CASE OF TÜZÜN v. TURKEY
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)
Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
4. The applicant was born in 1984 and lives in İzmir. 5. On an unspecified date the İzmir police received an anonymous telephone message which concerned the applicant. 6. On 30 May 2006 the İzmir police received another phone call from the same person stating that the applicant was in the house of a certain S.T., brother of the applicant’s fiancée. 7. According to the house search and seizure report drafted on the same day at 1.30 p.m., the İzmir police conducted a drug-related operation targeting S.T.’s house, under the supervision of the İzmir public prosecutor. The report stated that the applicant had given a false name and resisted the police when the officers showed him their search warrant. According to the report, the applicant physically attacked and injured two officers. He then fell and hit his head on the door. Four officers handcuffed him by pinning him to the floor by the arms and shoulders. During the search, the officers found ecstasy pills in the house. They also found a weapon hidden under a sofa. The report was signed by nine police officers, the applicant and the applicant’s fiancée, Ş.T. The applicant was subsequently arrested and placed in police custody. 8. At 1 p.m. on the same day the applicant was examined by a doctor at the Alsancak State Hospital, who observed a two-centimetre-long laceration on the scalp with an oedema around it on the left parietal region, a bruise on the front of his neck (under the chin), a minor erythema on his right cheek, and pain and another slight erythema in the right lumbar region. 9. On the same day A.T.E. and M.A., two police officers from the team that had effected the applicant’s arrest, were also examined by the same doctor. The doctor observed an erythema in the abdominal region, three bruises and erythemas on the right of the back, and erythemas on both arms of A.T.E.’s body. As regards M.A., the doctor noted an erythema of 20 cm on the left arm and a bruise of 5 cm x 5 cm on the left side of the abdominal region. 10. At 8.40 p.m. on the same day A.T.E. and M.A gave statements to police officers in their capacity as complainants and victims. They submitted that the applicant had resisted arrest and had insulted and physically attacked them. According to the officers, the applicant had fallen and hit his head on the door and had then been arrested. At 10 p.m. the applicant gave statements to the police and alleged that he had been beaten by police officers and injured during his arrest. 11. On 31 May 2006 the applicant was once again examined by a doctor, who noted a red lesion measuring 2 cm x 2 cm on his right upper arm and a complaint of intense pain in the right part of his back. 12. On the same day the applicant was brought before the İzmir Magistrates’ Court. The judge informed him that he was charged with insulting and resisting the police officers as well as causing them injuries. The applicant denied the allegation that he had insulted and resisted the police officers. He maintained that he had been hit on the head by police officers with a weapon and beaten with truncheons and guns during the house search. The judge subsequently ordered the applicant’s pre-trial detention. 13. On 20 June 2006 the İzmir public prosecutor filed a bill of indictment with the İzmir Criminal Court against the applicant charging him with resisting the police, insulting public officials and possession of firearms without a licence. 14. During the trial, the İzmir Criminal Court took statements from the two police officers who had affected the applicant’s arrest, the applicant and other police officers who had arrested him. The police officers maintained before the court that they had been kicked and punched by the applicant, who had resisted arrest, and that they had obtained medical reports in support of their allegations. They further maintained that the applicant had insulted them in Kurdish and in Turkish. The applicant claimed that he had not resisted arrest or insulted the officers and that in any case he had been unable to resist arrest on account of the number of arresting officers. 15. On 25 January 2007 the İzmir Criminal Court convicted the applicant of the aforementioned offences and sentenced him to a total of two years and nine months’ imprisonment. The court found it established – on the basis of the arrest and search report, medical reports, the expert assessments of the firearm, and the statements of the complainants, the applicant and witnesses – that the applicant had insulted and resisted the police officers and had been in possession of an unlicensed firearm. 16. On 5 November 2009 the Court of Cassation quashed the judgment of 25 January 2007, holding that the first-instance court should have examined whether it was appropriate to suspend the delivery of the judgment (hükmün açıklanmasının geri bırakılması). 17. On 10 March 2010 the first-instance court once again convicted the applicant of the same offences and sentenced him to a total of two years and nine months’ imprisonment and a fine of 450 Turkish liras. 18. According to the information obtained by the Registry from the website of the Court of Cassation, on 22 May 2012 the Court of Cassation upheld the judgment of 10 March 2010. 19. In the meantime, on 25 July 2006 the applicant applied to the İzmir public prosecutor’s office requesting that the police officers who had arrested him be punished for injuring him by using excessive force during his arrest. 20. On 29 August 2006 the İzmir public prosecutor issued a decision not to bring criminal proceedings against the arresting police officers as he found it established that the applicant had insulted and physically attacked the officers and resisted arrest. The public prosecutor noted that the applicant, A.T.E. and M.A. had fallen during the struggle and sustained injuries. According to the public prosecutor, the police officers had handcuffed the applicant by using force when he was on the floor. He found that there was no concrete evidence other than the complainant’s allegations that the members of the security forces had illtreated him. The public prosecutor considered that the force employed by the police had not been excessive and that the officers had acted within the scope of their duties. The public prosecutor did not question the applicant, the accused police officers or any other witnesses before giving his decision. 21. On 10 October 2006 the applicant objected to the decision of 29 August 2006. 22. On 8 January 2007 the Karşıyaka Assize Court dismissed the objection. 23. On an unspecified date, an investigator initiated a disciplinary investigation in respect of A.T.E. and M.A. Within the context of this investigation, between 4 September and 27 October 2006 the investigator took statements from the applicant, his fiancée, Ş.T., A.T.E. and M.A. and two other police officers who had effected the applicant’s arrest. The applicant and his fiancée stated that the applicant had been beaten by the police officers. The applicant stated that he had not insulted or attacked the arresting officers and that he had been hit with sticks and firearms. The police officers, on the other hand, maintained that the applicant had insulted them, had chanted slogans, had kicked and punched A.T.E. and M.A. and had fallen and hit his head on the door during the struggle. 24. On 18 January 2007 the Provincial Police Disciplinary Board attached to the İzmir governor’s office held that there was no reason to subject A.T.E. and M.A. to disciplinary sanctions and considered that they had acted within the scope of their duties during the arrest.