« Erkan Eğmez »

930
21.12.2000

Press release issued by the Registrar

JUDGMENT IN THE CASE OF EGMEZ v. CYPRUS

The European Court of Human Rights has today notified in writing a judgment in the case of Egmez v. Cyprus. The Court held unanimously that there had been:

• a violation of Article 3 (prohibition of inhuman treatment) of the European Convention on Human Rights,
• no violation of Article 5 § 1 (right to liberty and security) of the Convention,
• no violation of Article 5 § 2 (right to be informed promptly of reasons for arrest),
• no violation of Article 5 § 3 (right to be brought promptly before a judge),
• no violation of Article 5 § 4 (right to take proceedings to decide lawfulness of detention),
• and that no separate issue arose under Article 6 § 1 (right to a fair trial).

By six votes to one, the Court further held that there had been a violation of Article 13 (right to an effective remedy).

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 10,000 pounds sterling for non-pecuniary damage and GBP 400 for legal costs and expenses.

1.  Principal facts

The applicant, Erkan Egmez, is a Turkish Cypriot of British nationality born in 1966 and living in the north of Cyprus.

The following facts, accepted by the Court and the Cypriot Government, were established by the European Commission of Human Rights following the taking of evidence by a delegation.

A team of anti-drug police officers was sent to arrest Mr Egmez at a meeting point close to the buffer zone dividing the north and south of Cyprus. He resisted arrest and attempted to escape but was apprehended by two officers, with whom he fought. One struck him on the head with a firearm, the second threw him to the ground and a third handcuffed him. He was taken to police headquarters and then to hospital, where medical examinations revealed numerous bruises and other injuries.

At a hearing the following day, the applicant was remanded in custody. A subsequent medical examination by a United Nations doctor also revealed extensive injuries. However, a police investigation concluded that the injuries had been sustained during arrest and that the force used had been proportionate. The applicant complained to the Ombudsman, claiming that he had been subjected to a violent, unprovoked attack by a number of officers on his arrest and that he had subsequently been tortured. The Ombudsman concluded that the applicant had been ill-treated on arrest and while being taken to the police headquarters. However, no criminal or other proceedings were brought against the police officers.

2.  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 26 March 1996. Having declared the application admissible on 18 May 1998, the Commission adopted a report on 21 October 1999 in which it expressed the unanimous opinion that there had been a violation of Articles 3 and 13 of the Convention and no violation of Articles 5 §§ 1, 2, 3 and 4 or 6 § 1. The Commission referred the case to the Court on 30 October 1999.

Judgment was given by a chamber of seven judges, composed as follows:

Antonio Pastor Ridruejo (Spanish), President,
Lucius Caflisch (Swiss),
Jerzy Makarczyk (Polish),
Volodymyr Butkevych (Ukrainian),
John Hedigan (Irish),
Matti Pellonpää (Finnish), judges,
Andreas Loizou (Cypriot), ad hoc judge,

and also Vincent Berger, Section Registrar.

3.  Summary of the judgment

Complaints

The applicant complained that he was in effect kidnapped and tortured by the authorities of the Republic of Cyprus, that he was never informed of the reasons for his arrest, that he was not brought promptly before a judge, that he could not obtain a review of his detention, which was unlawful, and that he did not have an effective remedy before the courts of the Republic. He invoked Article 3, Article 5 §§ 1, 2, 3, and 4, Article 6 § 1 and Article 13 of the Convention.

Decision of the Court

Article 3

Preliminary objection

The Government submitted that the applicant’s complaint under Article 3 should be dismissed because he had not exhausted domestic remedies.

The Court, however, rejected the Government’s preliminary objection, on the ground that the applicant had exhausted domestic remedies by complaining to the Ombudsman. While a complaint to an Ombudsman was not in principle a remedy which had to be exhausted, by complaining to the Ombudsman the applicant had drawn the authorities‘ attention to his allegations and, since the Attorney General was prepared to treat them as credible, the applicant could be said to have had an arguable claim. The authorities were therefore placed under an obligation to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible.

Although the Ombudsman’s investigation opened the way for the institution of criminal proceedings, the Attorney General had refrained from taking any action. The authorities had assumed too readily that the applicant would not co-operate and thus prevented an effective prosecution. Also, while there was no reason to doubt the effectiveness of the Ombudsman‘s investigation, he had no power to order measures or impose sanctions.

It was true that the authorities had not remained inactive when confronted with serious allegations of ill-treatment in the applicant’s case. However, in the Court’s view, authorities should not underestimate the importance of the message they conveyed to all those concerned as well as the general public when deciding whether or not to institute criminal proceedings against officials suspected of treatment contrary to Article 3 of the Convention. Under no circumstances should they give the impression that they are prepared to allow such treatment to go unpunished.

The Court accordingly considered that, because of the special obligation that the Convention created for domestic authorities in the case of arguable Article 3 claims, the applicant, by lodging a complaint with the Ombudsman, had discharged his duty under Article 35 § 1 of the Convention to afford the State concerned an opportunity to put matters right through its own legal system before having to answer before an international body for its acts. The only way of putting matters right in the circumstances of the case had been the institution of criminal proceedings against the officers involved and a complaint to the Ombudsman should have normally brought about this result.

The Government’s preliminary objection was accordingly rejected.

Compliance with Article 3

The Court recalled that, even in the most difficult circumstances, such as the fight against organised crime, the Convention prohibited in absolute terms torture or inhuman or degrading treatment. Ill-treatment had to attain a minimum level of severity if it was to fall within the scope of Article 3. In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court had to have regard to the distinction between that notion and that of inhuman or degrading treatment. By means of that distinction the Convention attached a special stigma to deliberate inhuman treatment causing very serious and inhuman suffering.

The Government had accepted that, at the time of the applicant’s arrest and in its immediate aftermath, police officers had intentionally subjected him to ill-treatment, which had not been necessary in the circumstances of the case. The Court considered, however, that it had not been shown that the officers’ aim had been to extract a confession. The injuries had been inflicted over a short period of heightened tension and emotions. The Court could, moreover, not disregard the uncertainty concerning the gravity of the applicant’s injuries. That uncertainty had been caused in part by the "retouching" of the photographs submitted with the application form and the applicant had done nothing to dispel it before the Court. The Court finally noted that no convincing evidence had been adduced to show that the ill-treatment in question had had any long-term consequences for the applicant.

The Court accordingly took the view that the ill-treatment to which the applicant had been subjected could not be qualified as torture. It was nevertheless serious enough to be considered inhuman and there had therefore been a breach of Article 3 of the Convention.

Conclusion: violation (6 votes to 1).

Article 5 § 1

The Court found that the applicant was arrested on reasonable suspicion of committing the criminal offence of drug-trafficking.

Conclusion: no violation (unanimous).

Article 5 § 2

The applicant was informed promptly and in a language which he understood of the reasons for his arrest and of any charge against him.

Conclusion: no violation (unanimously).

Article 5 § 3

The hearing held the day after the applicant‘s arrest ensured that the applicant was brought promptly before a judge, in compliance with this provision.

Conclusion: no violation (unanimously).

Article 5 § 4

Following the hearing the day after the applicant‘s arrest, the lawfulness of his detention was reviewed on two further occasions, once automatically and once on an application for release, in compliance with this provision.

Conclusion: no violation (unanimously).

Article 13

The Court recalled that its finding that the applicant exhausted domestic remedies was based on the following considerations: the applicant, by complaining to the Ombudsman, had given the authorities the opportunity to put matters right by ordering an investigation capable of leading to the identification and punishment of the officers involved; this was the only remedy that was appropriate for the kind of violation complained of. However, the Attorney-General, who was the official in charge of bringing criminal proceedings, had not taken any steps in this direction.

Conclusion: violation (unanimously).

Article 6 § 1

The Court has always considered it appropriate to examine claims concerning the alleged absence of remedies in respect of ill-treatment under Article 13.

Conclusion: no separate issue (unanimously).

Article 41

The Court awarded the applicant GBP 10,000 for non-pecuniary damage and GBP 400 for legal costs and expenses.

Judge Loizou expressed a partly dissenting opinion, which is annexed to the judgment.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.