CASE OF DİLEK ASLAN v. TURKEY
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
4. The applicant was born in 1984 and lives in Kars. 5. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraphs 5-9 below). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 10-13 below). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 14-30 below). 6. On 21 October 2006 the applicant and three of her friends were in the city of Kars, distributing leaflets prepared by TAYAD (Association for Solidarity with the Families of Persons Deprived of Their Liberty), in a residential neighbourhood. 7. A man in plain clothes arrived and attempted to seize the leaflets without showing his identity documents demonstrating that he was a police officer. As the applicant and her friends refused to comply with the man’s demand, he held two of the applicant’s friends around their necks. Subsequently, around thirty police officers arrived at the scene and arrested the applicant and her friends. In the course of the arrest, the police officers used force and hit the applicant on various parts of her body before putting her in a police vehicle. In the vehicle, a police officer sat on her head and continued to hit her. A number of police officers also touched various parts of her body and made sexually suggestive comments. 8. The applicant was taken to hospital, where she was examined by a doctor who observed skin erosions, red patches (erythema) and sensitive areas on the applicant’s head, face, shoulders, lower back, abdomen and wrist. He concluded that the injuries were not life-threatening and a simple medical procedure was sufficient to treat them. 9. The applicant was then taken to a police station, where the beating continued and where she was threatened with rape by one of the police officers. The applicant’s requests for information about the reasons for her arrest and for a lawyer were refused. Each time the applicant repeated her requests the police officers used offensive language. 10. A lawyer who arrived at the police station the same afternoon secured the applicant’s release. 11. On 21 October 2006 at around 11 a.m. the police received information according to which TAYAD members were distributing leaflets in a residential area in Kars. Two police officers, V.G. and H.Ö., arrived at the scene of the incident at 11.15 a.m. in order to verify whether the content of the leaflets was legal. One of the officers, V.G., approached the applicant and her friends, told them that he was a police officer and requested to see the content of the leaflets and their identity cards. As the applicant and her friends refused to comply and began using offensive language and hitting him, a second police officer intervened. They subsequently asked for help from other officers, who also arrived at the scene of the incident. The police arrested the applicant and her friends and tried to put them in a police vehicle. The arrestees, however, resisted arrest. They also continued to hit the officers in the vehicle. During the physical struggle between the arrestees and the police officers, V.G., was injured. 12. At 11.30 a.m. the applicant was examined by a doctor, who observed minor injuries on her head, shoulders and wrist. At 11.45 a.m. V.G. was also subjected to a medical examination by the same doctor. According to the medical report issued in respect of V.G., he had pain and sensitivity in his lower back and numbness in his feet. The doctor considered that a simple medical procedure was sufficient to treat both the applicant’s and V.G.’s injuries. 13. At 1 p.m. the applicant and her friends were taken to the police station upon the instructions of the Kars public prosecutor. The applicant and her friends refused to make statements to the police. 14. At 4 p.m. the applicant and her friends were released from police custody and taken to a hospital for a medical examination. The doctor who examined the applicant observed the same injuries noted in the report issued at 11.30 a.m. on the same day. 15. The medical reports of 11.30 a.m. and 4 p.m. regarding the applicant contain information about the physical injuries sustained by the applicant and the doctors’ opinions as to the gravity of the injuries in the respective sections of the reports entitled “findings regarding the lesions” and the “conclusion of the examination” (see paragraphs 8, 12 and 14 above). The sections of the reports entitled “conditions of examination”, “information regarding the incident”, “the complaints of the person examined” and “findings of the psychiatric examination” were not completed. 16. At 1.30 p.m. on 21 October 2006 an arrest report was drafted by the police. According to this report, police officers had arrived at the scene of the incident as they had received information that members of TAYAD were distributing leaflets. When the police asked them to show the leaflets, the applicant and her friends put the leaflets in their bags and refused to present their identity documents. The report further stated that applicant and her friends had to be arrested through the use of force as they resisted the police officers and continued their acts. According to the report, the arrestees attacked the police officers by way of throwing themselves on the ground and chanting slogans. They were then put in the police vehicle by force and injured themselves in the vehicle by hitting their heads on the car glass and the door. 17. At 1.40 p.m. V.G.’s statements were taken by another police officer. He contended that he had been injured by the applicant and her friends and asked for an investigation to be conducted against them. 18. At 4.10 p.m. the applicant’s and her friends’ personal belongings were searched by four police officers who drafted a search report. According to this report, two of the arrestees each had a copy of the leaflet in their bags. The police returned all items found during the search when the applicant and her friends were released from police custody at around 4 p.m. 19. In November 2006 the Kars public prosecutor initiated an investigation against the applicant and her friends. Within the context of this investigation, on 17 November 2006 the public prosecutor took statements from V.G. and H.Ö. The documents containing the police officers’ statements refer to them as the “complainants”. The officers contended that they had been obliged to use force together with other police officers who had come to assist them, as the applicant and her friends had attempted to beat V.G. The police officers stated that they did not wish to lodge a complaint against the applicant and her friends. 20. On 23 November 2006 the applicant was questioned by the Kars public prosecutor as a suspect. In her statement, she described the illtreatment and the sexual assaults, and asked the public prosecutor to prosecute the police officers responsible for her ordeal. She also noted that she and her friends had downloaded the leaflets from the web and printed them. She stated that the content of the leaflets in question had not been illegal and that they had not committed any offence. The applicant’s legal representative was also present in the room and told the public prosecutor that while distributing the leaflets his client had been exercising her right under Article 10 of the Convention to impart her ideas and opinions. He complained that the police officers who had arrested his client had not shown her their identity documents and had not informed her of her rights. He further complained that the police had committed the offence of abuse of office as they had used violence against his client. 21. On the same day two of the applicant’s friends, S.P and B.K., also made statements before the Kars public prosecutor as suspects. They both contended that they had been ill-treated by the police and requested that an investigation be initiated against the officers who were responsible for their ill-treatment. 22. On 13 August 2007 the Kars public prosecutor filed an indictment with the Kars Criminal Court and accused the applicant and her three friends of obstructing the police officers in the execution of their duties under Article 265 § 1 of the Criminal Code. The public prosecutor alleged that the applicant and her friends had called the police officers “fascists”, “killers” and “enemies of the people”, had refused to show the police officers their identity cards and had hit them with their handbags. A case file was opened and given the number 2007/220. 23. On 4 December 2007 the Kars Criminal Court held the first hearing in the case. 24. On 24 March 2008 the criminal court heard V.G., the complainant police officer, in the absence of the applicant and her co-accused. V.G. contended that the applicant and her friends had chanted slogans, resisted arrest and hit him with their bags. 25. On 27 March 2008 the applicant made statements before the firstinstance court. She stated that they had not chanted slogans or beaten the officers. They had not known whether those persons were police officers and, in any event, V.G. had not asked to see the content of the leaflets. According to the applicant, V.G. had merely taken hold of one of her friends and asked for assistance from other officers in order to carry out the arrest. She noted that they had been attacked and arrested without being able to understand that V.G. was a police officer. During the same hearing, the applicant’s lawyer maintained that the applicant’s trial for distributing leaflets was in violation of her rights enshrined in the European Convention of Human Rights and, in particular, her right to freedom of expression and demonstration. 26. On various dates the applicant’s co-accused gave evidence before the Kars Criminal Court. They all contended that they had not been asked to show the leaflets or their identity cards but had been arrested through the use of force although they had not resisted arrest. 27. On 17 March 2009 the Kars Criminal Court convicted the applicant of obstructing the police officers in the execution of their duties and insulting them under Article 265 § 1 of the Criminal Code and sentenced her to eleven months and twenty days’ imprisonment. The first-instance court noted that the police had gone to the scene of the incident as they had received information that members of TAYAD were distributing leaflets. In the light of the statements of the officers who had signed the police report, the medical reports and the arrest report, the Kars Criminal Court found it established that the accused had insulted the police officers, shouted that they would neither show their identity cards nor give the leaflets and injured V.G. by way of hitting him with their bags. Taking into account the fact that the applicant did not have any criminal record, her personality traits and her conduct during the hearings, the first-instance court considered that the applicant would not commit any further offence. It therefore decided to suspend the pronouncement of the judgment against her (hükmün açıklanmasının geri bırakılması) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure (Law no. 5271). 28. On 26 May 2009 the decision of 17 March 2009 became final. 29. Meanwhile, the Kars public prosecutor initiated an investigation against V.G. and H.Ö. on the charge of abuse of office, upon the complaints lodged against them by the applicant and her friends. 30. On 11 August 2007 the Kars public prosecutor decided that no proceedings should be brought against the police officers. In the public prosecutor’s opinion the applicant’s injuries had possibly been caused when she and her friends had resisted the police officers, who had been performing their duties. The public prosecutor noted in his decision that some of the police officers had also been injured during the incident. 31. On 4 December 2007 the applicant’s lawyer filed an objection against the public prosecutor’s aforementioned decision. In his petition, the lawyer noted that the decision in question had not been served on him or his client and that they had become aware of it when the lawyer went to the court-house to read the documents in the case file on the same day. The applicant’s lawyer also noted that the applicant had been subjected to violence by the police and that she had not hit the police officers. 32. On 21 December 2007 the Ardahan Assize Court dismissed the applicant’s objection against the Kars public prosecutor’s decision following an examination on the merits. The Assize Court considered that the force used by the police officers had been no more than necessary to counter the applicant’s resistance. The applicant claimed that this decision was not communicated to her or her lawyer and was put in the investigation file. Her lawyer became aware of it when he consulted that file on 21 January 2008. There is no document in the investigation file, submitted by the Government, demonstrating the notification of the decisions of 11 August 2007 and 21 December 2007 to the applicant or her lawyer.