CASE OF YİĞİTDOĞAN v. TURKEY (No. 2)
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);Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing)
András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano
4. The applicant was born in 1968 and is currently serving a prison sentence in Kocaeli. 5. On 25 July 1999, at 11.30 a.m., the applicant was arrested on suspicion of being a member of an illegal organisation, namely the Turkish Revolutionary Communist Union, Türkiye İhtilalci Komünistler Birliği, “the TIKB”. The arrest records held by the police stated that they had had to use force to arrest the applicant, who had tried to escape when officers approached him to conduct an identity check. 6. On the same day he underwent a medical examination at 1.30 p.m. at Atatürk Hospital in Izmir. The report drawn up afterwards stated that no indication of ill-treatment had been observed on the applicant’s body. 7. The applicant was examined again later that day, at 5.45 p.m. at the same hospital. The report issued following that examination noted that the applicant had a healing, scabbed scratch measuring 2 x 2 cm on his right elbow. It concluded that there was no indication of physical violence on his body. 8. Following the medical examinations, the applicant was transferred to Istanbul, where he was placed in police custody at the Anti-Terrorist Branch of the Istanbul Security Headquarters. According to his submissions, he was subjected to ill-treatment during his time there. 9. On 27 July 1999 the applicant’s residence in Istanbul was searched by the police, who found several guns and cartridges, which were later sent to the Istanbul Criminal Police Laboratory for ballistic examination. 10. On 28 July 1999 the applicant was examined by a doctor at Haseki Hospital, who noted a swelling, a bruise and a scratch measuring 1 x 2 cm on his right elbow, as well as another scratch measuring 0,5 x 1 cm on his arm. The doctor recommended that the applicant undergo an orthopaedic examination. 11. At the request of the public prosecutor, on 29 July 1999 the Istanbul State Security Court decided to extend the applicant’s police custody by three days. 12. On 30 July 1999 the applicant was examined again at Haseki Hospital. This time, two scars on his gluteal region were noted. 13. On an unspecified date the applicant made statements to the police, in the absence of a lawyer. 14. On the last day of his police custody, namely on 1 August 1999 the applicant underwent another medical examination at Haseki Hospital. The report drawn up afterwards indicated a scar measuring 1 x 1 cm on his right elbow. The doctor also noted that the applicant’s medical condition was generally good, and recommended that he should undergo a urological consultation to follow up his complaint of rectal pain. He stated that a final report would be issued by the Forensic Medicine Institute. 15. On the same day the applicant was heard by the public prosecutor at the Istanbul State Security Court. He was not legally represented when he made his statements. 16. Subsequently, the applicant was brought before the investigating judge at the Istanbul State Security Court; he was remanded in custody. In the presence of a lawyer appointed by the Bar association, he retracted his previous statements and maintained that he had been subjected to illtreatment during his time in police custody. In response to a question by the investigating judge, the applicant maintained that he did not object to the content of the medical report drawn up earlier that day. 17. According to the applicant’s submissions, on 2 August 1999 he was examined by a doctor at Haydarpaşa Numune Hospital. The Government stated that there had been no such examination. 18. On 9 August 1999 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal armed organisation and of involvement in activities which undermined the constitutional order of the State, pursuant to Article 146 of the Criminal Code in force at the time (Law no. 765). In this respect, the public prosecutor noted that the applicant had taken part in several armed acts of the illegal organisation, including murder. 19. On 7 August 2000 the applicant informed the Istanbul State Security Court that he would not attend the hearing that was to be held that day, as he had had no opportunity to have prior consultation with his lawyer. The court asked the public prosecutor’s office to ensure the applicant’s attendance at the subsequent hearing. 20. At a hearing dated 7 February 2001, during which the applicant’s lawyer was present, the court noted that although it had requested that the applicant be brought before the court, it had received no response from the public prosecutor concerning the matter. At the same hearing the case was joined to another one, in which the applicant was being tried together with some others. 21. During subsequent hearings, which were conducted in the absence of the applicant, the court heard submissions from some of the co-accused and some witnesses. At one of these hearings, on 24 January 2002, the applicant’s lawyer asked the court to obtain the medical reports issued at Haydarpaşa Numune Hospital in 1999. He also stated that the applicant had been transferred to another prison and that the order for him to attend the hearing had not been sent there. 22. On 28 March 2002 the court noted that the applicant could not be brought to the hearing as he had been transferred once again. 23. On 30 May 2002 the Istanbul State Security Court gave an interlocutory decision, holding that the applicant should be brought before the court for the subsequent hearings, and that failure to do so would result in those responsible for his absence being subject to a criminal investigation. 24. On an unspecified later date the applicant’s lawyer submitted a letter to the court, noting that the applicant had not been brought before the court following its interlocutory decision dated 30 May 2002. He argued that the prison personnel and police officers concerned should be prosecuted for this. 25. On 24 October 2002 the applicant was brought before the court. He submitted his defence, indicating that he had been severely beaten during his arrest in Izmir and had been subjected to electric shocks, hung by the arms, hosed with cold water and sexually assaulted during his seven-day police custody at the Istanbul Security Headquarters. He claimed that although his right arm had been broken and he had developed facial paralysis, he had not been taken to the Forensic Medicine Institute. In that respect, he asked the court to obtain the medical reports issued following his examination at Haydarpaşa Numune Hospital, where he said a plaster cast had been put on his broken arm. 26. At hearings on 6 February, 17 April and 17 June the applicant and his lawyer submitted additional defence statements. 27. During those proceedings, in 2004 State Security Courts were abolished following a constitutional amendment, and the case was transferred to the Istanbul Assize Court. 28. At a hearing on 27 February 2007 the applicant informed the court that his lawyer had failed to attend the hearings, and asked for time to appoint a new lawyer. 29. On 11 December 2007 the applicant’s new lawyer reiterated the applicant’s allegations of ill-treatment and asked the court to assess the medical reports on him. In that connection, she maintained that the applicant had not undergone urological or orthopaedic consultations, although the doctors at Haseki Hospital had recommended that he should. The lawyer added that the applicant had never been taken to the Forensic Medicine Institute, and that the court had not obtained the reports from Haydarpaşa Numune Hospital, despite the applicant’s request for them. She also stated that the applicant had not been present at the hearings when the court had heard certain key witnesses. 30. On 11 June 2008 the applicant’s lawyer submitted a request to Haydarpaşa Numune Hospital for the medical reports on the applicant’s medical examination on 2 August 1999. However, the hospital administration informed her that the records for that year had been destroyed in 2006, as a result of a sewage pipe explosion above the archives. 31. On 12 September 2008, on the basis of several items of evidence, including the applicant’s police statements, the guns found at his home, and ballistic reports on those guns, the Istanbul Assize Court found the applicant guilty as charged and sentenced him to life imprisonment. 32. The applicant’s lawyer appealed against the judgment, arguing that the applicant had been subjected to ill-treatment while in police custody and had been convicted on the basis of statements extracted under duress. 33. On 18 March 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court. This judgment was pronounced on 7 April 2010.