34, and Özdemir v. Turkey, no. 59659/00,
§§ 35-36, 6 February 2003).
- The
Court finds no reason to reach a different conclusion in the instant
case. Accordingly, the Court concludes that there has been a
violation of Article 6 § 1.
2. Fairness of the proceedings
- Having
regard to its finding of a violation of the
applicant's right to a fair hearing by an independent and
impartial tribunal, the Court considers that it is not necessary to
examine the other complaint under Article 6 of the Convention
relating to the fairness of the proceedings before it (see, among
other authorities, Incal v. Turkey, judgment of 9 June 1998,
Reports of Judgments and Decisions 1998 IV, p. 1573,
§ 74).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his observations dated 9 May 2006 the applicant, relying on the same
facts as above, complained under Articles 8 and 13 of the Convention.
In particular, he submitted that he was denied the assistance of a
lawyer during his custody, that his family members were not informed
of his whereabouts and that his house was searched without a warrant.
- The
Court finds that these complaints relate to events or decisions which
intervened more than six months before being lodged with the Court on
9 May 2006, and it therefore rejects them in accordance with
Article 35 §§ 1 and 4 of the Convention.
IV. 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.”
A. Damage
- The
applicant claimed 27,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the amount.
- The
Court considers that the finding of a violation of Article 6 §
1 constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant (see Incal, cited above, §
82).
- The
Court further considers that where an individual, as in the instant
case, has been convicted by a court which did not meet the Convention
requirements of independence and impartiality, a retrial or a
reopening of the case, if requested, represents, in principle an
appropriate way of redressing the violation (see Öcalan v.
Turkey, no. 46221/99 [GC], § 210, in fine, ECHR
2005 - ...).
B. Costs and expenses
- The
applicant also claimed EUR 7,500 for the costs and expenses,
including those incurred before the domestic courts. The applicant
relied on the İstanbul Bar Association's recommended minimum
fees list. He, however, did not submit any receipts or any other
relevant documents.
- The
Government contested the amount.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the sum of EUR 1,000 less EUR 850 received by way
of legal aid from the Council of Europe for the proceedings before
the Court.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the
applicant's right to a fair hearing by an independent and impartial
tribunal admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the lack of independence and
impartiality of the İzmir State Security Court;
- Holds that it is not necessary to consider the
applicant's other complaint under Article 6 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant;
- 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, EUR 150 (one
hundred and fifty euros) in respect of costs and expenses, to be
converted into new Turkish liras at the rate applicable at the date
of the settlement and free of any taxes or charges that may be
payable;
(b) that
from the expiry of the abovementioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
