YORGANLI v. TURKEY
Inadmissible
The applicant, Mr Zikri Yorganlı, is a Turkish national who was born in 1958 and lives in Istanbul. He was represented before the Court by Mr E. Cinmen, a lawyer practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 19 December 1995 the applicant and H.D. were arrested and taken to the Gayrettepe Security Directorate in İstanbul on suspicion of embezzlement. During his police custody, the applicant was allegedly subjected to illtreatment. On 20 December 1995 the applicant was examined by a medical expert, Dr Bilgen, at the Beyoğlu branch of the Forensic Medical Institute. The medical expert noted that there was no sign of ill-treatment on the applicant's body. The applicant was released on the same day. Without submitting any medical reports, the applicant states that, following his release, he went to the Şişli Etfal Hospital. On 26 December 1995 the applicant filed a petition with the Beyoğlu public prosecutor's office, stating that he had been subjected to ill-treatment during his police custody at the Gayrettepe Security Directorate, and requested to be referred to the Forensic Medical Institute for an examination. In his petition, he maintained that he had been subjected to falaka (beating of the soles of the feet), that he had been hung from his arms, and that electric shocks had been administered to his body through his right toe, feet and his sexual organ. The applicant further maintained that he had also been forced to jump up and down and clean the floors in the Security Directorate Building. On the same day, the Beyoğlu Public Prosecutor sent the applicant to the Beyoğlu branch of the Forensic Medical Institute. The applicant was examined once again by Dr Bilgen, who noted the following: “... A 1 x 1 cm old scabbed wound on the proximal phalanx of the right toe, a 3 x 1 cm old scabbed wound on the inner side of the malleolus on the left foot, a few days old 2 x 1 cm hyperaemia on the right armpit and an old 1 x 1 cm hyperaemia on the left armpit were observed.” The doctor concluded that the applicant was unfit for work for three days. Again on the same day, the applicant applied to the İstanbul branch of the Human Rights Foundation of Turkey and he was examined by another doctor. The applicant maintained before the doctor that he had been beaten, subjected to falaka, hung from his arms and that electric shocks had been administered to his body through his right toe, feet and his sexual organs. He further stated that his testicles had been squeezed and a truncheon or an unknown object had been inserted into his anus. Subsequently, he alleged that he had been forced to jump up and down. According to the doctor's report, the applicant was anxious. In his report, the doctor noted the following: a scabbed skin lesion of 0.3 cm in diameter on the proximal phalanx of the right toe, a 4 x 2 cm hyperaemic skin lesion on the left shoulder, a purple coloured 4 x 0.5 cm ecchymosed skin lesion on the left armpit, two parallel ecchymosed skin lesions of 5 x 2 cm and 6 x 3 cm on the right armpit, a hyperaemic skin lesion of 2 cm in diameter on the left ankle, an oedema under the left foot, a dark coloured hyperaemia on the metatarsal bone and a 4 x 2 cm purple coloured ecchymosed skin lesion under the right foot. Following further examinations, the medical expert concluded that the applicant suffered from plexopathy (nerve damage) in his left arm, anal fissure and anxiety. On 17 January 1996 the applicant gave a statement before the İstanbul public prosecutor. He alleged that during his custody he had been stripped naked, blindfolded, and subjected to falaka. He also stated that he had been hung from his arms and electric shocks had been administrated on his body. The applicant further maintained that he had not been examined by a doctor on 20 December 1995 and that he had not filed a complaint on that day as the police officers had threatened him. He explained that he had gone to Şişli Etfal Hospital following his release from custody. He finally maintained that he would not be able to identify the officers who had tortured him as he had been blindfolded during the administration of ill-treatment. On 12 June 1996 the Istanbul public prosecutor took statements from H.Y. and C.Ü., who had taken the applicant's statement on 19 December 1995. The police officers denied that they had ill-treated the applicant. On 11 July 1996 the İstanbul public prosecutor filed an indictment with the İstanbul Assize Court against H.Y. and C.Ü. The charges were brought under Article 243 of the Criminal Code and the police officers were accused of having ill-treated the applicant. On 24 October 1996 the İstanbul Assize Court held the first hearing. The applicant joined the proceedings as a civil party (müdahil) and reiterated his statements that he had made before the public prosecutor. The court also heard the accused police officers, who once again denied the charges against them. On 4 December 1996 the Assize Court held the second hearing in the case and heard the applicant's father and H.D. as witnesses. The applicant's father maintained that after his son was released from custody he had marks on his body which indicated that he had been severely beaten. H.D. also contended that, when he had seen the applicant after his interrogation at the Security Directorate, he had injuries on his body which indicated that he had been beaten. During the hearing, the public prosecutor requested that an expert report be obtained from the Forensic Medical Institute in order to eliminate the discrepancy between the reports of 20 and 26 December 1995. His request was dismissed by the first-instance court. On the same day, the İstanbul Assize Court acquitted the accused police officers, finding that there was insufficient evidence to convict them. On 3 December 1997 the Court of Cassation quashed the judgment of the first-instance court, holding that the latter should have heard the medical expert, Dr Bilgen, as a witness in order to eliminate the inconsistency between the two medical reports that he had drafted. On 21 September 1998 the İstanbul Assize Court issued a summons requiring Dr Bilgen to give evidence on 16 November 1998. On 10 November 1998 Dr Bilgen attended at the court and informed it that she would not be in İstanbul on 16 November 1998. The first-instance court proceeded to hear her in the absence of the applicant and his representative. Before the court, the doctor maintained, inter alia, that there was no inconsistency between the two reports and that the applicant's injuries were sustained after his release on 20 December 1995. In the next hearing held on 16 November 1998, the statement of Dr Bilgen was read out to the applicant's representative and he was requested to submit his replies. The applicant's lawyer stated that he objected to the statement of the doctor and requested time to prepare his written submissions. On an unspecified date, the applicant submitted to the first-instance court an expert report dated 10 December 1998, drawn up by three forensic medicine experts from the Cerrahpaşa Faculty of Medicine. The doctors opined that the report of 26 December 1995 was inadequate and concluded that the applicant might have sustained the injuries 3 to 15 days prior to 26 December 1995. On 26 May 1999 the İstanbul Assize Court requested the Forensic Medicine Institute to submit its opinion as to the date on which the applicant had possibly sustained the injuries in question. On 16 June 1999 five experts from the Forensic Medicine Institute submitted that it was not possible to identify the exact timing of the injuries on the applicant's right toe and on his left foot; however, it was stated that they might have occurred between 19 and 26 December 1995 or before 19 December 1995. As regards the hyperaemic skin lesions described in the report of 26 December 1995, the experts opined that as such lesions would disappear within a few hours; it was not medically possible that they had been sustained before 26 December 1995. Furthermore, referring to the injuries to the applicant's armpit, the doctors concluded that it was not possible to assess when they had occurred. On 20 April 2000, having regard to the witness statements and the medical reports, the İstanbul Assize Court acquitted the accused police officers. It held, inter alia, that in view of the report of the Forensic Medicine Institute, it was not possible to determine when the applicant had sustained the injuries in question and that there was therefore insufficient evidence to conclude that H.Y. and C.Ü. had actually committed the offence that they were charged with. On 19 September 2001 the Court of Cassation upheld the judgment of the first-instance court.