CASE OF ALİ GÜNEŞ v. TURKEY
Remainder inadmissible;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);Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
5. The applicant was born in 1968 and lives in Istanbul. He is a high school teacher, an executive member of the Education and Science Workers’ Union and a member of the Confederation of Public Workers’ Unions. 6. The 2004 NATO summit took place in Istanbul from 28 to 29 June. The Governor of Istanbul designated thirteen locations in Istanbul where people would be allowed to hold demonstrations. 7. As the remaining facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraphs 8-10) and the Government’s submissions concerning the facts are summarised in Section C below (paragraphs 11-13). The documentary evidence and further factual elements submitted by the applicant and the Government is summarised in Section D (paragraphs 14-27). 8. On 28 June 2004 the applicant and a number of other teachers arrived at the square outside the Mecidiyeköy Underground Station in Istanbul, which is one of the thirteen locations referred to above, to issue a press release. 9. The applicant and all his colleagues were unarmed and behaved in a peaceful manner. Nevertheless, police officers who had been circling the crowds grabbed the applicant and his friends by the arms, sprayed them with tear gas and beat them up. 10. The police officers then took the applicant to a police station, where he was kept for a period of eleven hours. He was subsequently brought before a prosecutor, who ordered his release. 11. After the applicant and other demonstrating teachers finished reading their press release, police officers asked them to disperse. When the demonstrators refused to do so, the police officers warned them that they would be taken into custody. The group continued to refuse to disperse and, instead, went on to stage a sit-in protest. They told the police officers that they would continue with their protest until their friends, who had been arrested elsewhere, had been released. 12. When the police continued to try to persuade them, the demonstrators attacked the police with stones and sticks. They also damaged cars in the vicinity and injured a number of police officers. As a result, the police officers used tear gas in order to disperse them. The applicant was taken to the police station, where he was kept for a period of eleven hours before his release was ordered by a prosecutor. 13. On the same day the applicant was examined by two doctors. The first examination was carried out at 11.30 a.m. at the Haseki State Hospital. The doctor noted that the applicant’s eyes were red, and considered it necessary for the applicant to be examined by a specialist doctor. The specialist doctor who examined the applicant at Sağmalcılar Hospital at 6.45 p.m. on the same day noted that there was no sign on the applicant’s body that he had been subjected to ill-treatment. 14. According to a report prepared on 28 June 2004 by nine of the police officers who had taken part in the incident, the spokesperson for the demonstrators in Mecidiyeköy told the police officers that a number of fellow union members had been arrested at another location in Istanbul earlier in the day. The spokesperson added that the demonstrators in Mecidiyeköy would not be dispersing unless and until their friends had been released, and would instead march to Taksim Square. When the police informed the spokesperson that this would not be allowed and warned the demonstrators to disperse, the demonstrators attacked the police officers with the sticks from their banners, and proceeded to stage a sit-in protest. The Rapid Response Force (Çevik Kuvvet) then dispersed the demonstrators and arrested eleven persons, including the applicant, who refused to disperse. 15. The incident was widely reported in the national press. In a photograph published in the daily newspaper Sabah the applicant is pictured between two police officers who are holding him by the arms, and one of whom is spraying the applicant’s nose and mouth with gas at very close range. 16. At 11.30 a.m. on the same day the applicant was examined by a doctor at Haseki Hospital, who noted redness in both eyes and referred him to a specialist doctor. The ophthalmologist who examined the applicant later that day at the same hospital observed hyperaemia in both eyes, and recorded his findings in a report. 17. At 6.45 p.m. on the same day the applicant was apparently examined by another doctor. However, no entries were made by that doctor in the sections of the report reserved for detailing the incident, the applicant’s allegations and the doctor’s findings. These parts of the report were simply crossed out by the doctor. Thus, the report only mentions the name of the applicant, his date of birth, the time of the medical examination and the name of the police officer who accompanied him. 18. It appears that the applicant was examined by yet another doctor on the same day. The doctor noted in his report (report no. 3015) that there were ecchymosed areas measuring 8 centimetres and 5 x 8 centimetres below the applicant’s shoulders. The doctor also noted that the applicant’s eyes were reddened. 19. According to medical reports submitted by the Government, the ten demonstrators who had been arrested together with the applicant (see paragraph 14 above) also had various injuries on their bodies. 20. The applicant and the other demonstrators were brought before the prosecutor and questioned. In his statement the applicant maintained that he had not committed any offences but had simply exercised his democratic rights. He also informed the prosecutor that the police had used pepper spray against him. According to the statement, a lawyer was present during the applicant’s questioning. 21. On 7 September 2004 the applicant lodged an official complaint with the Şişli prosecutor against the police officers. He argued that when he and his colleagues had been preparing for their press release at 10.00 a.m. on the day of the incident, a number of police officers had attacked them with their truncheons and sprayed them with tear gas. He complained that he had been beaten up with truncheons and punched and kicked by the police officers even after he had been arrested. He pointed out that the police officers responsible could be identified from the photographs published in the newspapers. The applicant argued that the police officers’ actions had been in violation of both the domestic legislation and his rights under the Convention, including his rights to liberty and security, freedom of expression and protection from ill-treatment. 22. The applicant subsequently found out in 2007 that before he had even lodged his official complaint on 7 September 2004 a prosecutor had already decided on 30 June 2004 not to prosecute the police officers. In the prosecutor’s decision sixteen persons, including the applicant, were referred to as “the complainants”. The sixteen persons also included the ten demonstrators arrested together with the applicant (see paragraph 14 above). The nine police officers (see paragraph 14 above) were named as the defendants. The offence in question was given as “ill-treatment”. 23. The prosecutor stated in his decision that the police officers had allowed the demonstrators to read out their press release but that when the demonstrators had wanted to march to Taksim square, they had had to disperse them. In the opinion of the prosecutor the officers had been carrying out their duties under the Act on the Powers and Duties of the Police, and had not committed any offences. Despite the fact that it was expressly stated in the decision that it was to be communicated to the complainants, and that the complainants could lodge objections against it, the prosecutor’s decision was not communicated to the applicant. 24. On 4 July 2007 the applicant wrote to the Şişli prosecutor and asked for information about the investigation. 25. In his reply of 21 November 2007 the Şişli prosecutor forwarded to the applicant’s legal representative a copy of the decision adopted by his office on 30 June 2004. 26. On 4 December 2007 the applicant lodged an objection against the decision and drew attention to the prosecutor’s failure to have regard to the medical reports described above (see paragraphs 16 and 18 above) and the photographs of him in the press. 27. On 8 February 2008 the Beyoğlu Assize Court rejected the objection, stating that the prosecutor’s decision of 30 June 2004 had been in compliance with the applicable legislation and procedure.