CASE OF ARAT v. TURKEY
Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
4. The applicant was born in 1961 and lives in Diyarbakır. He is the owner of a grocery shop in Diyarbakır which he runs with his brother. 5. According to the arrest report, drafted on 15 February 2001 at around 10.45 a.m. and signed by the applicant and his brother, police officers had received information that shopkeepers on Bal Street were not opening their shops as a protest to mark the second anniversary of the arrest of Abdullah Öcalan, the leader of the PKK (the Kurdistan Workers' Party), an illegal armed organisation. When the officers arrived at the street in question they asked the applicant and his brother to open their shop. The applicant and his brother swore at them and shouted slogans. In the meantime, a small crowd of children and women had started to throw stones at the police cars. The police officers requested, via wireless radio, reinforcements from the police station. Two police officers sustained injuries while trying to arrest the applicant and his brother. The police officers then used force to subdue the applicant and his brother before arresting them for obstructing an official in the course of his duties. It is also stated that the suspects reached for the gun of one of the police officers. It appears that five police officers took part in the applicant and his brother's arrest. 6. In his application form the applicant submitted that, on 15 February 2001, before he had opened the shutters of his shop, a number of police officers arrived and started smashing the shop shutters and windows with sledgehammers. When the applicant and his brother attempted to stop the police officers, they were beaten up, arrested and subsequently placed in police custody. 7. According to a medical report drawn up at the Diyarbakır branch of the Forensic Medicine Institute the same day, at 2.20 p.m., there was a light 4 x 1cm reddish bruise and a traumatic oedema on the front of the applicant's left arm. There was also another red-coloured bruise, measuring 15 cm by 3cm, on the outside of his left thigh. 8. The same doctor also found a number of injuries on the applicant's brother, including a 1 x 1 cm wound on the right parietal region, a 4 x 1 cm bruise on the right side of his neck, a 10 x 3 cm bruise on the right side of his lower back and left shoulder, slight erosion on his right wrist and a number of superficial grazes. 9. In the meantime, on the same day, two of the police officers were examined first at the State Hospital, and later at the Diyarbakır branch of the Forensic Medicine Institute. 10. According to the medical report drawn up at the State Hospital, at 10.50 a.m., police officer M.A.A. had sustained a haematoma on his left eye, had redness and sensitivity on the right side of his chest, a haematoma and swelling on his left hand and a swelling and superficial graze on his right hand. At 1.30 p.m. Mr M.A.A. was examined at the Forensic Medicine Institute, where the doctor found that the police officer had sustained a haematoma on his left eye and a traumatic oedema on his left cheek, pain and sensitivity on his left hand and the right side of his ribs and that he had slight erosion on the right hand. 11. According to the medical report drawn up at the State Hospital, at 10.50 a.m., police officer H.A.K. had a broad patch of redness on the right side of his neck and shoulder region. At 1.30 p.m. he was examined at the Forensic Medicine Institute, where the doctor found that the police officer had a number of reddish bruises on the right and front of the neck and felt pain and sensitivity in the right shoulder. 12. On 17 February 2001 the prosecutor at the Diyarbakır State Security Court granted the police authorisation to detain the applicant and seven other suspects who had been detained for similar acts on that date for an additional period of two days. 13. On 18 February 2001, while he was still being detained in police custody, the applicant was questioned. In the minutes of the questioning, the applicant was recorded as having stated that he sympathised with the policies of the PKK. On 13 February 2001 he had found a leaflet on the floor outside the shop that had been prepared and distributed by the PKK, inviting local businesses not to open their shops on 15 February. Following this invitation, he had intended not to open his shop until 1.30 p.m. He stated that he had followed such instructions in the past. 14. On 19 February 2001 the applicant was examined by a doctor at Diyarbakır State Hospital who noted a 5 cm bruise on the front of his right arm, a 10 cm bruise on the top of his left foot and a 5 cm bruise on his left thigh. 15. The same day the applicant was brought before the prosecutor at the Diyarbakır State Security Court and then before the duty judge at the same court, where he retracted the statement he had made in police custody and said that he had merely been late in opening his shop on 15 February because he had guests at his house; he had not been protesting at all. In the statement taken by the prosecutor, the applicant was recorded as having said that “he had been beaten up by the police officers but he did not wish to make a complaint”. Before the duty judge the applicant claimed that a police officer named A.K. had hit him with a truncheon when he had tried to prevent the latter from breaking his door down, and that he had neither hit any of the police officers nor shouted any slogans. The duty judge ordered the applicant's remand in custody. 16. On 21 February 2001 the prosecutor at the Diyarbakır State Security Court filed an indictment charging the applicant and his brother with the offence of aiding and abetting an illegal organisation, under Article 169 of the Criminal Code. 17. On 26 February 2001 the criminal proceedings before the Diyarbakır State Security Court (hereinafter “the SSC”) commenced. 18. In the meantime, on 20 February 2001 the applicant submitted a written petition to the trial court requesting his release. In particular, he claimed that, during his arrest, the police had beaten him and his brother with truncheons, but that he was not complaining about any particular police officer. 19. On 26 April 2001 the SSC held its first hearing, when it heard evidence from the accused, the police officers and defence witnesses. The applicant claimed, inter alia, that the police officers had tried to break the shutters of his shop with a sledgehammer and that, when he had tried to prevent them, by holding the sledgehammer, they had beaten and arrested him. He also retracted his statements given to the police on the ground that he had signed them without reading them. The four defence witnesses heard by the court stated that they had not seen the applicant shouting, resisting or swearing at the police or a crowd of people throwing stones at the police. Two of the four defence witnesses stated that the applicant had been beaten during his arrest. 20. The police officers who had arrested the applicant reiterated that the applicant and his brother had refused to open the shutters of their shop and that when, in accordance with the order from the Governor, they had tried to break open the shutters, the applicant and his brother had sworn at them and attacked them. They stated that a crowd of people had been shouting and swearing and attacking them, but that by the time the reinforcements arrived they had all dispersed; only the applicant and his brother had been arrested. 21. In hearings held on 7 and 28 June 2001 both the prosecutor and the applicant's representative stated that they did not want an additional investigation. On the latter date the trial court released the applicant pending trial. It also decided to hear all the witnesses once again in order to dispel factual contradictions. After having reheard two of the defence witnesses, one of whom altered his testimony, on 21 November 2001 the trial court considered that, although certain inconsistencies remained, the facts had been sufficiently elucidated. 22. On 28 February 2002 the trial court found the applicant guilty as charged and sentenced him to three years and nine months' imprisonment. The applicant's brother was acquitted. 23. The applicant appealed and asked the Court of Cassation to hold a hearing. In his grounds of appeal the applicant claimed, in particular, that his statements given to the police had been taken under duress. He reiterated that, during the arrest, he and his brother had been beaten by the police officers, as attested by eyewitnesses, whereas there was no evidence that he and his brother were responsible for the injuries sustained by the police officers. 24. In his written observations submitted to the Court of Cassation, the prosecutor asked for the conviction to be quashed as the applicant's guilt had not been proved beyond reasonable doubt. 25. On 11 November 2002 the Court of Cassation, observing that the applicant's lawyer was absent, decided not to hold a hearing and upheld the applicant's conviction. 26. On 26 August 2003 the applicant was released from prison. 27. On 16 October 2003, upon a request by the applicant to benefit from Law no. 4959, the Diyarbakır State Security Court reviewed its previous decision and found that the applicant's conviction and sentence met the requirements of this Law. Accordingly, it “annulled” the applicant's conviction and sentence. Since no one objected to that decision, it became final on 24 October 2003. 28. A description of the relevant domestic law at the material time can be found in the Eser Ceylan v. Turkey judgment, (no. 14166/02, § 19, 13 December 2007), and the Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002-V). 29. Law no. 4959 (the Law on Reintegration into Society), which entered into force on 6 August 2003, provided for amnesties under certain conditions and reduced sentences for members of terrorist organisations.