KARABULUT v. TURKIYE - 74021/12 (Judgment : Article 3 - Prohibition of torture : Second Section Committee) [2023] ECHR 390 (09 May 2023)

JUDGMENT STRASBOURG 9 May 2023 This judgment is final but it may be subject to editorial revision. In the case of Karabulut v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no. 74021/12 ) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 18 October 2012 by a Turkish national, Mr Mahmut Karabulut ("the applicant"), who was born in 1962 and lives in Mersin and who had been granted legal aid and was represented by Mr Ö. Özbek, a lawyer practising in Mersin; the decision to give notice of the complaints concerning the applicant's alleged ill - treatment and lack of an effective investigation thereof to the Turkish Government ("the Government"), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare the remainder of the application inadmissible; the parties' observations; the decision to reject the Government's objection to examination of the application by a Committee; Having deliberated in private on 11 April 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The case concerns the alleged ill-treatment of the applicant by the police during the dispersal of a demonstration and the alleged lack of an effective investigation into this allegation. 2. On 30 March 2011 the Peace and Democracy Party ("the BDP", a pro - Kurdish political party) organised a demonstration with a view to protesting about various issues. 3. At about 11.30 a.m. on that day several groups of people began gathering at various locations in Mersin before heading towards the town hall of the Akdeniz district. At about 2.30 p.m. some 500 demonstrators were present in front of the town hall. The demonstration continued there until 11.30 p.m., at which time the police ordered the remaining group of some 150 people to disperse. The group, including the applicant, refused to disperse and began a sit-in protest by linking their arms. 4. At about 12.30 a.m. on 31 March 2011 the police began to disperse the group by using physical force and pepper spray. During the dispersal, a police officer allegedly hit the applicant on the head with a walkie-talkie. The police also arrested eighty-five demonstrators, but the applicant was not among those arrested. 5. During the dispersal, a police officer sustained injuries to his right hand, requiring stitches. . On the same night the applicant went to the Mersin Public Hospital. According to the medical report issued by the latter at 3.02 a.m. ("the medical report of 31 March 2011"), the applicant had a cut 2 cm long in the occipital area of his head, an abrasion of 6 to 7 cm behind his right ear, and two abrasions of 1 cm and 2 cm on his lips. The applicant was then referred to the Toros Public Hospital, which concluded that the applicant had not suffered any neurological damage. The alleged cause of the injuries was indicated as battery in both reports. 7. On the same day the applicant was questioned by the police in relation to his involvement in the demonstration. The applicant exercised his right to remain silent but requested that the medical report of 31 March 2011 be added to the file. 8. On 7 April 2011 the applicant lodged a complaint against the police concerning his injuries with the Mersin Chief Public Prosecutor's Office. He claimed in particular that he had been hit on the head with a walkie-talkie by a police officer and that the force used by the police had been excessive. . On 8 April 2011 the applicant was heard by a public prosecutor. He reiterated his claims and referred to the aforementioned medical report. He also requested that the video footage of the events be examined in order to identify the police officers responsible. 10. On 6 October 2011, on a request from the prosecutor's office, the applicant was examined by a doctor at the Mersin Public Hospital. The medical report issued by the doctor on the same date mentioned that the applicant's injuries as indicated in the report of 31 March 2011 had not been life-threatening and had been treatable by a simple medical intervention. . On 16 December 2011 the Mersin public prosecutor ("the prosecutor") issued a decision not to prosecute in relation to the applicant's allegations. The prosecutor noted that the applicant had been injured in the course of the intervention of the police, which had been in accordance with the applicable law. Having regard to the nature of the injuries at issue, the prosecutor found that such injuries had been typical consequences of the confrontation between the police and the demonstrators during the dispersal. The prosecutor concluded that there had been no evidence that excessive force had been used by the police. 12. On 1 February 2012 the applicant lodged an objection against that decision. 13. On 13 March 2012 the Tarsus Assize Court dismissed the applicant's objection. That decision was served on the applicant's lawyer on 30 April 2012. THE COURT'S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 14. The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated by the police during the dispersal of the demonstration and that the investigation into his allegations had been ineffective. 15. Being master of the characterisation to be given in law to the facts of the case, the Court finds that these complaints fall to be examined only under Article 3 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12 , § 126, 20 March 2018, and Aysu v. Turkey , no. 44021/07 , §§ 25-27, 13 March 2012). 16. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 17. The general principles concerning the prohibition of ill-treatment and the State's obligation to carry out an effective investigation of such allegations have been summarised in Bouyid v. Belgium ([GC], no. 23380/09 , §§ 81-90 and §§ 114-23, ECHR 2015). 18. In determining whether it was established beyond reasonable doubt that the applicant's injuries were the result of ill-treatment by the police, the Court observes that the applicant was not among those arrested and that he went to the hospital of his own initiative. However, the applicant claimed during his medical examination that he had been beaten (see paragraph 6 above). The Court further notes that although, as indicated by the Government, the applicant remained silent during his questioning by the police, he nevertheless requested that the medical report of 31 March 2011 be added to his statement, before filing a formal complaint concerning his injuries. 19. As to the Government's argument that there was no evidence beyond a reasonable doubt that the applicant's injuries had been caused by the acts of the police, the Court notes that the prosecutor acknowledged that the applicant had been injured in the course of the intervention by the police, albeit while considering such injuries to be typical consequences of the confrontation between the police and the demonstrators (see paragraph 11 above). Furthermore, the findings of the medical report of 31 March 2011 - which was issued only a few hours after the incident - are at the very least consistent with the applicant's allegations of having been hit on the head. Accordingly, having regard also to the considerations concerning the effectiveness of the investigation into the matter (see paragraphs 23-24 below) and the absence of any alternative or plausible explanations for the cause of the injuries in question, the Court finds it established beyond reasonable doubt that the injuries at issue were indeed inflicted by the police during the dispersal of the demonstration (see, mutatis mutandis , Zakharov and Varzhabetyan v. Russia , nos. 35880/14 and 75926/17 , §§ and 69, 13 October 2020). 20. Having regard to the nature and location of the applicant's injuries, the Court also rejects the Government's argument that the injuries did not attain the minimum level of severity so as to fall within the scope of Article 3 of the Convention (see, mutatis mutandis , Samüt Karabulut v. Turkey , no. 16999/04 , § 41, 27 January 2009). 21. Regarding the necessity of the force used, it has not been shown that the applicant engaged in any acts of violence or presented a danger to public order. In so far as the Government referred to the injuries sustained by one of the police officers, there is nothing to indicate that those injuries were caused by the applicant himself, who was not even among those arrested. Accordingly, it can only be concluded that the use of force against the applicant was not warranted by his own conduct. 22. There has accordingly been a violation of Article 3 of the Convention in its substantive limb. . As to the investigation conducted into the applicant's allegations, the prosecutor considered the injuries at issue to be typical consequences of the confrontation between the police and the demonstrators during the dispersal, without attempting to verify the applicant's account of the events or to ascertain whether the injuries were consistent with his allegation that he had been hit on the head by the police. Furthermore, there is nothing to indicate that the police officers were ever questioned in relation to the applicant's allegations. . Lastly, the reasoning provided in the prosecutor's decision made no mention of an assessment of the video footage of the events - which was submitted by the Government to the Court - although this was specifically requested by the applicant for identification purposes (see paragraph 9 above and, mutatis mutandis , Rizvanov v. Azerbaijan , no. 31805/06 , § 60, 17 April 2012). 25. In view of the above, the Court considers that the respondent State's authorities did not seriously attempt to establish the circumstances in which the injuries at issue had occurred. 26. There has accordingly been a violation of Article 3 of the Convention also in its procedural limb. OTHER COMPLAINTS 27. Relying on the same facts, the applicant alleged a further violation of Articles 10 and 11 of the Convention. However, having regard to his submissions and its own findings above, the Court notes that these complaints are essentially the same as those under Article 3 of the Convention. Accordingly, the Court considers that there is no need to examine them separately (see for this approach, mutatis mutandis , Öcalan v. Turkey [GC], no. 46221/99 , § 206, ECHR 2005 - IV, and İzgi v. Turkey , no. 44861/04 , § 47, 15 November 2011). APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage. He also claimed EUR 5,000 in respect of costs and expenses incurred before the domestic authorities and the Court. 29. The Government contested these claims. 30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 6,500 in respect of non - pecuniary damage, plus any tax that may be chargeable on that amount. 31. Having regard to the documents in its possession and bearing in mind that the applicant was granted EUR 850 in legal aid, the Court rejects the claim for costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaints concerning the ill-treatment of the applicant and the lack of an effective investigation in that regard admissible; Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs; Holds that there is no need to examine separately the complaints under Articles 10 and 11 of the Convention; Holds (a) that the respondent State is to pay the applicant, within three months, EUR 6,500 (six 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; Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 9 May 2023, pursuant to Rule §§ 2 and 3 of the Rules of Court. Dorothee von Arnim Pauliine Koskelo Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII