CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 21 septembre 2010

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Turkey (application no. 9203/03)   POLICE COVERED UP ILL-TREATMENT IN POLICE CUSTODY OF THREE YOUTHS, TWO OF THEM MINORS   Two violations of Article 3 (prohibition of inhuman or degrading treatment; lack of effective investigation) of the European Convention on Human Rights     Principal facts   The applicants are Erdinç Üzer, Ergin Üzer and Baykal Üzer, three Turkish nationals who were born in 1984, 1986 and 1979 respectively and live in Ankara. On 30 January 2002 at around 11 p.m., the youths, then aged 17, 15 and 22, were arrested by officers from the Yenimahalle (Ankara) police station for stealing electric cables containing copper which belonged to Telecom Turkey. Around 4 a.m. the next morning they were examined by a forensic medical examiner, who did not record any injuries. At around 9.30 a.m. the applicants agreed to cooperate with the police and, on being driven to the scene with police officers, to show them other places where they had previously stolen cables. They were not assisted by a lawyer. Every time they made a confession, a police record was drawn up, stipulating the time it was drafted, the approximate date and time of the offence and the length of the cables stolen. The chronology of the journeys made with the police officers corresponds almost perfectly – from the oldest to the most recent – to the recollections of two of the applicants. The applicants denounced a scrap dealer as the purchaser of the copper.   The applicants underwent a fresh medical examination on 1 February 2002, probably at the request of the lawyer who had been called upon in the meantime by their relatives. A police record stipulated that red patches and marks resembling “scratches made by fingernails” were noticed on their bodies, adding that “when questioned in that connection, the individuals confessed that the marks were self-inflicted scratches”. The forensic examination report also noted various lesions of which the cause had apparently been suggested by the applicants themselves, namely an allergic reaction and/or rubbing against a hot radiator. In the evening, the scrap dealer, and later his apprentice, confirmed that they had seen red patches on the applicants’ bodies, “as if they had scratched themselves or as if they had an allergy”. On 3 February, at the end of the police custody period, another medical examination supported that hypothesis.   On being brought before a public prosecutor the applicants disputed the evidence adduced against them, alleging that they had given their statements under duress. They were remanded in custody and, on 5 February 2002, committed for trial on theft charges before the Assize Court of Ankara.   On 8 February 2002, in response to a request by a new lawyer, the applicants were examined once again by another doctor, who noted various injuries that were mainly about ten days old. The lawyer filed a complaint with the Ankara public prosecutor’s office, pointing out that none of the applicants had allergies and that the injuries could not be explained as the result of rubbing against radiators. The public prosecutor’s office opened two separate investigations, the first concerning only Erdinç Üzer and Ergin Üzer, the second concerning all three applicants. All three were, moreover, charged with bringing false accusations against State officials.   On being questioned again, the scrap dealer retracted his previous statements. He explained that he had seen two of the applicants being beaten up by police officers and that he had given his statements under duress, a police officer having insinuated that if he refused to cooperate he would be tortured like the applicants. The applicants’ first lawyer also declared that her clients had told her they had been tortured and that the police had tried to use her to cover it up. On 8 April 2002 the first set of proceedings against State officials was discontinued, as the public prosecutor regarded it as established that the complainants had “leaned against radiators to keep warm”. On 16 April 2002 the applicants identified their alleged torturers from photographs. On 3 May 2002 a second set of proceedings was also discontinued on the ground that those concerned by the proceedings were the same as those who had benefitted from the previous discontinuance (in reality, four officers, identified by the applicants, had been implicated in the second set of proceedings alone). Following the publication of newspaper articles on the case, an internal investigation was opened by the police but was also discontinued.   The applicants also filed a complaint with the Ankara Medical Association against the forensic medical examiners who had examined them on 1 and 3 February 2002 and had supported the theory that they had allergies or had rubbed themselves against radiators. Two applicants were re-examined. The Medical Association imposed disciplinary sanctions on the doctors concerned, for acting contrary to medical ethics and the rules of forensic medicine. It rejected the official explanation of the injuries found on the applicants, taking the view that they seemed to have been caused by an external force exerted by one or more third parties using blunt instruments. The applicants were also diagnosed as suffering from acute post-traumatic stress disorder, which was consistent with their version of the facts and with the alleged forms of trauma.   On 14 May 2002, in the proceedings for theft, Baykal Üzer was acquitted and Erdinç Üzer and Ergin Üzer were fined. On 30 December 2003 all three were acquitted in the proceedings for false accusations.     Complaints, procedure and composition of the Court   Relying on Article 3, the applicants complained that they had been ill-treated during their detention in police custody and that no effective investigation into their allegations had been carried out.   The application was lodged with the European Court of Human Rights on 31 January 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), András Sajó (Hungary), Nona Tsotsoria (Georgia), Işıl Karakaş (Turkey), Kristina Pardalos (San Marino), judges , and also Françoise Elens-Passos , Deputy Section Registrar .     Decision of the Court   Allegations of ill-treatment (Article 3)   According to a medical examination shortly after their arrest, the applicants were in good health. After their time in police custody they were found to have injuries. The Court therefore had to form an opinion about what had happened after the first medical examination.   The first medical examination was performed on 31 January 2002 at about 4   a.m. Around 9.30   a.m. later that day, the applicants – without being assisted by a lawyer – decided to cooperate fully with the police. Around 10 a.m. they began to indicate, one by one, 20   incidents of theft, going as far as estimating the times they had committed the offences, dating from several months to one year earlier, and the lengths of the stolen cables. The Court found other aspects quite surprising, for example the fact that the chronology of the journeys made with the police officers corresponded almost perfectly – from the oldest to the most recent – to the recollections of two of the applicants. In conclusion, the Court was not convinced by that account – any more than the Assize Court appeared to have been.   The police officers had apparently requested a second medical examination of the applicants because of the red patches resembling scratches that had appeared on their skin. The second medical examiner had noted the applicants’ explanation that they had scratched themselves against hot radiators, in one case because of an allergy. Another medical examiner had confirmed that explanation, as had the co-suspects (the scrap dealer and his apprentice). However, the Court could not give any credence to that version. The extreme similarity between the statements, which were identical word for word, gave the impression that they were not genuine. Further, the unconditional acceptance by the doctors of the hypothesis of rubbing and allergic reactions was all the more questionable as they had been disciplined for breaching medical ethics and the rules of forensic medicine.   With those considerations in mind, the Court took the view that the circumstances surrounding the applicants’ detention in police custody revealed a determined effort on the part of the police officers to cover up wrongdoing, with the connivance of pressurised witnesses and unscrupulous doctors. It could be regarded as established that, after their first medical examination, the applicants had been subjected to duress and treatment that had caused them injuries, as observed by the Medical Association, which appeared to have been provoked by “an external force exerted by one or more third parties” using “blunt objects”. Those injuries, which had appeared during the police custody period, gave rise to strong presumptions of fact to be rebutted by the Government. It was therefore for the Government to provide an explanation and convincing evidence to show that the applicants’ allegations were questionable. They had not, however, adduced any such evidence.   In view of the sufficiently strong, clear and concordant inferences, the Court took the view that the injuries found on the applicants’ bodies had been the result of “inhuman or degrading treatment” intentionally inflicted in order to extract confessions or information about a series of thefts.   There had therefore been a violation of Article 3.   Alleged lack of effective investigation into ill-treatment (Article 3)   Two sets of criminal proceedings had been opened against the applicants’ alleged torturers. The first had been discontinued, as the public prosecutor had found it established that the complainants had “leaned against radiators to warm themselves up”, thereby espousing an argument based on the official version of the origin of the injuries. The second set had also been discontinued, on the ground that those concerned by the proceedings were the same as those in the first set that had already been concluded.   The Court was not convinced by those arguments. First because the public prosecutor had accepted the official explanation as to the origin of the injuries without looking into the matter further, even though that version had not been confirmed by subsequent medical examinations and had been disputed by the applicants’ lawyer. Moreover, between the discontinuance of the first and second sets of criminal proceedings, the applicants had identified their assailants from photographs, but that new evidence had not been examined in the second proceedings. In addition, there had not been a precise overlap between the people concerned by the two sets of criminal proceedings (one of the applicants had not been concerned by the first set, only by the second; four policemen had been implicated only in the second). The administrative inquiry launched later had in no way made up for those shortcomings.   There was therefore no indication that the competent authorities had demonstrated the requisite diligence or willingness to establish, first, the facts in a context corresponding to the applicants’ complaints, and second the possible responsibilities, not even those of the police officers who had been unanimously identified to them.   There had thus been a violation of Article 3.   Just satisfaction (application of Article 41)   The Court held that Turkey had to pay each applicant 27,500 euros in respect of non-pecuniary damage.   ***   The judgment is available in French only. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Emma Hellyer (telephone : +33 3 90 21 42 15) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)     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 Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the day the request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.