Information Note on the Court’s case-law 52

April 2003

Tuncer and Others v. Turkey (dec.) - 12663/02

Decision 13.3.2003 [Section III]

Article 3

Positive obligations

Lawyers insulted during hearings and attacked on leaving court by private individuals: inadmissible

The applicants are lawyers and were defending a number of persons accused before the Istanbul National Security Court of, inter alia, the murder of the President of the local office of the National Movement Party.  At the hearing, the applicants were verbally abused by a group of militants from that party. At three further hearings, the applicants were subjected to insults and threats by close rel atives of the parties claiming civil damages, and on two occasions the police had to escort the applicants from the court building. Following one hearing, two of the applicants were physically assaulted by a group of persons thirty or forty metres from the exit from the court building, where they could not be seen from the security court building. One of the applicants was kicked and punched and the other was stabbed twice in the leg. However, they managed to regain the main entrance to the court building a nd their assailants, afraid of being seen by the police officers guarding the entrance, fled.

Inadmissible under Article 3: This article requires the contracting States to take appropriate measures to prevent persons coming within their jurisdiction from b eing subjected to ill-treatment: the responsibility of the State may therefore be engaged, in particular, where the authorities have not taken reasonable measures to ensure that a risk of which they were or should have been aware did not become a reality, even where the risk was posed by persons or groups of persons not belonging to the public service. The insults and assaults on the part of civil groups who had attended the hearings before the security court, do not appear to have reached the threshold of gravity required for it to be necessary to consider whether the responsibility of the respondent State may have been engaged.

As regards the physical assaults, Article 3 does not impose a positive obligation to prevent any potential violence or any crimin al act by a third party. In this case, there is no evidence to suggest that the judges or security personnel guarding the court building might have foreseen that things would get worse outside, and in particular that fifteen or so individuals would gather in order to commit the assault in question. In particular, the applicants were unable to show the Court how the police officers in the court building, approximately thirty metres from the scene of the assault, could have taken effective action: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes