CASE OF ÖZCAN ÇOLAK v. TURKEY
Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
4. The applicant was born in 1974 and lives in Tekirdağ. 5. On 5 November 1999, at around 10 a.m., the applicant was arrested and taken into custody in Tekirdağ on suspicion of membership of an illegal armed organisation, namely the MLKP (Marxist-Leninist Communist Party). 6. On the same day, at around 2 p.m., the applicant was examined by a doctor who found no signs of ill-treatment on his body. 7. On the same day, at 2.10 p.m., the applicant was handed over to police officers at the Erzincan Security Headquarters and transferred to Erzincan by car. 8. On 6 November and 7 November 1999 the applicant took part in two reconstructions of events in the mountains in order to show where he had buried guns. 9. On 7 November 1999 the applicant was questioned by two police officers at the Anti-Terrorist Branch of the Erzincan Security Headquarters, where he gave a detailed account of the activities he had taken part in within the MLKP. 10. On an unspecified date the applicant signed a pre-printed document which indicated, inter alia, that he had the right to remain silent. 11. On 9 November 1999 the applicant was examined by a doctor at the Erzincan State Hospital who found no signs of ill-treatment on his body. 12. On the same day the applicant was brought before the Erzincan Magistrates' Court where, in the presence of his lawyer appointed by the Bar, he submitted that he was unfit for questioning because he had been subjected to ill-treatment in police custody. The applicant requested to be transferred to a hospital for a medical examination. The judge noted a purple bruise and redness on the applicant's left eye and that he had difficulty in standing upright and speaking, and ordered him to be transferred to the Forensic Medicine Institute for an examination. On the same day, the court remanded the applicant in custody. 13. On 9 November 1999 the applicant was examined by a doctor at the Erzincan State Hospital who found no signs of ill-treatment on his body. 14. On 12 November 1999 the applicant asked to be released. In his request he maintained that he had been ill-treated both by the police officers at the Tekirdağ Security Headquarters and the Erzincan Security Headquarters. He gave details as to the form of the treatment, namely beatings, hanging, and squeezing of the genital organs, as well as when they had occurred. The applicant's objection to his remand in custody was dismissed by the Erzincan Magistrates' Court on the same day. 15. In the meantime, on 10 November 1999, the applicant requested to be examined by a doctor at the prison clinic. 16. On the same day, at 5.35 p.m., the applicant was examined by the prison doctor, who noted that he had under the left eye a fading light green line of about 1 to 3cm which looked like either a bruise or a hyper pigmentation. He reckoned that it dated from seven to ten days previously. The doctor did not note any other signs of beating or violence. 17. An investigation into the alleged ill-treatment was instigated by the Erzincan public prosecutor. 18. On 28 November 1999 the prosecutor heard evidence from the applicant, who gave details as to where, when and what forms of illtreatment he had been subjected to. In particular, he claimed that his eye injury had resulted from blows he had received from the driver of the car when he was being transferred to Erzincan. He further repeated that he had been tortured during interrogation, both in Tekirdağ and in Erzincan. 19. On 22 November 1999 the public prosecutor heard evidence from the doctors at Erzincan State University who had examined the applicant. They both affirmed that they had conducted the medical examination in accordance with the law and had not seen any signs of ill-treatment on the applicant. 20. On 2 December 1999 the prosecutor heard Mr Y.T., one of the accused arrested and detained at the same time as the applicant. He submitted that since he had been blindfolded the whole time he had not seen anyone ill-treating the applicant. He maintained that he had not been ill-treated by police officers and that he had not heard any indicative noises. 21. On 21 December 1999 the prosecutor heard evidence from an accused police officer D.A. He submitted that he had questioned the applicant on 7 November 1999 and that at that time the applicant had had a fading bruise under his left eye which appeared to be a few days old. He did not know how it had happened but the applicant had not been ill-treated by him, whether or not with someone else present. 22. On 22 December another police officer was heard who denied the allegations of ill-treatment and claimed that the applicant's eye injury might be a swelling due to the twenty-five hours' travelling, lengthy questioning and two trips to the mountains for site visits. 23. On 18 January 2000 the prosecutor heard Mr E.Ç., the doctor who had examined the applicant in prison. The doctor affirmed that they had conducted the medical examination in accordance with the law and had not seen any signs of ill-treatment on the applicant apart from the light green area, which could be seen only if looked at carefully, under his eyes. In this connection, he submitted that he did not think that this was the result of ill-treatment since the area was not large. He considered that it could have been the result of lack of sleep or a local infection. 24. On 21 February 2000 the prosecutor heard Mr I.K., one of the accused arrested and detained at the same time as the applicant. He also submitted, inter alia, that since he had been blindfolded he had not seen anyone illtreating the applicant. He maintained that he had not heard any noise indicating ill-treatment. However, he stated that, since he did not know where the applicant had been held, he could not be sure if he could have heard something in any case. 25. On 24 March 2000 the Erzincan public prosecutor gave a decision of non-prosecution concerning the two police officers at the Anti-Terrorist Branch of the Erzincan Security Headquarters on account of lack of evidence. In his decision, the prosecutor took particular note of the testimony of the doctors and the other suspects who had been detained at the same time as the applicant on the same grounds. 26. In the meantime, on 13 December 1999, the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, accusing him of membership of the illegal armed organisation MLKP and of throwing a Molotov cocktail in a public place. The charges were brought under Articles 168 § 2 and 264 §§ 6 and 8 of the Criminal Code. 27. On 17 January 2000 the “trio protocol”, prepared jointly by the ministries of Justice, Health and Interior to introduce security measures on the access of lawyers to prisons, came into force. The Turkish Bar Association, considering such measures to be, inter alia, in breach of defence rights, gave a decision indicating to lawyers not to go into prisons while such measures remained in place. 28. In the meantime, on 27 December 1999 the criminal proceedings against the applicant commenced before the Istanbul State Security Court. In the course of the trial the applicant repeatedly denied any involvement with the MLKP and alleged that he had been tortured and forced to make self-incriminating confessions during his police interrogations. He rejected the findings of the medical reports included in the case file. The applicant also submitted that he had encountered difficulties in having access to his lawyer due to the stringent measures introduced by the “trio protocol”. Before the court the applicant's lawyer further maintained that, apart from one person, all other suspects who had given statements against the applicant had been acquitted before other courts. 29. On 4 September 2002 the Istanbul State Security Court found the applicant guilty of membership of an illegal armed organisation and sentenced him to twelve years and six months' imprisonment. In so doing, they took into account the evidence in the case file, including the applicant's statements given in police custody, the verbatim records of the reconstruction of the events and the statements of other suspects or convicts given to the police or another court. In particular, the court considered that, in the absence of any indication of ill-treatment noted in the medical report, the applicant's statements given to the police were sincere and truthful. 30. On 4 February 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. The applicant's request for a rectification of this decision was dismissed by the principal public prosecutor at the Court of Cassation on 20 March 2003. 31. Following the adoption of the new Criminal Code, the execution of the applicant's sentence was suspended by the Erzincan Assize Court on 22 October 2004. He was released from prison. 32. On 10 April 2006 by an additional judgment the Erzincan Assize Court reduced the applicant's original sentence to six years and three months' imprisonment. This decision became final on 10 May 2006.