FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31725/96 
by Salih and Ercan KÖKSAL 
against the Netherlands

The European Court of Human Rights (First Section), sitting on 19 September 2000 as a Chamber composed of

Mrs E. Palm, President
 Mrs W. Thomassen, 
 Mr Gaukur Jörundsson, 
 Mr R. Türmen, 
 Mr C. Bîrsan, 
 Mr J. Casadevall, 
 Mr R. Maruste, judges

and Mr M. O’Boyle, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 25 October 1995 and registered on 4 June 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having regard to the comments submitted by the Turkish Government,

Having regard to the oral submissions of the parties and of the Turkish Government at the hearing on 19 September 2000,

Having deliberated, decides as follows:

 

THE FACTS

The applicants are Turkish nationals, born in 1944 and 1977 respectively, and now resident in Samsun (Turkey). The first applicant is the father of the late Mr Hüseyin Köksal, who was born in 1961 and died on 8 January 1993; the second applicant is Mr Hüseyin Köksal’s son.

They are represented before the Court by Me Alain Vallières, a lawyer at the Bar of Quebec, Canada, and Mr Yalçın Korkmaz, a lawyer practising in Samsun.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties and apparent from copies of official documents submitted by the respondent Government, may be summarised as follows.

1. The arrest of Mr Hüseyin Köksal and subsequent events

At 2.42 a.m. on 7 January 1993 a taxi driver in the town of Venlo (Venray municipality), using his mobile radio, informed the Venlo police that he had witnessed a traffic accident. A motor car had swerved into a post, knocking it over, and it appeared that the driver was drunk. The police telephonist reported this to the station sergeant on duty (wachtcommandant), Sergeant (brigadier) Krouwel. It appeared that the car was registered in the name of one Ali Köksal, a Turkish national resident in Venlo.

It would appear that a person named Ali Köksal was well known to the local police though not to the actual police officers involved in the events complained of.

As it proved not possible to send a patrol car to the scene of the accident, Sergeant Krouwel went there himself, accompanied by another police officer, Officer R.F., in a police car.

Having arrived at the scene of the accident, Sergeant Krouwel and Officer R.F. found the car; close by, they found three men (all of whom turned out to be Turkish nationals) supporting a fourth man.

Officer R.F. asked the men, at least two of whom were able to speak Dutch, whether the man they were supporting was “Köksal” and he received an affirmative reply. Sergeant Krouwel and Officer R.F. then took hold of the person so identified by his arms and handcuffed him, after which they dragged him off in the direction of the police car. It would appear that the three other Turkish men protested against this, saying that the person identified as Köksal was ill and should be taken to hospital.

Apparently believing themselves threatened, Sergeant Krouwel and Officer R.F. then either dropped the man identified as “Köksal” or allowed him to collapse to the ground. In the process the man’s head came into contact with the ground. Finding it impossible to get the man into the police car, Sergeant Krouwel then instructed Officer R.F. to call in further police officers to assist. He himself placed first one, then both of his knees on the man’s back and held, or perhaps (as the applicants allege) slammed, the man’s head against the ground. It appears that at this point Sergeant Krouwel started suffering palpitations of his heart.

Shortly afterwards, four other police officers arrived. Together the police officers carried the man to Sergeant Krouwel’s and Officer R.F.’s police car, placing him on the back seat in a prone position. On the way to the Venlo police station, as officer R.F. drove, Sergeant Krouwel turned round in his seat and held the man down.

The entry in the police station daily record concerning the man’s arrival at the station states that he was unstable on his legs and did not respond to questioning, that he had been arrested on suspicion of drunk driving and that he smelt of beer. His name was recorded as Ali Köksal, it being assumed that he was the person in whose name the car was registered.

The man identified as Ali Köksal was placed in a cell. He was not examined by a physician, although standing orders – a copy of which is contained in the Court’s file – required that this be done. He was not subjected to a breathalyser test, nor were any blood or urine samples taken, the police officers present being satisfied by the man’s condition as observed by them that he was very drunk.

At this point Sergeant Krouwel, a man in his late fifties, had a heart attack and could not remain on duty. He left the police station and was admitted into hospital at 3.50 a.m. His duties as station sergeant were taken over by the most experienced police officer present, Senior Officer (hoofdagent) J.H..

It would appear that Senior Officer J.H. went into “Ali Köksal”‘s cell every half hour to see whether he was in a fit state to be questioned. When he went off duty at 7 a.m. he handed over to the station sergeant of the morning shift, Sergeant P.H. Sergeant P.H. did not himself go to see “Ali Köksal” but instructed a subordinate, Senior Officer H.K., to keep an eye on “Ali Köksal” and question him as soon as he was sober enough.

It would appear that Senior Officer H.K. and a civilian cell guard, one Mr W.B., checked every hour to see whether “Ali Köksal” was in a fit state to be questioned. Finding at 12.30 p.m. that this was not yet the case, Senior Officer H.K. suggested to a superior police officer, Warrant Officer (adjudant) H.T., to have him questioned by the afternoon shift which was due to take over at 3 p.m. Warrant Officer H.T. disagreed and ordered that the questioning take place before the afternoon shift took over.

At around 2 p.m., no improvement in “Ali Köksal”‘s condition being apparent, it occurred to Senior Officer H.K. that something other than drunkenness might be the matter. He consulted Senior Officer J.H., who went into the cell himself and came to the same assumption. A physician of the Municipal Health Department (GGD), one Dr L.C., was called in at 2.20 p.m. He arrived at 2.50 p.m.

Dr L.C. found “Ali Köksal” lying on the floor of his cell, failing to respond normally and holding his head. He did not notice any smell of alcohol, nor any other signs that “Ali Köksal” might be drunk. He asked the police officers present whether “Ali Köksal” might be suffering from head injury and was given the reply that “some force” had been necessary to arrest him. Suspecting that “Ali Köksal” might be suffering from concussion, Dr L.C. had him transferred to Venlo hospital. This happened at 3.10 p.m.

In the course of the afternoon the Venlo police were informed that the condition of the man they had arrested was deteriorating. They then informed the family of the actual Mr Ali Köksal of the arrest and the hospitalisation. Only then did it become clear that the person in question was not Mr Ali Köksal but a relative, Mr Hüseyin Köksal.

Later that day the local Officer in charge brought the above events to the attention of the Public Prosecutor (Officier van Justitie) of the Regional Court (Arrondissementsrechtbank) of Roermond, who, through the intervention of his superior, the Procurator General (Procureur-Generaal) of the Court of Appeal (Gerechtshof) of ‘s-Hertogenbosch, ordered a criminal investigation by the State Criminal Investigation Department (Rijksrecherche). An officer of the State Criminal Investigation Department visited the Venlo police station in the course of that evening and secured the relevant documents for inclusion in the criminal investigation case-file.

On 8 January 1993 at 1.30 a.m. Mr Hüseyin Köksal’s wife, Mrs N.P., having been absent from home the whole of the previous day, was informed by one of Mr Hüseyin Köksal’s cousins that her husband was in hospital and in a critical condition.

Mr Hüseyin Köksal died in Venlo hospital on 8 January 1993 at 11.25 a.m. His body was handed over to an officer of the State Criminal Investigation Department and later transferred to the forensic laboratory in Rijswijk. According to the death certificate the death was reported to the competent authorities by an officer of the State Criminal Investigation Department.

An autopsy on Mr Hüseyin Köksal’s body was performed on 9 January 1993 by a forensic pathologist, Dr M.V.. Photographs were taken during the autopsy. The body was afterwards returned to the hospital in Venlo, which kept it in its mortuary.

Two samples of Mr Hüseyin Köksal’s blood were removed by the State Criminal Investigation Department, on 9 and 11 January 1993, for examination. These had been taken before Mr Hüseyin Köksal’s death.

After the autopsy the Public Prosecutor gave an order releasing the body for burial.

On 10 January 1993 the first applicant (who at that time was resident in Germany) and Mr Hüseyin Köksal’s widow, Mrs N.P., went to see the State Criminal Investigation Department investigator. They were both accompanied by lawyers practising in the Netherlands. Mrs N.P. asked for the body not to be released, so that a second post-mortem examination could be carried out. The investigator forwarded this request to the Public Prosecutor, who then withdrew his order releasing the body for burial.

On 13 January 1993 the coroner (lijkschouwer) of the municipality of Venray, having himself examined the body, informed the Public Prosecutor that he was not convinced that Mr Hüseyin Köksal had died a natural death.

At the request of the first applicant and Mrs N.P. a second post-mortem examination was performed by the Director of the Institute of Forensic Medicine of the University of Cologne (Germany) on 18 January 1993. The same day the Public Prosecutor ordered the body to be handed over to Mrs N.P. as next-of-kin for burial. However, the brain and certain other items of body tissue were kept at the forensic laboratory in Rijswijk to enable further examination.

 

 2. Medical reports

At the request of the State Criminal Investigation Department the Municipal Health Department physician, Dr L.C., contacted Mr Hüseyin Köksal’s general practitioner, and the neurologist who had treated Mr Hüseyin Köksal after he had been taken to Venlo hospital. He sent in the information so obtained to the State Criminal Investigation Department on 15 January 1993.

According to the general practitioner, Mr Hüseyin Köksal had consulted him on 21 May 1992 for headaches but no physical abnormalities could be found.

The neurologist at Venlo hospital informed Dr L.C. that he had noticed no smell of alcohol when Mr Hüseyin Köksal was brought in. After careful study of a computer tomography scan of Mr Hüseyin Köksal’s skull and brain he, another neurologist and a radiologist had unanimously concluded that there had been massive bleeding but no signs of concussion; there had therefore probably been a primary cerebral haemorrhage. A further, very painstaking neuropathological examination might provide information as to whether there had been, for instance, a congenital abnormality in a blood vessel in Mr Hüseyin Köksal’s brain. But given the location of the haemorrhage surgical intervention would in any case have been impossible; if Mr Hüseyin Köksal had been hospitalised earlier the outcome would have been exactly the same.

The forensic pathologist Dr M.V. transmitted a first report of his findings to the Roermond Public Prosecutor on 19 January 1993. As regards external injuries, he noted a number of subcutaneous haemorrhages on both sides of Mr Hüseyin Köksal’s head as well as superficial skin injuries on the arms and elsewhere. After an internal examination of the body he came to the provisional conclusion that the cause of death was massive subarachnoidal bleeding caused by the rupturing of an existing pathological widening (aneurysm) of the right central cerebral artery (rechter middelste hersenslagader). The bleeding had spread into the right hemisphere (rechter hersenpool). The bleeding might have been spontaneous or it might have been caused by external violence. A conclusion on this point could be reached only if it could be determined whether Mr Hüseyin Köksal had been the worse for drink; if it should be determined that this had not been the case, the rupturing of the aneurysm would explain his loss of control over the car and the subsequent accident. It could not be excluded, however, that external violence might have caused worsening of the bleeding.

According to a report dated 28 January 1993 made by the forensic laboratory of an examination on 12 January 1993 of the blood samples referred to above, which had been taken on 7 and 8 January 1993 before Mr Hüseyin Köksal died, of blood taken during the autopsy and of fluid taken from both eyes, none of the samples contained any alcohol. However, as the concentration of alcohol in the blood decreases over time the absence of alcohol in Mr Hüseyin Köksal’s body meant that no conclusions could be drawn as to whether there had been any measurable concentration at any earlier time.

The forensic pathologist Dr M.V. drew up a final report on 26 February 1993. It contained a detailed description of the outward appearance of the body and of the internal organs. There were no signs of concussion of the brain. Further examination of the brain, including microscopic examination after it was cut into thin slices, showed that at the aneurysm the wall thickness of the right central cerebral artery was not consistent; the elastica interna was missing in places and irregularly formed where it remained. There were signs of earlier bleeding about the aneurysm. It was considered likely, on the basis of the information available, that the aneurysm had burst while Mr Hüseyin Köksal was driving the car; in that case the use of external force would not have caused the bleeding, although it could not be totally excluded that the bleeding might thereby have been worsened. The question whether earlier medical intervention might have saved Mr Hüseyin Köksal’s life could not be answered on the basis of the autopsy findings alone.

On 26 March 1993, by which time a preliminary judicial investigation (gerechtelijk vooronderzoek) had been opened (see below), a professor of neurosurgery and a professor of neurology, both of Groningen University, drew up a report addressed to the Investigating Judge (rechter-commissaris). They concluded that it was unlikely, in the absence of indications that Mr Hüseyin Köksal had been under the influence of alcohol, that the cerebral haemorrhage had been caused or worsened by external violence against the head. However, they did consider it possible that such external violence might have increased the chance of such bleeding getting worse. They further considered it possible, though unlikely, that Mr Hüseyin Köksal might have survived had he been given medical treatment as early as 3 a.m. on 7 January rather than 3 p.m. on the same day.

A more detailed statement by the aforementioned professor of neurology alone, which is dated 8 April 1993, enlarges on these findings. In it, the professor expressed the opinion that the aneurysm was probably congenital and that it had already “leaked” on earlier occasions; this was indicated by headaches suffered by Mr Hüseyin Köksal in the past. Bleeding had probably begun well before the accident and continued up until Mr Hüseyin Köksal was taken into hospital. The mortality rate of patients suffering subarachnoidal bleeding causing reduced consciousness, intracerebral bleeding and compression of the brain was as high as 70%. Although patients had occasionally been saved by “super-fast” intervention in major neurosurgical hospital departments, in the absence of such a facility it would in practical terms probably have been impossible to halt the process once started.

On 18 January 1993 a second post-mortem examination of Mr Hüseyin Köksal’s body was carried out at the request of his widow, Mrs N.P., and his father, the first applicant by three pathologists at the Institute for Forensic Medicine of the University of Cologne (Germany). In their report, they noted among other things a circular black-red-coloured parching of the skin, about the size of a ten-pfennig coin, on the forward part of the left temple; grazing on the left side of the chin and the right side of the neck; a blue-red discoloration of the skin on the left shoulder, about the size of a two-mark coin; grazing on the right knee and the left shin; black-brown parching on the left elbow; two comma-shaped superficial grazes on the left wrist; an elongated superficial graze on the right wrist. The brain was missing. The skull was not fractured. Deposits of blood were found outside the skull, one of which – the size of a two-mark coin – corresponded to the black-red-coloured parching of the skin on the left temple. Deposits of blood were also found in the temporal muscles on both sides, the deposit on the right being rather less pronounced than that on the left. The report ended with a provisional conclusion noting traces of external violence on the face and the upper and lower limbs and corresponding internal bleeding.

On 17 February 1993 the Consul of the Turkish Republic in Rotterdam transmitted the medical reports then available to the Turkish Minister of Justice with a view to having them examined by medical experts in Turkey. A committee of medical experts attached to the Turkish Institute for Forensic Medicine reported on 18 March 1994 that the reports in question met the applicable standards of medical procedure and that another report could be prepared after further investigation. The Court has not been informed of any further developments in this matter.

3. The criminal proceedings

As already stated, a criminal investigation was opened on 7 January 1993 on the orders of the Public Prosecutor of the Roermond Regional Court. Officer R.F. was interrogated by a State Criminal Investigation Department officer already at midnight on 7 January 1993.

After Mr Hüseyin Köksal’s death the civilian cell guard Mr W.B., Sergeants Krouwel and P.H., Senior Officers H.K. and J.H. and Officer R.F. were suspected of unintentionally causing the death of Mr Hüseyin Köksal (dood door schuld). Sergeant Krouwel was suspected in addition of causing grievous bodily harm (zware mishandeling) or at least bodily harm (mishandeling) in aggravating circumstances consisting of abuse of his powers as a police officer. The criminal investigation continued on this basis.

Statements were taken from all the suspects and from other witnesses, including the taxi driver who had witnessed the accident, another taxi driver who had witnessed Mr Hüseyin Köksal’s arrest and the three Turkish men who had been present. They recounted the circumstances of Mr Hüseyin Köksal’s arrest and detention in the police station as witnessed by them. Questioned on the subject of the smell of beer which had been reported, some of the police officers suggested that if it was true that Mr Hüseyin Köksal had drunk no alcohol then there might have been a lingering smell in certain areas of the police station left by other persons who had in fact been taken in drunk.

Statements were also taken from Turkish acquaintances who had been with Mr Hüseyin Köksal before he got into the car. These stated categorically that they had not seen Mr Hüseyin Köksal drink alcohol and that he had not been drunk.

Sergeant Krouwel’s personnel file was examined and an extract was added to the case file. He was described as a capable professional policeman without racist tendencies, but opinionated and rather too tough, who could sometimes be difficult for his colleagues to work with.

Background information was obtained from persons who had known Mr Hüseyin Köksal when alive. These included his employer, who stated amongst other things that Mr Hüseyin Köksal had gone sick, complaining of a headache, about three weeks before the events in question. His widow, Mrs N.P., was also questioned. She stated that Mr Hüseyin Köksal had rarely drunk alcohol except at parties.

Medical information obtained in the course of the criminal investigation included the above-mentioned reports entered by Dr L.C. and the forensic pathologist Dr M.V..

On 3 February 1003 the State Criminal Investigation Department transmitted a report of its findings in summary form to the Advocate General of the Court of Appeal of ‘s-Hertogenbosch.

The criminal investigation was closed on 6 February 1993 and the investigation file was transmitted to the Public Prosecutor.

A preliminary judicial investigation was opened on 8 February 1993. The Investigating Judge (rechter-commissaris) obtained the medical expert opinion of the two professors of Groningen University referred to above. In addition to interrogating two of the suspects, Sergeant Krouwel and Officer R.F., he heard witnesses, including some of those already questioned by the State Criminal Investigation Department; these included the two taxi drivers and two of the three Turkish men who had witnessed at the arrest (the third having left the Netherlands). Counsel for Sergeant Krouwel and Officer R.F. were present and were allowed to put questions. Somewhat unusually, the Public Prosecutor also attended; he too put questions.

The preliminary judicial investigation was concluded on 6 July 1993 and the file was forwarded to the Public Prosecutor.

On 17 August 1993, at a time when the Public Prosecutor had not yet decided whether or not to prosecute any of the police officers involved, Mrs N.P., the widow of Mr Hüseyin Köksal, lodged a complaint to the Court of Appeal of ‘s-Hertogenbosch about the failure to prosecute these police officers.

A letter dated 24 August 1993 sent to the Procurator General by the Public Prosecutor sets out the latter’s assessment of the chances of securing the conviction of the suspected persons. The Public Prosecutor considered that the available evidence, especially the medical evidence, made it unlikely that any convictions could be obtained on the ground of having caused Mr Hüseyin Köksal’s death. It therefore appeared pointless to prosecute Warrant Officer H.T., Sergeant P.H., Senior Officers J.H. and H.K. and Officer R.F. There thus remained only the charge of causing bodily harm in view of the apparently disproportionate use of force against the deceased when effecting the arrest. This charge concerned only Sergeant Krouwel, Officer R.F.’s part in this episode having been that of a very junior subordinate and in any case too insignificant.

On 24 September 1993 Sergeant Krouwel was summoned to appear before the Regional Court of Roermond on charges of causing bodily harm. These related to the circumstances surrounding the actual arrest, namely the use of excessive force to apply the handcuffs, dragging Mr Hüseyin Köksal along the ground, kneeling on his back, pressing his head against the ground and keeping him pressed down in the police car.

On a date in late September or early October 1993 Mrs N.P. let it be known through her lawyer that she was withdrawing her complaint of 17 August. She indicated, however, that she wished to keep open the possibility of resubmitting the complaint at a later date, together with the first applicant, Mr Hüseyin Köksal’s father.

Sergeant Krouwel lodged an objection against the summons. Following a hearing in camera the Regional Court accepted the objection and dismissed the charges against Sergeant Krouwel. The Public Prosecutor appealed against this decision.

The Public Prosecutor’s appeal was heard by the ‘s-Hertogenbosch Court of Appeal in camera on 30 December 1993. The Procurator General asked that the decision of the Regional Court be overturned and the prosecution be allowed to proceed.

On 6 January 1994 the Court of Appeal gave a decision overturning the Regional Court’s decision and referred the case back to the Regional Court for trial. The Court of Appeal found that it was not entirely unlikely that the prosecution, if allowed to proceed, would result in a conviction.

A hearing took place before the Regional Court of Roermond on 7 April 1994. On 21 April 1994 the Regional Court gave judgment acquitting Sergeant Krouwel. It was found that Sergeant Krouwel might well have been mistaken in considering the use of force necessary, but that it was not proved that he had intentionally caused Mr Hüseyin Köksal bodily harm.

The Public Prosecutor appealed, submitting a statement of grounds of appeal.

The appeal was heard by the ‘s-Hertogenbosch Court of Appeal on 22 March 1995. The Procurator General asked the Court of Appeal to overturn the judgment of the Regional Court, to convict Sergeant Krouwel and to sentence him to a suspended term of imprisonment and a fine.

The Court of Appeal gave judgment on 5 April 1995. The judgment was pronounced orally in public. It acquitted Sergeant Krouwel, substituting its own reasoning for that of the Regional Court. In the view of the Court of Appeal, although it was clear that Sergeant Krouwel had committed the acts he stood accused of, these were intended to apprehend a person suspected of a particularly serious drinking and driving offence and transfer him immediately to the police station, that person failing to co-operate. This finding was not affected by the fact that it had afterwards appeared that Mr Hüseyin Köksal’s condition had had a different cause. The arrest had therefore been legitimate in itself and the use of force had, in the circumstances, not been disproportionate.

In the Netherlands it is not possible for the prosecution to lodge an appeal on points of law against an acquittal on appeal (Article 430 of the Code of Criminal Procedure). Consequently the judgment of 5 April 1995 brought the criminal proceedings to a conclusion.

The case was widely reported in the media, both in the Netherlands and in Turkey.

4. The disciplinary proceedings against Sergeant Krouwel

By letter of 8 March 1993 the Burgomaster (Burgemeester) of the municipality of Venray informed Sergeant Krouwel that he intended conditionally to discharge him by way of disciplinary sanction. By letter of the same day he informed Officer R.F. and Senior Officer J.H. that he intended to reprimand them in writing. All three police officers were offered the opportunity to be heard before a decision was taken.

The Court has not been informed of any further developments as regards Officer R.F. and Senior Officer J.H..

On 26 April 1993 the Burgomaster of the municipality of Venray conditionally discharged Sergeant Krouwel. Sergeant Krouwel appealed against this decision to the Regional Court of Roermond.

Following hearings on 18 May and 13 June 1994, the Regional Court gave a decision on 30 June 1994 declaring the appeal well-founded and overturning the Burgomaster’s decision. The Burgomaster appealed against this decision to the Central Appeals Tribunal (Centrale Raad van Beroep).

The Central Appeals Tribunal held a hearing on 9 March 1995. On 30 March 1995 it gave its decision, which was delivered orally in public. Unlike the Regional Court, the Central Appeals Tribunal held that Sergeant Krouwel was guilty of a serious dereliction of duty and the imposition of a disciplinary sanction was justified in principle. The decision of the Regional Court was accordingly overturned. Even so, given that the said dereliction of duty had not been deliberate but had resulted from an error of judgment, the penalty imposed – second in severity only to immediate dismissal – was considered disproportionate. The Burgomaster’s decision was therefore annulled.

5. Proceedings in Turkey

On 4 September 1995 the applicants’ lawyer, acting on behalf of the first applicant only, wrote to the Netherlands Embassy in Ankara claiming 800,000 USD (United States dollars) from the Netherlands State by way of compensation. It is stated in this letter that it appears from the judgment delivered on 5 April 1995 by the ‘s-Hertogenbosch Court of Appeal and from the autopsy report that the police officers tortured Mr Hüseyin Köksal and caused his death.

In July 1996 the Netherlands Minister of Justice (Minister van Justitie) received from the Turkish authorities a request for legal assistance, based on the European Convention on mutual assistance in criminal matters (20 April 1959, European Treaty Series No. 30), in relation to the death of Mr Hüseyin Köksal. From this request it appeared, in the submission of the respondent Government, that the Public Prosecutor in Samsun had instituted criminal proceedings against Sergeant Krouwel on the same charge as that on which he had been tried by the Regional Court of Roermond and the Court of Appeal of ‘s-Hertogenbosch. The Minister of Justice refused this request, invoking a reservation to this treaty to the effect that requests for legal assistance would not be complied with where they concerned a prosecution or proceedings incompatible with the principle of non bis in idem.

The Public Prosecutor in Samsun issued an indictment against Sergeant Krouwel on 28 August 1995. The applicants have informed the Court that the proceedings in Turkey are still pending.

B. Relevant domestic law and practice

By a letter of 21 October 1987 the Minister of Internal Affairs (Minister van Binnenlandse Zaken) circulated guidelines for dealing with persons who appeared to require medical assistance.

The guidelines noted that it was not possible to provide guidance covering all eventualities: therefore, if there was any doubt, medical assistance had to be sought. Such assistance took precedence over any police investigation.

Persons found outside the police station and suffering from injury or disease were to be sent, or if necessary transported, to a doctor or to the casualty department of a hospital.

Persons found in a state of intoxication were preferably to be referred to their own caring environment, for example their family. They could be placed in detention if there were legal reasons to do so; in that event they were to be checked up on continuously and medical advice or assistance was to be sought if necessary.

There was to be a police officer in each police unit responsible for supervising the state of health of detained persons. If a person detained in a police station appeared to need medical help or asked for it, this police officer was to consult the doctor on duty; he could also do so of his own motion if he required advice.

Every detained person had to be checked up on: at least three times per six hours at irregular intervals, by television monitor or by visits in the cell, if no medical help had been sought; every fifteen minutes by visits in the cell, if a doctor had been called; as often as prescribed by the doctor, if medical assistance had been provided. Detainees who did not respond and could not be woken were to be taken to a hospital by ambulance immediately.

COMPLAINTS

1. The applicants complain that Mr Hüseyin Köksal died as a result of torture allegedly committed on him by the police officers. They also complain of a gross lack of vigilance on the part of the police officers, which led to a fatal delay in the administration of medical treatment. They further allege that no effective investigation was conducted into the death of Mr Hüseyin Köksal. They rely on Articles 2 and 3 of the Convention.

2. The applicants also allege a violation of Article 6 § 2 of the Convention.

PROCEDURE

The application was introduced with the European Commission of Human Rights on 25 October 1995 and registered on 4 June 1996.

On 7 September 1998, the Commission decided to communicate the application to the respondent Government.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by Court in accordance with the provisions of that Protocol.

The Government’s written observations were submitted on 13 November 1998. The applicants replied on 8 February 1999. The case was assigned to the First Section. On 16 May 2000 the Chamber constituted to examine the case decided to hold an oral hearing on the admissibility and merits of the case (Rule 54 § 4 of the Rules of Court).

On 19 June 2000 the Turkish Government informed the Court that they wished to avail themselves of the right to take part in these proceedings pursuant to Article 36 § 1 of the Convention.

On 21 June 2000 the President of the Section, in accordance with Rule 36 § 4 (a) of the Rules of Court, granted approval to Me Vallières to represent the applicants.

The Government of Turkey submitted written comments on 20 July 2000 (Article 36 § 1 of the Convention and Rule 61 § 2). The respondent Government replied to those comments on 22 August 2000 (Rule 61 § 5).

On 10 August 2000 further observations were received from the applicants.

A hearing took place in public in the Human Rights Building, Strasbourg, on 19 September 2000. The Government of Turkey also took part.

THE LAW

The applicants complain of the death of their son and father, Mr Hüseyin Köksal, invoking Articles 2, 3 and 6 § 2 of the Convention, which provide as follows:

Article 2 of the Convention

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3 of the Convention

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

Article 6 § 2 of the Convention

“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

1. Scope of the case

The Court observes that, although the applicants alleged a violation of Article 5 of the Convention in their first communication with the Commission, no such complaint was set out in the application form that was subsequently provided to them by the Secretariat of the Commission in accordance with Rule 44 § 1 of the Commission’s Rules of Procedure (see the current Rule 47 § 1 of the Rules of Court). When it sent the form, the Commission’s Secretariat informed the applicants that the Commission would examine their complaints on the basis of the information contained in the application form. Indeed, when the Commission communicated the application to the respondent Government on 7 September 1998 neither the statement of facts prepared by the Commission’s Secretariat nor the questions put by the Commission contained any reference to Article 5. It does not appear that the applicants raised any objections against this course of action; it was only in their - unsolicited - further observations of 10 August 2000 that they argued that the facts of the case also disclosed a violation of Article 5. Moreover, in those observations they also raised a complaint under Article 13 of the Convention for the first time.

In these circumstances the Court finds that the scope of its examination of the application cannot extend to the complaint of a violation of Articles 5 and 13.

2. Six-month time-limit

The respondent Government argue that in so far as the applicants complain that the State of the Netherlands failed to take adequate action to investigate Mr Hüseyin Köksal’s death and bring the perpetrators to trial, the application has been lodged out of time. In their submission, the final domestic decision is the judgment by the Court of Appeal on 5 April 1995. The application was introduced on 25 October 1995, that is six months and twenty days later.

The applicants state that they were never formally notified of the judgment of the Court of Appeal. They argue, as do the Turkish Government, that the six-month time-limit started running when they became aware of that judgment, which was not until a Turkish public prosecutor approached them about the case in August 1995. Furthermore, account should also be taken of the fact that the applicants are not living in the Netherlands but in Turkey.

The Court has previously held that where, as in the present case, domestic law does not provide for the applicants to be served with a written copy of the final domestic decision, it is appropriate to take the date when the parties were definitely able to find out its content as the starting-point of the six-month period (see Papachelas v. Greece, no. 31423/96, § 30, to be reported in ECHR 1999-II). Moreover, the Court would follow the case-law of the Commission to the effect that it is for the State which pleads a failure to comply with the six-month rule to establish the date on which the applicant learned of the final domestic decision (cf. No. 12659/87, Dec. 5.3.90, D.R. 65, p. 136).

In the instant case the Court notes that the applicants were not a party to the criminal proceedings against Sergeant Krouwel and that there is no provision in Netherlands law for notifying a judgment to persons who are not party to the criminal proceedings from which that judgment arises. In addition, the applicants were not living in the Netherlands when the Court of Appeal pronounced its judgment and neither does it appear that they were being assisted by a lawyer in the Netherlands at that time. Finally, the Government have not shown that the applicants had learned of the Court of Appeal’s judgment at a date prior to 25 April 1995, which would be more than six months before the application was introduced with the Commission.

It follows that the respondent Government’s objection cannot be accepted.

3. Exhaustion of domestic remedies

The Government submit that in so far as it is alleged that the State of the Netherlands is responsible for Mr Hüseyin Köksal’s death the domestic remedies have not been exhausted. In their submission, the applicants ought, before lodging an application with the Commission, either to have instituted civil proceedings against the State or joined the criminal proceedings as a civil party.

In this connection the Government cite a judgment delivered by the President of the Hague Regional Court on 23 September 1994 (Case no. 94/934). In that judgment the President of the Regional Court, in summary proceedings, awarded a sum of 75,000 Netherlands guilders (NLG) in advance of a final damage settlement to a Rumanian national who had suffered brain damage as a result of treatment undergone at the hands of the authorities when they attempted to expel him from the Netherlands.

In the view of the applicants, with which the Turkish Government concurred, they were not under any obligation to institute proceedings in the Netherlands before lodging an application in Strasbourg. In their view the domestic remedies were sufficiently exhausted by the institution of criminal proceedings in the Netherlands.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (cf. the Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431, § 71; Selmouni v. France [GC], no. 25803/94, §§ 74-75, to be reported in ECHR 1999-V).

Furthermore, the Court emphasises that the application of the exhaustion of domestic remedies rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means in particular that the Court must take realistic account, not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1221, § 69, and the Yaşa judgment cited above, p. 2432, § 77).

As to the question whether the applicants were required to lodge civil proceedings in order to comply with Article 35 of the Convention, the Court would differentiate between the applicants’ complaints under Articles 2 and 3.

Article 2

In respect of a substantive complaint of an unjustified use of lethal force by a State agent in violation of Article 2, the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy (see Caraher v. the United Kingdom (dec.), no. 24520/94, to be reported in ECHR 2000). Nonetheless, the procedural obligation also arising under Article 2 concerning the provision of effective investigations into cases of fatal assault cannot be satisfied exclusively through an award of compensation to the relatives of the victim (see, among other authorities, the Yaşa judgment cited above, § 74).

In the present case, the Court notes that the applicants chose not to bring civil proceedings. However, Mr Hüseyin Köksal’s widow did apply to the ‘s-Hertogenbosch Court of Appeal to complain of the fact that no prosecutions had been brought against any of the police officers involved. Admittedly, this may not have been instrumental in the authorities’ decision to mount a prosecution against Sergeant Krouwel, but the fact remains that the concerns of Mr Hüseyin Köksal’s family were brought to the attention of those authorities (cf., mutatis mutandis, the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2277, § 56) and that criminal proceedings were brought. The Court does not attach particular relevance to the fact that it was Mr Hüseyin Köksal’s widow rather than the applicants who complained to the Court of Appeal (cf. Oğur v. Turkey [GC], no. 21594/93, § 67, to be reported in ECHR-III). Neither does it consider it unreasonable that the applicants did not join the criminal proceedings as civil parties. As a matter of Netherlands law, the amount of money that could have been awarded in compensation - at the time, no more than 1,500 NLG - is so low that such a procedure could not be considered to constitute a sufficient remedy in respect of such a serious complaint.

In its Selmouni v. France judgment, the Court did not exclude that in certain circumstances a criminal complaint may be considered to constitute an adequate and sufficient remedy within the meaning of former Article 35 § 1 of the Convention in cases concerning allegations of treatment contrary to Article 3 inflicted by police officers (see also Eur. Comm. HR, Nos. 14116/88 and 14117/88, Sargin and Yağci v. Turkey, Dec. 11.5.89, D.R. 61, p. 250; and No. 19092/91, Yağız v. Turkey, Dec. 11.10.93, D.R. 75, p. 207). In the view of the Court, the same holds true for alleged violations of Article 2 committed by police officers (cf. Eur. Comm. HR, No. 21594/93, Oğur v. Turkey, Dec. 30.8.94; and No. 21422/93, Tanrıbilir v. Turkey, Dec. 28.11.94).

It is further recalled that it is in the first place for the applicant to select which legal remedy to pursue (see the Airey v. Ireland judgment of 7 October 1979, Series A no. 32, p. 12, § 23). Where there is a choice of remedies available to the applicant to obtain redress for an alleged violation of the Convention, Article 35 must be applied in a manner corresponding to the reality of the applicant’s situation in order to guarantee him effective protection of his rights and freedoms set forth in the Convention (cf. Eur. Comm. HR., No. 11471/85, Dec. 19.1.89, D.R. 59, p. 67; No. 20948/92, Dec. 22.5.95, D.R. 81, p. 35).

In view of its considerations above, the Court finds that once a criminal prosecution had been started, the applicants were entitled to await the outcome of those proceedings and, upon their completion, were not required to embark, as regards their complaint of a violation of Article 2 of the Convention, on another attempt to obtain redress by bringing a civil action for damages (cf. mutatis mutandis, the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3286, § 86).

The respondent Government’s argument that the applicants failed to exhaust domestic remedies in respect of their complaints under Article 2 of the Convention must therefore be dismissed.

Article 3

The applicants allege that Mr Hüseyin Köksal was “tortured” by the police. Their allegations under this head also encompass the complaint that the victim did not receive any medical attention when he was brought to the police station.

The parties differ as to whether civil proceedings for tort may provide adequate redress for the alleged ill-treatment of Mr Hüseyin Köksal.

The Court observes, in the light of its case-law as set out above, that the resolution of the issue concerning exhaustion of domestic remedies requires a determination of whether the applicant was the victim of deliberate ill-treatment by the arresting officers as alleged or the victim of police negligence or both. It notes that the question of the delay before Mr Hüseyin Köksal received medical attention was not addressed - indeed could not have been addressed - in the criminal proceedings brought against Sergeant Krouwel.

It follows that the issue of exhaustion raised in this context is inextricably linked to the determination of the facts concerning the manner in which Mr Hüseyin Köksal was treated and should acccordingly be joined to the merits of the case.

4. The substance of the application

Articles 2 and 3 of the Convention

Whilst conceding that a series of misunderstandings occurred that resulted in a tragic outcome, the respondent Government deny that there was any question of torture, inhuman or degrading treatment or a violation of the right to life. In addition, the competent authorities did everything that could reasonably have been expected of them by conducting a thorough investigation of the events and taking whatever measures proved necessary.

The applicants maintain their allegations of violations of Articles 2 and 3, pointing inter alia to the unlawfulness of Mr Hüseyin Köksal’s arrest on suspicion of drink driving without any attempt having been made by the police to establish whether he was in fact inebriated. They further refer to the superfluous and disproportionate use of physical force and handcuffs given that Mr Hüseyin Köksal was unable to resist arrest, and to the lack of prompt medical attention. Finally, they argue that there was no effective investigation into the events.

The Government of Turkey submit that the case-file by no means allows for the conclusion, drawn by the respondent Government, that there is no causal link between the use of force applied in the course of Mr Hüseyin Köksal’s arrest and his death. In any event, the facts of the case disclose a failure to comply with the positive obligation to protect the right to life in that, instead of being provided with appropriate treatment, Mr Hüseyin Köksal was subjected to violence and then left for twelve hours without medical attention. Like the applicants, the Government of Turkey also contend that the investigation conducted into the events disclosed shortcomings.

The Court finds that complex issues of fact and law arise under the Convention which should be examined on the merits. The complaints under Articles 2 and 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring them inadmissible have been established.

Article 6 § 2 of the Convention

The parties did not refer to the alleged violation of Article 6 § 2 either in their written observations or during the oral hearing.

Quite apart from the fact that this complaint was made for the first time in the Strasbourg proceedings, the Court notes that there was neither a judicial decision reflecting an opinion that Mr Hüseyin Köksal was guilty before he had been so proved according to law, nor any other official declaration prejudging an assessment of the facts in judicial proceedings (cf. the Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, §§ 35 and 41).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

JOINS TO THE MERITS OF THE COMPLAINT UNDER ARTICLE 3 OF THE CONVENTION THE QUESTION OF EXHAUSTION OF DOMESTIC REMEDIES;

DECLARES ADMISSIBLE, without prejudging the merits, the applicants’ complaints under Articles 2 and 3 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm 
 Registrar President

31725/96 - -


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