ARSLAN A ARAS proti Turecku

SECOND SECTION

DECISION

Application no. 584/06
Fatih Gökhan ARSLAN and others
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 December 2012 as a Chamber composed of:

Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 18 November 2005,

Having regard to the partial decision on admissibility of 29 September 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Fatih Gökhan Arslan, Mr Barış Aras and Mr Cihan Aras, are Turkish nationals who were born in 1981, 1975 and 1980 respectively. The first applicant lives in İzmir, and the second and third applicants live in Aydın. They are represented before the Court by Mr F. Türkeş and Mrs M. Tarhan, lawyers practising in Aydın. The Turkish Government were represented by their Agent.

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. On an unspecified date prior to the events in dispute, the İzmir public prosecutor’s office issued an arrest warrant in respect of the first applicant, on suspicion of his membership of an illegal organisation, namely the DHKP/C (Devrimci Halk Kurtuluş Partisi Cephesi – the Revolutionary People’s Liberation Party-Front). On 15 July 2004, on receiving intelligence reports regarding the first applicant’s whereabouts, police officers from the Aydın Security Directorate waited in front of the building where the Aydın Youth Association was holding its general assembly. When the assembly was over, the applicants left the building and started walking towards a bus station. The police stopped the first applicant and informed him that they had a warrant for his arrest and that he had to accompany them to the Security Directorate. It appears from the arrest report that the first applicant refused to go with the police and a group leaving the meeting started shouting slogans and formed a circle to protect the first applicant. As the police proceeded to arrest the first applicant, one member of the group, S.Z., held his legs and tried to drag him away from the police officers. The second and third applicants were also among the group that obstructed the police. The police used force to disperse the group and the applicants were arrested.

4. At about 4.30 p.m. on the same day, the applicants were taken to a health clinic for a medical examination. The report issued in respect of the first applicant indicated an oedema measuring 0.5 cm and redness measuring 0.3 cm on the right of his forehead, an abrasion measuring 0.3 cm and redness on his right cheek, redness on his right forearm measuring 2 cm, a hyperaemic area measuring 1 cm on his right shoulder, and redness measuring 1 cm on his waist. The doctor recommended that the first applicant be transferred to a hospital for an X-ray on account of the oedema on his forehead. The applicant was subsequently transferred to the Aydın State Hospital and the X-ray revealed no abnormalities.

5. The second applicant was also examined at the health clinic and the doctor who examined him reported no signs of ill-treatment.

6. The examination of the third applicant revealed that he had an abrasion to his right wrist and a superficial lesion on his right arm.

7. Subsequently, the applicants were taken to the police station, where they were interrogated in the presence of their lawyers. They used their right to remain silent.

8. At about 11.30 a.m. on 16 July 2004 the applicants were once again examined by a doctor. While the medical reports issued in respect of the first and third applicants revealed the same findings as the medical reports issued the previous day, the doctor who examined the second applicant noted a superficial lesion on his left cheek, a scabbed wound measuring 1 cm on his right wrist, and an superficial lesion on his wrist. The medical reports issued in respect of each applicant indicated that they were unfit to work for three days.

9. On the same day, the applicants were brought before the Aydın public prosecutor and the Aydın Magistrates’ Court. They denied the allegation that they had resisted arrest or attempted to hit the police officers, and argued that they had been subjected to ill-treatment by the police, who had used disproportionate force to arrest them. At the end of their questioning, the judge ordered the applicants’ pre-trial detention.

10. On 22 July 2004 the Aydın public prosecutor filed a bill of indictment with the Aydın Criminal Court, charging the applicants under Article 258 of the former Criminal Code with resisting lawful arrest. On 5 October 2009 the Aydın Criminal Court convicted the applicants as charged and sentenced each of them to one year’s imprisonment, but suspended pronouncement of the judgment pursuant to Article 231 of the Code of Criminal Procedure.

11. In the meantime, on 13 December 2004 the applicants lodged a criminal complaint with the Aydın public prosecutor, stating that they had been ill-treated during their arrest. They alleged that the officers had used disproportionate force in view of the fact that they had shown no resistance to them. The second applicant also lodged a complaint against the doctor who had examined him on 15 July 2004, stating that the doctor had not noted down the injuries he had observed on his body. He alleged that the injuries noted in the medical report of 16 July 2004 had already been present when he was examined on 15 July 2004.

12. In the course of his investigation, the Aydın public prosecutor took statements from the applicants, the accused police officers and two eyewitnesses to the event, namely two civilians who were working at the nearby bus station, who testified that the applicants had obstructed the police and that the officers had used force to restrain them. The public prosecutor also took into consideration the medical reports submitted by the applicants, but also those submitted by the police officers, which indicated that they had also sustained injuries while effecting the arrest.

13. On 2 March 2005 the Aydın public prosecutor issued a decision not to prosecute, finding that the applicants had resisted arrest by the police officers and sustained the injuries on their bodies during that struggle. He concluded that the police officers had acted in accordance with the Law on the Duties and Powers of the Police. The prosecutor further noted that the accused doctor was not guilty of medical negligence.

14. On 10 May 2005 the Nazilli Assize Court rejected an appeal lodged by the applicants. This decision was served on the applicants’ representatives on 7 and 8 June 2005 respectively.

15. Upon a request submitted by the applicants’ lawyer dated 29 May 2009, the Human Rights Foundation issued a report on 12 June 2009 indicating that the second and third applicants had been re-examined by medical experts on 9 August 2004. According to an opinion submitted by the psychiatrist, the second applicant had been suffering from depression. Furthermore, the orthopaedist who examined the second applicant stated that he had been suffering from soft tissue trauma. The psychiatrist noted that the third applicant had complained of post-traumatic stress. It was also noted that the applicants had not returned for treatment. It appears from the documents in the file that this report was never submitted to the domestic authorities.

COMPLAINT

16. The applicants complained under Article 3 of the Convention that they had been ill-treated during their arrest. They further argued that their allegations had not been examined thoroughly by the domestic authorities.

THE LAW

17. The applicants alleged that they had been ill-treated during their arrest and that their complaint had not been examined thoroughly by the domestic authorities. In that regard, they relied on Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

18. The Government argued firstly that the application should be rejected for non-exhaustion of domestic remedies. In this connection, they stated that the applicants should have instituted proceedings before the administrative or civil courts to seek compensation for the harm they had allegedly suffered. Secondly, they asked the Court to dismiss the application for non-compliance with the six-month time-limit: the Nazilli Assize Court’s judgment had been delivered on 10 May 2005, and the application had been lodged with the Court on 18 November 2005.

19. In respect of the Government’s first preliminary objection regarding the non-exhaustion of domestic remedies, the Court reiterates that it has already examined and rejected similar preliminary objections made by the Government in previous cases (see Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008). It 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 in this regard.

20. As for the Government’s argument that the application should be rejected for being introduced outside the six-month time-limit, the Court observes that the Nazilli Assize Court’s decision was served on the applicants’ representatives on 7 and 8 June 2005 respectively. Since the application was lodged with the Court on 18 November 2005, this objection should also be dismissed.

21. As regards the merits, the Court observes at the outset that it is undisputed between the parties that the injuries observed on the applicants were sustained during the scuffle that broke out at the time of their arrest. It is clear from the official documents, such as the arrest report, that the police used force to restrain the applicants. In this connection, the Court reiterates that Article 3 of the Convention does not prohibit the use of force in certain well-defined circumstances, such as to effect an arrest. However, such force must not be excessive (see, among other authorities, Kurnaz and Others v. Turkey, no. 36672/97, § 52, 24 July 2007). The Court will therefore determine whether the recourse to physical force was made strictly necessary as a result of the applicants’ own conduct 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).

22. The Court notes that, according to the medical reports, the first and third applicants sustained injuries during their arrest. Moreover, although the first medical report issued in respect of the second applicant indicated that there were no signs of ill-treatment on his body, it is clear from his submissions and from the medical report issued the day after his arrest that he too had sustained certain injuries during his arrest. While taking note of the flaw in the first medical report on the second applicant, the Court considers that the injuries observed on the applicants appeared to be superficial, with no lasting consequences, and that the findings were consistent with the physical confrontation that had taken place between the applicants and the police.

23. The Court further observes that in the course of his investigation, the public prosecutor took statements from two eyewitnesses, namely two civilians who were working at the nearby bus station. They confirmed that the applicants and their friends had obstructed the police. Moreover, the pubic prosecutor took into account all the medical evidence in the file: the reports issued in respect of the applicants and those delivered in respect of the police officers, who were also wounded during the incident. The Court further observes that the Aydın Criminal Court also found the applicants guilty of resisting lawful arrest.

24. Having regard to the above, the Court finds that there is no evidence in support of the applicants’ allegation that the police used excessive force during their arrest. Furthermore, there is no element in the case file to indicate that the subsequent investigation into the applicants’ allegations was in breach of Article 3 of the Convention.

25. In sum, the Court concludes that the allegations are unsubstantiated and that the application should be rejected for being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Stanley Naismith Guido Raimondi
Registrar President