YAGMAKAN v. TURKEY
Inadmissible
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
The applicant, Mr Rezzan Yağmakan, is a Turkish national who was born in 1981 and lives in İzmir. He was represented before the Court by Mr Z. Değirmenci, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 August 2002, at 12 noon, the applicant, who was sitting at a cafe in a park, was arrested by two police officers from the Menemen Security Directorate on suspicion of involvement with an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan) / KADEK (Kurdistan Freedom and Democracy Congress). In the application form, the applicant alleged that the two police officers had been plain-clothed, that they had asked for his identity papers and that just as he was about to show them, they had physically and verbally attacked him. They had made him lie down in the park and kicked and punched him. The police officers had later handcuffed him and taken him to the police station. Both on the way to and inside the police station the applicant had been subjected to beatings and sworn at. According to the record of the arrest, drafted by the police officers on the same day, the applicant resisted arrest and as a result one police officer had sustained injuries. The applicant signed the record. At 1.35 p.m. the applicant was examined by a doctor at the Menemen State Hospital, who noted the presence of superficial scratches on the applicant’s back and a slight bruise on the right side of the back. The doctor further noted superficial scratches on both elbows and the right knee. One of the police officers, Mr K.A., was also examined by a doctor at the Menemen State Hospital at the same time. The doctor noted that he had a 3 cm superficial cut and a graze on his left elbow, a 5 cm x 5 cm bruise on his left hand, a superficial graze on his right elbow and a 3 cm x 10 cm bruise on the left side of his neck. Mr K.A., the police officer, gave a statement at the police station, where he submitted that the applicant had resisted arrest and, to avoid having to get inside the police car, had tried to escape, had thrown himself to the floor and had clung to a tree. He maintained that the police had had to force the applicant into the car by holding on to his arms and body and that during this time the applicant had injured him. At 4.15 p.m. the applicant was examined for a second time at the Menemen State Hospital. The report prepared at the end of this examination did not reveal any new findings. Thereafter, the applicant was handed over to policemen from the anti-terrorism branch of the İzmir Security Directorate. On 5 August 2002 at 5.15 p.m. the applicant was examined by a doctor at the Atatürk Eğitim Araştırma Hospital in İzmir. Referring to the findings indicated in the report of the Menemen State Hospital, the doctor stated that there were no new marks on the applicant’s body. On 6 August 2002 at 11.30 a.m. the applicant was once again taken to the Atatürk Eğitim Araştırma Hospital in İzmir. No new marks were found on the applicant’s body. On 6 August 2002 the applicant was questioned by Mr K.Y., a prosecutor at the Menemen public prosecutor’s office. He was told of his rights and a lawyer was assigned to him from the Bar. The applicant submitted that he was part of the İzmir HADEP youth committee and that his job was to organise district youth committees. He claimed that he did not earn any money but ate, drank and stayed as a guest at the places which he visited. The applicant stated that while he was sitting at a café of the president of the HADEP district headquarters, the police had come and invited him to the police station. They had told him that his statement was going to be taken. He had become angry, had told them that they could not take him until the president came and had tried to prevent them from taking him. The applicant maintained that he had not hit the police officers but had only resisted getting into the police car. He said that he regretted his acts and had apologised to the police officers. On the same day, Mr K.Y., the prosecutor, requested the Menemen Magistrates’ Court to remand the applicant in custody. Before that court, where the applicant was told of his rights in the presence of his Bar-appointed lawyer, the applicant also admitted that he had refused to go to the police station and had resisted arrest. He further maintained that he regretted his acts and had apologised to the police officers. The court dismissed the prosecutor’s request for the applicant to be remanded in custody and he was released. At 4.15 p.m. the applicant was examined at the Menemen State Hospital, where no signs of ill-treatment were found on his body. On 9 August 2002 Mr K.Y., the prosecutor, upon a complaint by Mr K.A., the injured police officer, filed a bill of indictment against the applicant under Article 258 §§ 1 and 3 of the Criminal Code for using physical violence against a police officer in the course of his duties. On the same day, the applicant contacted his legal representative before the Court and told him about the ill-treatment. On 12 August 2002 criminal proceedings before the Menemen FirstInstance Court commenced against the applicant. On 27 September 2002 the applicant lodged an official complaint with the Menemen public prosecutor’s office against the two police officers who had arrested him, alleging ill-treatment. In his complaint the applicant submitted that the police, without introducing themselves, had told him to come with them and before he understood what was happening they had started to hit and kick him and had handcuffed him. He maintained that the police had continued to beat and kick him both in the car and later at the police station. They had also sworn at him. The applicant claimed that afterwards he had been taken to İzmir, where he had also been ill-treated. On 7 November 2002 the prosecutor, Mr M.B., examined the case file concerning the criminal proceedings brought against the applicant. On 18 December 2002 the prosecutor, Mr M.B., heard evidence from the accused police officers. They submitted, inter alia, that they had introduced themselves and had shown their badges to the applicant and had asked him to accompany them to the police station. However, since the applicant had refused and resisted, force had had to be used to subdue him and make him get into the car. The police officers asserted that one of them had been injured during the arrest. They further noted that the applicant had not been taken into custody but had sat with them in their office until a unit of police officers from İzmir had come to pick him up. On 23 December 2002 the prosecutor, Mr M.B., taking into account, in particular, the criminal proceedings brought against the applicant for using physical violence against a police officer in the course of his duties, decided not to prosecute the two police officers who had arrested the applicant, on the ground that the latter had acted within the scope of their duties in accordance with section 6 of Law no. 2559 on the duties and powers of the police. An objection by the applicant to that decision was dismissed by the İzmir Assize Court on 21 May 2004. Its decision was served on the applicant on 1 June 2004. In his observations the applicant submitted that, subsequently, he had been convicted by the Menemen First-Instance Court.