Violent beating of a citizen during police control and impunity of police officers due to statute of limitations. Conviction for degrading treatment
JUDGMENT
Akın v. Turkey 17.11.2020 (app. no. 58026/12)
SUMMARY
Citizen beaten by police and serious bodily harm. No police convictions. Humiliating treatment.
The applicant, during a typical identity check from police officers was severely beaten, resulting in severe bodily harm. He filed lawsuits against two police officers. The officers were sentenced to 6 and 5 months in prison respectively. However, no sentence was carried out because until the appeal was heard in the Court of Cassation, the crime of the police officers fell into statute of limitations.
According to the Court when a person is deprived of his liberty, the use of physical violence against him, which is not considered necessary, violates human dignity, and the state must conduct an effective investigation to punish those responsible.
In the present case, the ECtHR found that the police officers responsible had already been convicted by the domestic court, so it considered that it was not necessary to consider the necessity and proportionality of the use of force. However, it considered that the domestic authorities had violated their positive obligation to conduct an effective investigation which requires speed and diligence on the part of the state, with the result that the unjust act of the police was barred in dispute.
The Court found a violation of the substantive and procedural part of Article 3 of the ECHR (prohibition of degrading treatment).
PROVISION
Article 3
PRINCIPAL FACTS
The applicant, Necmettin Akın, is a Turkish national who was born in 1978 and lives in Antalya
(Turkey).
In this case, Mr Akın complained of his ill-treatment by police officers during an identity check and of
the ineffectiveness of the investigation into that matter.
At around a.m. on 8 June 2003 Mr Akın, who was allegedly under the influence of alcohol, was
stopped by two police officers on patrol outside the US Consulate in Istanbul. The police officers
called reinforcements, and an altercation ensued.
On the same day Mr Akın was arrested and then transferred to hospital: two medical reports were
drawn up, at 4.59 a.m. and 2.40 p.m. respectively, mentioning several physical injuries to the
applicant. Mr Akın was released, whereupon he lodged a complaint of ill-treatment. At the public
prosecutor’s request the Institute of Forensic Medicine immediately examined the applicant and
drew up a report.
On 12 March 2014 the prosecutor made a partial discharge order concerning six police officers.
Subsequently, in May 2004, he indicted two officers, one of whom was missing until 2006, having
been dismissed from the civil service. When he was traced in 2006, Mr Akın stated that he had not
been the officer who had struck him.
Ultimately, two sets of criminal proceedings were conducted at different times against two officers,
N.D. and E.S. The first set of proceedings ended with a judgment delivered by the assize court on
25 March 2009, sentencing police officer N.D. to six months’ imprisonment. The second set of
proceedings also ended with an assize court judgment on 22 June 2009, sentencing police officer E.S.
to five months’ imprisonment. The assize court held that the two officers had caused Mr Akın actual
bodily harm in abuse of their powers, accompanying the sentence with a provisional ban on
discharging public duties.
The two police officers (N.D. and E.S.) appealed on points of law. In June 2011 and March 2012 the
Court of Cassation struck the cases out as being statute-barred.
Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on
Human Rights, Mr Akın complained of the ineffectiveness of the investigation, considering that the
facts had become statute-barred as a result of the authorities’ failure to identify and summon the
police officers in question and then to conduct the requisite proceedings.
THE DECISION OF THE COURT…
The Court considered it particularly important to emphasize that when a person is deprived of his liberty or, more generally, confronted with state law enforcement agents, the use of physical force against him, when it is not “absolutely necessary” in accordance with his conduct , violates human dignity and is, in principle, a violation of the right guaranteed by this provision. The Court emphasizes that the words “in principle” cannot be regarded as an indication that there would be situations in which such a finding of infringement would not have occurred because the gravity threshold had not been reached. Insulting human dignity violates the very essence of the Convention. For this reason, any conduct of state law enforcement bodies and agents against a person who violates human dignity constitutes a violation of Article 3 of the ECHR.
This is especially true with the use of physical force on a person, unless this is deemed strictly necessary by the behavior of the victim, regardless of the impact it would have on the victim. In the present case, the Criminal Court convicted the police officer of causing bodily harm to the applicant, in abuse of his duties. In view of this finding at national level, the Court considered that it was not necessary to consider the necessity and proportionality of the use of force. However, the 5-month prison sentence imposed by the Criminal Court had no effect in practice, because the Court of Cassation, by its decision of 21 March 2012, terminated the prosecution due to limitation period. In short, despite the detection of the illegal actions of the police officer, this decision was not executed.
In the present case, despite the conduct of the applicant and his lawyer, who did not attend several hearings and were unable to present their witness in a timely manner, the Court reiterated that in the case of investigations into allegations of ill-treatment by law enforcement agencies, a positive and effective research requires speed and diligence on the part of the state. This investigation is the responsibility of the national judicial authorities, which are called upon to take all necessary measures to complete the proceedings before the statute of limitations for the criminal offense has expired. The Court noted in particular that in this case it took about 5 years for the investigating authorities to discover evidence against police officer E.S. in order to initiate the second procedure mentioned above. Subsequently, for both the first and second proceedings, more than two years had elapsed before the Court of Cassation ruled on these proceedings. The Government have not put forward reasonable reasons to explain these excessive delays.
The Court thus concluded that the national authorities had not taken all the necessary positive steps to act with sufficient speed and due diligence in the present case. This failure to conduct the investigation resulted in the impunity of the responsible police officers and the ineffectiveness of the complaint.
The foregoing considerations are sufficient to enable the Court to find a violation of Article 3 of the Convention, both in substance and in procedure.
Just satisfaction: 6,500 euros (EUR) for non-pecuniary damage
