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SECOND
SECTION
CASE OF ÇAMDERELİ v. TURKEY
(Application
no. 28433/02)
JUDGMENT
STRASBOURG
17
July 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 Çamdereli v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Antonella
Mularoni,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş, judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28433/02) 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, Mrs Fatma Çamdereli
(“the applicant”), on 4 May 2002.
- The
applicant was represented by Mrs N. Bener, a lawyer practising in
Bursa. The Turkish Government (“the Government”) were
represented by their Agent.
- On
11 June 2007 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, a housewife, was born in 1953 and lives in Bursa.
A. The alleged ill-treatment
- In
her application form the applicant submitted that on 18 February
1999, upon a complaint of Mr M.A.G., gendarmes had taken her to the
Görükle gendarmerie station where she was beaten with a
truncheon and sworn at by a gendarme.
- According
to the report drafted by the gendarmes and signed by the applicant,
upon the complaint of Mr M.A.G., that she was, inter alia,
throwing garbage from her balcony and swearing at him, the gendarmes
had arrived at the scene of the incident where they found the
applicant to be shouting and disturbing the peace. The applicant had
had to be taken to the gendarmerie station as she had failed to stop
making a commotion. At the station, she had been orally warned not to
disturb her neighbours and then released, since Mr M.A.G. did not
wish to lodge an official complaint. In the same report it is stated
that the gendarmerie station is situated 150-200 metres from the
scene of the incident and that the gendarmes were well acquainted
with the applicant due to numerous complaints brought against her by
her neighbours regarding her unstable behaviour.
B. The criminal proceedings
- On
19 February 1999 the applicant filed an official complaint with the
Bursa public prosecutor about the above events and requested the
prosecution of those responsible. In addition, she asked to be
transferred to the Forensic Medical Institute for a medical
examination.
- On
the same day, at 3.45 p.m., the applicant was examined by a doctor at
the Bursa Forensic Medical Institute who noted that she had
ecchymoses of 20x10 cm on her left shoulder and arm, an 8x5 cm
ecchymosis on her right shoulder, a 6x5 cm ecchymosis on her right
arm and an ecchymosis of 4x5 cm on her left thigh. He considered that
the injuries rendered the applicant unfit for work for ten days.
- On
20 April 1999 the prosecutor heard evidence from the applicant, Mr
M.A.G. and Mr M.G.
- On
21 April 1999 the prosecutor questioned the accused gendarme, Mr T.Ü.
who denied the allegations against him.
- On
the same day, the prosecutor filed a bill of indictment against
Mr T.Ü., Mr M.A.G. and Mr M.G. He accused Mr T.Ü. of
ill-treatment under Article 245 of the Criminal Code, and Mr M.A.G.
and Mr M.G. of defamation under Article 482.
- On
3 May 1999 the criminal proceedings against the accused gendarme Mr
T.Ü. and Mr M.A.G. and Mr M.G. commenced before the Bursa
Criminal Court of First Instance.
- In
a hearing held on 28 September 1999, the court heard evidence from
witnesses as regards the manner in which the applicant's arrest took
place. In particular, the applicant's daughter testified that her
mother had been pushed and hit with a truncheon. The court also heard
submissions from the applicant who stated that Mr M.A.G. and Mr M.G.
had insulted her and that the gendarme Mr T.Ü. had hit her with
a truncheon at the gendarmerie station.
- On
26 December 2000 the Bursa Criminal Court of First Instance decided,
in accordance with the relevant provisions of Law no. 4616, that the
proceedings against the accused should be suspended and subsequently
discontinued if no offence of the same or a more serious kind was
committed by the offenders within a five-year period. The applicant's
objection against this decision, notably regarding the application of
Law no. 4616, was dismissed on 9 January 2002.
- On
23 January 2006 the Bursa Criminal Court of First Instance, noting
that the statutory time-limit for the offence had expired, decided to
drop the criminal proceedings against the accused.
C. The compensation proceedings
- On
17 May 2000 the applicant bought an action in tort against Mr T.Ü.
and Mr M.A.G. before the Bursa Civil Court of First Instance. She
sought compensation in the amount of 1,500,000,000 Turkish liras
[TRL] (approximately 2,700 euros [EUR] at that time) for
non-pecuniary damage for the treatment she had received from Mr T.Ü.
- On
27 December 2002, after the first-instance court's judgment had been
quashed twice by the Court of Cassation on account of the low amount
awarded, the court abided by the decision of the Court of Cassation
and ordered Mr T.Ü. to pay the applicant TRL 350,000,000
(approximately EUR 904), together with interest at the statutory rate
from 18 February 1999, the date of the ill-treatment. Mr M.A.G.
was also ordered to pay a certain amount of compensation to the
applicant. In this judgment the court held it established that the
applicant had been beaten by Mr T.Ü. at the gendarmerie station.
This judgment became final on 17 February 2003 since no one objected
to it.
- The
applicant's lawyer informed the court that she had been paid the
amount awarded in full.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments: Okkalı v. Turkey,
(no. 52067/99, § 47, ECHR 2006 ... (extracts)),
and Çalışır v. Turkey (no. 52165/99,
§§ 17-19, 21 February 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE
CONVENTION
- The
applicant complained about the treatment she had received on 18
February 1999 and about the manner in which the investigation and the
criminal proceedings had been conducted by the authorities, resulting
in impunity. She relied on Articles 3, 6 and 13 of the Convention.
- The
Court considers that these complaints should be examined from the
standpoint of Article 3 alone, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government raised a number of objections regarding the admissibility
of the applicant's complaints. They maintained, firstly, that the
applicant was no longer a victim, since she had obtained redress
before the civil courts. Secondly, the Government submitted that the
applicant had failed to exhaust domestic remedies, particularly since
she did not use the remedy provided under administrative law.
Thirdly, they claimed that the applicant should have lodged her
application within six months of the date on which the incident
occurred.
- As
to the merits, the Government maintained that the applicant had been
taken to the gendarmerie station on account of a quarrel between her
and her neighbours and that, after they had reconciled and withdrawn
their complaints against each other, they had been released without
any formalities such as obtaining a medical report. They further
submitted that the medical report drafted on 19 February 1999 had
failed to establish beyond reasonable doubt that Mr T.Ü. had
been responsible for the injuries noted therein. The Government also
considered that the findings of this report did not attain the
minimum level of severity threshold required under Article 3 of the
Convention. Finally, referring to the various actions undertaken by
the domestic authorities, they considered that an effective
investigation as well as criminal proceedings had been conducted in
the instant case.
- The
applicant maintained her allegations. In particular, in response to
the Government's objections on admissibility, the applicant
submitted, very briefly, that the awarded compensation by the civil
courts was not sufficient and that the length of those proceedings
had exceeded a reasonable time. As to the merits, she submitted that
the evidence in the case file supported her complaint of
ill treatment and that, due to the application of Law no. 4616
and the length of the criminal proceedings, the accused had not been
sentenced, and eventually the crime committed against her had been
left unpunished as the statutory time limit for trying the
offence had expired in 2006.
B. The Court's assessment
1 Admissibility
a) Preliminary considerations
- At the outset the Court notes that some of the
applicant's references to the alleged ill-treatment could be
construed as also including the verbal abuse she had allegedly
received from Mr M.A.G. and Mr M.G. However, the Court notes that,
even assuming that this is the case, and even if the applicant was
subjected to threats and/or verbal abuse as alleged and that, as a
result, she felt apprehension or disquiet, the Court reiterates that
such feelings are not sufficient to amount to degrading treatment,
within the meaning of Article 3 (see, in
particular, Çevik v. Turkey
(dec.), no. 57406/00, 10 October 2006).
It follows that this aspect of the complaint is manifestly
ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
b) Victim status
- As
regards the Government's objection regarding the victim status of the
applicant, the Court reiterates that an applicant is deprived of his
or her status as a victim if the national authorities have
acknowledged, either expressly or in substance, and then afforded
appropriate and sufficient redress for, a breach of the Convention
(see, for example, Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 178-193, ECHR 2006 ...).
- As
regards the first condition, namely the acknowledgement of a
violation of the Convention, the Court considers that the civil
court's decision to order Mr T.Ü. to pay compensation to the
applicant for having beaten her at the gendarmerie station (see
paragraph 17 above) does amount to an acknowledgment in substance
that there had been a breach of Article 3
of the Convention.
- With
regard to the second condition, namely appropriate and sufficient
redress, the Court will have to consider whether the compensation
awarded to the applicant remedied her complaints under Article 3 of
the Convention. In this connection, the Court takes note that, even
assuming that the modest compensation awarded to the applicant by the
domestic court, after the Court of Cassation had already twice
remitted the case back to it due to the low amount decided, could be
deemed sufficient, the focal point of applicant's complaints, as laid
down in the application form, concerns the inadequacy of the criminal
proceedings, resulting in impunity for the person responsible for her
ill treatment. Consequently, the applicant's complaints, as laid
down in the application form, concern matters which must be addressed
from the angle of the adequacy of the mechanisms in place in order to
maintain the deterrent power of the judicial system and the important
role it plays in upholding the prohibition of torture (see, mutatis
mutandis, Okkalı, cited above, § 66).
- In
such cases, the Court considers that the
breach of Article 3 cannot be remedied exclusively by an award of
compensation to the victim. This is so because, if the authorities
could confine their reaction to incidents of wilful police
ill treatment to the mere payment of compensation, while not
doing enough in the prosecution and punishment of those responsible,
it would be possible in some cases for agents of the State to abuse
the rights of those within their control with virtual impunity and
the general legal prohibitions of torture and inhuman and degrading
treatment, despite their fundamental importance, would be ineffective
in practice. Therefore, the possibility of seeking and receiving
compensation represents, in these cases, only one part of the
measures necessary to provide redress for wilful ill treatment
by State agents (see, mutatis mutantis, Nikolova and Velichkova
v. Bulgaria, no. 7888/03, §§ 55-56, 20 December
2007).
- Consequently,
the Court must ascertain whether the measures taken by the
authorities, in the particular circumstances of the instant case,
afforded the applicant appropriate redress in order to determine
whether she can still claim to be a victim. As the Government's
objection under this head is closely linked to the merits of the
applicant's complaints, the Court decides to join them.
c) Other points on admissibility
- As
to the Government's objection regarding the exhaustion of domestic
remedies, the Court notes that, in the instant case, the applicant
filed a complaint with the public prosecutor's office about the
ill-treatment she had received on 19 February 1999. However, the
proceedings brought against the accused were suspended pursuant to
Law no. 4616. The applicant's objection to this decision was
dismissed on 9 January 2002. Independent of the criminal law
remedy, the applicant also applied for civil law remedies and
obtained a certain amount of compensation. In these circumstances,
the Court dismisses the Government's argument and finds that the
applicant was not required to embark on another attempt to obtain
redress by bringing an administrative law action for damages (see,
for example, Akpınar and Altun v. Turkey, no. 56760/00,
§ 68, ECHR 2007 ... (extracts)).
- In
view of the Court's above considerations and reiterating that the
six month time-limit imposed by Article 35 § 1 of the
Convention requires applicants to lodge their cases within six months
of the final decision in the process of exhaustion of domestic
remedies, the Court considers that the application lodged on 4 May
2002 was introduced in conformity with the six-month time-limit laid
down in Article 35 § 1 of the Convention. Consequently, it also
rejects the Government's objection in this connection.
d) Conclusion
- In
sum, the applicant's complaint under Article 3 of the Convention
regarding the treatment she received from Mr T.Ü. is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. The Court notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
- At the outset, the Court observes that the Bursa Civil
Court of First Instance, after acquainting itself with the evidence
and examining the facts of the case, found that Mr T.Ü., who was
acting in his official capacity at the time of the events, was
responsible for the injuries noted in the applicant's medical report
of 19 February 1999. The Court finds that the degree of bruising
found by the doctor who examined the applicant (see paragraph 8
above) indicates that the latter's injuries were sufficiently serious
to amount to ill-treatment within the scope of Article 3.
- The
Court reiterates
that Article
3, from which no derogation is
permitted, enshrines
one of the
most
fundamental
values of
democratic societies, making up the Council of Europe. The
object and purpose of the Convention as an instrument for the
protection of individual human beings also requires that these
provisions be interpreted and applied so as to make its safeguards
practical and effective (see, Anguelova v. Bulgaria,
no. 38361/97, § 109, ECHR 2002 IV).
- The
Court further reiterates that where an individual raises an arguable
claim that she has been ill-treated by the police or other such
agents of the State unlawfully 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 (see Assenov and Others
v. Bulgaria, judgment of 28 October 1998, Reports of
Judgments and Decisions 1998 VIII, p. 3290, § 102).
The minimum standards as to effectiveness defined by the Court's
case-law include the requirements that the investigation be
independent, impartial and subject to public scrutiny, and that the
competent authorities act with exemplary diligence (see, for example,
Çelik and İmret v. Turkey, no. 44093/98, §
55, 26 October 2004).
- In
addition, the Court reiterates that the rights enshrined in the
Convention are practical and effective, and not theoretical and
illusory. Therefore, in such cases, an effective investigation must
be able to lead to the identification and punishment of those
responsible (see, mutatis mutandis, Nevruz Koç v.
Turkey, no. 18207/03, § 53, 12 June 2007). If this were
not the case, the general legal prohibition of torture and inhuman
and degrading treatment and punishment, despite its fundamental
importance, would be ineffective in practice and it would be possible
in some cases for agents of the State to abuse the rights of those
within their control with virtual impunity (see Assenov and
Others, cited above, § 102; Khashiyev and Akayeva v.
Russia, nos. 57942/00 and 57945/00, § 177, 24 February
2005, and Zeynep Özcan v. Turkey, cited above, § 40).
- In
the instant case, the Court observes that an investigation into the
allegations of the applicant was initiated promptly by the public
prosecutor's office. This investigation led to the committal for
trial of the accused gendarme for the offence of ill-treatment.
However, no information was submitted by the Government to
demonstrate that Mr T.Ü. was suspended from duty while being
investigated or tried (see Abdülsamet Yaman v. Turkey,
no. 32446/96, § 55, 2 November 2004). Moreover, the Court
notes that the proceedings in question did not produce any result due
to the application of Law no. 4616, which created virtual impunity
for the perpetrator of the acts of violence (see, mutatis
mutandis, Batı and Others v. Turkey, nos. 33097/96
and 57834/00, § 147, ECHR 2004 IV (extracts), and
Abdülsamet Yaman, cited above, § 59). In this
context, the Court reiterates its earlier finding in a number of
cases that the Turkish criminal law system has proved to be far from
rigorous and has had no dissuasive effect capable of ensuring the
effective prevention of unlawful acts perpetrated by State agents
when the criminal proceedings brought against the latter are
suspended due to the application of Law no. 4616 (see Nevruz Koç,
§ 54, cited above, Yeşil and Sevim v. Turkey, no.
34738/04, § 42, 5 June 2007). The Court finds no
reason to reach a different conclusion in the present case.
- In
sum, the Court finds that the measures taken by the authorities
failed to provide appropriate redress for the applicant (see Okkalı,
cited above, § 78). She may therefore still claim to be a victim
within the meaning of Article 34 of the Convention. The Court
therefore rejects the Government's objections under this head and
finds that there has been a violation of Article 3 of the Convention.
II. 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 75,000 US dollars (USD - approximately EUR 51,400)
in respect of non-pecuniary damage.
- The
Government contested the amount.
- The
Court considers that the applicant must have suffered pain and
distress which cannot be compensated solely by its finding of a
violation. Having regard to the nature of the breach found in the
present case and ruling on an equitable basis, the Court awards the
applicant EUR 5,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed USD 10,000 (approximately EUR 6,851) for costs
and expenses incurred before the Court. She submitted documentation
regarding postal and translation expenses.
- The
Government contested the amount.
- 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 applicant EUR 1,000 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
- Joins
to the merits
the Government's objection concerning the victim status of the
applicant and dismisses it;
- Declares the applicant's complaint under Article
3 regarding the treatment she received from Mr T.Ü. admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 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 according to
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:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, in
respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
