CEDH · CASELAW;CLIN;ENG — 10 mars 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 117 March 2009 Turan Cakir v. Belgium - 44256/06 Judgment 10.3.2009 [Section II] Article 14 Discrimination Failure by authorities to check whether there had been racist motive for police brutality in course of arrest: violation   Facts : The applicant, who is of Turkish origin, was arrested by police officers when they came to his family home to arrest his brother. The versions of the circumstances of the arrest given by the applicant and the Government differed. In any event, a medical certificate drawn up the next day noted various injuries on the applicant’s body which led to him being admitted to hospital. He lodged a civil-party claim, complaining of assault occasioning actual bodily harm resulting in unfitness for work, and of a breach of the Law of 30 July 1981 prohibiting certain acts of a racist and xenophobic nature, because of racist insults on the part of the police officers. The investigating judge took numerous measures to elucidate the matter and, in view of the information gathered, the prosecution suggested that no further action needed to be taken on the instructions of the investigating judge. The chambre du conseil examined an application by the public prosecutor for the proceedings to be dropped. At the request of counsel for the applicant, the chambre du conseil ordered further investigatory measures, which were completed. These included an in-house investigation by the Police Authority. The investigating judge issued a new order. At the same time, the Crown prosecutor invited the chambre du conseil to declare that there were no grounds to continue the proceedings, pointing out that the evidence in the case file indicated that the violence allegedly committed by the accused had been motivated by the complainant’s own behaviour and that the accused had used force in the line of duty solely for legitimate reasons. Concerning the alleged offences under the above-mentioned law, the prosecutor considered that they were no different from the other charges. The case was once again brought before the chambre du conseil , which found that there was no case to answer. The applicant appealed to the Indictments Division, but the case was never examined, in spite of repeated requests by the applicant’s counsel to the prosecutor’s office. The Indictments Division ruled that prosecution was time-barred. The Minister of Justice admitted in a letter to the applicant that there had been a malfunction in the domestic proceedings. He said that structural measures had been taken to avoid such situations in the future. The ministry published a press release containing a letter from the public prosecutor to the minister admitting that for five years the case had not been given the attention it deserved, but explaining that this had not been a deliberate attempt to obstruct the proceedings but a case of negligence, no doubt attributable to the very serious health problems the judge in charge of the case had suffered. The press release added that there was no evidence of any ostensibly intentional inertia   or any collusion between the prosecuting authorities and the police. The Inquiry and Advisory Committee declared a complaint lodged by the applicant’s counsel well-founded, considering that in spite of the assurances that it was an isolated case, such a delay in the processing of a case could not be tolerated and it was for the chief prosecutor to supervise the progress of the case files under his responsibility. Law : Article 3 – (a) Substantive aspect : The applicant had suffered injuries when the police arrested him, as witnessed by the medical certificate drawn up the following day and another drawn up ten days later, stating that he had been temporarily unfit for work for about ten days, during which time he had been in hospital. The three police officers concerned had never denied striking the applicant. However, the Court could not accept their argument that the applicant’s condition following his arrest and police custody had been the result of him falling to the ground and being kicked by mistake a few times by members of the crowd that gathered round and tried to kick the policeman who was pinning him down on the ground. The applicant had spent ten days in hospital, his body covered in wounds and bruises, and with a fractured nose and several broken teeth. According to two medical certificates drawn up about ten years later, he was still suffering from serious after-effects of the aggression. It had not been shown, therefore, that the injuries could have been caused by the use by the police officers of such force as was made strictly necessary by the applicant’s conduct. Conclusion : violation (unanimously). (b) Procedural aspect : The authorities had not remained inactive in response to the applicant’s allegations of ill-treatment. The investigating judge had assigned a forensic medical examiner to examine the applicant’s injuries and determine their nature, how they had been caused and their likely consequences. A full report had been drawn up. The investigating judge had requested that the three police officers accused of hitting the applicant be identified and that his parents and sister be heard. Acting on those instructions, the police inspector assisting the public prosecutor had drawn up a report. At a hearing, the chambre du conseil had allowed a request made by the applicant’s lawyer and ordered further investigatory measures, which had been carried out. Lastly, the chambre du conseil had decided that there was no case to answer. As to whether the authorities had conducted the investigation into the applicant’s allegations of ill-treatment by the police with due diligence, counsel for the applicant had appealed to the Indictments Division against the decision not to prosecute, but the case had never been examined. Counsel for the applicant had made repeated representations to the prosecutor’s office, but to no avail. The Indictments Division had declared that prosecution was time-barred. In that connection the Court had already held that where a State agent was accused of actions contrary to Article 3, the proceedings or conviction should not be allowed to lapse by becoming time-barred, and the application of measures such as an amnesty or pardon should not be authorised. In particular the national authorities must on no account give the impression that they were ready to let such ill-treatment go unpunished. The Minister of Justice himself had felt obliged to admit, in a letter to the applicant, that there had been a malfunction, and to issue a press release in which he attempted to explain the delay in the examination of the case. Lastly, the Inquiry and Advisory Committee had declared a complaint lodged by the applicant’s counsel concerning the delay well-founded. Accordingly, the investigation conducted by the domestic authorities into the applicant’s complaint of ill-treatment had been ineffective. Conclusion : violation (unanimously). Article 14 taken in conjunction with Article 3 – When investigating violent incidents, State authorities also had a duty to take all reasonable steps to ascertain whether there was any racist motivation or any hatred or prejudice based on ethnic origin behind the events. The Court had found that the authorities had violated Article 3 in failing to conduct an effective investigation into the incident. It decided to examine separately the complaint that they had also failed to look into the possibility that there had been a causal effect between the alleged racist attitudes and the violence the police had shown towards the applicant. The general context at the material time did not suffice to explain the allegedly racist attitude of the police at the time of the arrest. In his criminal complaint and request to join the proceedings as a civil party, the applicant had referred specifically to an infringement of sections 1 and 4 of the Law of 30 July 1981 prohibiting certain acts of a racist and xenophobic nature, alleging that the police had used such racist insults as “dirty wog” and “Arab scum”. In his submissions inviting the chambre du conseil to find that there was no case to answer, the Crown Prosecutor had not expressed an opinion on this part of the complaint, considering that the actions which could be categorised as offences under the law of 30 July 1981 were equivalent to those covered by the other charges. The chambre du conseil had endorsed the prosecutor’s submissions and the Indictments Division had found that the prosecution was time-barred, which had led the Court to find a procedural violation of Article 3. The authorities had therefore failed in their obligation, under Article 14 taken in conjunction with Article 3, to take all the necessary measures to ascertain whether discriminatory conduct could have played a role in the events in question. Conclusion : violation (unanimous). See Nachova and Others v.   Bulgaria [GC], nos.   43577/98 and 43579/98, §§ 160 and 161, ECHR 2005-VII, Information Note no. 77. Article 41 – EUR 15,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes