ENGLISH: Law Study Case

ENGLISH: Law Study Case
Teacher: David Albert Best
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Table of contents:
A. Introduction........ .................................................................................................3
B. Facts of the case....................................................................................................3
C. Actors of the case……..........................................................................................4
D. National proceeding.............................................................................................5
D.1. The court of first instance......................................................................................................5
D.2. The court of appeal................................................................................................................5
D.3. Appeal to the Supreme Court................................................................................................6
E. Legal issues and proceeding to the European Court of Human Rights……...6
E.1. Violation of third article .......................................................................................................7
E.2. Violation of Article 3 in conjunction with Article 14............................................................8
E.3. Violation of Article 3 and 13 in conjunction with Article 6§1 .............................................8
E.4. Procedure and composition of the Court........................................................................…...8
F. Similar Cases..........................................................................................................9
F.1. Pantea v. Romania...................................................................................................................9
F.2. Natchova v. Bulgaria...............................................................................................................9
G. Final decision......................................................................................................10
H. Conclusion...........................................................................................................10
I. Bibliography.........................................................................................................11
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A. Introduction
When we are watching TV, we discover that many countries do not respect Human Rights. We al-
ways think that this phenomenon happened far away from us. But unfortunately we must not go too
far to find these violations. Indeed, we are living in a country in which this reality exists. How can
we explain that a constitutional and democratic state acts like this and close their eyes on? We fair
today that there is not guarantee that our most fundamental rights are respected. “Turan Cakir vs.
Belgium” is a good illustration of this paradox. The case goes back to 16 years and the allegations
are serious. In fact, Belgium is condemned for inhuman treatment and racist behavior. That is worth
first of all turning on is attention to the facts of the case (B). Then the different actors (applicants,
lawyers…) (C). After this, we can talk about the national procedure which shows a real passive
behavior from the Belgian Courts (D). The analysis of point E will lead us to European Court of
Human Rights (ECHR) (E). Unfortunately we'll see that there are many similar cases in the world;
we have chosen more specifically 2 cases: Romania and Bulgaria (F).
B. The facts of the case
The applicant, Turan Cakir, is a Belgian citizen who was born in 1967. He lives in Schaerbeek
(Belgium) and is of Turkish origin. The case concerned the applicant’s allegations that he was sub-
jected to ill-treatment on the basis of racist prejudice during his arrest and while held in police cus-
tody. On 17 March 1996 a quarrel erupted during the arrest of the applicant’s brother at the family
home in Schaerbeek. The facts are in dispute between the parties. The applicant alleged that he had
been pinned to the ground, handcuffed and struck by three police officers.
He had then been dragged along the ground to a vehicle, and had been subjected to racist threats
and insults during the journey to the police station, where police officers had struck him again and
hit him on the head with a seat and a telephone directory. On the other hand, according to the Bel-
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gian Government, during the arrest the police officers had been required to use a pepper spray and
to “kick the applicant’s feet out from under him”, thus knocking him to the ground, in an attempt to
control him.
The applicant appeared to be under the influence of drugs and fought violently, so that it was im-
possible to place handcuffs on him. The police officers had been surrounded by people who began
to strike and insult them. Mr. Cakir himself had been kicked by those individuals. A medical certifi-
cate drawn up on the following day recorded a substantial bruise with complete ptosis of the appli-
cant’s right eye, bruising on both wrists and the left hypochondrium, a stitched wound on the left
eye socket and the scalp, a fracture of the root of the nose, pain in the right hypochondrium with
headaches and pain in the left mandibular region. The applicant was hospitalised for ten days and he
was not able to work anymore. One of the police officers was declared, among other things, unfit to
work for one day. On 22 March 1996 the applicant lodged a criminal complaint together with an
application to join the proceedings as a civil party. At the end of those proceedings the Belgian
courts issued an order that there was no case to answer on 17 October 2000. In addition, on 26 April
2006 the Indictments Division issued a judgment ruling that any prosecution was time-barred.
C. Actors of the case.
• There are 2 different parts in the process:
1. The claimants: Turan Cakir who was represented and assisted by S. Benkhelifa, T.
Mitevoy, J. Callewaert, and V. Henkinbrant
2. The defenders: The Belgian Government who was represented by the Chief
executive officer at the federal Public service of Justice: M. Daniel Flore.
• Definition of legal words 1 :
� Lawyers: Is a general word for someone who as professional training in legal work
1 http://legal-dictionary.thefreedictionary.com
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or who is an expert in law. Lawyers in our case: S. Benkhelifa, T. Mitevoy, J. Callewaert, V.
Henkinbrant and M. Daniel Flore.
� Clerk or Registrar: A law clerk is either a law student employed by a licensed
attorney to do mundane legal tasks and learn the law in the process, or a licensed lawyer
working for a judge to aid in the writing and research of the cases before the judge. The
clerk of our case was Sally Dollé
� Magistrate: s a generic term for any judge of a court, or anyone officially
performing a judge's functions. In a few states, an officer of the court at the lowest level
which hears small claims lawsuits, serves as a judge for charges of minor crimes, and/or
conducts preliminary hearings in criminal cases to determine if there is enough evidence
presented by the prosecution to hold the accused for trial. The magistrates in our case were :
Ireneu Cabral Barreto (Portugal), President, Françoise Tulkens (Belgium), Vladimiro
Zagrebelsky (Italy),Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó
(Hungary), Nona Tsotsoria (Georgia)
1. The court of first instance
D. National proceeding
At first, Mr CAKIR Turan and his advisers introduce an action to the Court of First Instance,
against the three police officers. Mr CAKIR institutes a civil action. The judge of first instance
dismissed the case because there are no sufficient elements to send the policemen to the Court.
Indeed, the hearing had been adjourned to many times. It was necessary to respect the statute of
limitations of five years but it has not been respected. Actually no date had been set for the hearing.
2. The court of appeals
Therefore Mr CAKIR does not proceed no further and he decides to lodge an appeal against the
judgment through the Court of Appeal. The Indictment Division finds that appeal is admissible.
These Court notices that the prescription of public action has been normally interrupted by the
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appeal is act of civil applicant. Then the Court of appeal draws attention to the fact that five years
have elapsed since this act. That is why the Court considers that the public action is prescribed.
3. Appeal to the Court of Cassation
As he does not win his case, the plaintiff takes his case to the final. Unfortunately for him, the Court
of Cassation judges only about the form and not the content. But there is an ultimate possibility.
But the hardest part is still to be done: the claimant brings an action before the European Court of
Human Rights.
E. Legal issues and proceeding to the European Court of Human Rights
First we can see violations of many articles of European convention on human rights : article 3,
article 3 in conjunction with article 14 and finally a violation of article 3 in conjunction with article
13 and 6§1. So a total of 4 articles of ECHR were not respected by Belgium.
Regarding the legal issues, we note Article 3 of ECHR presents the prohibition of torture: « No one
shall be subjected to torture or to inhuman or degrading treatment or punishment ».
Then Article 14 concerns the prohibition of discrimination : « The enjoyment of the rights and free-
doms set forth in this Convention shall be secured without discrimination on any ground such as
sex, race, color, language, religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status » and the article 13 refers to the Right to an
effective remedy : « Everyone whose rights and freedoms as set forth in this Convention are violat-
ed shall have an effective remedy before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity ».
Finally the article 6§1 refers to the Right to a fair trial : « 1. In the determination of his civil rights
and obligations or of any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be excluded from all or part of
the trial in the interests of morals, public order or national security in a democratic society, where
the interests of juveniles or the protection of the private life of the parties so require, or to the ex-
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tent strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice ».
Relying on Article 3, Article 6 § 1 and Article 13, the applicant reports that he was ill-treated during
his arrest and complains that Belgian authorities didn't do an effective investigation. He also de-
clares that he suffered racial insults, discriminatory and many violent treatments during the arrest.
For each violation of articles let's see what the different actors of this trial have been pled.
E.1. Violation of third article:
First there is a controversy over the admissibility of this appeal. In fact, the Belgian government
says Mister Cakir has not exhausted all the possible domestic remedies. For his defense, Mister
Cakir explains due to the lack of action of Belgian authorities he has taken many initiatives to set a
hearing in front the Indictment Division. Then this one said that prosecution was time-barred.
According to the various arguments, the Court does not agree with the argument of the Belgian state
concerning the inadmissibility with regard to non-exhaustion of remedies.
The Court held that there is no useful remedy to the national Courts, so there is an available reason
to go immediately to the ECHR.
After procedure's problem, we can notice an issue about the violation of this third article. First let's
see the government's opinion. This one exposes for his defense that the 3 police officers might have
hit the applicant, but it was not free. Furthermore the applicant was drunk so when the police offic-
ers put him on the floor, Mister Cakir had very bad reflexes and later he stayed not longer enough in
the police station for receiving these injuries. Finally there are to many contradictions in the appli-
cant's statements.
However Mr Cakir asserts that was not right to put him on the floor in the beginning of this search.
Moreover he presented a lot of serious injuries at the hospital and according to report, the police
officers received a lot of blows from Mr. Cakir but this assertion is not true when we see the medi-
co-legal report. In regards with these two reports, we notice the versions of events put forward by
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the parties, differed substantially, there were uncontested elements that allowing the Court to de-
termine whether the force used had been proportionate. First, the 3 police officers admmitted having
used force and striking Mr. Cakir, and said that the crowd wad involved. Therefore a lot of blows
have been given from this crowd who had taken mister Cakir's side. However the Court are no so
convinced about this argument. In view of Cakir's hospitalization, the Court states this use of vio-
lence in this case was not proportionate.
E.2. Violation of Article 3 in conjunction with Article 14:
The government claims the police officers do not agree with statements is applicant, and strongly
contest those. Furthermore the applicant could not prove these discriminations.
The applicant responds it is too difficult to get some evidence, because the insults happened in the
police's car.
The Court considers that the Crown Prosecutor does not give his opinion in his submissions inviting
the judge's chambers about insults from the police officers. So the Court considers that the Belgian
authorities have no taken their job seriously, and they did not make an effective investigation, to
find out if there have been racial insults during the search.
E.3. Violation of Article 3 and 13 in conjunction with Article 6§1:
The Court considers that it was unnecessary to examine separately the complaints under Article 13
and Article 6§1.
E.4. Procedure and composition of the Court:
Judgment was given by a Chamber of seven judges, composed as follows: Ireneu Cabral Barreto
(Portugal), President, Françoise Tulkens (Belgium), Vladimiro Zagrebelsky (Italy), Danutė Jočienė
(Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Nona Tsotsoria (Georgia), judg-
es, and also Sally Dollé, Section Registrar.
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F.1. Pantea v. Romania 2
F. Similar Cases
As every trial to the ECHR, there are many references to other cases.
We are going to explore some of them.
In the area of violation of Article 3, the Court mentions the case of Pantea v. Romania. The appli-
cant complained about the threatment he received during his stay in jail and furthermore he also
complained the national authorities had not conducted an effective inquiry into that treatment. The
Court held unanimously that there was a violation of Article 3 of the Convention. The link between
our case and this one is bad treatments that the applicants received from the police officers and the
prison officers.
F.2. Natchova v. Bulgaria
In the area of violation of Article 3 in conjunction with Article 14, the Court refers to Natchova v.
Bulgaria case.
Issues: The applicants report that members of their family have been killed in violation of Article 2
of the Convention, because the national authorities did not take a national law which prohibits the
use of violence. Moreover they complain that the national authorities didn't do an effective investi-
gation into the deaths ( violation of Article 2 and 13) and finally they also complain about hostile
behavior that led to this death and about the fact that the police did not conduct an effective inves-
tigation(violation of Article 2 in conjunction with Article 14).
The Court decided that « the authorities had failed to investigate possible racist motives behind the
events that had led to the deaths of Mr Angelov and Mr Petkov» 3 .
We notice a link between our case and Natchova v. Bulgaria case because the national authorities
did not take enough measures to conduct an effective investigation and the Court held violation of
these articles.
2 European Court of Human Rights, Pantea v. Romania, 3 juni 2003, Request n. 33343/96.
3 European Court of Human Rights, Natchova and others v. Bulgaria, 6 juli 2005, Requests n.43577/98 et 43579/98.
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G. Final decision
The Court has considered unanimously that there had been a violation of Article 3 of the ECHR on
account of the ill-treatment inflicted on the applicant by the police; a violation of Article 3 of the
Convention on account of the ineffective investigation ; and a violation of Article 3 in conjunction
with Article 14 (prohibition of discrimination), in that the national authorities had not carried out
all the necessary provisions to investigate whether the police officers is conduct had been discrimi-
natory. Under Article 41 (just satisfaction), the Court awarded the applicant 15,000 Euros in respect
of non-pecuniary damage and EUR 6,681.10 for costs and expenses.
H. Conclusion
We can say that this is an exceptional case because it involves police officers and because the fail-
ures are incredible.
Indeed, the ECHR found obviously that Belgium had not sufficiently investigated effectively Mr.
Cakir also reported racist discrimination. This is something for the future which is interesting in that
if someone invokes a discriminatory motive or racist aggression, the Court held that a duty to inves-
tigate, take reasonable steps to determine if a racist attitude is the cause of aggression.
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� Books
I. Bibliography
§� CHRISTOFFERSEN Jonas, Fair Balance : Proportionality, Subsidiarity and Primarity in the
Convention on Human Rights, ( Matinus Nijhoff Publishers, Netherlands, 2009).
§� CLEMENTS Luke, European Human Rights : Taking a case Under The Convention,( Sweet
and Maxwell, London, 1994).
§� COUNCIL OF EUROPE, Rules of the Court, (Strasbourg, 1977).
§� COUSINS Mel, The European Convention on Human Rights and Social Security
Law,( Intersentia, Antwerp – Oxford – Portland, 2008).
§� DELMAS-MARTY Mireille, The European Convention for the Protection of Humna
Rights,( Kluwer Academic Publishers, 1992).
§� EDEL Frédéric, The prohibition of discrimination under The European Convention on
Human Rights ( Human right files, n°22, 2010)
§� GUILD Elspeth, LESIEUR Guillaume, The European Court of Justice on the European
Convention on Human Rights,( Kluwer Law International, London, 1998).
§� KROIS-LINDER Amy, FIRTH Matt, Introduction to International Legal English
(Cambridge: Cambridge University Press, 2008).
§� PALERMO Francesco, SABANADZE Nathalie, National Minorities in inter-State
Relations ( Human Rights and humanitarian law E-Books online, 2011)
§� WAITER Patricia, Intercultural dialogue in the framework of European Human rights
Protection ( White paper series-volume 1, 2010)
§� WILDHABER Luzius, Human Rights, Democracy and the Rule of Law,( Dike, Zürich,
2007).
� Website
§� http://legal-dictionary.thefreedictionary.com
� Jurisprudence
§� European Convention on Human Rights, signed the 4th november 1950 and came into force
the 3th september 1953.
§� European Court of Human Rights, Natchova and others v. Bulgaria, 6 juli 2005, Requests
n°43577/98 et 43579/98.
§� European Court of Human Rights, Pantea v. Romania, 3 juni 2003, Request n° 33343/96.
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