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SECOND
SECTION
CASE OF GÜLBAHAR AND OTHERS v. TURKEY
(Application
no. 5264/03)
JUDGMENT
STRASBOURG
21 October
2008
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 Gülbahar and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5264/03) 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 four Turkish nationals, Mr Süleyman
Gülbahar, Mr Nuri Akalın, Mr Ömer Berber and Mr
İdris Yiğit (“the applicants”), on 28 August
2002.
- The
applicants were represented by Ms Gülizar Tuncer, Mr Yüksel
Can and Mr Celal Güngördü, lawyers practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent. Two of the applicants, namely Mr İdris
Yiğit and Mr Nuri Akalın, were granted legal aid.
- The
applicants alleged, in particular, that, in the course of their
transfer from one prison to another, they had been subjected to
ill-treatment amounting to torture and that their allegations of
ill-treatment had not been adequately investigated by the national
authorities.
- On
14 November 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1973, 1977, 1975 and 1975 respectively. The
first applicant lives in Antakya and the third applicant lives in
Adana. The second and fourth applicants were in Kandıra Prison
at the time of making their applications.
- On
various dates the applicants were arrested and subsequently placed in
pre-trial detention in Ümraniye Prison in Istanbul, with the
exception of the first applicant Süleyman Gülbahar, who was
placed in Gebze prison.
- On
19 December 2000 a security operation was conducted at the Ümraniye
Prison and a number of other prisons, including Gebze Prison, where
the first applicant was being detained. During the operation scores
of detainees were killed and hundreds injured. After the operation a
decision was made to transfer the detainees to other prisons.
- According
to an indictment prepared on 29 March 2004, a prosecutor in the
Üsküdar district of Istanbul asked the Üsküdar
Assize Court to prosecute a total of 267 members of the security
forces for ill-treating and killing a number of prisoners during the
operations carried out in the prisons between 19 and 22 December
2000. The names of the second, third and fourth applicants are listed
as having been ill-treated among the 408 victims.
A. The facts as submitted by the first applicant
Süleyman Gülbahar
- The
first applicant, who was on his 235th day of hunger strike
in protest against the attacks on the detainees during the operations
of 19 December 2000, was transferred from Gebze Prison to
Kandıra F-type Prison on 27 July 2001.
- On
arrival at Kandıra Prison he was kept waiting in the
prisoner-transport van for a number of hours before he was taken into
the prison where he was put in a room on his own.
- While
in that room the first applicant, who refused to take off his
clothes, was stripped naked by soldiers, who were wearing gloves, and
subjected to an internal body search. During the search he was
punched by the soldiers. He was then told to put his clothes back on.
- He
was then stripped by prison guards down to his pants and had to move
from one office to another in that condition to complete his prison
registration process. He was then dragged into his cell.
- The
same day the first applicant informed a doctor about his ordeal but
the doctor did not examine him because of the applicant's hunger
strike. The doctor then gave his reason for not examining the
applicant, saying that the applicant “would die of his own
accord anyway so there was no point in getting someone else into
trouble”. According to a report drawn up by that doctor the
same day, “[the applicant] was on his 230th day of
hunger strike and a physical examination did not reveal any
findings”.
- On
15 August 2001 the first applicant, with the assistance of his
lawyer, submitted a formal complaint to the prosecutor's office,
informed the prosecutor of the ill-treatment to which he had been
subjected and asked the prosecutor to identify and prosecute those
responsible. He and his lawyer also asked, unsuccessfully, for him to
be referred to the Forensic Medicine Institute for a detailed medical
examination.
- The
first applicant was released from the prison on 9 October 2001.
- On
26 April 2002 the Kandıra prosecutor decided not to prosecute
anyone in relation to the allegations of ill-treatment made by the
first applicant and 42 other detainees. In his decision the
prosecutor referred to a decision not to prosecute that had been
given on 16 July 2001, in which similar complaints had already been
examined and found to be unsubstantiated.
- The
first applicant lodged a formal objection to the decision on 20 May
2002 and pointed to the fact that, when the decision not to prosecute
of 16 July 2001 was adopted, he had not even been transferred to
Kandıra Prison. Referring to Article 3 of the Convention, the
first applicant argued in his petition setting out the grounds for
his objections that the prosecutor had failed to carry out an
effective investigation into his allegations of ill-treatment.
- On
11 June 2002 the objection lodged by the first applicant against the
decision not to prosecute was rejected by the Sakarya Assize Court,
which considered that the prosecutor's decision had been “in
compliance with the applicable legislation”.
B. The facts as submitted by the second applicant Nuri
Akalın
- The
second applicant was transferred from Ümraniye Prison to Kandıra
F-type Prison on 22 December 2000.
- While
being transferred to Kandıra Prison he was beaten up in the
transport van. On his arrival at the prison he was put in a room on
his own, stripped, punched, kicked, the soles of his feet were
beaten, and he was raped with a stick. He was then subjected to a
cursory examination by a doctor, who did not even ask him any
questions.
- According
to a medical report prepared the same day there was an ecchymosed
area with oedema on the left of his torso and a number of other
ecchymosed areas and cuts on his back. There were also cuts and
grazes on the lower extremity (legs).
- A
few days after he was brought to Kandıra Prison the second
applicant submitted a written complaint to the prosecutor and
informed the prosecutor of his allegations. His lawyer presented
another complaint to the prison prosecutor and told the prosecutor
that his client's body bore a number of injuries and that he had been
raped with a stick. The lawyer asked the prosecutor to have his
client examined at the Forensic Medicine Institute. The prosecutor
told the lawyer that he had witnessed the transfer of the prisoners
and that everything had been normal. The prosecutor said that that
was the only way to deal with terrorists.
- After
he was placed in Kandıra Prison the second applicant suffered
health problems as a result of having been raped with the stick. On
one occasion, when he went to bed, he realised that he had been
bleeding and was taken to Kocaeli State Hospital.
- On
25 and 28 December 2000 the second applicant and his lawyer made
unsuccessful requests for him to be examined by a doctor at the
Forensic Medicine Institute so that the injuries caused by the rape
would be recorded in a medical report. These requests were rejected
by the prison prosecutor who was of the view that “the
authorities could not be expected to refer everyone to the Forensic
Medicine Institute just like that”. Nevertheless, the second
applicant was finally examined by a forensic doctor at the prison
infirmary on 9 January 2001. According to the report drawn up after
that examination, there were no torn areas in the anus and there was
no sign of penetration. The tissue inside the anus was intact.
- The
prosecutors gave three decisions not to prosecute anyone in relation
to the second applicant's allegations. According to the decision
given on 16 July 2001, there was no evidence in support of the second
applicant's allegations. In the decision of 20 November 2001 the
prosecutor relied on the decision not to prosecute which had been
given on 16 July 2001. In the decision given on 26 April 2002 the
prosecutor stated that there was no evidence in support of the second
applicant's allegations.
- The
second applicant lodged objections to the decisions; these were
rejected on 27 February 2002 and 11 June 2002 on the ground that the
decisions had been in compliance with domestic legislation.
C. The facts as submitted by the third applicant Ömer
Berber
- The
third applicant was transferred from Ümraniye Prison to Kandıra
F-type Prison on 22 December 2000.
- While
being transferred to Kandıra Prison the third applicant was
beaten up in the transport van. On his arrival at the prison he was
stripped, punched and kicked and the ill-treatment continued for
hours, even after he was placed in his cell. The injuries on various
parts of his body and head were recorded by a doctor in a medical
report on 23 December 2000. According to this report, there were
hyperaemic (congestion of blood) areas on the back of his body, neck,
left shoulder, and wrists. There were also cuts and grazes on both
wrists.
- The
third applicant was released from prison on 28 June 2001.
- The
complaints made by the third applicant were rejected by the
prosecutor on 16 July 2001 and 20 November 2001. The objections
lodged against those decisions were rejected on 27 February 2002.
D. The facts as submitted by the fourth applicant İdris
Yiğit
- The
fourth applicant was transferred from Ümraniye Prison to Kandıra
F-type Prison on 22 December 2000.
- While
being transferred to Kandıra Prison the fourth applicant was
beaten up in the transport van. On his arrival at the prison he was
stripped, punched in the face and kicked. The ill-treatment continued
for hours, even after he was placed in his cell. As a result of the
ill-treatment a number of his teeth were broken. The injuries on
various parts of his body and head were recorded by a doctor in a
report on 23 December 2000. According to this report, there were a
large number of lesions on his nose and other parts of his face. His
nose had been bleeding and there were also a number of cuts and other
injuries on the insides of his lips. There was a congestion of blood
(hyperaemia) on his face, lesions on the chest and back of his body
and cuts and grazes on the lower extremity (legs).
- The
complaints made by the fourth applicant were rejected by the
prosecutor on 27 July 2001 and 20 November 2001. The objections
lodged against these decisions were rejected on 27 February 2002.
- In
the meantime, the fourth applicant was released from prison on
24 January 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that the ill-treatment to which they had been
subjected amounted to torture within the meaning 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 contested that argument.
A. Admissibility
1. Exhaustion of domestic remedies
- The Government argued that the applicants had failed
to comply with the requirement to exhaust domestic remedies, contrary
to the requirement in Article 35 § 1 of the Convention. In this
connection the Government submitted that the criminal proceedings
instigated by the Üsküdar prosecutor on 29 March 2004 (see
paragraph 8 above) had been ongoing, but the applicants had
introduced their application with the Court without waiting for those
proceedings to come to an end.
- The
Government also argued that the applicants had failed to bring an
action against the Ministry of the Interior.
- The applicants maintained that they had exhausted the
relevant domestic remedies by making formal complaints to the
prosecutors and by lodging objections against the latters' decisions
not to prosecute.
- As regards the proceedings brought by the Üsküdar
prosecutor, the applicants pointed to the fact that those proceedings
concerned only the events which had taken place in the course of the
operations carried out in the prisons from which they were
transferred, and not the ill-treatment to which they were subjected
during and after their transfers from those prisons.
- Concerning their failure to bring an action against
the Ministry of the Interior, the applicants argued that their
obligation to exhaust domestic remedies extended only to those
remedies which provided for a prompt and effective investigation in
the course of which those responsible for the ill-treatment could be
identified and punished. In the absence of a criminal investigation
stemming from the prosecutors' failure to investigate their
allegations of ill-treatment, it would be unrealistic to expect an
administrative or a civil court to investigate their allegations and
to identify those responsible.
- The Court observes that the proceedings referred to by
the Government were brought against 267 members of the security
forces and concern the events which took place in a number of
prisons, including the prisons from which the applicants were
transferred on 22 December 2000 and 27 July 2001. There is no mention
of the applicants' allegations of ill-treatment in the indictment
with which those proceedings were instigated. In these circumstances,
the Court considers that the applicants had no reason to await the
outcome of those proceedings, which concerned entirely different
events.
- As
for the Government's argument that the applicants had failed to bring
an action against the Ministry of the Interior, the Court reiterates
that it has already examined and rejected the Government's
preliminary objections in similar cases (see, in particular, Nevruz
Koç v. Turkey, no. 18207/03, § 31, 12 June
2007 and the case cited therein). It reiterates that the remedy
referred to by the Government cannot be regarded as sufficient for a
Contracting State's obligations under Article 3 of the Convention, as
it is aimed at awarding damages rather than identifying and punishing
those responsible. The Court finds no particular circumstances in the
instant case which would require it to depart from its findings in
the above-mentioned case.
- The
Court considers that, in the circumstances of the present case, the
relevant remedy for the applicants was to approach the domestic
authorities which had the power to initiate criminal investigations,
i.e. prosecutors. Having regard to the fact that the applicants
brought their allegations to the attention of the competent
prosecutors and that they subsequently lodged objections against
those prosecutors' negative decisions, the Court considers that the
applicants complied with the obligation to exhaust domestic remedies.
- It
therefore rejects the Government's objections on this point.
2. Compliance with the six-month rule
- The Government also argued that, in so far as the
applicants claimed that the domestic remedies were ineffective, the
application should have been introduced with the Court within six
months from the dates of the incidents complained of. In the opinion
of the Government the applicants failed to comply with the six-month
rule because they were transferred to Kandıra Prison on 22
December 2000 and 27 July 2001, but the application was not
introduced until 28 August 2002, that is, more than six months later.
- The Court considers that, as noted above, the
complaints made by the applicants to the prosecutors and the
objections lodged by them against the prosecutors' negative decisions
were relevant remedies within the meaning of Article 35 § 1 of
the Convention (see, mutatis mutandis, Epözdemir
v. Turkey (dec.) no. 57039/00). The objections lodged by the
first and second applicants were rejected on 11 June 2002 and the
objections lodged by the third and the fourth applicants were
rejected on 27 February 2002. The application was introduced on 28
August 2002, that is, within six months.
- It follows that the Government's objection in this
connection must also be rejected.
- The Court notes that the complaint under Article 3 of
the Convention 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. Complaints made by the first applicant Süleyman
Gülbahar
- The
Government argued that, according to the medical report drawn up in
relation to the first applicant's medical examination, there were no
signs of any injuries on his body.
- The
first applicant maintained his allegations and submitted that the
doctor at the prison had refused to examine him (see paragraph 13
above). He further maintained that he had done all he could to have
himself medically examined at the Forensic Medicine Institute but
that all his requests had been refused.
- The
Court notes that the first applicant consistently maintained his
allegations of ill-treatment, not only when he complained to the
national authorities but also in his submissions to the Court.
Nevertheless, as the Government pointed out, the medical report drawn
up by the doctor on 27 July 2001 does not support his
allegations.
- The
Court cannot but note that the medical report of 27 July 2001 (see
paragraph 13 above) lacks detail and falls significantly short of
both the standards recommended by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), which are regularly taken into account by the Court
in its examination of cases concerning ill-treatment (see, inter
alia, Akkoç v. Turkey, nos. 22947/93 and 22948/93,
§ 118, ECHR 2000 X), and the guidelines set out in the
Istanbul Protocol (see Batı and Others v. Turkey, nos.
33097/96 and 57834/00, § 100, ECHR 2004 IV
(extracts)). As such, the Court considers that the medical report in
question cannot be relied on as evidence for proving or disproving
that the applicant was ill-treated.
- Nevertheless,
in the absence of any other evidence in support of the first
applicant's allegations, the Court concludes that there has been no
violation of Article 3 of the Convention in its substantive aspect in
respect of the alleged ill-treatment to which he was subjected.
2. Complaints made by the remaining three applicants
- In
the opinion of the Government, the three applicants' injuries
detailed in the medical reports (see paragraphs 21, 28 and 32 above)
were not sufficiently severe as to be qualified as ill-treatment
within the meaning of Article 3 of the Convention. In support of
their submissions the Government referred to a number of judgments in
which the concept of “minimum level of severity” was
explained by the Court.
- As
for the second applicant Nuri Akalın's allegations of sexual
assault with a truncheon, the Government referred to the medical
report of 9 January 2001 (see paragraph 24 above), according to
which a rectal examination had not revealed any injuries.
- The
three applicants maintained their allegations of ill-treatment. The
second applicant Nuri Akalın further maintained that he had been
raped with a truncheon and that, as a result of the authorities'
delay in referring him to a doctor, the injuries caused as a result
of the rape had healed and disappeared.
- The
Court notes the second applicant's claim that, as a result of having
been raped with a truncheon, he had become ill and had to be taken to
Kocaeli State Hospital (see paragraph 23 above). At the time of
giving notice of the application to the respondent Government on 14
November 2007 the parties were requested to provide the Court with
documentation concerning the second applicant's treatment at that
hospital. However, neither the Government nor the second applicant
complied with that request or provided any explanations for their
failure to do so.
- In
light of that failure, and on account of the lack of evidence
supporting his allegations, the Court finds that the second
applicant's allegations of rape with a truncheon are not sufficiently
proven.
- As
for the three applicants' injuries detailed in the medical reports,
the Court disagrees with the Government that the nature of those
injuries were such that they could not be regarded as having resulted
from ill-treatment within the meaning of Article 3 of the Convention.
- As pointed out by the Government, according to the
Court's case-law, ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 of the
Convention. The assessment of this minimum level of severity is
relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim (see,
most recently, N. v. the United Kingdom [GC], no.
26565/05, § 29, 27 May 2008).
- In
the present case the three applicants were transferred to Kandıra
Prison only three days after having survived a major security
operation in the prison where they were being detained. During that
operation a number of their fellow inmates were killed and injured.
The Court thus considers that the applicants were already in a
vulnerable position at the time of their transfers and that the
ill-treatment to which they were subjected at that time exacerbated
their mental and physical health. Indeed, the extent of their
injuries alone indicates that they were subjected to ill-treatment
which was sufficiently serious as to fall within the scope of Article
3 of the Convention.
- The
Government have not disputed that the injuries detailed in the
medical reports of the three applicants had been caused while they
were in the hands of agents of the State. In the absence of any
explanation by the Government, who bear the burden of providing a
plausible explanation for those injuries (see, in this connection,
Salman v. Turkey [GC], no. 21986/93, § 100, ECHR
2000-VII), the Court concludes that there has been a violation of
Article 3 of the Convention in its substantive aspect in respect of
the three applicants.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicants complained of a violation of Articles 6 and 13 of the
Convention on account of the authorities' failure to investigate
their allegations of ill-treatment and to punish those responsible.
- The
Government contested that argument.
A. Admissibility
- The
Court considers that these complaints should be examined solely from
the standpoint of the procedural aspect of Article 3 of the
Convention and, as such, they are linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
- The
Government referred to the decisions not to prosecute by the
prosecutors (see paragraphs 16, 25, 30 and 33 above) and argued that,
upon receiving the applicants' complaints, the national authorities
had immediately started their investigations. In the opinion of the
Government, the fact that in the end those national authorities
decided not to prosecute the police officers did not render the
investigations ineffective; the obligation to investigate was an
obligation of means and not of result.
- The
applicants maintained that no meaningful investigation had been
carried out into their allegations and that the authorities had been
trying to cover up the actions of those responsible for the
ill-treatment.
- The Court reiterates that where an individual raises
an arguable claim that he or she has been subjected to ill-treatment
by the police or other such agents of the State and 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.
- The
method of an effective investigation may vary according to the facts
of the case. In any event, however, it should be capable of leading
to the identification and punishment of those responsible (see, inter
alia, Assenov and Others v. Bulgaria, judgment of 28
October 1998, Reports of Judgments and Decisions 1998-VIII,
§ 102).
- In
the present case the Court has found that the second, third and
fourth applicants had been subjected to ill-treatment in violation of
Article 3 of the Convention. These applicants had, therefore,
arguable claims for the purposes of this Article.
- However, on account of a lack of evidence, the Court
has not found it proved that the first applicant was ill-treated.
Nevertheless, as it has held in previous cases, that does not
preclude his complaint in relation to Article 3 from being
“arguable” for the purposes of the positive obligation to
investigate (see Yaşa
v. Turkey,
judgment of 2 September 1998, Reports 1998-VI, §
112). In reaching this conclusion the Court has had particular regard
to the consistency of the first applicant's allegations both when he
approached the national authorities and in his submissions to the
Court.
- At
the time of giving notice of the application, the respondent
Government were requested to clarify whether an effective official
investigation had been conducted into the applicants' complaints of
ill-treatment. The Government were also requested to submit
documentary evidence in support of their replies to that question.
The only documents submitted to the Court by the Government, however,
were the medical reports referred to above and the decisions taken by
the prosecutors not to prosecute.
- According
to those decisions, the prosecutors decided not to investigate the
allegations of ill-treatment and not to prosecute any members of the
security forces because they were of the opinion that the allegations
were abstract and uncorroborated by any evidence. The Court observes
that, at the time of rendering their decisions, those prosecutors
were in possession of the medical reports detailing the three
applicants' injuries. In spite of that, no references were made to
those injuries in the decisions and no attempt appears to have been
made to inquire as to how they were sustained.
- Furthermore,
there is no information in those decisions as to whether any members
of the security forces were questioned by the authorities in relation
to the applicants' allegations.
- As
for the first applicant's allegations of ill-treatment, which were
not supported by medical evidence but were nonetheless arguable, the
Court observes that no thought appears to have been given by the
investigating authorities to questioning him with a view to
ascertaining the veracity of his allegations.
- In
the light of the above it appears, therefore, that no investigation
was carried out at the national level into the applicants'
allegations. It follows that there has been a violation of Article 3
of the Convention in its procedural aspect in respect of the four
applicants.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicants complained, under Article 6 § 2 of the Convention,
that they had been treated like terrorists, which was a violation of
their right to the presumption of innocence, and that they had been
subjected to the ill-treatment described above on account of their
political opinions.
- An
examination by the Court of the materials submitted to it does not
disclose any appearance of a violation of this provision. It follows
that this part of the application is manifestly ill-founded and must
be declared inadmissible pursuant to Article 35 §§ 3 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
second applicant Mr Nuri Akalın claimed 40,000 euros (EUR) and
each of the remaining three applicants claimed EUR 25,000 in respect
of non-pecuniary damage.
- The
Government were of the opinion that the sums claimed were excessive.
- Having
regard to the violations found above, the Court awards the first
applicant Mr Süleyman Gülbahar EUR 4,000 and each of the
remaining three applicants EUR 10,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicants claimed EUR 9,850 for the fees of their lawyers, who
represented them both at the national level and before the Court. The
applicants also claimed the sum of EUR 165 for the postal, stationery
and translation expenses. In support of their claims the applicants
submitted a schedule of the hours worked by their legal
representatives which shows that a total of 98 hours were spent by
them interviewing the applicants in the prison, researching the
case-law of the Court, preparing the application forms and
observations and conducting correspondence with the Court.
- The
Government considered the sums claimed to be excessive and
unsupported by evidence.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of 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 considers it reasonable to award the four
applicants, jointly, the sum of EUR 4,000 covering costs under all
heads, less the EUR 850 which two applicants received in legal aid
from the Council of Europe (see paragraph 2 above).
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 complaints under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention in its substantive aspect in respect of
the applicant Süleyman Gülbahar;
3. Holds that there has been a violation of Article
3 of the Convention in its substantive aspect in respect of the
applicants Nuri Akalın, Ömer Berber and İdris Yiğit;
- Holds that there has been a violation of Article
3 of the Convention in its procedural aspect in respect of all four
applicants;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into New Turkish liras at the rate applicable
at the date of settlement, plus any tax that may be chargeable to the
applicants:
(i) EUR
4,000 (five thousand euros) to the first applicant Mr Süleyman
Gülbahar in respect of non-pecuniary damage;
(ii) EUR
10,000 (ten thousand euros) to each of the remaining three applicants
in respect of non-pecuniary damage; and
(iii) EUR 4,000 (four thousand euros) to the four
applicants jointly in respect of costs and expenses, less EUR 850
(eight hundred and fifty euros) granted by way of legal aid;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
