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SECOND
SECTION
CASE OF ERİŞ v. TURKEY
(Application
no. 28268/02)
JUDGMENT
STRASBOURG
8 January 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 Eriş v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
András Baka,
Rıza
Türmen,
Mindia Ugrekhelidze,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popoviċ, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28268/02) against the
Republic of Turkey lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Turkish national, Mr Ali Eriş
(“the applicant”), on 15 May 2002.
- The
applicant, who had been granted legal aid, was represented by Mrs G.
Tuncer, a lawyer practising in Istanbul. The Turkish
Government (“the Government”) did not designate an Agent
for the purposes of the proceedings before the Court.
- On
28 November 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaints under Articles 3, 6 and 13 of the
Convention to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1932 and lives in Istanbul.
A. The applicant's arrest and his alleged ill-treatment
- On 30 September 1999 at about 12.15 p.m. the applicant
attended the funeral of a prisoner, who had been allegedly killed in
an operation by the security forces at the Ulucanlar Prison in
Ankara.
- According
to the incident report dated 30 September 1999, the police gave a
warning and asked the group to disperse. However, the demonstrators
refused to obey the warnings. They continued shouting slogans and
marched towards the Karacaahmet Cemetery. The police had to intervene
and arrested thirty-nine people, including the applicant.
- On
the same day, at 1.30 p.m., the applicant was examined by a doctor at
Haydarpaşa Numune Hospital. In his report, the doctor noted the
following:
“Sensitivity on the left lumbar region and on the
lower part of the left hemithorax has been observed.”
- At
7.30 p.m. the same day, the applicant's statement was taken in the
hospital by two policemen. In this statement, the applicant explained
that he was retired. He maintained that, while he was sitting in a
café, he had heard that there was a funeral and decided to
participate; therefore he joined the group. He was however caught
between the demonstrators and the police and fell on the ground. He
denied being involved in the demonstration.
- On
30 March 2000 the applicant's lawyers filed a complaint with the
Üsküdar public prosecutor's office against the police
officers who had allegedly ill-treated the applicant during his
arrest.
- On
27 April 2001 the Üsküdar public prosecutor issued a
decision of non-prosecution. In his decision, the public prosecutor
referred to the applicant's police statement, in which he maintained
that he had been injured as he had fallen during the police
intervention. The public prosecutor further stated that the police
intervention and the force used during the intervention was lawful
and proportionate in the circumstances of the case.
- On
4 December 2001 one of the applicant's lawyers filed an objection
against the public prosecutor's decision. In the petition, it was
contended that the public prosecutor had failed to conduct an
adequate investigation as he had failed to order a medical
examination of the applicant and had not heard the applicant or other
witnesses.
- On
8 January 2002 the Kadıköy Assize Court dismissed the
applicant's objection.
B. The criminal proceedings against the applicant
- On
1 October 1999 the Üsküdar public prosecutor filed a bill
of indictment with the Üsküdar Criminal Court against
thirty nine persons, including the applicant. The prosecutor
accused the applicant and the other co-accused under Article 32 of
Law No. 2911 of taking part in an illegal demonstration.
- In
the hearing held on 20 December 1999, the applicant stated before the
Üsküdar Criminal Court that he had heard that a press
declaration would be made outside the Cemevi
concerning a prisoner who had been killed in Ankara. He therefore
took a bus to go to Üsküdar Cemevi and, as he stepped down
from the bus, he was arrested by the police. The applicant also
stated that he had been beaten during his arrest and denied his
police statement.
- On
16 April 2001 the Üsküdar Criminal Court convicted the
applicant as charged and sentenced him to one year and six months'
imprisonment and a fine.
- On
27 March 2006 the Court of Cassation quashed the judgment of the
Üsküdar Criminal Code, following the adoption of the New
Criminal Code on 1 June 2005.
- On
25 May 2006 the Üsküdar Criminal Court decided to terminate
the criminal proceedings against the applicant on the ground that the
five year statutory time-limit under Article 102 of the Criminal Code
had expired.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he was subjected to ill-treatment during his arrest and that the
authorities failed to conduct an effective investigation into his
allegations of ill-treatment.
- The
Government denied the allegations. They also asked the Court to
dismiss this complaint for failure to comply with the requirement of
exhaustion of domestic remedies under Article 35 § 1
of the Convention. They argued that the applicant could have sought
reparation for the harm he allegedly suffered by instituting an
action in the administrative courts.
- The
applicant disputed the Government's arguments.
- As
regards the Government's preliminary objection concerning
non-exhaustion of domestic remedies, the Court reiterates that it has
already examined and rejected the Government's preliminary objections
in similar cases (see, in particular, Karayiğit v. Turkey
(dec.), no. 63181/00, 5 October 2004). It finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned application.
Consequently, it rejects the Government's preliminary objection.
- As
regards the applicant's Article 3 complaint, the Court notes that
allegations of ill-treatment must be supported by appropriate
evidence. To assess this evidence, it has generally applied the
standard of proof “beyond reasonable doubt” (see Talat
Tepe v. Turkey, no. 31247/96, § 48, 21 December
2004). Such proof may, however, follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Labita v. Italy [GC],
no. 26772/95, § 121, ECHR 2000 IV).
- In
the instant case, the applicant alleged that he had been severely
beaten on his head, chest, arms and legs during his arrest. In
support of his allegations, he submitted a medical report dated 30
September 1999, which noted that there was sensitivity on the left
lumbar region and on the lower part of the left hemithorax. Such
indications are however insufficient to substantiate the severe
beating described by the applicant. The Court considers that the
alleged ill-treatment, as described by the applicant, would have left
marks on his body, which would have been observed by the doctor.
Furthermore, the Court notes that the applicant was released on
1 October 1999, one day after his arrest. Thus, he could have
obtained further medical reports in support of his allegations.
However, he failed to do so. It is also noted that the applicant made
contradictory statements before the domestic authorities. Although in
his police statement dated 30 September 1999 he stated that he
had been caught between the demonstrators and the police, and had
fallen on the ground, in his petition to the public prosecutor, which
was submitted six months after the incident, he stated that he had
been beaten by the police officers during his arrest.
- In
view of the foregoing, the Court concludes that 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 manifestly
ill founded and must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
- As
regards the applicant's complaint under Article 13 of the Convention,
the Court reiterates that this provision cannot reasonably be
interpreted so as to require a remedy in domestic law in respect of
any supposed grievance under the Convention that an individual may
have, no matter how unmeritorious his complaint may be. The grievance
must be an arguable one in terms of the Convention (see, in
particular, Boyle and Rice v. the United Kingdom, judgment
of 27 April 1988, Series A no. 131, § 52). In view of
its conclusions above (paragraphs 23 and 24), the Court considers
that the applicant has no arguable claim of a violation of his rights
under Article 3, which would have required a remedy within the
meaning of Article 13 (see Künkül v. Turkey
(dec.), no. 57177/00, 30 November 2006). Consequently, this part
of the application should also be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
the Convention
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 30 September 1999
with the applicant's arrest and ended on 25 May 2006 with the
judgment of the Üsküdar Criminal Court. It thus lasted more
than six years and seven months for three levels of jurisdiction.
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
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many others, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- In
the present case, the domestic courts delivered three decisions in
six years and seven months. However, the Court cannot overlook the
fact that a lengthy period of five years elapsed between the judgment
of the Üsküdar Criminal Court dated 16 April 2001 and the
Court of Cassation's decision dated 25 May 2006. The Government have
not offered any explanation for this state of affairs. Failing such
an explanation, and in the absence of any indication that the
applicant was to blame, the delay must be considered to be
attributable to the domestic courts' handling of the appeal
proceedings.
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
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 both pecuniary and non-pecuniary damage, leaving
the assessment of the amount to the Court's discretion.
- The
Government requested the Court not to award any damages.
- The
Court does not discern any casual link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
- However,
as regards non-pecuniary damage, deciding on an equitable basis, the
Court awards 900 euros (EUR) to the applicant.
B. Costs and expenses
- The
applicant did not request a particular amount for costs and expenses,
leaving it to the Court's discretion.
- The
Court notes that the applicant was granted legal aid. It further
recalls that according to its 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, the Court notes that
the applicant failed to submit any supporting documents. The Court
therefore does not award any sum 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
- Declares unanimously the complaint concerning
the excessive length of the criminal proceedings admissible;
- Declares
by a majority the remainder of the application inadmissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
- Holds unanimously
(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 900 (nine
hundred euros) in respect of non-pecuniary damage, to be converted
into New Turkish liras at the rate applicable at the date of
settlement and free of any taxes or charges that may be payable;
(b) that
from the expiry of the above-mentioned 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens Deputy
Registrar President
