CASE OF FIRAT CAN v. TURKEY
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
4. The applicant was born in 1974 and is currently detained in Kırklareli Etype Prison pending the criminal proceedings against him. 5. On 5 February 1997 the applicant was arrested and taken into police custody by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters on suspicion of membership of an illegal organisation. 6. On 19 February 1997 a single judge at the Istanbul State Security Court ordered the applicant’s pre-trial detention. 7. On 20 May 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with that court, charging the applicant with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. 8. On 8 February 2002 the Istanbul State Security Court convicted the applicant as charged and sentenced him to death. 9. On 15 October 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court on account of a procedural defect which had prejudiced the rights of the defence. 10. In the meantime on 4 September 2002 the Head Office of the Institute of Forensic Medicine issued a report noting that the applicant suffered from Wernicke-Korsakoff syndrome and recommended the suspension of the execution of his sentence for a period of six months for medical reasons. It appears that this recommendation was not taken into account by the authorities. 11. State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was therefore transferred to the Istanbul Assize Court. 12. At the hearing held on 6 August 2008, the applicant asked to be released in view of the excessive amount of time he had already spent in pre-trial detention. The Fourteenth Chamber of the Istanbul Assize Court, however, ordered the applicant’s continued detention in view of the nature of the offence, the existence of a strong suspicion that the applicant had committed the offence and the possibility that he would abscond if released. 13. On 13 August 2008 the applicant objected to the decision of 6 August 2008 and again requested his release. 14. On 25 August 2008 the Ninth Chamber of the Istanbul Assize Court dismissed the applicant’s objection without holding a hearing and without providing any reasons for its decision. 15. On 18 December 2009 the Istanbul Assize Court convicted the applicant as charged under Article 146 § 1 of the former Criminal Code and sentenced him to aggravated life imprisonment. The applicant appealed this judgment. 16. According to the information in the case file, the case is still pending before the Court of Cassation. 17. On an unspecified date the applicant was temporarily transferred from Kırklareli E-type Prison to Istanbul Bayrampaşa Prison to attend the final exams at Marmara University, where he was registered as a student. 18. On 11 June 2007, before he was transferred from Istanbul back to Kırklareli following the end of the exam period, he was medically examined by the resident doctor at Bayrampaşa Prison, who noted no signs of illtreatment on his body. On the same day the applicant also signed a document stating that he had not been illtreated or subjected to any other adverse treatment during the course of his transfer to Kırklareli and that the gendarmerie personnel had not confiscated his money or other valuables. At 10.00 p.m. on the same day he was handed back to the prison authorities in Kırklareli. 19. On 12 June 2007 the applicant lodged a complaint with the Kırklareli Public Prosecutor’s Office against the gendarme soldiers in charge of his transfer, alleging that he had been tortured at their hands during the transfer from Istanbul to Kırklareli, and requested to be referred to the forensic medicine institute for examination. He also complained that the gendarme soldiers in question had appropriated under duress two gold and two silver rings he was wearing on the relevant day and he requested the return thereof. 20. On the same day a doctor at the Kırklareli Forensic Medicine Institute examined the applicant and noted a slight abrasion on the right inner corner of his upper lip, bruising and swelling on his biceps, pain on his tenth, eleventh and twelfth right ribs, widespread hyperaemia and pain in his right axial region (7-8 cm below the armpit) caused by physical trauma, pain and swelling around the metatarsal bones of his left foot, pain in the waist area and throat and difficulty in swallowing related to trauma. The report noted that the symptoms were likely to be the result of beatings or violence, and requested the applicant’s referral to Kırklareli State Hospital for the verification of any fractured bones. 21. On 13 June 2007 the applicant was examined at Kırklareli State Hospital, where it was noted that the injuries he had sustained were not life- threatening and would not cause long-term damage to his health. 22. On 10 September 2007 the applicant repeated his allegations of illtreatment against the gendarmerie personnel before the Fourteenth Chamber of the Istanbul Assize Court. 23. On 12 June 2007 Kırklareli Public Prosecutor interrogated the applicant regarding his allegations of ill-treatment. The applicant contended that on 11 June 2007, before he was put in the patrol wagon bound for Kırklareli Prison, a gendarme sergeant and ten gendarme soldiers in his command had shoved him into a toilet at Bayrampaşa Prison and beaten him up, squeezed his testicles, hit his throat with a truncheon and insulted him. He claimed that this treatment had mainly resulted from his refusal to comply with the gendarmes’ orders to remove and hand over his rings prior to the transfer. 24. On 14 June 2007 the Kırklareli Public Prosecutor issued a decision of lack of jurisdiction (görevsizlik kararı) in respect of the applicant’s complaints and referred the matter to the Eyüp Public Prosecutor. 25. On 10 January 2008 the Eyüp Public Prosecutor interrogated the gendarme sergeant, N.T., who had been in charge of the applicant’s transfer from Kırklareli to Istanbul on 11 June 2007. N.T. stated that he had no recollection of the applicant, nor of the events as recounted by him, and denied the allegations against him. He added that in accordance with the relevant regulations and instructions, prisoners’ valuables were removed prior to any transfer and handed over to the prison administration, which was responsible for their subsequent return to the prisoner. 26. On the same day the Eyüp Public Prosecutor requested information from the administration of Bayrampaşa Prison in respect of the applicant’s confiscated rings. On 15 January 2008 the prison administration informed the public prosecutor that the applicant’s personal belongings had been handed over to his wife on 18 June 2007. 27. On 25 February 2009 the Eyüp Public Prosecutor filed a bill of indictment with the Eyüp Magistrates’ Court against N.T., charging him with the offence of causing bodily harm under Article 86 §§ 2 and 3 of the Criminal Code and excessive use of force under Article 256 of the Criminal Code. The public prosecutor noted that despite N.T.’s outright denial of the charges against him, the findings of the medical report dated 12 June 2007 appeared to corroborate the applicant’s allegations of ill-treatment. He further specified in the bill of indictment that since the offences in question did not fall within the scope of Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials), no administrative authorisation was required for N.T.’s prosecution. 28. On 2 March 2009 the Eyüp Magistrates’ Court admitted the indictment and ordered that the first hearing be held on 10 November 2009. According to the information in the case file, the proceedings are still pending before the Eyüp Magistrates’ Court. 29. A description of the relevant domestic law and practice concerning judicial review of pre-trial detention under the former Code of Criminal Procedure (Law no. 1412) may be found in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-31, 30 January 2007). 30. Section 1 of Article 141 of the new Code of Criminal Procedure provides the following: “Persons; ... b) who were not brought before a judge within the period prescribed by law, ... d) who were lawfully detained but not brought before a legal authority within a reasonable time and who were not tried within a reasonable time, during the criminal investigation or prosecution may demand compensation for all pecuniary and non-pecuniary damage they sustained from the State.” 31. Section 1 of Article 142 of the new Code of Criminal Procedure further provides: “Compensation may be demanded [from the State] within three months from the date of service of the final ... judgment and, in any case, within one year following the date on which the ... judgment becomes final.”