CASE OF TAYLAN v. TURKEY
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)
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
4. The applicant was born in 1968 and lives in Bursa. 5. On 8 March 2000 the applicant was arrested on suspicion of establishing a criminal organisation and committing fraud, threats and bribery. Approximately an hour after the arrest, he underwent a medical examination. The doctor who examined the applicant noted no sign of injury on his body. 6. On the same day, the applicant was taken to the Department of Organised Crime of the Bursa Directorate of Security, where he was allegedly subjected to ill-treatment. More specifically, he was stripped naked, beaten, subjected to electric shocks, hung by the arms, forced to sit naked on cold ground bare and hosed with water. 7. On 10 March 2000 the applicant’s wife lodged a complaint with the Bursa Public Prosecutor, claiming that her husband was being tortured. 8. Subsequently, on the same day the Bursa Public Prosecutor initiated an investigation into the matter. 9. On 12 March 2000, upon the request of the Bursa Directorate of Security, the Bursa Magistrates’ Court decided to prolong the applicant’s detention in police custody for three days. 10. On 14 March 2000 the applicant was heard by the Bursa Public Prosecutor. He was then transferred to the Bursa Branch of the Forensic Medicine Institute to be examined. The forensic medical report noted the applicant’s complaint as to his ill-treatment and indicated that he had two bruises measuring 8 x 3 cm and 8 x 1 cm on his left arm, a 6 x 5 cm light bruise in his right armpit, a blue-coloured bruise surrounding his left eye, several parallel scabbed lesions around his penis and a scratch measuring 2 x 1 cm below his right knee. 11. On the same day, following a request from the Department of Organised Crime, the applicant was examined once more by another doctor, who stated that the applicant had complained of headaches, dizziness and sensitivity at the tip of the big toe of his right foot. The report drawn up by that doctor indicated that the applicant’s general health condition was good and that he was conscious. It noted that he had bruises and hyperemia on his left and right sides, further hyperemia on both his arms, scabbed lesions of 2 x 3 cm on his penis (which would probably heal in three days) and a bruise around his eye (to heal in five days). The report concluded that the injuries would not keep the applicant from daily work. 12. On 20 March 2000 the Bursa Public Prosecutor requested the Forensic Medicine Institute to indicate, on the basis of its medical report dated 14 March 2000, whether the applicant was fit for work. On the same day, the Institute issued another report, reiterating the findings of the initial one and stating that the applicant would be unfit for routine activities for a period of three days. 13. Following the applicant’s detention on remand, the prison doctor transferred him to the Bursa State Hospital. On 22 March 2000 the applicant was diagnosed with acute lumbar strain and discopathy by a doctor at that hospital. The doctor also indicated that the applicant suffered from spondylosis and sciatica on his right side. The applicant was discharged from the hospital on 27 March 2000. 14. On 28 March 2000 the Bursa Public Prosecutor heard the applicant’s allegations of ill-treatment during his time in police custody. The applicant repeated before the Public Prosecutor that he had been stripped naked and subjected to electric shocks, hung by the arms, forced to sit on cold ground and hosed with cold water every one or two hours during the seven-day period of custody. He added that he had been blindfolded during his arrest and kept that way until he was brought before the Bursa Public Prosecutor for the first time. 15. The next day, on 29 March 2000, the Bursa Public Prosecutor requested the Bursa Directorate of Security to list the names of the police officers who had been on duty and who had had any contact with the applicant during the time he had been held at the Department of Organised Crime. 16. In the meantime, the issue was brought to the attention of the Ministry of Justice by one of the Members of Parliament representing Bursa. 17. Following this event and the coverage of the issue in a local newspaper, on 6 April 2000 the Bursa Public Prosecutor submitted an information document to the Directorate of Criminal Affairs attached to the Ministry of Justice, stating that the medical reports about the applicant corroborated the allegations of ill-treatment and that he had already commenced an investigation into the matter on 10 March 2000. 18. Subsequently, on 18 April 2000 the Bursa Directorate of Security informed the Bursa Public Prosecutor of the names of thirteen police officers on duty during the period when the alleged events took place. 19. On 26 April 2000 the Public Prosecutor filed an indictment with the Bursa Assize Court, accusing all thirteen police officers listed of torture, pursuant to Article 243 of the former Criminal Code (Law no. 765). He maintained that the complainants’ accounts of the events and witness statements confirmed the findings of the medical reports and concluded that the seven complainants, including the applicant, had been subjected to illtreatment in police custody. 20. At the first hearing on 29 June 2000, the Bursa Assize Court found that the investigation conducted by the Bursa Public Prosecutor had been inadequate. The court conducted a procedure whereby the complainants identified the police officers they had accused of torture. The applicant joined the proceedings as a civil party. 21. During the course of the ten hearings that followed, the court evaluated medical reports and documents from the Directorate of Security. It also heard statements from the accused police officers, the complainants and several witnesses. 22. On 27 March 2003 the Bursa Assize Court acquitted ten of the officers, finding that none of the complainants, except for the applicant, had been ill-treated and that those ten officers had not been involved in the applicant’s ill-treatment in police custody. The court found the other three officers, who had been identified by the applicant during the hearings, guilty as charged, having regard to the consistency of the applicant’s account of events with the medical reports. It sentenced the said three officers to ten months’ imprisonment and banned them from public service for a period of two months and fifteen days. The court finally deferred the execution of their sentences pursuant to Section 6 of Law No. 647 on the basis that the officers did not show any likelihood of reoffending. 23. On 14 June 2006 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the acquittal. It quashed the part concerning the sentences, stating that the court should evaluate the case again in the light of the recent Criminal Code (Law no. 5237) and the Code of Criminal Procedure (Law no. 5271), both of which had entered into force in 2005. 24. On 1 February 2007 the Bursa Assize Court held that the former Criminal Code (Law no. 765) was more favourable for the accused police officers. The court once more sentenced them to ten months’ imprisonment and two months and fifteen days’ ban from public service. This time, the sentences were commuted into a fine of 900 Turkish liras for each officer and were suspended again. 25. The Court of Cassation quashed that judgment on 2 July 2008, maintaining that the first-instance court should have considered whether the pronouncement of the judgment could have been suspended for a period of five years (hükmün açıklanmasının geri bırakılması), pursuant to Article 231 of the recent Code on Criminal Procedure (Law no. 5271). 26. On 5 November 2008 the Bursa Assize Court held that the officers concerned had beaten and cursed the applicant and administered electroshocks on him in order to a extract confession. The court sentenced the police officers once again to ten months’ imprisonment and banned them from public service for two months and fifteen days, pursuant to Article 243 of the former Criminal Code (Law no. 765). Finally, it suspended the pronouncement of the judgment, having regard to the officers’ lack of criminal records and finding it unlikely that they would reoffend. 27. The applicant objected to that decision. However, on 28 November 2008 Bursa Assize Court rejected his objection. The final decision was served on the applicant on 15 December 2008. 28. On 12 May 2000 the Bursa Governorship assigned a chief officer to conduct a disciplinary investigation about the allegations of ill-treatment concerning thirteen police officers. 29. The investigation began on 22 May 2000 and ended on 3 August 2000, on which date the superintendent officer drew up a report (fezleke). On the basis of two video recordings of the applicant during a search and when his statements were being taken and the statements of the police officers, the witnesses and the complainants, including the applicant, the superintendent indicated that the applicant seemed to be in good health and that the light ecchymoses indicated in the medical reports could have just as well been produced by the applicant himself. He concluded therefore that the police officers’ acts did not require disciplinary action. 30. On 9 January 2002, having reiterated the findings of the chief officer, the Central Disciplinary Board of the Directorate of Security held that there was no ground to take disciplinary measures against the thirteen police officers. 31. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts). 32. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code on Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows: ... (5) If the accused, who had been tried for the charges against him, was sentenced to a judicial fine or to imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment would not bear any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that; a) the offender has never been found guilty of a wilful offence, b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed, c) the damage caused to the victim or to the society is repaired by way of restitution or compensation. (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment, the pronouncement of which had been suspended, will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court imposes the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may as well suspend the execution of the imprisonment or commute it to other optional measures. (12) An objection may be filed against the decision to suspend the pronouncement of the judgment.