Arrest and detention of a person accused of sexual assault after being identified by the victims. Subsequent acquittal. Non-violation of ECHR due to reasonable suspicion

JUDGMENT

Bilal Akyıldız v. Turkey 15.09.2020 (app. no. 36897/07)

see here

SUMMARY

Arrest and temporary detention of an applicant on suspicion of having committed a series of sexual assaults and attempted abductions of children.

The applicant resembled the person depicted in a photograph of the alleged perpetrator, but was acquitted after the victims’ statements made during the identification process were revoked.

With regard to the alleged irregularities in the process of his arrest and identification, the ECtHR ruled that the alleged errors could not be considered equivalent to a “serious or obvious irregularity” which made his arrest and subsequent pre-trial detention illegal.

The Court considered that the applicant ‘s subsequent acquittal could not retroactively challenge the existence of a reasonable suspicion, at the time of his initial detention, that he had committed an offense, on the basis of sufficient evidence. Consequently, the Court considered that the applicant could be considered to have been arrested and remanded in custody on reasonable suspicion of having committed an offense within the meaning of Article 5 § 1 of the ECHR.

PROVISIONS

Article 5

Article 3

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Bilal Akyıldız, is a Turkish national who was born in 1972 and lives in Istanbul.
The case concerned his arrest and pre-trial detention on suspicion of a series of sexual assaults and
attempted abductions of children in Istanbul.

Mr Akyıldız was arrested in November 2002 on the basis that he resembled a photofit of the alleged
perpetrator of the sexual assaults. DNA testing carried out while he was in police custody showed
that he was not responsible for the sexual assaults. However, during an identification parade two of
the victims pointed him out as the perpetrator of the attempted abductions and charges were
brought against him on that account. He was acquitted when the victims retracted their statements
at trial. He spent 27 days in pre-trial detention.

He subsequently complained about his treatment in police custody, lodging an official complaint in
January 2003, but the authorities issued decisions not to prosecute, which were upheld on appeal in
March 2003 and March 2004.

He was awarded 4,443 Turkish liras (TRY) in compensation for being unjustly deprived of his liberty
after lodging a claim with the Assize Court. He was also awarded TRY 80,000 in an action for
damages in the administrative courts, which found that his confidentiality had not been respected
during the investigation against him.

Relying on Article 5 (right to liberty and security), Mr Akyıldız mainly complained that there had been
no reasonable suspicion that he had committed an offence and that there had been irregularities in
his arrest and the identification parades.

THE DECISION OF THE COURT…

Article 5

The victim status of the applicant

The Court observes that after the applicants acquittal the Assize Court of Kadıköy awarded him TRY 697 and TRY 1,000 respectively for pecuniary and non-pecuniary damage suffered as a result of his deprivation of liberty. In so doing, that court merely relied on the applicants acquittal. The Court observes that Act No. 466 provides, inter alia, that the State shall compensate any person who, having been arrested or detained in accordance with the law, has then been acquitted. In the context of a claim for compensation following an acquittal, the Turkish courts do not have to examine whether detention was unlawful, let alone recognise this, even in substance.

The Court cannot agree with the Governments argument that the authorities clearly recognised a violation of the applicants right to liberty; in the instant case, the Assize Court of Kadıköy found that the applicants detention had been unfair not because the detention had been incompatible with the requirements of that right, but simply because he had been acquitted. The court in no way examined whether the applicants detention had been procedurally defective or whether it had been based on a reasonable suspicion that he had committed the offence charged. As the award of compensation was an automatic consequence of the applicants acquittal, it did not amount to a finding of a violation of Article 5 § 1 of the Convention (see, to that effect, Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007, and Elğay v. Turkey, no. 18992/03, § 32, 20 January 2009). The Court considers that, in the absence of such recognition, the payment of compensation, particularly given the time which the applicant spent in pre-trial detention, was not sufficient to deprive him of his status as a “victim” within the meaning of Article 34 of the Convention (see Shkarupa v. Russia, no. 36461/05, § 78, 15 January 2015). Moreover, the Court considers that the sum awarded to the applicant in respect of non-pecuniary damage was significantly lower than the sums that the Court has awarded in cases concerning unlawful detention (see, to this effect, Vedat Doğru v. Turkey, no. 2469/10, § 41, 5 April 2016). In conclusion, the Court considers that, notwithstanding the payment of a sum by way of compensation for the pre-trial detention, the applicant can still claim to be a “victim”, within the meaning of Article 34 of the Convention, of a violation of Article 5 § 1. It therefore rejects the Governments objection in this regard.

Lawfulness of the deprivation of liberty

 The applicant alleged that the gendarmes who had arrested him had not been competent to do so, as he had been arrested in an area under police jurisdiction. He also alleged that the reports drawn up after his arrest had been irregular, and lastly he claimed that the identification parades had not been in accordance with procedure. He stated that he had been remanded in pre-trial detention on the basis of identifications made by young children, who had retracted their statements one month later.

The Government maintained that the applicants allegations were unfounded.

The Court emphasises that the present case differs from those concerning irregularities directly affecting the adoption of decisions on pre-trial detention (see, inter aliaMooren v. Germany [GC], no. 11364/03, § 83, 9 July 2009). The judge who issued the decision to remand the applicant in pre-trial detention had jurisdiction to do so. After hearing the applicant, and on the basis of the evidence before him, the judge considered that the substantive condition for remand in custody had been met.

Turning now to the irregularities relied on by the applicant, the Court notes that they concern the competence of the gendarmes who arrested him, the inaccurate reference to his criminal record in the arrest and search report, the allegedly erroneous information about the circumstances of his arrest in the handwritten report, and the identification parades carried out while he was in police custody.

The Court finds that the applicants first allegation, that the gendarmes who arrested him were not competent to do so, is in no way substantiated. Neither the material in the file nor the arguments put forward by the applicant make it possible to assert that the gendarmes acted in contravention of the relevant domestic law, as regards their competence and territorial jurisdiction, when arresting and taking the applicant into custody.

Secondly, as regards the inaccurate reference to the applicants criminal record in the arrest and search report, the Court considers that it is more a simple clerical error which had no impact on the lawfulness of the applicants arrest and detention, especially as the error was subsequently rectified while he was in custody (see Nikolov v. Bulgaria, no. 38884/97, § 63, 30 January 2003). Indeed, both the record of questioning drawn up during his time in police custody and the record of his hearing before the judge clearly indicated that there was nothing on the applicants criminal record.

As to the handwritten report indicating that the applicant had been arrested during a routine patrol for failing to produce his identity card, the Court notes that the Kartal public prosecutors office decided to prosecute the gendarmes who had drawn up this report for abuse of authority, but the criminal proceedings were time-barred. The Court considers that it cannot speculate as to what the outcome of those proceedings would have been if they had not been affected by the statute of limitations. In any event, assuming that there was an irregularity in the record, as the applicant asserts, the Court considers that the alleged shortcoming could not be said to amount to such a “gross or obvious irregularity” as to render the arrest and subsequent pre-trial detention unlawful . It observes that an official arrest and search report, signed by the applicant, was drawn up properly; this report stated that the applicant had in fact been arrested on suspicion of attempted abduction. The applicants arrest and detention, and all other investigative acts, were documented in the records; the applicant was informed of the charges against him, and he was notified of his rights as a suspect and underwent medical examinations. At the end of his time in police custody the applicant was brought before the judge, who decided to remand him in pre-trial detention (compare with the serious irregularities observed during the arrest and detention of the applicant in the case of Venskutė v. Lithuania, no. 10645/08, §§ 75-81, 11 December 2012).

Lastly, the Court notes that the applicant complained that the identification parades in question had not been reliable, without, however, explaining why those identification parades had not been in accordance with procedure. In his criminal complaint of 8 January 2003, the applicant claimed that he had been presented alongside the victims fathers. However, the criminal investigation conducted by the Kartal public prosecutor revealed that the applicant had been presented alongside gendarmes in civilian clothes. The applicant did not repeat this allegation before the Court. In the Courts view, examination of the file did not reveal any procedural irregularity which could, under national law, have resulted in the identification parades concerned being invalid.

Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The substantive judgment of the court

The Court noted that the applicant was arrested for a series of sexual assaults and kidnapping attempts, based on his physical resemblance to the perpetrator of these offenses. Indeed, after an anonymous call reporting the presence of a person resembling the person depicted in the photograph of the alleged perpetrator of the sexual assaults, the police officers went to the area indicated by the caller and proceeded to arrest the applicant.

During his hearing, the applicant himself admitted that he resembled the person depicted in the photograph of the alleged perpetrator. Although it is true that the DNA test revealed that the applicant was not responsible for the sexual assaults, this was not related to the kidnapping attempts, as during the identification organized during the applicant’s police detention, the two victims and the witness had identified the applicant as the perpetrator of the abductions.

Therefore, in view of the particular nature of the facts which led to the applicant’s deprivation of liberty, the nature of the alleged offenses and the information contained in the case file, the Court considered that his arrest and detention were based on sufficient evidence to prove a neutral and objective observer that the applicant could have committed the offense for which he was charged.

The Court considered that the applicant ‘s subsequent acquittal, following the withdrawal of the victims’ statements made during the pre – trial identification process, could not retroactively disprove the existence of a reasonable suspicion, during his initial pre – trial detention, that he had committed an offense. Consequently, the Court held that the applicant could be considered to have been arrested and remanded in custody on reasonable suspicion of having committed an offense within the meaning of Article 5 § 1 of the ECHR.

Consequently, there has been no violation of Article 5 § 1 of the Convention.

Article 3

Invoking Article 3 of the Convention, the applicant claimed to have been subjected to degrading and humiliating treatment while in police custody, and he complained that the perpetrators of such acts had not been punished.

The Government argued that the applicant had failed to comply with the six-month rule.

The Court notes that following the investigation conducted ex proprio motu by the Kartal public prosecutor, a decision not to prosecute was issued on 26 December 2002 regarding the treatment that the applicant complained of before the Court, and the appeal lodged against that decision was dismissed on 4 March 2003, more than six months before the present application was lodged. The additional decision not to prosecute was issued on 17 October 2003, and the appeal lodged against that decision was dismissed on 18 March 2004, again, more than six months before the lodging of this application.

The Court observes that the applicant also submitted his allegations of ill-treatment in the context of the ensuing action for damages in the administrative courts, when he lodged an application with the Istanbul Administrative Court. It notes however that in the present case it was not the purpose of this action to review the allegations of the applicant under Article 3 of the Convention. It further notes in this regard that the Istanbul Administrative Court made no mention of these allegations in its decision. Moreover, since these proceedings could only result in the granting of compensation, they were not an adequate and effective remedy, within the meaning of Article 35 § 1, which should be taken into account for the purposes of the six-month time-limit (see among others, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 136, 19 December 2017).

Accordingly, this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Article 1 of the First Additional Protocol in accordance with article 5 § 5 of the ECHR

The applicant complained that the amount of compensation awarded to him for his detention had been insufficient, and that he should have been awarded default interest on that amount. He invoked Article 1 of Protocol No. 1.

The Court considers it appropriate to examine the first part of this complaint – relating to the inadequacy of the amount of compensation – in the light of Article 5 § 5 of the Convention. It points out that the right to compensation under Article 5 § 5 of the Convention presupposes that a violation of one of the other paragraphs of that provision has been established by a national authority or by the Court (see N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X). In the present case, as a violation of one of the other paragraphs of this provision has not been established, that provision is not applicable. Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4.

In so far as the applicant complained that he had not been awarded default interest on that amount, the Court notes that the compensation awarded to him was paid on 3 October 2012 and included default interest at the statutory rate. In the light of the default interest applied to the applicants claim, the Court finds that the applicant suffered no real loss. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.


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