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SECOND
SECTION
CASE OF
AYSU v. TURKEY
(Application
no. 44021/07)
JUDGMENT
STRASBOURG
13 March
2012
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 Aysu v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Françoise
Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44021/07) 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 Yunus Aysu (“the
applicant”), on 20 September 2007.
- The
applicant was represented by Mr M. Özbekli, a lawyer practising
in Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
- On
7 September 2010 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and is serving a prison sentence in
Diyarbakır Prison.
- On
20 October 2000 the Diyarbakır Security Directorate conducted an
operation to arrest the applicant, who was being searched for on
suspicion of membership of an armed illegal organisation, namely the
Hizbullah. According to the arrest report, the applicant resisted and
opened fire, killing a police officer. The other officers used force
to neutralise and arrest the applicant.
- The
applicant was then taken to the Diyarbakır State Hospital for a
medical examination. The doctors ordered an x-ray of his arms and
shoulders. According to the medical report, the applicant had no
fractures, but had a 2 cm cut on the back of his head. It was further
noted that the applicant had bruises on his forehead, neck, near his
left ear and on his right arm, bruises and scratches on both of his
hands and fingers, bruises on both elbows and scratches on his chest
and knees.
- Subsequently,
the applicant was taken to the Diyarbakır Security Directorate
for questioning. According to the applicant, during his detention in
police custody he was subjected to ill-treatment. He was allegedly
stripped naked and his testicles were squeezed. He was also hosed
with water, beaten with the butt of a gun, subjected to electric
shocks and hung by his arms. The applicant further stated that police
officers had extinguished cigarettes on his hands.
8 On
28 October 2000 the applicant was taken to a hospital and diagnosed
as suffering from a soft tissue infection.
- Subsequently,
on 30 October 2000 the applicant was further examined at a health
clinic. It was reported that the applicant had a hyperaemia measuring
2 x 2 cm on his back, scabs on his knees, wounds on both shoulders,
and a 1 x 2 cm stitched wound on his head.
- On
the same day, the applicant was heard by the public prosecutor and
the investigating judge respectively. Before the investigating judge
he complained that he had been beaten during his time in police
custody. He also denied the contents of his police statement. Upon
the order of the investigating judge, the applicant was placed in
detention pending trial.
- On
9 November 2000 the public prosecutor at the Diyarbakır State
Security Court filed an indictment against the applicant. Invoking
Article 146 of the former Criminal Code, he accused the
applicant of membership of an armed illegal organisation and of
involvement in activities which undermined the constitutional order
of the State.
- On
30 November 2000, at the first hearing before the Diyarbakır
State Security Court, the applicant, represented by a lawyer, stated
that he had been subjected to ill treatment during his time in
police custody. He alleged, in particular, that the police officers
had extinguished cigarettes on his right hand. The judges noted in
the minutes that the applicant had five purple bruises on his right
hand. At the end of the hearing, the court decided that the
Diyarbakır Public Prosecutor’s Office should be informed
of the applicant’s allegations of ill-treatment. The court
further stated that if the applicant’s lawyer wished to lodge a
separate complaint with the public prosecutor, a certified copy of
the minutes should be annexed to that application.
- At
the subsequent hearings, the court refused to release the applicant
on account of the nature of the alleged offence and the state of the
evidence. In his defence submissions, the applicant repeatedly stated
that he had been ill-treated during his police custody.
- By
Law no. 5190, in June 2004 State Security Courts were abolished.
Subsequently, the Diyarbakır Assize Court acquired jurisdiction
over the case.
- On
28 February 2008 the Diyarbakır Assize Court pronounced its
judgment. It convicted the applicant as charged and sentenced him to
life imprisonment.
- The
applicant appealed. On 27 May 2010 the Court of Cassation upheld the
first-instance court’s judgment.
- In
the meantime, on 7 June 2007, the applicant filed a petition with the
Diyarbakır Public Prosecutor and stated that he had been
subjected to ill-treatment during his detention in police custody. He
complained that the domestic authorities had not taken any action to
investigate his allegations.
- On
13 September 2007 the Diyarbakır Public Prosecutor took a
statement from the applicant. The applicant explained that during his
police custody he had been subjected to torture and forced to admit
to the accusations against him. He requested that the prosecutor
investigate the matter.
- On
30 December 2008 the Public Prosecutor requested the Forensic
Medicine Institute to prepare a report regarding the applicant’s
allegations.
- On
6 February 2009 the Forensic Medicine Institute experts examined the
applicant. During his examination, the applicant stated that he had
been hosed with pressurised water, hung by his arms and subjected to
electric shocks. He also maintained that his testicles had been
squeezed and cigarettes had been extinguished on his hand. The
experts further examined the medical reports dated 20, 28 and 30
October 2000 respectively. They were also provided with the arrest
report dated 20 October 2000, which indicated that the applicant had
resisted the officers during his arrest.
- On
6 March 2009 the Forensic Medicine Institute reported that the
injuries on the applicant’s body, as indicated in the three
medical reports, could have been sustained as a result of a fall, in
the course of resisting the officers during his arrest, or resulted
from a blow with a blunt object. As a result, the experts concluded
that it was not possible to determine how these injuries had been
sustained. Regarding the bruises observed by the judges during the
hearing of 30 November 2000, the experts stated that it was not
possible to give a medical opinion on the matter, as these signs had
not been noted in any medical report.
- In
the course of his investigation, the Public Prosecutor further took
statements from the accused police officers who had been involved in
the applicant’s police questioning. They all denied that the
applicant had been subjected to ill-treatment. According to them, the
applicant was making false allegations for fear of reprimand from
Hizbullah members for giving evidence about the activities of the
illegal organisation.
- On
7 April 2009 the Diyarbakır Public Prosecutor, finding the
applicant’s allegations unsubstantiated, issued a decision not
to prosecute. He concluded that the signs observed on the applicant’s
body had been caused when he resisted the police officers during his
arrest.
- Subsequently,
on 26 June 2009 the applicant’s appeal was dismissed by the
Siverek Assize Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged that he had been ill-treated while in police
custody at the Diyarbakır Security Headquarters. He further
complained that his complaint had not been examined effectively. In
this connection, the applicant relied on Articles 3 and 13 of the
Convention.
- The
Government disputed the allegations.
- The
Court considers that these complaints should be examined from the
standpoint of Article 3 alone, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
1. Admissibility
- The
Government asked the Court to dismiss this part of the application
for non-compliance with the six-month time-limit. In this connection,
they drew the Court’s attention to the lengthy period of time
that had elapsed between the date on which the applicant’s
police custody had ended, namely, on 30 October 2000, and the date on
which the applicant had filed a complaint with the public prosecutor,
namely, on 7 June 2007.
- The
Court takes note of the fact that the applicant waited for more than
seven years before lodging a separate complaint with the public
prosecutor regarding his allegations of ill-treatment. Nevertheless,
following his complaint, an investigation was initiated by the
Diyarbakır Public Prosecutor and the merits of his case were
examined both by the prosecutor’s office and by the Siverek
Assize Court. Consequently, the final decision regarding the
applicant’s allegations of ill-treatment was delivered by the
Siverek Assize Court on 26 June 2009. As the application was lodged
on 20 September 2007, the Government’s objection regarding the
six-month time-limit cannot be upheld.
- 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.
2. Merits
(a) The substantive aspect of Article 3
- The
Court recalls that allegations of ill-treatment must be supported by
appropriate evidence. To assess this evidence, the Court 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). Where the events
in issue lie wholly, or in large part, within the exclusive knowledge
of the authorities, as in the case of persons within their control,
strong presumptions of fact will arise in respect of injuries
occurring during such control (see, mutatis mutandis, Maslova
and Nalbandov v. Russia, no. 839/02, § 99, 24 January
2008).
- The
Court emphasises that, in respect of a person who is placed under the
control of the authorities, any recourse to physical force which has
not been made strictly necessary by his or her own conduct diminishes
human dignity and is in principle an infringement of the right set
forth in Article 3 of the Convention (see, mutatis mutandis,
Ribitsch v. Austria, 4 December 1995, § 38, Series A
no. 336). Indeed, the burden of proof may be regarded as resting on
the authorities to provide a satisfactory and convincing explanation
(see Ribitsch, cited above, § 34, and Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII). In particular, when
injuries have been sustained by a person who was in the custody of
the police, it is up to the respondent Government to furnish
convincing or credible arguments which would provide a basis to
explain or justify the degree of force used by its agents (see,
mutatis mutandis, Rehbock v. Slovenia, no.
29462/95, § 76, ECHR 2000-XII).
- In
the instant case, the Court firstly notes that it is undisputed that
the applicant resisted police officers during his arrest and opened
fire, killing a police officer. In this connection, the Court
observes that the injuries noted in the medical report dated 20
October 2000 (see paragraph 6) appear to be consistent with the
physical confrontation that had occurred between the applicant and
the police officers during arrest. It is also indicated in the
Forensic Medicine Institute’s report dated 6 March 2009
that the injuries noted on the applicant’s body in the reports
dated 20 and 30 October 2000 respectively could have been
sustained in resisting the police officers (see paragraph 21 above).
Furthermore, there is no allegation or any indication in the case
file that the police officers used excessive force, when, in the
course of their duties, they were confronted with the resistance of
the applicant.
- The
Court further notes that the applicant complained that during his
interrogation in police custody, he had been subjected to
ill-treatment. In this respect, he alleged that he had been hosed
with pressurised water, hung by his arms and subjected to electric
shocks. He also maintained that his testicles had been squeezed and
cigarettes had been extinguished on his hand. Nonetheless, several
elements cast doubt on the veracity of his claims. In this
connection, the Court finds it striking that his statements before
the domestic authorities were not consistent with each other. While
in his statement to the investigating judge, the applicant maintained
that he had been beaten, during the first hearing held on 30 November
2000 he stated that cigarettes had been extinguished on his hand.
Subsequently, in his petition to the Public Prosecutor he alleged
that he had been ill-treated, without giving any details. Finally,
when he was examined by the forensic medicine experts, he submitted
that he had been hosed with pressurised water, hung by his arms and
subjected to electro-shocks. He also maintained that his testicles
had been squeezed and cigarettes had been extinguished on his hand
(see paragraphs 10, 12, 17 and 20).
- Moreover,
the Court notes that any ill-treatment, as described by the
applicant, would have left clear marks on his body. However, apart
from the bruises observed by the judges (see paragraph 12 above),
none of the medical reports included in the case file supports the
applicant’s allegations. It also observes that the applicant
did not contest the content of these medical reports. There is also
no indication in the case file that he requested or was refused
permission to see another doctor. Consequently, there is no decisive
evidence in the case file which could call into question the findings
in the reports dated 20 and 30 October 2000 or add probative weight
to the applicant’s allegations.
- The
Court also has regard to the fact that the applicant allowed a
considerable period of time, namely seven years, to elapse before he
actually made a formal complaint with the public prosecutor.
- In
these circumstances, the Court cannot consider it established beyond
reasonable doubt that the applicant was subjected to treatment
contrary to Article 3 of the Convention.
- It
follows that there has been no violation of Article 3 of the
Convention under its substantial limb.
(b) The procedural aspect of Article 3
- The
Court reiterates that Article 3 of the Convention also requires the
authorities to investigate allegations of ill-treatment when they are
“arguable” and “raise a reasonable suspicion”
(see, in particular, Assenov and Others v. Bulgaria, 28
October 1998, §§ 101-102, Reports of Judgments and
Decisions 1998 VIII).
- In
the present case, the Court has not found it proved, on account of
lack of evidence, that the applicant was ill-treated, as alleged.
Nevertheless, as it has held in previous cases, that does not
preclude this complaint in relation to Article 3 from being
“arguable” for the purposes of the positive obligation to
investigate (see, Böke and Kandemir v. Turkey,
nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009).
In reaching this conclusion, the Court has had particular regard to
the fact that in the first hearing which was held before the
Diyarbakır State Security Court on 30 November 2000, the judges
observed that the applicant had five purple bruises on his right hand
and decided that the Diyarbakır Public Prosecutor’s Office
should be informed of the applicant’s allegations of
ill-treatment. Furthermore, prior to that date, namely on 30 October
2000, the applicant had also stated before the public prosecutor and
the investigating judge that he had been ill-treated in custody. An
investigation was therefore required.
- The
Court notes that a public prosecutor who is informed by any means
whatsoever of a situation that gives rise to the suspicion that an
offence has been committed is obliged, under Article 153 of the Code
of Criminal Procedure in force at the material time, to investigate
the facts by conducting the inquiries necessary to identify the
perpetrators. However, according to the information in the case-file,
no action whatsoever was taken by the public prosecutor on the
allegations of ill-treatment that were brought to his attention.
Moreover, while in his defence submissions before the trial court,
the applicant stated that he had been ill-treated, the court did not
take any action in response to these allegations. In this connection,
the Court observes that it was only after 7 June 2007, the date on
which the applicant filed a petition with the Diyarbakır Public
Prosecutor, that an investigation was finally initiated into the
applicant’s ill-treatment allegations. In the course of the
investigation, the Diyarbakır Public Prosecutor requested the
Forensic Medicine Institute to prepare a medical report. That report
was prepared on 6 March 2009, namely eight years and four months
after the applicant’s arrest, and it was concluded that it had
not been possible to determine how the injuries on the applicant’s
body had been sustained. In the light of the foregoing, the Court
considers that the applicant’s allegation of ill-treatment was
not investigated diligently and cannot therefore be considered as
effective.
- Having
regard to all of these facts, the Court concludes that the
authorities failed to conduct an effective investigation into the
applicant’s allegations of ill-treatment. There has therefore
been a violation of the procedural aspect of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Regarding the applicant’s police custody
- In
his letter dated 26 April 2010, the applicant complained about the
length of his police custody and invoked Article 5 §§ 3, 4
and 5 of the Convention.
- The
Court observes that the applicant’s police custody ended on
30 October 2000 when the investigating judge ordered his
pre-trial detention. As a result, this part of the application should
be rejected for non-compliance with the six-month time-limit pursuant
to Article 35 §§ 1 and 4 of the Convention.
B. Regarding the applicant’s detention prior to
conviction
- Relying
on Article 5 § 3 of the Convention, the applicant complained
about the length of his detention pending the outcome of the
proceedings against him.
- The
Government maintained that in view of the seriousness of the charges
against the applicant and the evidence in the case file, the domestic
court had had to extend his detention pending the outcome of the
trial.
- The
Court considers in the first place 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.
- The
Court observes that the applicant’s detention began on
20 October 2000 with his arrest and ended on 28 February 2008
with the judgment of the Diyarbakır Assize Court. The period to
be taken into consideration in the instant case is therefore seven
years and four months. During this time, the domestic courts
constantly extended the applicant’s detention using identical,
stereotyped terms, such as “having regard to the nature of the
offence and the state of the evidence”.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Atıcı v. Turkey, no.
19735/02, 10 May 2007; Solmaz v. Turkey, no. 27561/02,
ECHR 2007 II (extracts); Dereci v. Turkey,
no. 77845/01, 24 May 2005; and Taciroğlu v. Turkey,
no. 25324/02, 2 February 2006). Having examined all the
material submitted to it, the Court considers that the Government
have not put forward any fact or argument capable of persuading it to
reach a different conclusion in the present case. In the light of the
foregoing, the Court finds that the length of the applicant’s
detention contravened Article 5 § 3 of the Convention. There has
accordingly been a violation of that provision.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the criminal proceedings against him had not been concluded within a
reasonable time.
- The
Government contested that allegation.
- The
Court considers in the first place 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.
- The
Court further notes that the proceedings in question commenced on 20
October 2000 when the applicant was taken into police custody and
ended on 27 May 2010 with the decision of the Court of Cassation.
They thus lasted for nine years and seven months before two levels of
jurisdiction.
- 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
complexity of the case and the conduct of the applicant and the
relevant authorities (see, among many other authorities, 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
application (see Pélissier and
Sassi, cited above). Having examined
all the material submitted to it, the Court considers that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Court therefore 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 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The applicant claimed a total of 60,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage. He did not submit a
specific claim for costs and expenses.
- The
Government contested the claims.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
However, in respect of non-pecuniary damage, ruling on an equitable
basis, it awards the applicant EUR 19,500.
- 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 regarding the
length of the applicant’s police custody inadmissible;
- Declares the complaint regarding the applicant’s
ill-treatment admissible by a majority,
and the remainder of the application admissible unanimously;
- Holds unanimously that there has been no
substantive violation of Article 3 of the Convention;
- Holds by 5 votes to 2 that there has been a
procedural violation of Article 3 of the Convention;
5. Holds unanimously that there has been a violation of
Article 5 § 3 of the Convention in respect of the length of the
applicant’s detention;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
- Holds by 5 votes to 2
(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 19,500 (nineteen
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Turkish liras
at the rate applicable at the date of settlement;
(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 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the joint partly dissenting opinion of Judge
Jočienė and Judge Sajó is annexed to this judgment.
F.T.
F.E.P.
JOINT PARTLY DISSENTING OPINION OF JUDGES JOČIENĖ
AND SAJÓ
We
voted with the majority in this case in finding a violation of
Article 5 § 3 of the Convention in respect of the
length of the applicant’s detention and a violation of Article
6 § 1.
However,
we do not share the majority’s view that the complaint under
Article 3 of the Convention is admissible and that there has been a
procedural violation of that Article. In our opinion, the applicant’s
Article 3 complaints should have been dismissed for
non-compliance with the six-month time-limit as indicated in Article
35 § 1 of the Convention.
The
applicant alleged that he had been ill-treated while in police
custody at the Diyarbakır Security Headquarters and that his
complaint had not been examined effectively. In this connection, he
relied on Articles 3 and 13 of the Convention.
As
indicated in paragraph 28 of the judgment, the Government asked the
Court to dismiss this part of the application for non-compliance with
the six-month time-limit, drawing the Court’s attention to the
lengthy period of time that had elapsed between the date on which the
applicant’s time in police custody had ended, namely on 30
October 2000, and the date on which he had lodged a complaint with
the public prosecutor, namely on 7 June 2007.
We
would point out that the purpose of the six-month rule is to promote
legal stability (see De Wilde, Ooms and Versyp v. Belgium,
18 June 1971, § 50, Series A no. 12) and to ensure that
cases raising issues under the Convention are dealt with within a
reasonable time. It marks out the temporal limits of supervision
carried out by the organs of the Convention and signals to both
individuals and State authorities the period beyond which such
supervision is no longer possible (see, among other authorities,
Walker v. the United Kingdom (dec.), no. 34979/97, ECHR
2000-I). Furthermore, it ought to protect the authorities and other
persons concerned from being in a state of uncertainty for a
prolonged period of time (see Bulut and Yavuz v. Turkey,
no. 73065/01, 28 May 2002; Içöz v. Turkey (dec.),
no. 54919/00, 9 January 2003; and Kenar v. Turkey
(dec.), no. 67215/01, 1 December 2005).
According
to the established case-law, if no remedies are available or if they
are judged to be ineffective, the six-month time-limit, in principle,
runs from the date of the act complained of (see Hazar and Others
v. Turkey, (dec.), nos. 62566/00 and others, 10 January 2002) or
from the date of knowledge of that act or its effect on or prejudice
to the applicant (see Dennis and Others v. the United Kingdom
(dec.), no. 76573/01, 2 July 2002). Special considerations
may apply in exceptional cases where an applicant first avails
himself of a domestic remedy and only at a later stage becomes aware,
or should have become aware, of the circumstances which make that
remedy ineffective. In such a situation, the six-month period might
be calculated from the time when the applicant becomes aware, or
should have become aware, of these circumstances (see Bayram and
Yıldırım v. Turkey (dec.), no. 38587/97, ECHR
2002 III).
We
observe that in the present case, the alleged ill-treatment of the
applicant took place in October 2000, while he was in police custody.
It is clear from the case file that the applicant brought his
complaint to the attention of the domestic authorities during his
trial before the Diyarbakır State Security Court. We also take
into account the fact that during the first hearing held on 30
November 2000, the judges of the Diyarbakır State Security Court
observed certain bruises on the applicant’s right hand. The
trial court further decided that the Public Prosecutor’s Office
should be informed of the applicant’s allegations of
ill-treatment. Furthermore, the applicant’s lawyer, who was
present at the hearing, was advised to attach a certified copy of the
minutes of the hearing to his application should he wish to lodge a
separate complaint with the public prosecutor.
We
would point out in this connection that a public prosecutor who is
informed by any means possible of a situation that gives rise to the
suspicion that an offence has been committed is obliged, under
Article 153 of the Code of Criminal Procedure as in force at the
material time, to investigate the facts by conducting the necessary
inquiries to identify the perpetrators. However, according to the
information in the case file, no action whatsoever was taken by the
public prosecutor on the allegations of ill-treatment that were
brought to his attention. Moreover, although in his defence
submissions before the trial court, the applicant stated that he had
been ill-treated, the court did not take any action in response to
these allegations.
We
also note that the applicant has not provided any information as to
why he did not display due diligence in response to the outcome of
the investigation into his ill-treatment allegations but lodged a
complaint with the public prosecutor only on 7 June 2007, seven years
after the events complained of. We consider that the applicant, who
was represented by a lawyer during the domestic court proceedings,
must already have become gradually aware of the alleged
ineffectiveness of the investigation into his allegations by that
time, more than seven years after the alleged events. Indeed, this is
supported by the fact that in his application to the Court, lodged on
20 September 2007, the applicant actually complained under Article 13
of the Convention of the lack of an effective investigation into his
alleged ill-treatment while in police custody. Although the
prosecutor had recently commenced an investigation at that stage and
had taken a statement from the applicant on 13 September 2007, we do
not consider that this investigation, which ended on 26 June
2009 with the decision of the Siverek Assize Court, interrupted or
reopened the running of the six-month period in the circumstances of
the present case. We are of the opinion that the seven-year period
that had elapsed since the acts complained of clearly marked the
temporal limits of the Court’s supervision, which should no
longer have been possible in the circumstances of the case in 2007.
Therefore,
in our view, this part of the application was lodged more than six
months after the applicant became aware or should have become aware
that there was no effective remedy at domestic level as regards his
Article 3 complaints. It should therefore have been rejected
under Article 35 §§ 1 and 4 of the Convention.
Finally, as regards non-pecuniary damage under Article 41 of the
Convention, we are of the opinion that, in the circumstances of the
case, the applicant should have been awarded a smaller amount because
his Article 3 complaints did not comply with the six-month rule.
