CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 septembre 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   608 20.9.2007   Press release issued by the Registrar   CHAMBER JUDGMENT ONAY v. TURKEY   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Onay v. Turkey (application no. 31553/02).   The Court held unanimously that there had been: two violations of Article 3 of the European Convention on Human Rights on account of Sıddık Onay having been ill-treated in police custody and the authorities’ failure to carry out an effective investigation into his allegations of ill-treatment.   Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Onay 5,000   euros (EUR) for non-pecuniary damage. (The judgment is available only in English.)   1.     Principal facts   The applicants, Sıddık Onay and, his mother, Zinnet Onay, are Turkish nationals who were born in 1985 and 1948, respectively. They live in Diyarbakır.   On 25 May 2002, Mr Onay, 17 years old at the time, was arrested at his home on suspicion of bag snatching. A police report of 26 May 2002 stated that the applicant’s mother had been informed of her son’s arrest and detention. At the time of his arrest and just before he was taken into police custody on 26 May 2002, Mr   Onay was given a medical examination. No signs of ill-treatment were noted but three or four day old cuts from a blade were observed on his left arm.   Mr Onay alleged that, during police custody, he had been blindfolded, had water poured over him, had been subjected to electric shocks and beaten with truncheons in order to force him to admit to the charges against him.   On 27 May 2002 the police requested that the applicant’s detention in police custody be extended. The public prosecutor, without having seen the applicant, granted that request and the applicant’s detention was extended by two days. On the same day, the applicant was handed over to care of the Juvenile Department of the Security Directorate.   On 28 May 2002 Mr Onay was given two medical examinations, which noted two or three day old bruising on his right and left upper arms. Scars on his arms and chest were also recorded.   Another medical examination carried out on 29 May 2002 confirmed scars on Mr Onay’s body, but made no mention of the use of recent physical violence. On the same day the applicant, brought before the public prosecutor and the investigating judge, denied the charges against him and alleged that he had been ill-treated.   On 30 May 2002 the applicant’s lawyer filed a complaint with the Diyarbakır Public Prosecutor’s Office, requesting that criminal proceedings be brought against the police officers who had been on duty when he was ill-treated. He also requested that the applicant be referred for a thorough medical examination. On the same day, an investigation was started into the applicant’s allegations. The public prosecutor took a detailed statement from the applicant, in which he repeated his allegations but admitted that the scars on his upper and lower arms as well as his wrist had been self-inflicted with metal wire, as he could not bear the pain of the ill-treatment. A further medical examination requested by the public prosecutor and carried out on 30 May concluded that the applicant had bruising on his right arm which was three or four days old and had been caused by a beating from a blunt instrument.   On 18 November 2004 the public prosecutor, concluding that the applicant’s injuries had occurred prior to his arrest and the scars on his body and arms had been admitted to have been self-inflicted, decided not to prosecute the police officers concerned. The applicant challenged that decision before the Siverek Assize Court, without success.   Mr Onay was ultimately acquitted of all the charges against him.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 27 June 2002 and declared admissible on 12 July 2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgian), President , András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Riza Türmen (Turkish), Mindia Ugrekhelidze (Georgian), Vladimiro Zagrebelsky (Italian), Dragoljub Popović (Serbian), judges , and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Articles 3 and 13 (right to an effective remedy), Sıddık Onay complained that he had been subjected to ill-treatment in police custody.   Further relying on Article 5 §§ 1 and 3 (right to liberty and security), Mr Onay alleged that his detention in police custody had been excessive and notably that, on being arrested, he had not been brought promptly before a public prosecutor, as required for minors by domestic law, and that police officers, instead of a public prosecutor, had been put in charge of the investigation. Lastly, he submitted that he had been unable to challenge the lawfulness of his detention as he had had no legal representation during police custody and a limited presence of his lawyer during investigations, in breach of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court).   Decision of the Court   Article 3: ill-treatment   The Court considered that the burden of proof lay with the authorities to provide a satisfactory and convincing explanation as to how Mr Onay, in good health when taken into custody, had sustained his injuries.   There was inconsistency between the medical reports. In the first reports of 26 May 2002 before having been taken into police custody, the applicant had shown no signs of ill-treatment. The reports of 28 May had then attested to bruising on both the applicant’s arms. In the report of 29 May only scarring from a blade had been recorded; the bruising had disappeared. Finally, the bruises had reappeared in the 30 May report. The Court was struck by the injuries having appeared, disappeared, then reappeared. The Court therefore attached no weight to the findings of the 29 May report, in which no signs of violence had been found.   Furthermore, the applicant had complained in detail about his ill-treatment to the public prosecutor and the investigating judge and had only admitted to having self-inflicted certain injuries at the beginning of his detention.   The Court was therefore not satisfied with the Government’s explanations as to the manner in which the applicant had sustained his injuries and held that there had been a violation of Article 3.   Article 3: lack of an effective investigation   The public prosecutor had started his investigation as soon as the applicant’s lawyer had filed a complaint. However, it appeared from the case file that the prosecutor had purely based his decision to not prosecute the police officers involved on the applicant’s statement of 30 May 2002, in which he had admitted that the scarring had been self-inflicted. He had not made any inquiry into the applicant’s injuries which had not only been recorded as caused by a blunt instrument but had also been estimated as three or four days old and therefore must have been sustained during the custody period. The public prosecutor had also disregarded the inconsistency in the medical reports. The Siverek Assize Court had not considered those failings either on appeal. Moreover, the case file had not shown whether the prosecutor or the Assize Court had requested witness accounts from the accused police officers.   The Court concluded that the applicant’s allegations of ill-treatment by the police had not been effectively investigated by the domestic authorities and therefore held that there had been a violation of Article 3 on that account too.   Article 13   The Court considered that no separate issue arose under Article 13.   Article 5 §§ 1, 3 and 4   The Court observed that Mr Onay’s detention might have breached certain requirements of domestic law but could not overlook the fact that the applicant had been arrested at his home in the presence of his mother. Indeed, the police report of 26 May 2002 had confirmed that the applicant’s mother had been informed of her son’s arrest and detention. Furthermore, the applicant had been assisted by lawyers during and after the police custody period. A lawyer had lodged a complaint concerning ill-treatment but had not referred to any allegations of unlawful detention. No other authorities had been approached concerning the applicant’s complaints under Article 5.   It would have been reasonable to expect Mr Onay to bring those complaints before the national authorities prior to his application to the Court. It followed that that part of the application had to be rejected for non-exhaustion of domestic remedies.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.