Case of Sungur v. Türkiye
A selection of key paragraphs can be found below the judgment.
1. The case concerns a police officer’s spraying of tear gas directly at the applicant during the Gezi Park events. The applicant complained of a violation of Article 3 of the Convention
6. During the security forces’ intervention in the sit-in protest, a police officer sprayed the applicant with tear gas at very close range, aiming directly at her head. The officer continued moving towards her and spraying the gas even as she turned away. The photographs of the incident were circulated widely in the media, and the applicant, who was wearing a red dress at the time, came to be known as “the woman in red”, one of the symbols of the Gezi Park events.
79. Having regard to the findings of the domestic courts and to the material in the case file, the Court concludes that the use of force at issue, namely the police officer’s spraying of the applicant with tear gas from a distance of less than one metre, was not rendered strictly necessary by the applicant’s conduct, since she had not displayed any violent behaviour or resistance towards the police either prior to or during the incident. As for the severity of the impugned act, it notes that the impact of the force used on the applicant was established by the Criminal Court, which found that F.Z. had aimed directly at the applicant’s face at a distance of less than one metre, and had continued to do so after the applicant had turned her back. The domestic court found that as a result of that act, the applicant had sustained an injury which could be treated with simple medical care and had left no physical marks (see paragraph 18 above). The Court notes accordingly that the impact of the impugned act in the present case reached the level sufficient to bring it within the ambit of Article 3 of the Convention (for the relevant principles, see Tsaava and Others, cited above, § 327) and thus differs from that assessed in the previous cases against Türkiye concerning the general use of tear gas on the crowd, in which the impact on the applicants could not be established (see Oya Ataman, § 26; Çiloğlu and Others, § 27; and Aytaş and Others, § 14, all cited above).
86. In the present case, after finding F.Z. guilty of causing intentional bodily harm to the applicant by abusing his authority to use force, and sentencing him to ten months’ imprisonment, the Istanbul Criminal Court decided to suspend the pronouncement of the judgment under Article 231 § 5 of the Code of Criminal Procedure. In this connection, the Court refers to the Constitutional Court’s finding that, when deciding to suspend the pronouncement of a judgment, the likelihood that the suspect would reoffend had to be assessed in a diligent manner and by prioritising the deterrent effect of punishment (see paragraph 32 above). However, in the present case, no such assessment was carried out by the Criminal Court, which concluded that F.Z. was unlikely to reoffend solely on the basis of his good behaviour during the trial and the absence of any prior conviction (see paragraph 19 above).
88. The Court also notes that there is no information in the case file to indicate that F.Z. was suspended from duty during the criminal investigation and proceedings against him. Although the administrative authorities established, as a result of the disciplinary investigation, that his act had been unnecessary and unlawful and had contributed to the escalation of the Gezi Park events, the only disciplinary sanction imposed on him was a warning. This was lighter than the usual sanction and the least harsh option available under the Police Disciplinary Regulations (see paragraphs 8, 10 and 43 above).
92. The Court accepts that the present case is not comparable to other cases concerning arbitrary and serious acts of brutality by State agents, in which it has held that the imposition of enforceable prison sentences would have been more appropriate (see Gäfgen, § 124, with further references). Nevertheless, the suspension of the pronouncement of the judgment – which, as noted above, resulted in the annulment of the finding of F.Z.’s guilt and the sentence imposed on him – together with the warning issued as a disciplinary sanction, appear manifestly disproportionate to a breach of one of the core rights of the Convention and insufficient to ensure the requisite deterrent effect capable of preventing further violations of the prohibition of ill‑treatment (ibid.). Although F.Z.’s compliance with the Criminal Court’s order to plant 300 trees and to tend to them for six months may, as argued by the Government, be regarded as relevant to the context in which the unlawful use of force had occurred, that measure did not constitute a criminal sanction and cannot, in itself, be considered sufficiently deterrent.
100. The Court has already found that the use of force in issue was not necessary, because it was not warranted by the applicant’s conduct, and that the domestic authorities’ findings to that effect constituted an acknowledgment of a breach of Article 3 of the Convention (see paragraphs 79 and 81 above).
101. In the absence of any claim or evidence that the applicant had suffered serious physical or mental pain, the treatment in question cannot be characterised as inhuman, still less as torture. The Court therefore considers that the facts of the present case disclose degrading treatment (compare Bouyid, cited above, § 112).
102. The Court has further found that the domestic authorities failed to afford the applicant sufficient redress and that the criminal-law system, as applied in the present case, resulted in the impunity of the perpetrator, without providing the requisite deterrent effect (see paragraphs 86-94 above).
103. There has accordingly been a violation of Article 3 of the Convention under both its substantive and procedural aspects.