CASE OF SÜLEYMAN DEMİR AND HASAN DEMİR 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;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens
5. The applicants were born in 1951 and 1973 respectively and live in Hakkari. The first applicant is the father of the second applicant. 6. İ.D., a non-commissioned officer, telephoned the second applicant and asked him to tell his father, the first applicant, to go to the Çukurca Gendarmerie Station. At around 5 p.m. on 17 July 2007 the first applicant, accompanied by the second applicant, went to the gendarmerie station. On their arrival the second applicant waited at the entrance to the station and the first applicant was taken into Major M.C.’s office, where he was subjected to ill-treatment by M.C. and İ.D. who was also an officer at the same station. The two officers accused the first applicant of providing support to the PKK (Kurdistan Workers’ Party, an illegal armed organisation), and of making propaganda for a political party, the DTP (Democratic Society Party). Using box tape, officers M.C. and İ.D. attached a hand grenade to the first applicant’s face. An object was forcefully put into his nose and mouth, and he was threatened that his eyes would be gouged out. He was also repeatedly hit with an object on the left side of his face and on his chest. The ill-treatment and accusations continued for approximately one hour with accompanying threats to kill him and his family members. 7. After his release the first applicant and his son returned to their home in their village and later the same day the first applicant went to a hospital in the nearby town of Çukurca where he was examined and a report was drawn up setting out his injuries. 8. On 17 July 2007 the first applicant went to the Çukurca Gendarmerie Station following the request of Major M.C. He was not, however, subjected to ill-treatment. 9. On 18 July 2007 the first applicant filed a criminal complaint with the local prosecutor, alleging that he had been beaten and threatened at the Çukurca Gendarmerie Station. 10. Subsequently, criminal proceedings were brought against the officers İ.D. and M.C. and those proceedings are still pending. 11. The following information appears from the documents submitted by the parties. 12. According to a medical report issued at Çukurca Hospital at 7.30 p.m. on 17 July 2007, there was an ecchymosed swelling and two blood-clotted small lacerations on the left side of the first applicant’s face. The report also mentioned a restriction in the movement of his arms and chest pain. After his examination at the hospital the first applicant was transferred to the Hakkari State Hospital where he was examined once more and subsequently discharged. 13. On 18 July 2007 the first applicant made a formal complaint to the Hakkari prosecutor’s office against the military officers İ.D. and M.C. for having subjected him to ill-treatment, insults and intimidation. On the same day his statement was taken by the prosecutor. 14. Subsequently the applicant was referred to the Forensic Medicine Institute’s Hakkari branch for a medical examination. On 27 July 2007 the Institute reported that the applicant had ecchymosed swelling on his left cheekbone and restriction and pain on the movement of his left arm and shoulder. 15. On 27 July 2007 the Hakkari prosecutor decided that he did not have jurisdiction ratione loci to examine the complaint and referred the file to the Çukurca prosecutor. 16. On 1 August 2007 the Çukurca prosecutor decided that he also did not have the requisite jurisdiction, and referred the case file to the prosecutor’s officer at the Van Military Criminal Court. 17. On 1 November 2007 the Van military prosecutor and a military officer took statements from İ.D. and witness statements from a number of other military officers who worked at the same military station. In his statement İ.D. denied the charges against him. He also mentioned that the first applicant had been invited to the gendarmerie station to be warned not to threaten individuals in order to influence their votes in the forthcoming elections. All officers who testified as witnesses stated that they had not seen the alleged ill-treatment or any physical signs of it on the applicants. One of the officers, T.P., also testified that M.C. had ordered him to leave his door slightly ajar during the meeting because he had thought that the first applicant might subsequently make false accusations against him. 18. On 5 September 2008 the Van military prosecutor decided not to open an investigation into the first applicant’s allegations. On 23 September 2008 the first applicant lodged an objection against that decision. 19. On 10 December 2008 a statement was taken from M.C. by the military prosecutor. M.C. stated that he had invited the first applicant to the gendarmerie station and talked to him for about thirty minutes; he had not subjected him to any ill-treatment. 20. Having examined the first applicant’s objection, the Ağrı Military Court decided on 14 August 2009 that the witness statements of the military officers revealing the facts of the incident contained fundamental inconsistencies which cast doubt on their reliability. It therefore quashed the Van military prosecutor’s decision and ordered that criminal proceedings be brought against the two military officers. 21. In accordance with that decision, on 31 August 2009 criminal proceedings were instigated before the Van Military Court against İ.D. and M.C. for the offence of wilful injury and intimidation by an agent of the State, contrary to sections 86 and 106 of the Criminal Code. 22. On 11 February 2010 the second applicant was heard as a witness before the Van Military Court, and stated the following: “(...) on the day of the incident we received a telephone call at our house. The caller asked me and my father to go to the military quarters before the evening. Then I found my father and at around 5 p.m. we went to the military quarters (...) there was a checkpoint on the road, we passed the checkpoint and after approximately 100 metres we arrived at the main entrance (...) I stayed at the main entrance, they took my father in, he walked to the military quarters which was 50-60 metres ahead. Approximately an hour later they brought my father back, he was not able to walk [unaided]. I held him by his arms and took him to the checkpoint where I phoned F.D. [who works as] a village guard [in our village]. He came to the checkpoint with his car [and] we took my father to the village in [his] car. (...) My father’s state [of health] was not good (...) so we put him in the car owned by K.D., [who is] the headman [of our village]. We passed through the road checkpoint again and went to the Çukurca Hospital. (...) When we were leaving, my father’s face was covered with blood; he was not able to walk without support. By the time we got to the checkpoint I had cleaned his face.” 23. Taking the second applicant’s statement into account, the court summoned and heard the village guard F.D. and headman K.D. as witnesses. F.D. stated the following: “(...) The [applicants] were near the civilian parking area outside the entrance [of the gendarmerie station]. When I saw them, I went closer to them. There was blood on the face and mouth of Süleyman Demir. His shirt was covered with blood, and also there were bruises and swelling on his eyes, lips and face; he looked like he had been beaten up.” K.D. stated the following: “(...) When I went to their house Süleyman Demir told me that he had been beaten up by the Köprülü brigade commander Major M. and that he had been feeling sick. (...) However, I did not see any signs of battery and his clothes were normal.” 24. On 26 August 2010 a medical expert from the Van State Hospital was summoned before the Van Military Court in order to determine whether the first applicant’s injuries could have been caused as a result of illtreatment. Having examined the medical reports, the expert stated that it was not possible to establish the cause of the injuries. 25. On 4 November 2010 the Van Military Court decided that it did not have jurisdiction ratione materiae to try the case, and forwarded the case file to the Çukurca Criminal Court of First Instance. 26. On 20 April 2011 the Military Supreme Court approved the decision of lack of jurisdiction. 27. On 16 June 2011 a criminal case was lodged before the Çukurca Criminal Court of First Instance against İ.D. and M.C. for simple injury and intimidation. 28. On 21 November 2012 the Çukurca Criminal Court of First Instance decided that it did not have jurisdiction to try the case either and forwarded the case file to the Çukurca Magistrates’ Court’s Criminal Division. According to the information provided by the parties, the proceedings are still pending before Çukurca Magistrates’ Court Criminal Division.