CASE OF GAZİOĞLU AND OTHERS v. TURKEY
Violation of Art. 3;Violation of Art. 11
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
5. The applicants were born in 1984, 1980, 1955 and 1979 respectively and live in Istanbul. 6. On 17 October 2003 the applicants took part in an anti-war demonstration in Istanbul. The gathering was dispersed by police officers and the applicants were arrested and taken into police custody where they remained until their release the following day. The applicants allege that they were subjected to ill-treatment during their arrest and their detention in custody. 7. According to an incident report drawn up by a number of police officers on 17 October 2003, fifty to sixty persons, including the applicants, gathered in a square in Istanbul at 7.45 p.m. and chanted anti-war slogans, protesting against the Government’s proposals to send soldiers to participate in the invasion of Iraq. The police had warned them with loudspeakers that they were disturbing the flow of traffic and had unsuccessfully asked them to disperse. When the police had attempted to arrest some of the demonstrators and put them into the police vehicles, a number of the demonstrators had displayed “rowdy behaviour” and the police had had to use force against them. A total of six persons, including the applicants, had been arrested and taken to a police station at 8.30 p.m. the same evening. This incident report was signed by six police officers who were only referred to in the report with their identification numbers. 8. The same day the applicants were examined by a doctor. According to the medical reports, the second and third applicants had no signs of ill-treatment on their bodies. The first applicant had bruising on her lower lip and on her lower right leg. The fourth applicant had bruising on the left side of his lower back and on the back of his right ear. His legs were also sensitive and he had redness in his left eye. 9. The same evening the applicants were questioned by the police in the presence of a duty lawyer. With the exception of the third applicant, all the applicants exercised their right to remain silent. 10. The following day the applicants were examined by a doctor once more. According to the medical reports, there were no signs of ill-treatment on the applicants’ bodies other than those mentioned in the medical reports drawn up the previous day. 11. At around 2 p.m. the same day the applicants were brought before the Bakırköy prosecutor. The applicants told the prosecutor that by attending the demonstration they had been exercising their democratic rights. They also alleged that the police had arrested them without any previous warnings. The fourth applicant complained that he had been beaten up by the police officers. The first and fourth applicants also complained that police chief M. T. had sworn at them during their time in police custody. The same day the applicants were released. 12. On 21 October 2003 the Bakırköy prosecutor asked for an investigation to be opened into the applicants’ allegations of ill-treatment. 13. The applicants submitted a formal complaint to the Bakırköy prosecutor on 5 November 2003. With the exception of the third applicant, Mr Hacı Badem, the applicants complained of ill-treatment. Referring to Article 3 of the Convention the three applicants stated that the police officers had punched and kicked them in the course of their arrests, as well as during their detention at the police station. 14. Between 10 December 2003 and 13 April 2004 the Bakırköy prosecutor questioned eleven police officers. Ten of the police officers denied having been at the demonstration or having seen any of the demonstrators because they had been working elsewhere at the time. The remaining officer, police chief M.T., told the prosecutor that he had not taken part in the dispersal of the demonstration but had questioned the applicants in police custody. He denied having ill-treated any of the arrestees or having sworn at them. 15. On 14 April 2004 the Bakırköy prosecutor decided to close the investigation into the applicants’ allegations of ill-treatment. On the basis of the documents in the file the prosecutor considered that when the applicants refused to disperse the police had had to use force against them. The applicants’ “simple injuries” had thus been caused when the police had been exercising their statutory powers on the use of force. 16. The applicants’ objection against the prosecutor’s decision was rejected by the Eyüp Assize Court on 8 December 2004. This decision stated that it was to be served on the applicants. 17. According to a hand-written note on this decision, it was communicated to the applicants on 9 February 2005. 18. In the meantime, on 21 October 2003 criminal proceedings were instigated against the applicants for having taken part in an unlawful demonstration, in breach of sections 33, 36 and 40 of the Meetings and Demonstration Marches Act (Law no. 2911). 19. On 28 January 2008 the Bakırköy Criminal Court of First Instance acquitted the applicants, holding that they had exercised their democratic rights and not committed any offences.