CASE OF MESUT DENİZ 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);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
4. The applicant was born in 1975 and is currently detained in Sincan prison. 5. On 5 October 1999 the applicant was arrested and taken into custody by police officers in Havza, a district of Samsun, in the course of a routine identity check. He was taken to the Havza police headquarters. According to the arrest and seizure report, the applicant was arrested at around 1.30 p.m., after he had tried to evade the police by jumping off the twometre high balcony of a café and was apprehended by the officers. According to the report, the applicant threw himself on the ground repeatedly and sustained various injuries. In particular, he had bruises and scratches on his back, on the left shoulder, on both arms and on the forehead. In the arrest and seizure report it was also noted that the applicant had false identity papers and, inter alia, a Kalashnikov rifle, bullets, night-vision binoculars and a walkie-talkie in his bag. 6. The applicant was subsequently taken to the Samsun police headquarters. 7. On the same day, at around 3.05 p.m., the applicant was examined by a doctor in Samsun who observed that the applicant was rather tired. He further observed the following injuries on the applicant’s person: ecchymoses on both the left and right sides of the forehead, on both the left and right scapulas and in the lumbar region; hyperaemic lesions on both the left and right sides of the neck, hyperaemia and ecchymoses on the left biceps, hyperaemia on the right biceps and ecchymoses on both calves. 8. On 6 October 1999, at around 9.25 a.m., the applicant was examined by a doctor at the Samsun Forensic Institute who noted that he was tired and weak and had bruises of various shapes and colours on his body. In addition to those noted in the medical report of 5 October 1999, the doctor observed the following injuries on the applicant’s body: ecchymoses, swellings and scratches of various sizes on the middle of the forehead, in the left zygomatic region, on his head, on the left clavicle, on the left side of the abdomen, on the left side of the crista iliaca region, on the outside of the left arm, on the inside of the left upper arm, on both thighs, on the right elbow and on both wrists. According to the report, there was also bleeding under both nipples, hyperaemia on the glans of the penis and three ecchymoses on the penis. 9. On 7 October 1999, at around 10.30 a.m., the applicant was examined by a doctor at the Samsun Forensic Institute who found no additional injuries on his body, apart from those recorded in the previous medical report of 6 October 1999. 10. On the same day, the applicant was transferred to the Ankara police headquarters. 11. On 12 October 1999 the applicant was examined by a doctor at the Ankara Forensic Institute who, in addition to the injuries noted in the previous reports, observed oedema on the palmar surface of the third finger and sensitivity on the first toe. The doctor asked for additional examinations to be carried out by the Department of Urology and Neurology at Ankara Hospital. 12. The applicant claimed that he had been subjected to various forms of ill-treatment during his arrest and subsequent detention at the Samsun police headquarters and the Ankara police headquarters. In respect of the treatment at the Samsun police headquarters, he claimed to have been beaten, given electric shocks, hung by his arms, hosed with cold water, had his genitals and fingers squeezed, been made to lie on an icy surface and been raped by one police officer with a hose. 13. Subsequent to his detention in police custody, the applicant was charged under the former Criminal Code with membership of an illegal organisation and attempting to undermine the constitutional order; he was remanded in custody. 14. On an unspecified date, the applicant’s lawyers lodged an official complaint with the Samsun public prosecutor’s office, claiming that the applicant had been subjected to various forms of ill-treatment while being held at Samsun police headquarters between 5 and 6 October 1999. They submitted that the applicant would be able to recognise the person who had given the orders, as well as some of the others involved. They said that the applicant had also been ill-treated in Ankara and that they would lodge a separate complaint to that effect. 15. On 9 June 2000 the applicant sent a handwritten letter to the public prosecutor claiming that he had been ill-treated during his arrest and subsequent detention at both the Samsun and Ankara police headquarters. He gave a detailed account of the treatment during his arrest, at the Havza police headquarters and at Samsun police headquarters. He again submitted that he would be able to recognise the person who had given the orders at Samsun police headquarters as well as some of the others involved. As regards his detention at the Ankara police headquarters, the applicant merely stated that he had been subjected to ill-treatment there also. 16. On 24 July 2000 a forensic medical expert, at the request of the applicant’s lawyer, lodged an opinion with the Ankara Medical Association on the basis of the medical reports issued in respect of the applicant. In that report he submitted that the injury details recorded in the arrest report had no medical significance since it had not been drafted by medically competent persons. He also criticised the fact that the applicant had not been transferred to the Department of Urology and Neurology at Ankara Hospital, as requested in the medical report of 12 October 1999. The medical expert concluded that it was not possible to determine the exact cause of the injuries noted in the medical reports. 17. On an unspecified date the applicant began a hunger strike in prison. In 2001 he began to suffer from a mental disorder. According to a report dated 19 April 2002 issued by the Medical Board of the Ankara Numune Hospital, the applicant presented psychotic symptoms. The experts could not determine whether these symptoms were due to the hunger strike (Wernicke-Korsakoff syndrome) or to schizophrenia. 18. On an unspecified date in 2000 the Samsun public prosecutor initiated an investigation into the applicant’s allegations. 19. On 14 November 2001 the Samsun public prosecutor filed a bill of indictment with the Samsun Criminal Court accusing a police officer, H.Ö., whom the applicant had identified through photographs, of ill-treatment under Article 245 of the former Criminal Code. 20. On 21 March 2002 the Samsun Criminal Court held the first hearing on the merits of the case. 21. On 17 July 2002 the first-instance court heard the accused police officer, who denied the allegations of ill-treatment. 22. On 28 February 2003 the applicant was brought before the Ankara Criminal Court in order to give evidence, acting on letters rogatory. However, he was not able make any statement, as he appeared to be suffering from a mental disorder. 23. On 16 April 2003 the Samsun Criminal Court convicted H.Ö. as charged and sentenced him to three months’ imprisonment and suspension from duty for a period of three months. The court then commuted the sentence to a fine and suspended its execution. 24. On 5 December 2005 the Court of Cassation quashed the judgment of 16 April 2003, holding that the police officer should have been charged with torture under Article 243 of the former Criminal Code and that therefore the case should have been heard by an assize court. 25. On 11 October 2006 the Samsun Criminal Court declined jurisdiction and transferred the case to the Samsun Assize Court. 26. On 22 November 2006 the Samsun Assize Court commenced the trial. 27. On 6 April 2007 H.Ö. made statements before the Assize Court and denied the charges against him. 28. On 30 July 2007 the applicant gave evidence before the Ankara Assize Court acting on letters rogatory. He waived his right to a lawyer. He reiterated that he had been ill-treated at the Samsun police headquarters and that, although he was not completely certain, the accused appeared to be one of the police officers who had ill-treated him. In this connection, the applicant claimed that about twelve police officers had illtreated him, but that at the time when he had been asked to identify the perpetrators he had been on hunger strike, depressed and suffering from health problems. He reiterated that he was not certain whether the accused was one of those who had ill-treated him and affirmed that he wanted those responsible to be prosecuted. In addition, he stated that he did not wish to join the proceedings as a civil party. 29. On 26 September 2007 the Samsun Assize Court acquitted H.Ö. of the charges against him. In its decision the court held that while the forensic medical reports established that the applicant had been illtreated between 5 and 6 October 1999, the applicant could not formally identify the accused as responsible and, as such, there was insufficient evidence to convict him. 30. On 7 January 2010 the applicant’s lawyer appealed against the firstinstance court’s decision. In particular, she maintained that since the applicant suffered from Wernicke-Korsakoff syndrome and schizophrenia he could not be deemed to have understood the consequences of waiving his right to a lawyer and not joining the proceedings as a civil party, and that therefore the court should have assigned him a lawyer. In addition, the lawyer submitted that the applicant and the accused should have been allowed to confront each other in order to give the former the opportunity to identify the latter. The applicant’s lawyer submitted a copy of the report dated 19 April 2002 issued by the Medical Board of the Ankara Numune Hospital in support of the appeal. 31. On 11 January 2010 the applicant’s lawyer applied to the Samsun Assize Court requesting it to annul its previous decision (eski hale getirme) to serve its judgment on the applicant, on the ground that it should have been served on his legal representative, and to disregard the applicant’s statement regarding his wish not to intervene in the proceedings as a civil party so as to enable him to lodge an appeal against the decision. In her application, the applicant’s lawyer also maintained that since the applicant suffered from Wernicke-Korsakoff syndrome, the rogatory court should have assigned him a lawyer, even if he had waived that right. 32. On 19 January 2010 the Samsun Assize Court held that the applicant could not lodge an appeal against the judgment of 26 September 2007 as he had not joined the proceedings as a civil party. 33. On 5 February 2010 the applicant’s lawyer lodged an appeal with the Court of Cassation against the Samsun Assize Court’s decision of 19 January 2010. 34. According to information obtained by the Registry from the website of the Court of Cassation, on 4 May 2012 the higher court dismissed the applicant’s appeal. 35. A description of the domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts).