CASE OF ALİ AND AYŞE DURAN v. TURKEY
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary and non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
4. The applicants were born in 1933 and 1945 respectively and live in Istanbul. They are the parents of Mr Bayram Duran, aged 26, who died in a police station in Istanbul on 16 October 1994, as a result of having been beaten by four police officers. 5. On 12 October 1994 a certain M.Y. filed a complaint with the police maintaining that a man had threatened his son and taken his money. 6. On 15 October 1994 M.Y. saw Bayram Duran on a bus and told the bus driver to go to the police station. Once in front of the police station, M.Y. asked the police officers to arrest Bayram Duran, maintaining that the latter was the person who had threatened his son. Subsequently, at around 11 a.m. Bayram Duran was arrested on suspicion of having committed robbery (gasp). 7. On 16 October 1994 at around 5 a.m. Bayram Duran was found dead at the Gazi police station. 8. On the same day, at 12.35 p.m. a “scene of incident and examination of the corpse” report was drafted and signed by the Gaziosmanpaşa public prosecutor, a medical expert, the director of the Gaziosmanpaşa police headquarters and four other persons. According to the report, there was no sign of ill-treatment or bullet wound on Bayram Duran’s body. The medical expert concluded that an autopsy was necessary to discover the cause of death. The report also contained details concerning the detention conditions, according to which the cell where Bayram Duran had been found dead had not been cleaned for around one week. There were several cigarette butts on the floor and spider webs on the walls. Furthermore, a sketch plan of the cell where Bayram Duran was found dead was drawn. 9. On the same day, the Gaziosmanpaşa public prosecutor took statements from the police officers who were on duty. The officers all contended that Bayram Duran had not been tortured or subjected to illtreatment while in custody and that they had found him dead in his cell when they had gone there to offer him a cup of tea. 10. On 17 October 1994 an autopsy was carried out on Bayram Duran’s body. In the autopsy report drafted on 14 December 1994 and signed by four doctors from the hospital at the Cerrahpaşa University, the cause of death was identified as cardiac failure. The forensic experts found a haemorrhage of 3 x 8 cm in the left scapular region. They nevertheless considered that the haemorrhage had not directly caused Bayram Duran’s death. 11. On 29 December 1994 the Gaziosmanpaşa public prosecutor issued a decision not to prosecute in respect of Bayram Duran’s death. Basing his decision on the autopsy report of 14 December 1994, the public prosecutor noted that the cause of death was not the haemorrhage. 12. On 21 February 1995 the first applicant, Ali Duran, filed an objection with the Beyoğlu Assize Court against the decision of 29 December 1994. He maintained that the content of the autopsy report was inadequate as, inter alia, it did not specify how the haemorrhage in Bayram Duran’s body could have been caused. He further contended that the public prosecutor had questioned only the police officers before rendering his decision. Ali Duran finally submitted that his son had been tortured to death and that the decision not to prosecute constituted a violation of his right to life. 13. On 30 May 1995 the Beyoğlu Assize Court requested the Gaziosmanpaşa Magistrates’ Court to hear evidence from the first applicant and a witness and to conduct an examination of the case. 14. On 15 September 1995 the Gaziosmanpaşa Magistrates’ Court heard evidence from the first applicant and two witnesses, H.K. and Ü.Y. The court then ordered the Forensic Medicine Institute to draft a report in order to determine whether the haemorrhage in Bayram Duran’s body could have been caused by illtreatment and whether there was a link between the haemorrhage and Bayram Duran’s death. 15. On 13 March 1996 a report was drafted and signed by six forensic medicine experts, including the director of the Forensic Medicine Institute. Having examined the autopsy report, the experts noted that Bayram Duran had suffered from a heart condition. They further considered that the haemorrhage had been caused by a direct trauma to the scapular region. The experts concluded that the stress caused by the trauma and the material conditions in which he had been detained had aggravated Bayram Duran’s heart condition and had given rise to a cardiac failure. 16. On 9 April 1996 the Beyoğlu Assize Court annulled the decision not to prosecute and decided to initiate criminal proceedings against the seven police officers who had signed the documents concerning Bayram Duran’s arrest on 15 October 1994. In its decision, the court noted that Bayram Duran’s death might have ocurred as a result of torture inflicted on him and it therefore considered that criminal proceedings should be initiated. 17. On 6 June 1996 the Eyüp public prosecutor filed a bill of indictment with the Eyüp Assize Court charging seven police officers with causing death unintentionally as a result of an act of violence, under Articles 452 § 2 and 251 of the former Criminal Code. 18. On 28 August 1996 the Eyüp Assize Court decided to transfer the case to the Denizli Assize Court on the ground of public security. 19. On 18 November 1996, upon the request of the Denizli Assize Court, the Silopi Assize Court heard evidence from one of the accused police officers, A.K., who denied the allegations against him. 20. On 26 November 1996, at the request of the Denizli Assize Court, the Istanbul Assize Court heard evidence from the persons who had alleged that Bayram Duran had committed robbery. 21. On 11 December 1996 the Istanbul Assize Court heard evidence from two of the accused police officers, H.A. and M.S., who denied the allegations against them and contended that Bayram Duran had died as a result of a heart attack. 22. On 20 December 1996 the Istanbul Assize Court heard evidence from the first applicant, H.K. and Ü.Y. The court postponed the hearing as a third witness was not present. 23. On 24 January 1997 the Istanbul Assize Court heard evidence from the third witness. 24. On 26 February 1997, at the second hearing before the Denizli Assize Court, the first applicant joined the proceedings as a civil party seeking redress for his pecuniary and non-pecuniary loss (müdahil). 25. On 26 March 1997 the Istanbul Assize Court heard evidence from one of the accused officers, A.Ç., who contended that he had not inflicted ill-treatment on Bayram Duran. 26. On the same day, at the request of the Denizli Assize Court, the Edirne Assize Court heard evidence from a doctor who had worked at a medical centre close to the Gazi police station at the time of the incident. The doctor maintained that he had been called to the police station by police officers in order to examine Bayram Duran, but that when he arrived there, Bayram Duran had already died. 27. Between 7 July 1997 and 10 May 1999 the Denizli Assize Court postponed hearings due to the absence of one of the accused, police chief A.Ş., whose statements had to be taken. 28. On 10 May 1999 the first-instance court ordered A.Ş.’s detention in his absence. 29. On 22 June 1999 the second applicant made a request to the Denizli Assize Court to join the proceedings as a civil party, seeking redress for her pecuniary and non-pecuniary loss. The first-instance court did not take a decision regarding the applicant’s request. 30. On 3 December 1999 A.Ş. made statements before the Denizli Assize Court and denied the allegation that Bayram Duran had died as a result of ill-treatment inflicted on him. A.Ş. maintained that Bayram Duran had been in custody on account of a simple accusation and that there had been no reason for inflicting ill-treatment on him. On the same day, the first-instance court reversed its order to detain A.Ş. 31. On 31 January and 6 April 2000, upon the request of the Denizli Assize Court, the Istanbul Assize Court and the Bakırköy Assize Court once again heard evidence from A.Ç., H.A. and M.S., who reiterated their previous statements. 32. On 6 September 2000 the Denizli Assize Court gave its judgment in the case. In the judgment, the assize court noted that M.S. had retired from public service and the other accused were serving as police officers. The Denizli Assize Court acquitted A.Ş., A.Ç. and H.A. of the charges against them, holding that there was insufficient evidence to convict them since they had left the police station at around 7 p.m. on 15 October 1994 and since the applicant had visited Bayram Duran a number of times up until 7 p.m. on 15 October 1994. The court considered that M.S., A.A., A.K. and İ.U., the officers who had been on duty between 7 p.m. on 15 October 1994 and 5 a.m. on 16 October 1994, had caused Bayram Duran’s death unintentionally by beating him, for reasons that could not be determined, and convicted them. Noting that the death had occurred as a result of the officers’ acts combined with a circumstance that had existed prior to the act which had not been known to the officers, namely Bayram Duran’s heart condition, the court sentenced M.S., A.A., A.K. and İ.U. to five years’ imprisonment pursuant to Articles 448 and 452 § 2 of the former Criminal Code. The court did not apply Article 243 of the former Criminal Code applicable at the time of the commission of the offence as it was unable to establish that the convicted officers had beaten Bayram Duran with a view to extracting a confession of guilt. In its judgment, the court noted that Bayram Duran had been beaten by the convicted police officers and that he had died as a result of the stress caused by this trauma. Taking into account the fact that the actual offender who had caused the trauma to Bayram Duran’s head could not be identified, the assize court reduced the police officers’ prison sentences to two years and six months pursuant to Article 463 of the former Criminal Code. Having regard to the fact that the officers had committed an offence while on duty, the firstinstance court increased the sentence to three years and four months pursuant to Article 251 of the former Criminal Code. The assize court finally reduced the sentence to two years, nine months and ten days of imprisonment for each convict pursuant to Article 59 of the Criminal Code, having regard to the fact that some of the convicted police officers’ statements had been of help to the authorities during the investigation and the criminal proceedings in establishing. The first-instance court held that the applicants’ right to redress for the pecuniary and non-pecuniary damage that they had suffered should be reserved. 33. The first applicant, through the lawyer who had represented him during the proceedings before the assize court, and the convicted police officers appealed. 34. In his appeal, the first applicant’s lawyer submitted that the application of Article 452 of the former Criminal Code and the lack of severity of the prison sentences rendered the first-instance court’s judgment ineffective, and thus constituted a violation of the provisions of the United Nations Convention against Torture, the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 35. On 1 October 2001 the Court of Cassation quashed the judgment of 6 September 2000 on procedural grounds. The court held that the Denizli Assize Court had failed to take a decision in respect of the second applicant’s request to join the proceedings. The case file was then remitted to the Denizli Assize Court. 36. On 10 December 2001 the first-instance court decided to allow the second applicant’s request to join the proceedings as a civil party. 37. On 25 March 2002 the Denizli Assize Court heard evidence from the accused police officers, who denied the allegations against them. On the same day, the first-instance court once again convicted M.S., A.A., A.K. and İ.U. as charged and sentenced each of them to two years, nine months and ten days’ imprisonment and reserved the applicants’ right to redress for the pecuniary and non-pecuniary damage that they had suffered. 38. The applicants, through their lawyer, appealed. They alleged that their son had been killed as a result of torture inflicted on him and that the first-instance court had failed to interpret the facts of the case correctly. They contended that the police officers should have been convicted of homicide as a result of torture under Articles 243 and 450 § 3 of the former Criminal Code in accordance with Article 3 of the European Convention on Human Rights and the provisions of the United Nations Convention against Torture and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The applicants finally claimed that the convicted officers should have been debarred from employment in public service. 39. On 10 June 2003 the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of 25 March 2002. 40. On 1 June 2005 the new Criminal Code (Law no. 5237) entered into force. 41. Subsequently, A.A., A.K. and İ.U. filed requests with the Denizli Assize Court asking that their convictions be revised in the light of the provisions of the new Criminal Code. They maintained that their acts should be considered as “inflicting minor injury”. They further submitted that they had been debarred from public service. A.A., A.K. and İ.U. finally noted that the execution of their prison sentences had been suspended pursuant to Law no. 4616, which governed conditional release, suspension of proceedings and execution of sentences in respect of offences committed before 23 April 1999. 42. On 24 November 2005 the Denizli Assize Court reviewed the sentences of A.A., A.K. and İ.U. and decided not to reverse its judgment of 25 March 2002. 43. A.A., A.K. and İ.U. appealed against the judgment of 24 November 2005. 44. According to the information in the case file based on the latest submissions by the parties, the case is still pending before the Court of Cassation. 45. The relevant provisions of the former Criminal Code, in force at the time of the death of the applicants’ son, read as follows: “Any ... public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life. Where such conduct causes death, the sentence incurred under Article 452 (...) shall be increased by between one third and one half.” “Any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years.” “Where death results from an act of violence inflicted without the intention to kill the victim, (...) a sentence of eight years’ imprisonment shall be imposed on the offender. If the death occurs as a result of the offender’s act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate, (...) a sentence of a minimum of five years of imprisonment shall be imposed on the offender.” “If a public official commits an offence while on duty ... the sentence stipulated for that offence shall be increased by between one third and one half.” “If the offence proscribed by Article 448 (...) is committed by two or more persons and if it is not established at the trial which one of those persons caused the death, the prison sentence to be imposed on any of the offenders is not more than two thirds and not less than half of the maximum prison sentence stipulated in the relevant provision of the Criminal Code (...)” “If a court considers that, besides the mitigating statutory excuses, there are mitigating circumstances in favour of reducing the sentence imposed on an offender, (...) the prison sentences shall be reduced by up to one sixth.” 46. According to Law no. 4616, execution of sentences in respect of offences committed before 23 April 1999 could be suspended if no crime of the same or a more serious kind was committed by the offender within a five year period. Section 5 (a) of Law no. 4616 stipulated that execution of sentences in respect of the offence proscribed by, inter alia, Article 243 of the former Criminal Code could not be suspended.