CASE OF RAHMİ ŞAHİN v. TURKEY
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant, Mr Rahmi Şahin, was born in 1985 and lives in Hakkari. 6. On 12 December 2009 the applicant was taken into police custody on suspicion of involvement in a demonstration and subsequent clashes between some of the demonstrators and the police in Hakkari. According to the arrest report, drafted at 4.30 p.m. and signed by two police officers, the latter officers arrested the applicant at around 4 p.m. after he had attempted to escape. The report said he had also fallen over. The police officers noted that the applicant had resisted arrest and that they had used proportionate force to apprehend him. The applicant refused to sign the arrest report. 7. At 11.30 p.m. on the same day, an incident report was drafted and signed by thirty-seven police officers. According to that report, the Fırat News Agency, a website controlled by the PKK (Kurdish Workers’ Party, an armed illegal organisation), had published a declaration by the KCK (Koma Civakên Kurdistan – the Union of Communities in Kurdistan), containing instructions to hold meetings and marches, to start Serhildan (rebellion), and carry out acts of civil disobedience to show support for Abdullah Öcalan. As a result, on 11 December 2009, a press conference was held and around 500-550 people, including mayors and local politicians from the DTP (Party for a Democratic Society), a pro-Kurdish political party, as well as members of a number of non-governmental organisations, gathered in front of the DTP’s Hakkari office. During the press conference, the crowd chanted slogans and carried banners praising Abdullah Öcalan and the PKK. That same day, the DTP’s dissolution was ordered by the Constitutional Court and thirty-seven of its members were banned from carrying out political activities. As a result, the Fırat News Agency published another article containing instructions for further Serhildan acts and for demonstrations. According to the police report, on 11 and 12 December 2009 the security forces had intervened in several areas in the city where demonstrators had blocked the traffic, chanted slogans in favour of the PKK and its leader, and burned tyres or attacked cars, shops and administrative buildings. The report further stated that when the security forces had intervened, some demonstrators had responded by throwing stones and Molotov cocktails at the police officers. According to the report on the applicant’s arrest, he had been apprehended after the police had moved against a group of 50-60 people who had been chanting slogans in favour of the PKK and its leader in the cemetery of the Biçer neighbourhood. 8. At 6.15 p.m. and 8.20 p.m. that day, two police officers made identical statements to two other officers. They both stated that the applicant had been with a group of people who had been chanting slogans in favour of the PKK and its leader and who had burned tyres. The group had attacked the police with stones when the police had moved against the gathering. According to their statements, the applicant had tried to flee and they had arrested him when he had fallen down, using proportionate force. 9. The arresting officers later identified the applicant. They submitted that the applicant had been in a group of people who had burned tyres and chanted slogans in favour of the PKK and its leader. The officers stated that they had arrested the applicant after he had attempted to avoid arrest. 10. At 6.33 p.m., the applicant was taken to the Hakkari state hospital for a medical examination. The doctor who examined the applicant noted the following information on a medical form: “There is a haematoma on the left eye. [The injury] occurred three hours ago. There is no nausea or vomiting. The patient is conscious and co-operating. There is a slight swelling between the upper lip and the teeth (He stated/It was stated that it was due to a fall). There is a bruised lesion with abrasions on the lumbar area at the level of the second vertebra. A dental examination is recommended.” 11. On 13 December 2009 the applicant was examined by the same doctor. The findings were the same as those in the report of 12 December 2009. 12. On the same day, the Hakkari Magistrates’ Court decided to restrict access to the investigation file concerning the applicant and two other people. 13. On 14 December 2009 a lawyer from the Hakkari Bar Association was asked to assist the applicant during questioning, which took place at the anti-terrorist branch of the Hakkari police headquarters. The applicant was asked to respond to a number of questions in the presence of his lawyer, Mr F. Timur. The applicant, however, exercised his right to remain silent and did not reply to any of the questions. 14. On the same day, the applicant’s legal representative applied to the Hakkari Magistrate’s Court and requested that the decision to restrict his and his client’s access to the investigation file be annulled and his client be released from police custody. On 15 December 2009 the Hakkari Magistrates’ Court dismissed the request. On 16 December 2009 the Hakkari Assize Court upheld the decision of 15 December 2009. 15. Meanwhile, on 14 December 2009 the applicant had made a statement to the Hakkari public prosecutor. He denied any involvement in the demonstration. He stated that the disturbances in the city had meant that he and his wife had been unable to go out of their house and that on 12 December 2009 he had left home in order to buy bread. He contended that he had seen police officers approaching him and had continued to walk towards them. One of the officers had insulted him and taken him to a hill close to their neighbourhood. They had then pushed him down the hill. An officer had hit him on his right ear with a plastic tube. The applicant had then started running down the hill, where there were other officers who had thrown him to the ground, with him landing on his back, and had arrested him. He stated that he still had pain in several parts of his body, particularly around the heart. He complained to the public prosecutor that after he had been arrested, he had been put in a police vehicle and had been hit on the back, close to his armpit, with the butt of a gun. He asked the public prosecutor to find and punish the officers who had been responsible for his ill-treatment. 16. After the questioning, the public prosecutor ordered a medical examination of the applicant. A forensic doctor, mentioning the findings of the previous medical reports, noted an old yellow-green ecchymosis in the right (sic) periorbital area and a mucosal tear of 0.5 cm and oedema on the right side of the upper lip. The report also stated that the applicant had described pain on the left side of his chest and in the left femoral and lumbar regions. According to the report, the applicant was sensitive upon palpation in those regions. The doctor concluded that the injuries were not life-threatening and required only simple medical care. 17. Later that day, the applicant was brought before the Hakkari Magistrates’ Court, where he pleaded innocent and asked to be released. The applicant’s legal representative noted that his client had been beaten during his arrest and that he had not sustained the injuries noted in the medical reports as the result of a fall. The applicant was subsequently detained on remand on suspicion of membership of the PKK on account of his alleged involvement in the events of 12 December 2009. 18. On 16 December 2009 the applicant’s legal representative lodged an application with the Hakkari Magistrates’ Court for his client’s release. In the application, the lawyer noted that the applicant had not sustained the injuries noted in the medical reports as the result a fall, but had been beaten by police officers. The court dismissed the application the same day. 19. Also on that day, the applicant’s legal representative requested that the Hakkari public prosecutor provide him with copies of the documents in the investigation file, which he was authorised to receive despite the restriction order. He further requested the medical reports issued in respect of the applicant. According to the applicant’s submissions, his lawyer was only provided with the medical reports of 12 and 13 December 2009; the public prosecutor’s office failed to provide him with the report of 14 December 2009, which had been issued at the end of the applicant’s detention in police custody. 20. On 17 December 2009 the applicant applied to the Hakkari Magistrates’ Court for release from detention. In his application, the applicant also stated that the police officers had beaten him when they had arrested him. He contended that the officers had held him by the arms and hit him. His eyes and his mouth had been covered with blood as a result. 21. On 18 December 2009 the Hakkari Magistrates’ Court dismissed the application for release. In its decision, the court did not refer to the applicant’s allegations of ill-treatment. 22. On 28 December 2009 the applicant’s lawyer filed a complaint against the police officers who had taken part in the applicant’s arrest. He claimed that the applicant had been beaten by the police officers and that he had been taken to a hill and ordered to run towards the police officers, who had stood further down the hill and had then thrown him to the ground. He also claimed that the medical reports that had been issued were not appropriate or in compliance with internal regulations or the “Istanbul Protocol”. It was further alleged in the complaint that during their consultation in police custody, the lawyer had observed bruises around the applicant’s left eye and damage to his gums, which could have been the result of being hit on the face. The applicant’s legal representative further stated that the applicant was suffering from constant pain around the heart and chest. The lawyer requested that his client be examined by medical practitioners at the Human Rights Foundation of Turkey, a nongovernmental organisation specialised in reporting torture and other types of ill-treatment. He further requested that the public prosecutor initiate an official investigation into the applicant’s allegations of ill-treatment and identify the officers who had ill-treated his client. Finally, the lawyer requested that the public prosecutor take a statement from his client in person and communicate to him the date and the time for taking such a statement. 23. On 17 March 2010 the Hakkari public prosecutor decided not to bring any charges in relation to the applicant’s allegations of ill-treatment. In his decision, the public prosecutor first summarised the content of the incident report dated 12 December 2009 (see paragraph 7 above). Secondly, he noted that the applicant had acted with a group of people who had chanted slogans in favour of the PKK and that he had been arrested after he had attempted to escape and had fallen. The public prosecutor noted in that respect that two police officers had identified the applicant. The public prosecutor then noted that the applicant had acted with groups of people who had blocked traffic, burned tyres, chanted slogans praising the PKK, carried out attacks with stones and Molotov cocktails, and that he had resisted the police by throwing stones when they tried to arrest him, and that he had fallen. The public prosecutor observed that although the applicant had sustained minor injuries on his face and body, he had failed to substantiate his claims that he had been beaten and insulted by the police officers. According to the public prosecutor, acts of “social terrorism” led supporters of terrorism to resist or attack the security forces, in some cases with weapons, and so members of the security forces were obliged to use force within the limits of the law. The Hakkari public prosecutor considered that the applicant had acted upon the instructions of the PKK and that it was to be expected that such people would make claims of ill-treatment. Noting that, according to section 16 of Law no. 2559 on the Duties and Powers of the Police, the police officers had the authority to use force against PKK supporters, the public prosecutor considered that the police had used proportionate force against the applicant. He also noted that there was no evidence in the case file indicating any deficiency in the medical reports drafted by the doctors. The public prosecutor concluded that the applicant’s allegations of ill-treatment were unsubstantiated. 24. On 31 March 2010 the applicant’s legal representative lodged an appeal against the decision of 17 March 2010. He noted, in particular, that the Hakkari public prosecutor’s assessment had been based on incorrect facts such as the “minor nature” of the applicant’s injuries and his involvement in violent acts during the events of 12 December 2009. The lawyer also noted that the public prosecutor had failed to take a statement from the applicant, to collect evidence in relation to his allegations or to identify and question the arresting police officers and potential witnesses. The lawyer also noted that the medical reports had complied with neither domestic legislation nor the “Istanbul Protocol” since they lacked details such as the applicant’s medical history, the applicant’s own account of how the injuries had been caused and an assessment regarding the cause of the injuries. He also claimed that the applicant’s medical examination had taken place in the presence of police officers. 25. On 13 April 2010 the Van Assize Court dismissed the applicant’s appeal. Noting that there was no evidence showing that the applicant had been subjected to ill-treatment, the assize court held that the decision of 17 March 2010 had been lawful. 26. The Government submitted two sets of photographs taken by the security forces with regard to the demonstrations and disturbances of 11 and 12 December 2009 in Hakkari. The first set of 374 photographs concerned the demonstrations held in Hakkari city centre, of which 14 show young men and adolescents throwing stones. The remaining photographs show people demonstrating in different parts of the city centre. 27. The second set of 444 photographs concerned the gatherings and disturbances in the outlying neighbourhoods of Medrese and Biçer in Hakkari. The photographs show that children, adolescents and a few young men gathered in various places in the neighbourhoods. In some photographs, the demonstrators are seen burning tyres and blocking streets. In most of the photographs, children and adolescents, mostly boys, are seen standing or walking. Four of the photographs show children standing close to soldiers, probably talking to them, while another ten show adolescents and young men standing in front of police officers. In around twenty-five of the photographs, children, adolescents and young men, some of whom have their faces covered, are seen throwing stones at an armoured police vehicle. Five pictures show police vehicles spraying demonstrators with a water cannon and tear gas.