SECOND SECTION

CASE OF KEMAL BAŞ v. TURKEY

(Application no. 38291/07)

JUDGMENT

STRASBOURG

19 February 2013

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 Kemal Baş v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Danutė Jočienė,
	Peer Lorenzen,
	András Sajó,
	Işıl Karakaş,
	Nebojša Vučinić,
	Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 29 January 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 38291/07) 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 Kemal Baş (“the applicant”), on 31 August 2007.
2.  The applicant was represented by Ms N. Sakallı, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 10 September 2009 the application was communicated 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
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1978 and lives in İzmir. At the time of the events he was a student in the Literature Faculty of Ege University.
5.  According to the “scene of incident” report, upon receipt of intelligence that a leftist group was to hold a march on 27 December 2005 at 11 a.m., in commemoration of a student who had committed suicide in 1997, police officers from the Rapid Response Force (Çevik Kuvvet) arrived at the entrance to the Faculty of Literature of Ege University. At noon, a group of fifty persons arrived, carrying banners and flags and shouting anti-police slogans. The police officers, who had formed a barricade in the grounds of the Faculty with their shields, told the group to disperse. The demonstrators continued walking towards the police barricade and some of them attacked the officers with their flag sticks. The police then used force to disperse the group: they sprayed pressurised water from a panzer tank and started hitting the demonstrators with their truncheons. In retaliation, some of the demonstrators threw stones at the police. According to the Government, eight demonstrators were arrested that day, including the applicant, and eight police officers were wounded by the stones thrown by the demonstrators.
6.  According to the submissions of the applicant, he had gone to the Faculty to attend a class, and did not participate in the demonstration. Nevertheless, he was also punched and kicked by the police officers. As a result, his glasses were broken and he was arrested. In the police vehicle he was beaten again.
7.  Subsequently, the applicant was taken to the Bornova First Aid and Traumatology Hospital, where he was medically examined at 1.15 p.m. on the same day. The doctor who examined the applicant noted erythematous lesions on the right side of his forehead, above the right eyebrow. The doctor further noted that the applicant complained of pain in his feet and legs. The applicant was then taken to the Bornova Central Police Station, where he was questioned. The applicant used his right to remain silent.
8.  At 8 p.m. the applicant was examined again at the same hospital by another doctor, who noted grazes above his left eyebrow, an erythematous lesion measuring 2 x 2 cm on the left temple area, and a bruise measuring 1 x 1 cm and grazes on his right knee. The doctor also noted that the applicant complained of pain at the back of his knees.
9.  On 28 December 2005, at 9.25 a.m., the applicant was again examined at the Bornova First Aid and Traumatology Hospital. The doctor who conducted the examination noted that there was no fresh sign of physical violence on the applicant’s person. He also noted that the applicant had not complained of ill‑treatment during his detention in police custody.
10.  On the same day, the applicant made statements before two public prosecutors in the presence of his lawyer. He contended that he had not participated in the demonstration and that he had been beaten by police officers during his arrest. He further asked the prosecutor to initiate an investigation. The applicant was subsequently brought before the investigating judge and then released.
11.  On an unspecified date the Izmir public prosecutor initiated an investigation into the allegations of ill-treatment during the events of 27 December 2005. In the context of this investigation, the applicant again made statements to the public prosecutor and reiterated his account of the events. He was further asked to identify from photographs the police officers who had ill-treated him.
12.  On 18 October 2006 the Izmir public prosecutor issued a decision not to prosecute. He considered that there was no concrete evidence other than the applicant’s allegation, which was “of an abstract nature”. The prosecutor concluded that the force employed by the police had not been excessive and that the officers had acted within the scope of their duties, given that the demonstrators had been violent.
13.  On 20 December 2006 the applicant’s lawyer, Z.K., filed an objection against the decision of 18 October 2006 on behalf of the applicant and another complainant, G.Ç.
14.  On 16 January 2007 the Karşıyaka Assize Court dismissed the objection. This decision was posted to the applicant’s lawyer, Z.K., on 9 April 2007. However, it was not possible to serve it on her, since she no longer worked at her given address.
15.  On an unspecified date, another lawyer, K.A., filed an objection against the decision not to prosecute of 18 October 2006 on behalf of the applicant and three other complainants, S.G., G.T. and S.İ.
16.  On 23 February 2007 the Karşıyaka Assize Court, after examining the merits of the complaint, rejected the objection and found that the non-prosecution decision was in line with the domestic law.  The decision was served on the applicant’s third lawyer, N.S., on 1 March 2007.
17.  In the meantime, criminal proceedings were initiated against the applicant before the İzmir Criminal Court, accusing him of showing resistance to the police and of damaging State property. On 10 February 2009 the applicant was acquitted of the charges against him. During the criminal proceedings, the court heard evidence from eyewitnesses, such as university lecturers who worked at the Faculty of Literature. According to their statements, while the students had been waiting in the building, police officers had entered it by force, breaking the doors and windows. The witnesses further stated that the police officers had been very aggressive and had used disproportionate force against the students. Based on the case file before it, the criminal court found it established that the police officers had beaten the students with truncheons, and during the incident the doors and windows of the Faculty building had been broken. The court stated that although some of the students had thrown stones at the police officers, it had not been possible to establish who had been involved in the incident. The applicant was accordingly acquitted of the charges against him.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
18.  The applicant alleged that the force used during his arrest had been excessive and disproportionate. He also complained that his ill-treatment allegations had not been examined thoroughly by the domestic authorities. In this connection, the applicant relied on Articles 3 and 13 of the Convention.
19.  The Government contested the allegations.
20.  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.”
A.  Admissibility
21.  The Government 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 allegedly suffered by instituting an action in the administrative or civil courts. In the alternative, they argued that this part of the application should be rejected for non-compliance with the six-month time-limit. In this connection, they pointed out that the Karşıyaka Assize Court had rendered its decision on 16 January 2007, whereas the application had been lodged with the Court on 31 August 2007, more than six months later.
22.  As regards the first limb of the preliminary objections, the Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It reaffirms its earlier conclusions that the remedies referred to by the Government cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 of the Convention. The Court therefore finds no particular circumstances in the instant case which would require it to depart from its previous findings. Accordingly, it rejects the Government’s preliminary objection.
23.  As regards the second limb, the Court observes that on 16 January 2007 the Karşıyaka Assize Court indeed rejected an objection filed by one of the applicant’s lawyers. However, it is clear from the documents in the file that this decision could not be notified to the lawyer. A second objection, filed by another lawyer, was subsequently also rejected by the Karşıyaka Assize Court on 23 February 2007 and this decision was notified to the applicant’s lawyer on 1 March 2007. The Court further notes that when delivering its decision on 23 February 2007, the Assize Court examined the merits of the case. Therefore, the Court considers that the final decision in the present case was the decision of the Karşıyaka Assize Court delivered on 23 February 2007 and notified on 1 March 2007. Accordingly, the Government’s preliminary objection in this regard should be rejected.
24.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The substantive aspect of Article 3
25.  The Government argued that the force used by the police officers had not been disproportionate or excessive in the circumstances of the case. In their view, the applicant could have sustained these injuries when the demonstrators were attacking the police and damaging public property. According to the Government, the applicant was amongst the demonstrators that had resisted and attacked the police officers. They maintained in this connection that eight police officers had been wounded during the incident. They further stated that despite the warning of the police officers, the demonstrators had resisted and attacked with sticks and stones, as a result of which the police had used pressurised water and intervened with their truncheons and shields. The force used had therefore been in line with the domestic law (Article 16 of Law no. 2256) and had pursued the legitimate aim of preventing public disorder.
26.  The applicant denied the Government’s allegations, stating that he had not been among the demonstrators. He had gone to the Faculty of Literature to attend a class and had seen that the police officers were beating his friends. He had subsequently been beaten by the police, who had attacked and arrested all the students. In support of his submissions, the applicant relied on the decision of the İzmir Criminal Court of 10 February 2009 whereby he was acquitted of the charges against him as the domestic court did not find it established that he had been amongst the demonstrators.
27.  The Court notes that Article 3 of the Convention does not prohibit the use of force in certain well-defined circumstances, such as in order to effect an arrest. However, such force may be used only if indispensable and must not be excessive (see Kurnaz and Others v. Turkey, no. 36672/97, § 52, 24 July 2007). In the present case, the Court must therefore determine whether the recourse to physical force was strictly necessary and proportionate, and whether the domestic authorities ascertained the actual cause of the injuries by conducting an effective investigation (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336).
28.  The Court notes that the applicant was injured during a scuffle that broke out between the demonstrators and the police. According to the medical reports in the file, uncontested by the parties, the applicant had grazes above his left eyebrow, on the left temple area, and on his right knee.
29.  Although the Government argued that the applicant had been amongst the demonstrators that attacked the police officers and damaged public property, the Court notes from the decision of the İzmir Criminal Court dated 10 February 2009 that the applicant was acquitted of the charges against him. In its decision, the domestic court relied on eyewitness statements taken from lecturers, and concluded that the police had attacked the students who had been waiting in the faculty building. The court further stated that because of the scuffle that had broken out it had not been possible to identify the students who had thrown stones at the police.
30.  The Court further observes that it cannot be concluded that the police officers were called upon to react without prior preparation, because even before the demonstration commenced, the Rapid Response Force and a panzer tank had been deployed at the scene and a barricade had been set up in the grounds of the Faculty of Literature. Moreover, the Government have failed to provide any information showing that the intervention of the security forces was properly regulated and organised in such a way as to minimise to the greatest extent possible any risk of bodily harm to the demonstrators (see Güler and Öngel v. Turkey, nos. 29612/05 and 30668/05, § 29, 4 October 2011). As a result, the Court concludes that the injuries sustained by the applicant were the result of unjustified treatment for which the State bears responsibility.
31.  In these circumstances, there has been a substantive violation of Article 3 on account of the inhuman and degrading treatment to which the applicant was subjected at the time of his arrest.
2.  The procedural aspect of Article 3
32.  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, Ay v. Turkey, no. 30951/96, §§ 59-60, 22 March 2005).
33.  The Court has found above that the respondent State was responsible, under Article 3 of the Convention, for the injuries sustained by the applicant. An effective investigation was therefore required.
34.  In the instant case, the Court observes that an investigation into the applicant’s allegations was initiated by the public prosecutor’s office (see paragraph 11 above). The investigation ended on 23 February 2007 when the Assize Court upheld the decision of the public prosecutor not to prosecute the police officers for ill-treatment. Having examined the case file, the Court notes firstly that the public prosecutor made no attempt to clarify whether the applicant had been amongst the demonstrators that had resisted and attacked the police officers. In this regard, it appears that the public prosecutor failed to secure the testimony of eyewitnesses, such as the university lecturers who subsequently testified during the criminal proceedings initiated against the applicant. Furthermore, although there was a difference between the two medical reports issued on 27 December 2005, it seems that the public prosecutor never sought to clarify this issue. Indeed, the Court notes that while the first report stated that the applicant had erythematous lesions on the right side of his forehead and above his right eyebrow, the second report revealed that the applicant also had grazes on his left eyebrow, an erythematous lesion measuring 2 x 2 cm on the left temple area and a bruise and grazes on his right knee.
35.  In the light of the foregoing, the Court considers that the investigation into the applicant’s allegation of ill-treatment was not conducted diligently and cannot therefore be considered effective.
36.  Having regard to the above, the Court concludes that the national authorities failed to carry out an effective investigation into the applicant’s allegation of ill-treatment. There has accordingly been a procedural violation of Article 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
37.  The applicant further complained under Article 5 of the Convention that his arrest had been unlawful.
38.  The Court observes that the applicant was arrested on 27 December 2005 and was released the following day, on 28 December 2005. As the application was lodged with the Court on 31 August 2007, this part of the application should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-compliance with the six-month time-limit.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
A.  Damage
39.  The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage and EUR 40,000 in respect of non-pecuniary damage.
40.  The Government contested the claim.
41.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. In respect of non-pecuniary damage, having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 9,500 under that head.
B.  Costs and expenses
42.  With reference to the İzmir Bar Association’s scale of fees, the applicant’s representative claimed 10,363 Turkish liras (TRY), approximately EUR 4,500, in respect of legal fees.
43.  The Government contested the claim.
44.  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 are reasonable as to quantum. In the present case, the applicant has not substantiated his claim for costs and expenses. Accordingly, the Court makes no award under this head.
C.  Default interest
45.  The Court considers it appropriate that the default interest rate 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
1.  Declares the complaints concerning the applicant’s alleged ill-treatment admissible and the remainder of the application inadmissible;

2.  Holds that there has been a substantive violation of Article 3 of the Convention;

3.  Holds that there has been a procedural violation of Article 3 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,500 (nine thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President