CASE OF BARAN AND HUN v. TURKEY
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
4. The applicants were born in 1973 and 1965 respectively. At the time of lodging the application, they were in Bayrampaşa and Edirne prisons respectively. 5. On 21 July 1995 a hand grenade was thrown at a police service vehicle in the Gaziosmanpaşa district of Istanbul. Around fifteen police officers were injured. An illegal armed organisation, namely the TDP (the Turkish Revolutionary Party), took responsibility for the incident. Following this incident the police carried out an operation against members of the TDP. 6. On 4 and 5 August 1995 respectively, the applicants were arrested and taken into custody on suspicion of their involvement in the TDP. They remained in police custody until 17 August 1995. 7. On 11 and 13 August 1995 respectively, the second and first applicants were questioned by police officers at the Anti-Terrorist Branch of the Istanbul Security Headquarters, where they gave a detailed signed account of the activities in which they had taken part within the TDP. On 14 August 1995 the second applicant was questioned again. On that date the first applicant took part in a reconstruction of events concerning the bombing of the police vehicle. On various dates the applicants also took part in identification procedures via photographs. 8. In the application form the applicants complained that they had been subjected to torture while they were being held in police custody. In this connection, they maintained that they were put in a dirty and unventilated cell, deprived of sleep, food and water, blindfolded, sworn at and threatened, made to listen to loud music, beaten, stripped, hosed with water from a high-pressure hose, made to stand in front of a fan and suspended. The first applicant further claimed to have been subjected to sexual harassment, stripped and suspended, and that her hair and fingers had been pulled and a weight put on her feet. 9. On 17 August 1995 the applicant was examined by a doctor at the Forensic Medicine Institute at the State Security Court, who noted that she had a bleeding nose, pain in the groin, two 1-cm grazes on her right arm and a circular swelling on the right wrist, weakness and numbness on both arms, pain in two of the fingers of the right hand and a 2 x 1 cm graze on the right knee. The doctor further mentioned bleeding due to a gynaecological trauma which had occurred approximately fifteen days previously. However, he stated that the applicant had refused a gynaecological examination. 10. On 18 August 1995 the applicant was examined by the prison doctor, who noted, inter alia, that she had widespread back and waist pain, together with a loss of power and numbness in both arms. The doctor further found a number of bruised and swollen areas of various sizes on the applicant's body, notably under her armpits, right arm and wrist, left arm, knees, legs and ankles. Finally, he mentioned that the applicant had pain in her left ovary and bladder region. 11. On 30 October 1995 the applicant was examined by doctors at the Third Section of Expertise of the Forensic Medicine Institute. The doctors also checked the applicant's previous medical reports and the results of an EGM test. They concluded that the applicant was suffering from bilateral brachial plexitis (damage to nerves). 12. According to a number of reports, consultation notes, a medical scan and the analysis contained in the case file, the applicant, who has been diagnosed with irreversible brachial plexitis in her right arm and reversible brachial plexitis in her left arm, was treated mainly with physical therapy for over one and a half years. As a result, her left arm improved. However, her right arm is irreversibly damaged. 13. On 19 October 1998 the applicant was examined by the doctors at the Third Section of Expertise of the Forensic Medicine Institute. On 18 December 1998, upon the request of the Istanbul Assize Court, the Third Section of Expertise (Ihtisas Kurulu) submitted their opinion, in which they considered that the applicant's left arm was near to normal but that her right arm was paralysed and that this constituted a permanent invalidity (uzuv zaafı). 14. On 17 August 1995 the applicant was examined by a doctor at the Forensic Medicine Institute at the State Security Court, who noted that he had pain and difficulty in moving his neck, pins and needles in the right hand and pain under his left arm. 15. On 2 July 1998 the applicant was examined by a doctor at the Medical Faculty of Istanbul University, who diagnosed him as suffering from cervical herniated disc syndrome. The applicant was treated with a neck brace and medication. However, the doctor noted that, since this condition was permanent, the applicant had to be monitored and treated continuously. 16. On 17 August 1995 the applicants were brought before a public prosecutor and a judge at the Istanbul State Security Court, where they refused to give any statements as a protest, on the ground that they had been subjected to torture while in police custody. 17. On 21 September 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicants and other suspects, charging them with undermining the constitutional order of the State under Article 146 of the Criminal Code. In particular, the first applicant was accused of having participated in the bombing of the police vehicle on 21 July 1995. 18. On an unspecified date the criminal proceedings commenced before the Istanbul State Security Court. The applicants were both represented by the same lawyer, Mrs G. Tuncer. At a hearing held on 19 December 1995 the applicants' lawyer maintained that her clients had been subjected to torture and asked the court to request the authorities to initiate a criminal investigation (suç duyurusu). The Istanbul State Security Court dismissed this request, stating that the applicants could lodge their complaints themselves with the public prosecutor's office and that there was no need for the court to do so. 19. In the course of the trial the court heard the accused, some of the police officers who had been injured during the bombing of the police vehicle and the police officers who had taken part in various measures during the applicants' detention. During the hearing of one such police officer, the first applicant and another co-accused asked the court not to hear him, alleging that this man was a torturer and had tortured them. The court further examined the video recordings of the reconstruction of events concerning the bombing of the police vehicle. On 19 December 1995, 22 May 1997 and 9 November 1999, the second applicant submitted his written statements to the court. Only in the first one did he claim that he had retracted his police statements because he had signed them under duress and torture without having had the opportunity to read them. In later submissions the applicant principally maintained that he was a revolutionary, but that he had no relationship with any illegal organisation. In particular, he submitted that the guns and bombs found at his house belonged to one of the accused, who had requested the use of a cupboard for his personal belongings, had brought them in a bag and had asked him to guard them. The applicant had had no prior knowledge of their existence. 20. On 19 December 1995, 1 September 1998 and 4 February 2000, the first applicant submitted her written statements to the court. Except for the second one in which she criticised the State Security Court system, the applicant submitted a detailed account of the ill-treatment she had been subjected to in police custody and denied involvement in any illegal organisation. She submitted that the materials found at the house where she was staying with the second applicant belonged to one of the coaccused and that she did not know what they were. Likewise she gave explanations regarding her fake identity card and marriage certificate. 21. On 22 May 1997 the Istanbul State Security Court found the applicants guilty of the accusations against them and convicted the first applicant under Article 146 of the Criminal Code and the second applicant under Article 168 of the Criminal Code. 22. On 27 March 1998 the Court of Cassation quashed the judgment of the first-instance court on the ground that the final hearing had been held in the absence of the first applicant despite the fact that she had had a valid medical report excusing her. The hearing had thus violated her defence rights. In view of the factual and legal relationship between the accused the court held that the first-instance court's judgment had to be quashed in respect of all the defendants. 23. On an unspecified date the case was remitted to the firstinstance court whereupon the latter held regular hearings. It appears that after the capture of Abdullah Öcalan the applicants and some of the accused informed the court that they were on an unlimited hunger strike in protest. Moreover, in a number of hearings held after 1 September 1998, the applicants refused to appear before the court on the ground that the European Court of Human Rights had found that State Security Courts lacked independence and impartiality. On 27 October 1998 the applicants' representative informed the court that she would no longer be attending the hearings and asked the court to discontinue the proceedings on the ground that they were not an independent and impartial tribunal, as the European Court of Human Rights had ruled. 24. In the meantime, on 21 December 2000, Law no. 4616 on Conditional Release, Deferral of Procedure and Punishments was promulgated. However, the benefits of this Law were not available to persons who had committed offences under Articles 146 and 168 of the Criminal Code. Thus, it was not applicable to the applicants' case. On 24 January 2001 the applicants unsuccessfully requested the Court of Cassation to send the case file to the Constitutional Court for an examination of the compatibility of this Law with the relevant provisions of the Constitution. 25. On 2 March 2000 the Istanbul State Security Court found the first applicant guilty of undermining the constitutional order of the State and sentenced her to life imprisonment under Article 146 of the Criminal Code. In its decision the court took into account the evidence in the case file, which included documents regarding the illegal organisation found at the applicant's house, expert reports, verbatim records regarding identification procedures, the photograph of her taken at the incident scene, the verbatim records of the reconstruction of events and the verbatim records of the video recording regarding the reconstruction of events. The court noted that there were proceedings pending before the domestic courts regarding the applicant's allegations of ill-treatment during police custody. However, it considered that it need not await their outcome since its decision to convict the applicant did not rely solely on her police statements but on material evidence. 26. The same day the court found the second applicant guilty of membership of an illegal armed organisation under Article 168 of the Criminal Code and sentenced him to twelve years and six months' imprisonment. In so doing, it took into account the evidence in the case file, including the applicant's statements given whilst in police custody, the verbatim records of the reconstruction of the events, the statements of other suspects, documents regarding the illegal organisation and other evidence, such as guns and chemical explosive materials found at his house. In its decision the court also noted that the accused had unnecessarily prolonged the criminal proceedings after the case was remitted by the Court of Cassation, by not appearing before the court, maintaining a hunger strike, requesting extensions and obtaining medical reports excusing their participation on hearing days. 27. The applicants appealed. They maintained, in particular, that the first-instance court had failed to conduct an additional investigation, that it had refused their request for the hearing of key witnesses or the conduct of a reconstruction of events so as to dispel factual contradictions. They criticised the manner in which the domestic court had interpreted evidence. Moreover, the applicants complained that the first-instance court had based itself on evidence obtained unlawfully. In this connection, they maintained that the domestic court had relied on their police statements despite medical reports attesting to their torture. They further submitted that the other documents secured by the police during the preliminary investigation had also been obtained unlawfully. Finally, the applicants maintained that the court had erred in the qualification of the offence. 28. On 29 January 2001 the Court of Cassation held a hearing and upheld the judgment of the Istanbul State Security Court. 29. Upon the first applicant's complaint, via her legal representative Ms G. Tuncer, an investigation was instigated by the Fatih public prosecutor. 30. Between 29 January 1996 and 6 March 1996, the Fatih public prosecutor heard evidence from five police officers who had taken part in the applicant's arrest and interview. They all denied the applicant's allegations of ill-treatment. 31. On 28 March 1996 the Fatih public prosecutor heard evidence from the applicant. She gave a detailed account of the alleged ill-treatment which included beating, being left wet in the cold, sexually molested and periodically suspended. The applicant also gave brief descriptions of the alleged perpetrators. 32. On 18 June 1996 the Fatih public prosecutor sent his opinion to the Istanbul public prosecutor with a view to criminal proceedings for ill-treatment being brought against five police officers working at the Anti-Terrorist Branch of the Istanbul Security Headquarters. 33. On 26 June 1996 the Istanbul public prosecutor filed a bill of indictment against the five officers for the ill-treatment of Ms Baran. The charges were brought under Article 243 of the Criminal Code. 34. On 15 October 1996 the criminal proceedings against the accused police officers commenced before the Istanbul Assize Court. 35. In the hearings held on 8 May and 11 October 1997, the court heard evidence from the applicant, who gave details regarding the ill-treatment and identified the accused police officers as those responsible, except for one about whom she was not sure. On the latter date, the court also heard the testimony of Mr K.Y., another detainee and witness on behalf of the applicant. 36. On 6 May 1998 the court heard testimony of Ms A.E., another detainee and witness on behalf of the applicant. 37. On 12 March 2002 the Istanbul Assize Court discontinued the proceedings against the accused police officers on the ground that the prosecution of the offence, five years at the time of the events, had become time-barred. This decision was upheld by the Court of Cassation on 19 February 2004. 38. On 17 June 2003 the President of the Republic, referring to a Forensic Medicine Institute's report dated 21 April 2003, remitted the remainder of Ms Baran's sentence on grounds of chronic illness, pursuant to Article 104 § b of the Constitution. The applicant was released from prison on 24 July 2003. 39. The relevant domestic law and practice in force at the material time, as well as recent developments, can be found in the following judgments: Kolu v. Turkey (no. 35811/97, § 44, 2 August 2005), Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008), Batı and Others v. Turkey (nos. 33097/96 and 57834/00, ECHR 2004-IV), and Zeynep Özcan v. Turkey (no. 45906/99, 20 February 2007).