CASE OF MUSTAFA TAŞTAN v. TURKEY
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;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
5. The applicant was born in 1966 and lives in Kırşehir. 6. On 29 August 1999 the applicant was arrested and taken to the Ankara Security Headquarters on suspicion of carrying a gun without the required licence. It was also established that he was being sought for on suspicion of establishing a profit-making criminal organisation. 7. The following day, 30 August 1999 the applicant was brought before the Ankara public prosecutor. The public prosecutor ordered his release after having taken his statements. 8. However, on the same day, certain police officers brought the applicant back to the Security Headquarters. Immediately after that event, his lawyer filed a complaint with the Ankara public prosecutor, claiming that the applicant had been forcibly taken by the police officers despite the public prosecutor’s decision and had been beaten. She indicated that she had been denied entry into the Headquarters. 9. The applicant claimed to have been released the next day. 10. Following his release, the applicant went to a private clinic where he was examined by a doctor who noted that there existed several oedemas and bruises on various parts of the applicant’s body, caused by blows from a hard object. The doctor specified the places of the said oedemas and bruises as the right frontal area of the face, right cheekbone, left shoulder, left forearm, left leg and left gluteal area. He also maintained that there were cuts in the oral cavity caused by dental pressure. The doctor noted the date of the report as 30 August 1999 but did not write his name. 11. On an unspecified date the applicant filed a complaint against two police officers, alleging that they had inflicted ill-treatment on him. 12. On 13 January 2000 the Ankara Directorate of Security submitted an information note to the public prosecutor, stating that the applicant had gone to the Security Headquarters on 30 August 1999 of his own will and had stayed there for a brief period of thirty minutes. The note indicated that he had not been officially in custody during that period and had been allowed to see his lawyer. Subsequently, on 17 February 2000, the Directorate of Security further informed the public prosecutor that no record of the applicant’s meeting with his lawyer had been made. 13. On 25 February 2000 the applicant maintained before the Ankara public prosecutor that he had been forced to stay at the Security Headquarters for one day following his release by the public prosecutor and had been denied access to his lawyer during that period. He reiterated his allegations of ill-treatment, arguing that two police officers had put him in a barrel full of cold water and had beaten him the whole day. He also submitted a medical report from a private clinic, which he had obtained following his release. 14. On 28 March 2000, upon a request from the Ankara public prosecutor to that effect, the Ankara Forensics Medicine Institute issued a final report, indicating the findings of the initial medical report and concluding that those findings would keep the applicant from routine activities for a period of seven days. 15. The two police officers accused by the applicant of ill-treatment gave their statements before the Ankara public prosecutor on 3 April and 9 May 2000 respectively. They maintained, inter alia, that they had not ill-treated the applicant in any way and that the applicant had only stayed at the Department for fifteen minutes on the day the alleged events took place. 16. On 11 April 2000 the police informed the public prosecutor that the owner of the private clinic, who was a medical doctor, had stated that the initial medical report had not been issued in his clinic and that his name had been fraudulently used on it. 17. Subsequently, on 15 May 2000 the Ankara public prosecutor issued a decision not to prosecute the two police officers as he found that there was no evidence except the applicant’s allegations to prove that they had committed the alleged acts. 1. Criminal proceedings against the applicant for forging an official document 18. On 15 May 2000, the public prosecutor instigated criminal proceedings against the applicant before the 21st Chamber of the Ankara Criminal Court of General Jurisdiction for forging an official document. 19. During the proceedings, the owner of the clinic stated before the court that he had actually examined the applicant and drafted the medical report in question. 20. On 13 February 2001, upon a request of the court, an expert submitted a report, concluding that the handwriting in the medical report in question did not show the same characteristics as that of the owner of the clinic. 21. Nevertheless, on 24 January 2002 the Gendarmerie Command submitted another expert report to the court, confirming that the handwriting on the medical report belonged to the owner of the clinic. 22. Having regard to the latter expert report and the doctor’s statements, on 19 February 2002 the court acquitted the applicant of the charge against him. 2. Criminal proceedings against the police officers 23. On 30 December 2003 the Ankara public prosecutor filed an indictment with the 19th Chamber of the Ankara Criminal Court of General Jurisdiction, this time accusing the two police officers of illegal deprivation of liberty and ill-treatment pursuant to Article 181 of the former Penal Code (Law no. 765). 24. The applicant’s lawyer gave her statements before the court on 24 May 2004. She indicated that the applicant had been dragged by certain police officers following his release by the Ankara public prosecutor and that she had not witnessed him being beaten at the Security Headquarters, where he must have stayed for approximately one hour. 25. On 5 July 2004 the owner of the private clinic, where the applicant had obtained the medical report, stated before the court that he had not examined the applicant. At the following hearing on 20 July 2004 another doctor, K.İ.Z., maintained that at the time of the events he had been working at the said clinic. He stated that he was the one who had examined the applicant and drawn up a medical report about his condition. 26. At a hearing on 20 December 2004 the 19th Chamber of the Ankara Criminal Court of General Jurisdiction heard a certain S.Z.A., the chief officer who had conducted the administrative investigation against the two police officers. According to S.Z.A.’s statements, although there had been two conflicting expert reports about the medical report during the proceedings before the 21st Chamber, later on, the Gendarmerie Command had conducted another analysis and found out that the handwriting actually corresponded to that of K.İ.Z. 27. The applicant joined the criminal proceedings against the officers as a civil party (müdahil) on 7 November 2005. 28. On 6 March 2006 the first-instance court acquitted the police officers of ill-treatment. The court noted that the medical report issued immediately after the impugned events could not be considered valid as K.İ.Z., who had admitted to having examined the applicant in the clinic, had not had the work permit to draw up such a report. It maintained moreover that the report issued by the Ankara Forensics Medicine Institute, which relied wholly on the initial report, was invalid as well. The court hence concluded that there was insufficient evidence to convict the accused police officers of inflicting ill-treatment on the applicant. It sentenced the officers to ten months’ imprisonment for illegal deprivation of liberty and suspended that sentence. 29. On 20 March 2007 the Court of Cassation discontinued the case, finding that it was time-barred pursuant to Sections 102 and 104 of the former Penal Code (Law no. 765) and Section 223 of the Code on Criminal Procedure (Law no. 5271). 3. Disciplinary proceedings against the police officers 30. Meanwhile, following the Ankara public prosecutor’s indictment of the two police officers, on 13 January 2004 the Ankara Governorship assigned a chief officer to conduct a disciplinary investigation into the allegations of illegal deprivation of liberty and ill-treatment concerning the officers. 31. During the disciplinary proceedings, on 13 April 2004 the Gendarmerie Command submitted a new expert report, this time concluding that the handwriting on the medical report issued in respect of the applicant actually belonged to K.İ.Z. 32. On 19 September 2004 the Central Disciplinary Board of the Directorate of Security held that in the absence of any valid evidence, there was no ground to take disciplinary measures against the two police officers. The Board further struck the case out as the statutory time-limit for the alleged offences had expired. 33. The former Penal Code (Law no. 765) made it a criminal offence to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants). 34. The second paragraph of Article 181 regulated an aggravated sentence for cases where the accused civil servants threatened or inflicted ill-treatment on the individual concerned.