CASE OF NEZİR ADIYAMAN v. TURKEY
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
5. The applicant was born in 1978 and lives in Istanbul. 6. On 4 September 2005, at 10.30 p.m., the applicant was arrested and taken to the Beyazıt police station on suspicion of using explosives during a demonstration. 7. According to the arrest and seizure report, at around 10 p.m., the police had been informed of a gathering which needed to be monitored. Upon their arrival, they had noticed a group of people who had gathered in the middle of the street, holding Molotov cocktails. The group had dispersed when they saw the officers. The report further indicated that the applicant, who had been among the group, had started to run away, threatened to throw a Molotov cocktail at the officers and resisted when the police tried to arrest him. According to the report, the police had used gradual force within legal limits in order to keep the applicant under control and had finally handcuffed him. They had also seized the Molotov cocktail which was ready to explode and had found a piece of fabric in his pocket which could be used as a fuse for the Molotov cocktail. 8. At 11.50 p.m. the applicant underwent a medical examination at the Haseki Training and Research Hospital. The report drawn up afterwards indicated no sign of physical violence on his body. 9. Following the examination, the applicant was taken back to the Beyazıt police station. In the meantime, the Istanbul public prosecutor ordered that he should be handed over to the Anti-Terrorist Branch of the Istanbul Security Directorate. 10. The applicant underwent a second medical examination at the Haseki Training and Research Hospital before he was taken to the AntiTerrorist Branch. The second report issued there on 5 September 2005, at 1.14 a.m., noted once again that there was no sign of ill-treatment on his body. 11. Upon his arrival at the Anti-Terrorist Branch, the applicant was transferred to the Istanbul Forensic Medicine Institute and was examined by a doctor at 2.25 a.m. Before the examination, he claimed that he had been sworn at, stripped naked, and punched on the chin and shoulders at the Beyazıt police station. The interim forensic medical report issued afterwards noted that the applicant’s general health condition was good and that he was conscious. It stated that beside a bleeding scratch on his left hand, which he noted had occurred before his arrest, the applicant had two scratches of 1.2 x 0.8 cm and 2.5 x 1.2 cm and a lightly bleeding bruise of 2.5 x 0.8 cm on his right elbow, hyperaemia on both his wrists probably caused by the use of handcuffs and some other small scratches on his elbows, chest and shoulders. The report further noted that the movement of the applicant’s chin was found to be normal. It concluded that the applicant had several soft-tissue lesions, which did not put his life at risk and could be treated with simple medical attention. 12. Another medical report drawn up at around 8 p.m. the same day indicated that the applicant had two scratches of 3 x 0.7 cm on both elbows, had difficulty in opening his jaw and pain on the frontal area of his head. This report concluded that the applicant needed to be examined by orthopaedic and neurosurgical departments in a hospital for more accurate results. 13. Subsequently, at 9.30 p.m., the applicant was examined by doctors in the orthopaedics and general surgery departments of the Bakırköy State Hospital. The doctors reported that he had three 1 x 1 cm scratches on his left shoulder and right elbow and a scratch measuring 0.5 x 0.5 cm on his left side. They further stated that no urgent orthopaedic or osseous pathology could be determined. 14. After that examination, the Istanbul Forensic Medicine Institute issued a final report, stating that as there was no orthopaedic or neurosurgical pathology, the superficial scratches and bruises on the applicant’s body did not put his life at risk and could be cured with simple medical attention. 15. Finally, on 6 September 2005 the applicant underwent two examinations at the Beşiktaş Branch of the Forensic Medicine Institute. The medical report repeated the findings of the first examination performed in the Istanbul Forensic Medicine Institute. It also referred to a dental report, made on the same day on account of the applicant’s allegations of having been punched on the chin, which stated that there was no indication that such external force had been applied to his mouth. Consequently, the applicant was diagnosed as suffering from a soft-tissue lesion which could be cured with simple medical attention. 16. On the same day, following the medical examinations, the applicant made his submissions before the Istanbul public prosecutor, to whom he complained that he had been ill-treated while in police custody. He also denied the contents of the arrest and seizure report and stated that when the police had arrested him, he had been on his way to inform his employees’ families that the employees would stay late that night. 17. Later on, the applicant was questioned by the investigating judge at the Istanbul Assize Court. Repeating the statements he had given before the public prosecutor, he maintained that he had been walking along with three of his employees when the police had pushed him to the ground and handcuffed him. He added that the piece of fabric found in his pocket, which the police claimed was a fuse, was merely a sample he had carried with him for an order, as he worked in the textile business. The investigating judge decided to remand the applicant in custody on suspicion of being a member of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party), and of threatening to cause fear and panic. 18. On 15 September 2005 the Istanbul public prosecutor separated the investigation into the applicant’s allegation of ill-treatment from that regarding the applicant. 19. On 6 October 2005 the Istanbul public prosecutor invited thirteen police officers from the Beyazıt police station to attend within fifteen days at the prosecutor’s office, in order to give their statements on the matter. 20. On 12 October 2005 the Istanbul public prosecutor questioned the applicant once again. The applicant submitted that he had been punched, slapped and pushed against the wall by ten to fifteen officers for about twenty minutes during his time at the Beyazıt police station. He added that he had not been subjected to ill-treatment during his arrest and while at the Anti-Terrorist Branch. 21. On 1 and 2 December 2005 respectively, five police officers, who had carried out the applicant’s arrest, were questioned by the Istanbul public prosecutor. Denying the applicant’s allegations, they maintained that they had arrested the applicant using gradual force and had taken him to the police station in order to draw up an arrest report. They added that subsequently they had taken the applicant for a medical examination, brought him back to the police station and left. The other officers, who had been at the station while the applicant had been there, denied the allegations as well and maintained that no one at the station had inflicted physical violence on the applicant. Two of them further referred to the second medical examination, performed right before the applicant had been transferred to the Anti-Terrorist Branch, and maintained that the second report did not indicate any sign of ill-treatment on the applicant either. The officers noted, lastly, that the injuries to the applicant must have occurred during his arrest as he had resisted the officers. 22. On 29 June 2006 the applicant checked photographs of some of the police officers before the Tekirdağ public prosecutor. He maintained that he could not identify the officers who had beaten him from the photographs that were shown to him. He added that he still suffered from pain in his ear as a result of the ill-treatment. 23. On 31 May 2007 the Istanbul public prosecutor’s office asked the director of the Beyazıt police station to provide him with the names and photographs of all officers on duty at the police station on 4 September 2005 between 8 p.m. and midnight. The prosecutor’s office further wrote to various security headquarters in other cities, to which some of the police officers had been assigned, and requested their photographs. 24. Subsequently, on an unspecified date and on 5 November 2007 respectively, the applicant was taken twice to the Tekirdağ public prosecutor’s office with a view to checking the photographs of all the officers on duty at the time of the alleged incident. The applicant maintained that he had failed to identify the officers who had ill-treated him from their photographs on account of the passage of time but that he was certain that some, with whom he had been acquainted before his arrest, had not been among them. He added that he would have been able to identify the officers who had beaten him, in person, through an identification parade. 25. On 3 October and 13 December 2007 respectively, two officers from the Istanbul Anti-Terrorist Branch gave their statements before the public prosecutor. They indicated that before the applicant had been handed over to them, they had asked the police officers from the Beyazıt police station to obtain a medical report and had placed the applicant in custody only after that report had been provided. 26. On 17 January 2008 another police officer from the Istanbul AntiTerrorist Branch was questioned by the public prosecutor, in order to clarify why the applicant had undergone several medical examinations in two days. The officer claimed that the applicant must have been taken to the doctor several times because of his requests to that effect. 27. On 5 February 2008 the Istanbul public prosecutor asked the Istanbul Forensic Medicine Institute to explain whether the injuries to the applicant could have occurred as a result of the use of handcuffs during his arrest and whether they might have become visible only later on, so that the doctors at the Haseki Training and Research Hospital, who had conducted the initial examinations, could not have noticed them. 28. In response to the public prosecutor’s request, on 7 February 2008 the Istanbul Forensic Medicine Institute assessed all the medical reports and concluded that the lesions on the applicant’s body could not have occurred merely from the use of handcuffs and that he must have been subjected to trauma. The report also noted that such lesions might have been unnoticeable during the initial medical examinations as it was usual for them to become visible only after twenty-four hours. 29. After having examined the last report, the Istanbul public prosecutor requested further clarification from the Istanbul Forensic Medicine Institute, maintaining that its conclusion referring to trauma conflicted with the previous findings, which indicated that the lesions on the applicant’s body merely necessitated simple medical attention. Subsequently, on 10 March 2008 the Forensic Medicine Institute reported that the lesions must have resulted from injuries which had occurred before the applicant’s police custody and that such lesions might not have been immediately visible. The Institute also added that the last medical reports issued in respect of the applicant noted a reduced number of lesions. 30. On 11 March 2008 the Istanbul public prosecutor issued a decision not to prosecute. He stated that the police officers had denied the accusations and that the applicant had not been able to identify any of the officers involved even though he had been shown pictures of all the suspects along with several other officers from the Beyazıt police station. He further indicated that the applicant’s injury must have been caused by force lawfully employed by the officers during his arrest, which was within the scope of their duties and proportionate to the danger caused by the applicant as he was threatening to throw a Molotov cocktail at the officers. The public prosecutor concluded that the evidence obtained was not sufficient to conclude that members of the security forces had ill-treated the applicant. 31. The applicant lodged an objection with the Beyoğlu Assize Court against the decision of the public prosecutor. 32. On 28 May 2008 the Assize Court rejected the objection. The final decision was served on the applicant on 8 September 2008.