CASE OF YERLİ 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)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
5. The applicant was born in 1982 and lives in Adana. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraph 6). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 7). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraph 8-30). 6. At the time of the incidents the applicant was selling CDs from a street stand in Adana. On 5 July 2001 the applicant and his relative M.Y. were arrested by the police while they were working at the stand. They were taken to the police station and beaten up by a police officer there. As a result of a punch to his ear, the applicant’s eardrum was perforated. The applicant and M.Y. were subsequently released from the police station. 7. On 5 July 2001 the Adana Police Station received a complaint that damaged CDs were being sold from a street stand. A number of police officers went to the venue and talked the applicant and M.Y. into a solution with the complainant, but they did not arrest them because their activity had not constituted an offence. 8. On 7 July 2001 the applicant and M.Y. lodged a criminal complaint with the Adana prosecutor against a police officer who they alleged had ill-treated them on 5 July 2001. At the time of their complaint they did not know the identity of the police officer but gave a description of his physical appearance. They also complained that they had been arrested without any explanation and that as a result of that arrest they had been arbitrarily deprived of their rights. 9. On 9 July 2001 the applicant went back to the Adana prosecutor’s office and complained that he had been injured as a result of the ill-treatment. In order to provide evidence of his injuries the applicant requested a medical examination. On the same day the Adana prosecutor referred the applicant to the Adana Forensic Medicine Institute. 10. On 10 July 2001 the Adana Forensic Medicine Institute reported that the applicant’s left eardrum had been perforated as a result of physical trauma, and that the injury required a 15-day healing period. 11. On 10 July 2001 the applicant also applied to the Adana branch of the Turkish Human Rights Foundation, where a number of physical and psychological assessments were carried out by the doctors working for the Foundation. According to a report drawn up on 22 October 2001, the applicant had a perforation in his left eardrum and he was suffering from acute post-traumatic stress disorder. The report concluded that the doctors’ findings were compatible with the applicant’s story of ill-treatment. 12. In the Turkish Human Rights Foundation’s report the applicant was reported as having described the incident and told the doctors that after he was punched on his ear, his eardrum had been perforated and he was no longer able to hear on that side. He added that, at the end of his arrest, he had not been taken to a forensic doctor for the required medical check, but the police officers had taken him to a private doctor, where he was diagnosed with ear perforation. The applicant submitted the report for the investigation file. However, this evidence was not further investigated during the proceedings. 13. On 11 July 2001 the applicant and his relative M.Y. gave their statements at the Adana prosecutor’s office. The applicant complained that he had been beaten by a police officer working at the Adana Police Station and as a result his eardrum had been perforated. He said that he did not know the name of the officer, but he could identify him. M.Y. affirmed the same in his statement. He complained that he had also been beaten by the same officer; however, he had not asked to be examined by a doctor because the ill-treatment had not left any marks on his body. 14. On 16 July 2001 the prosecutor’s office asked for another medical examination at the Adana State Hospital in order to determine the date of injury to the applicant’s ear. It was concluded that it was medically not possible to determine the date of injury. 15. On 18 July 2001 the applicant submitted the names of his witnesses to the investigating authorities. 16. On 2 August 2001, a chief police commissioner who had been entrusted with the duty of investigating the applicant’s allegations, questioned the applicant, his relative M.Y., the suspect and two other police officers as witnesses. That administrative investigation was conducted because the domestic law applicable at the time required prosecutors to seek permission from the administrative authorities before they could prosecute a police officer (see paragraph 58 below). A police officer, V.A., who worked at the Adana police station, testified as a witness. He stated that the applicant had neither been arrested nor ill-treated on 5 July 2001. 17. On the same day the applicant was arrested once more after a complaint was received regarding his CD stand, and taken to the police station. He was released the following day. 18. On 25 October 2001 the Adana prosecutor decided not to prosecute the police officer because the Governor of Adana had denied the requisite permission for a criminal prosecution. 19. On 6 May 2002 the prosecutor’s decision was notified to the applicant’s lawyer. On the same day the lawyer lodged an objection against the decision. 20. In response to the applicant’s objection, on 20 May 2002 the Tarsus Assize Court decided to quash the decision and ordered the prosecutor to file criminal charges against the police officer. The Assize Court noted that the prosecutor had not conducted a proper investigation and had failed, in particular, to establish whether the applicant had been taken to the police station on 5 July 2001, and to question the eyewitnesses named by the applicant. 21. M.T., a police officer working at the Adana Police Station, was subsequently indicted before the Adana 8th Criminal Court of First Instance (hereinafter “the criminal court”) and the applicant was admitted to the case as the complainant. On 14 August 2002 M.T. gave his statement before the criminal court. He denied all the charges. 22. On 13 August 2002 the suspect M.T. informed the criminal court in writing that he had been assigned to work for the United Nations Mission in Kosovo; therefore, he would not be able to be present at the court hearings. As a result, until June 2004 the criminal court was unable to summon him to take part in the proceedings. 23. On 18 March 2003 and 29 September 2003 the witnesses proposed by the applicant testified before the criminal court. The first witness stated that he had helped the applicant at his CD stand occasionally, and that he had seen him on the day of the incident. The applicant had told him that he had been ill-treated by the police because he had refused to provide them with free CDs. The other witness testified that he had taken the applicant to the hospital, and during that time the applicant had told him that he had been beaten in the police station. 24. On 25 March 2003 police officer V.A. (see paragraph 16 above) appeared as a witness before the criminal court. He testified that the applicant had been taken to the police station by the suspect M.T. However, he had not been subjected to ill-treatment. 25. On 10 June 2004 the suspect M.T. attended the hearing before the criminal court. The applicant was not present at the hearing. The criminal court ordered the applicant to attend the next hearing and identify the suspect from his photographs. However, the applicant and his relative M.Y. could not be brought before the criminal court until May 2005 as a result of a change of address. 26. On 5 May 2005 the applicant and his relative M.Y. attended the hearing before the criminal court. M.Y. also testified as a witness. He stated that the applicant had been subjected to ill-treatment at the police station and had suffered injuries to his ear, which was later diagnosed at the hospital as perforation of the eardrum. The criminal court also asked him to identify the suspect from his photograph. M.Y. stated that he needed to see the suspect in person in order to be able to identify him because he considered that he would not be able to do so from the photographs. 27. On 5 January 2006 the criminal court was informed that the suspect could not appear before the court because he was in Kosovo. The suspect could not be brought before the court until December 2006. 28. On 17 September 2007 the criminal court decided to acquit the police officer on the ground of insufficient evidence. 29. On 18 September 2007 the applicant’s lawyer appealed to the Court of Cassation. 30. On 8 February 2010 the Court of Cassation quashed the decision of the first instance court on the ground that the limitation period had expired, and ordered the discontinuation of the proceedings against the police officer.