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SECOND
SECTION
CASE OF HASAN DÖNER v. TURKEY
(Application
no. 53546/99)
JUDGMENT
STRASBOURG
20
November 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 Hasan Döner v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mme F. Tulkens,
présidente,
MM. I. Cabral Barreto,
R.
Türmen,
M. Ugrekhelidze,
V. Zagrebelsky,
Mme A.
Mularoni,
M. D. Popović, juges,
and Mrs F.
Elens-Passos, Section Deputy Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 53546/99) 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 Hasan Döner
(“the applicant”), on 16 September 1999.
- The
applicant, who had been granted legal aid, was represented by Mr Y.
Arslan, a lawyer practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purpose of the
proceedings before the Court.
- On
14 March 2005 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Istanbul.
A. The detention in police custody and the medical
certificates concerning the alleged ill-treatment of the applicant
- On
7 March 1999 around 150-200 people demonstrated in Maraşal
Çakmak street. 45 people were arrested, including the
applicant, and taken into police custody.
- According
to the arrest protocol drafted by two police officers and signed by
the applicant, the police officers received information that a
Molotov cocktail had been thrown at a building. When they arrived at
the scene of the incident they saw that a fire had been extinguished.
The locals told them that two suspects had been chased in the
direction of Karaoğlan Street. A few blocks further on, the
police found the applicant on the floor being beaten up by a group of
people.
- According
to the identification protocol, drawn up the same day at Yenibosna
police station, the applicant was apprehended as he was being lynched
by a mob. This protocol bears the signature of two police officers,
the applicant and another person, Mr H.A. The names of four other
people appear on the protocol without their signatures.
- The
applicant refused to give a statement to the police officers who
wanted to interrogate him. The applicant's lawyer was present.
- The
applicant alleged that he was ill-treated during the arrest and
throughout his detention in police custody. In his letter of
10 November 1999 to the Court, the applicant submitted that he
was first apprehended by a group of people who stole his money, beat
him up and ill-treated him, and later arrested by police officers who
also ill-treated him while he was in custody.
- On
7 March 1999, at around 9.30 p.m., the applicant was examined by a
doctor at a State Hospital. The doctor noted that he had a graze of
2x1 cm on his left elbow, a graze of 3 cm on his right arm and
two grazes of 1 cm below his right knee. The doctor further
noted that the applicant also had two 5x10 cm ecchymoses on the right
side of his scapula (shoulder bone) and multiple grazes and
ecchymoses between his scapulas.
- On
8 March 1999 the applicant was examined by a doctor at the Bakırköy
Forensic Medicine Department, who mentioned that the applicant
complained of having being beaten and sworn at. The doctor noted that
he had a freshly-ecchymosed region with small red spots over an area
of 22x20 cm on the right scapula, a bump of 2-3 cm on the head
and a 2x3 cm bloody graze below the right knee. He further found
that the applicant had an oedema of 3x5 cm on the grazed region of
his right elbow and a fresh ecchymosis of 2x4 cm on the grazed region
of the left arm. Finally, relying on the medical reports of 7 and 8
March 1999, the doctor concluded that the injuries rendered the
applicant unfit for work for seven days.
B. Criminal proceedings against the applicant
- That
same day, 8 March 1999, the applicant appeared before the Bakırköy
Magistrates' Court where he denied the accusations against him. In
particular, he denied that he had been the victim of an attempted
lynching and claimed that suspicious-looking persons had stolen his
wallet. His lawyer was present at the hearing. The court ordered his
remand in custody.
- The
applicant objected to the court's decision to remand him. In his
petition addressed to the Bakırköy Assize Court, the
applicant submitted, inter alia, that he had been caught by
several people who had stolen his wallet. He had been handed over to
the police during a demonstration which he had come across while
going to his sister's house. He also stated that there had been no
direct intervention by the police. The applicant's objection was
dismissed by the court on 15 March 1999, having regard to the nature
of the offence and the content of the case file.
- In
the meantime, on 9 March 1999, the Bakırköy public
prosecutor filed a bill of indictment accusing the applicant of
throwing a Molotov cocktail. He requested the applicant's conviction
and sentence under Article 264 of the Criminal Code.
- On
18 March 1999 the Bakırköy Assize Court declared that it
lacked competence ratione materiae and transferred the case to
the Istanbul State Security Court. It decided, at the same time, to
prolong the applicant's remand in custody.
- On
12 April 1999 the Istanbul State Security Court decided that the
applicant's detention pending trial should be continued.
- On
20 May 1999 the applicant applied to the Istanbul State Security
Court for release pending trial on the ground that there had been a
mistake. In his petition the applicant reiterated that he had been
caught by several people who had stolen his wallet during a
demonstration, which he had come across while he was shopping for a
present for his niece. He stated that there had been no attempted
lynching. The court ordered, on 30 June 1999, that the applicant's
detention pending trial be continued having regard to the nature of
the charge, the state of the evidence and the fact that he had not
been heard by the court.
- The
Istanbul State Security Court, noting that the applicant's act, of
which he was accused, had no link to an illegal organisation, found
that it lacked competence ratione materiae on 12 July 1999. It
decided, at the same time, that the applicant's remand in custody be
continued. The case was transferred to the Court of Cassation to rule
on the competent court.
- On
11 August 1999 the Court of Cassation held that the Bakırköy
Assize Court had jurisdiction to try the case and remitted the case
to it.
- On
7 September 1999 the criminal proceedings before the Bakırköy
Assize Court commenced. It extended the applicant's remand in
custody.
- On
27 October 1999 the court issued summonses requiring Mr H.Ü., Mr
M.D. and Mr I.Ö., the police officers who had prepared the
arrest protocol, to give evidence.
- In
the hearing held on 13 December 1999, the applicant submitted that,
on the day of the incident, he was walking towards his sister's house
when a person ran past him and then someone else twisted his arm,
pressed him against a car and stole his wallet. He stated that they
later called the police and he was arrested. The applicant stated
that he had been beaten at the police station and that the protocols
drawn up by the police officers were inaccurate.
- On
9 February 2000 the court heard one of the police officers, Mr M.D.
who stated, in particular, that the applicant had first been caught
by some citizens, badly beaten and handed over to the police. He
submitted that, since none of the persons who had caught the
applicant agreed to testify, the police had been unable to obtain
their signatures on the apprehension protocol. The applicant refuted
Mr M.D.'s testimony, stating that he had not been the subject of an
attempted lynching. He mentioned that he had been hit on the back by
police officers in the car. On the same day, the court ordered the
applicant's release pending trial.
- Between
7 April 2000 and 30 October 2002, the Bakırköy Assize Court
held six hearings and summoned Mr H.A. and the police officers,
Mr H.Ü. and Mr I.Ö., to give evidence.
- On
30 October 2002 the court abandoned the proposal to hear one of the
witnesses, Mr H.A., since he could not be found.
- On
19 December 2003 the court heard Officer I.Ö., who stated
that he did not remember the incident but that the protocol which had
been drawn up at the relevant time would contain accurate
information.
- Between
19 December 2003 and 2 February 2005, the Bakırköy Assize
Court fixed numerous hearings which were all adjourned, in particular
because one of the witnesses, Mr H.Ü., repeatedly failed to
appear.
- By
a letter dated 28 June 2007, the applicant informed the Court that
his case was still pending before the Bakırköy Assize
Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Batı and others v. Turkey (nos. 33097/96 and
57834/00, §§ 96 100, 3 June 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained, without providing any details, that he had been
subjected to ill-treatment while he was held in police custody, in
breach 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.”
A. The parties' submissions
- The
Government disputed the applicant's allegations. In particular, they
noted that the applicant had failed to give any details as regards
the alleged ill-treatment and maintained that the injuries noted in
the medical reports had been sustained when he was beaten by a crowd
of people.
- The
applicant submitted that he had been ill-treated during his arrest
and throughout his detention in police custody, as shown by the
medical reports issued in his respect. He claimed that the police had
made up the whole story about the lynch mob in order to avoid
prosecution. He further claimed that, since police officers were
rarely prosecuted for ill-treatment, he had been discouraged from
making an official complaint.
B. The Court's assessment
- 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).
1. Alleged ill-treatment in police custody
- The
medical report drawn up at the end of the applicant's stay in police
custody (8 March 1999) noted a number of injuries which could have
been the consequence of acts of ill-treatment (see paragraph 11
above). Apart from a small bump on the head, this medical report was
largely identical to that issued on the day of the applicant's arrest
(7 March 1999) as regards the location and type of injuries,
with a slight worsening in their condition (see paragraph 10 above).
Consequently, the Court considers that the indications noted in the
medical report of 8 March 1999 are insufficient to substantiate the
applicant's allegations of having been subjected to ill treatment
while in police custody, in particular since the applicant never
provided the Court with any details as regards the type or manner of
ill-treatment to which he had been allegedly subjected, thereby
enabling it to assess whether the findings noted in the second
medical report, drawn up after his stay in custody, could confirm it.
- In
conclusion, the material submitted by the applicant is not
sufficiently conclusive or convincing to enable the Court to find
beyond all reasonable doubt that he was subjected to ill-treatment
while he was held in police custody as alleged.
- It
follows that this part of the application is manifestly ill founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
2. Alleged ill-treatment on arrest
- The Court recalls that in respect of a person deprived
of liberty, recourse to physical force which has not been made
strictly necessary by the person's own conduct diminishes human
dignity and is, in principle, an infringement of Article 3
(see Ribitsch v. Austria, judgment of 4 December
1995, Series A no. 336, p. 26, § 38, and Krastanov v.
Bulgaria, no. 50222/99, § 53, 30 September
2004).
- The
Court observes that the parties did not dispute that the applicant's
numerous injuries, as noted in the medical report of 7 March
1999, were sustained on that date. However, they put forward
different versions as to how they were actually sustained (see
paragraphs 31 and 32 respectively).
- The
Court finds that the contradictory statements of the applicant, both
before the domestic authorities and before the Court, cast doubt on
the veracity of his claims and lend credibility to the version put
forward by the Government. In this respect, it is also noted that,
before the domestic authorities, the only time the applicant
mentioned having been ill-treated during arrest was when he
challenged Officer M.D.'s version of events on 9 February 2000
(see paragraph 23 above). Prior to that, the applicant, while denying
the attempted lynching, never mentioned any excessive force being
used by the police officers who had apprehended him (see, for
example, paragraphs 13 and 22 above). The Court finds this omission
striking, particularly since the applicant was represented by a
lawyer throughout the criminal proceedings, including the day of his
arrest (see, in particular, paragraphs 8 and 12 above). Before the
Court, the applicant remained silent as regards the details of the
alleged ill-treatment on his arrest. In addition, the Court observes
that the applicant, in his letter of 10 November 1999, admitted
that he had been beaten up by a group of people before his alleged
ill-treatment by police officers in custody (see paragraph 9 above).
- In
view of the foregoing, the evidence in the case file does not
demonstrate beyond reasonable doubt that any excessive force was
inflicted on the applicant when he was arrested. It follows that this
part of the application is also manifestly ill founded and must
be rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLES 5 § 3 AND 6 §
2 OF THE CONVENTION
- The
applicant complained that the length of his remand in custody was
unreasonably long and that, as a result, his right to be presumed
innocent had been breached. He relied on Articles 5 and 6 of the
Convention.
- The
Court considers that this complaint should be examined from the
standpoint of Article 5 § 3 alone, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
- The
Government refuted the applicant's allegations.
- The
Court observes that the period to be taken into account as regards
the applicant's remand in custody began on 7 March 1999, with the
applicant's arrest, and ended on 9 February 2000 when he was released
pending trial. It thus lasted eleven months.
- Having examined all the material submitted to it and
having regard to its case law on the subject (see, for example,
Sevgin and İnce v. Turkey,
no. 46262/99, § 61, 20 September 2005; Ilijkov
v. Bulgaria, no. 33977/96, § 77, 26 July 2001; Labita
v. Italy [GC], no. 26772/95, §§ 152-153, ECHR
2000-IV; Smirnova v. Russia, nos.
46133/99 and 48183/99, § 59, ECHR 2003 IX
(extracts)and; Sağat and Others v. Turkey (dec.), no.
8036/02, 6 March 2007), the Court considers that the length of
the applicant's remand in custody did not exceed the reasonable time
requirement of Article 5 § 3. In reaching this conclusion
the Court has taken into account the accusation against the
applicant, the reasons given by the courts for his continued
detention and the overall length of his remand in custody.
- It
follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
exceeded the “reasonable time” requirement of Article 6 §
1 of the Convention, the relevant part of which reads as follows:
“In the determination of ...any criminal charge
against him, everyone is entitled to a...hearing within a reasonable
time by [a]...tribunal...”
A. Admissibility
- The
Court notes that this complaint 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 refuted the applicant's allegations.
- The
applicant maintained his allegations.
- The
Court observes that the period to be taken into consideration began
on 7 March 1999, when the applicant was arrested and taken into
police custody. According to the information available in the case
file, as submitted by the parties, it appears to be still pending
before the first instance court. It has thus already lasted more
than eight years and seven months by the date of adoption of the
present judgment.
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present application (see, in particular, Sertkaya
v. Turkey, no. 77113/01, §§ 20-21,
22 June 2006, and Mehmet Güneş v. Turkey,
no. 61908/00, § 31, 21 September 2006).
53. Having
examined all the material submitted to it and having regard to its
case-law on the subject, the Court considers that, in the instant
case, the length of the proceedings has been excessive and has failed
to meet the “reasonable time” requirement.
- Accordingly,
there has been a violation of Article 6 § 1 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, in total, 50,000 New Turkish Liras (YTR)
(approximately 30,250 euros [EUR]) in respect of pecuniary and
non pecuniary damage.
- The
Government contested the amounts.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, ruling on an equitable basis, it awards the applicant EUR
5,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed, in total, YTR 12,400 (approximately EUR
7,500) for costs and expenses incurred before the domestic courts and
before the Court. He relied on the Istanbul Bar Association's
recommended scale of fees in 2005. However, the applicant did not
submit any receipts or other relevant documents.
- The
Government contested the amount.
- Since the applicant submitted no substantiation of his
costs claim, as required by Rule
60 of
the Rules of Court, the Court makes no award under this head.
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 length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 5,000 (five
thousand euros) in respect of non-pecuniary damage, 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 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F.
Tulkens
Deputy Registrar President
