CASE OF SERDAR GÜZEL v. TURKEY
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13+3;Violation of Art. 5-3;Violation of Art. 6-1
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
4. On 20 February 1999 the applicant was arrested by officers from the anti-terrorist branch of the Istanbul Police Headquarters on suspicion of membership of the MLKP (Marxist-Leninist Communist Party), an illegal organisation; he was arrested in a restaurant along with a woman, G.B. According to the arrest report signed by four police officers, the applicant and G.B. attempted to escape, following which the officers were obliged to use force in order to effect their arrest. Thereupon, the applicant and G.B. were found to possess false identity cards. 5. On the same day the applicant was medically examined by a doctor who noted that he was suffering from pain and restricted movement in his shoulders. 6. The applicant was subsequently placed in the Istanbul Police Headquarters. He was allegedly ill-treated there. In particular, he claimed to have been subjected to hanging, to have had his testicles squeezed and to have been forced to lie in ice covered by a wet blanket. 7. On 25 February 1999, at 3.10 p.m., the applicant was again examined by a doctor, who noted the following: “There is a bruise of 2 cm. on the right ...” 8. On 27 February 1999, at 12 p.m., the applicant was examined by a doctor from the Istanbul branch of the Forensic Medicine Institute, who observed the following on the applicant's body: “An ecchymosis of yellow-green colour of 4 x 3 cm under the left eye; a haematoma of 3 x 2 cm on the exterior of the right eyebrow; a scabbed wound of 1 cm on the vertex; scabbed grazes on the exterior of the left wrist; an ecchymosis of yellow colour of 10 x 10 cm and a hyperaemia of 4 x 3 cm in the right armpit; sensitivity in the right testicle...” 9. On the same day the applicant was taken before the public prosecutor and a single judge at the Istanbul State Security Court. On both occasions the applicant maintained that he had been subjected to torture while in police custody. He submitted that he had been subjected to hanging, that his testicles had been squeezed and that he had been forced to lie in ice covered by a wet blanket. 10. On the same day the judge at the State Security Court ordered the applicant's pre-trial detention. The applicant was subsequently placed in Ümraniye prison. 11. On 6 April 1999 the applicant lodged a criminal complaint with the Fatih Public Prosecutor's Office against the police officers who had allegedly inflicted the ill-treatment on him. He stated that he had been beaten, hung by the arms, immersed in cold water and forced to lie in ice. Furthermore, his testicles had been squeezed. Stating that he would recognise the police officers who had been responsible for his ill-treatment, the applicant requested that an investigation be initiated into his allegations. 12. On 31 December 2002 the Fatih Public Prosecutor issued a decision not to prosecute anyone in relation to the applicant's allegations. He noted in the decision that the applicant had refused to go to the public prosecutor's office from prison to make statements and that the police officers had denied the veracity of the allegations against them. 13. On an unspecified date the decision of 31 December 2002 was quashed. 14. On 1 August 2003 the Fatih Public Prosecutor filed a bill of indictment with the Fatih Criminal Court against four police officers from the anti-terrorist branch of the Istanbul Police Headquarters, charging them with ill-treatment under Article 245 of the former Criminal Code. 15. On 2 April 2004 the Fatih Criminal Court issued a decision based on lack of jurisdiction and transferred the case to the Istanbul Assize Court because the charges of torture should have been brought under Article 243 of the former Criminal Code. 16. On 27 September 2004 the applicant joined the case against the police officers as a civil party. 17. Between 27 September 2004 and 26 July 2006, the First Chamber of the Istanbul Assize Court postponed the hearings as some of the accused police officers could not be summoned. 18. On various dates the accused police officers and the applicant made statements before different courts at the request of the Istanbul Assize Court. These statements were then sent to that court. 19. On 13 December 2006 the Istanbul Assize Court held that the criminal proceedings against the police officers should be discontinued on the ground that the prosecution was time-barred (zamanaşımı). 20. On 27 February 2008 the Court of Cassation upheld the judgment of 13 December 2006. 21. On 27 August 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and eleven other persons. The applicant was charged with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. 22. On 11 November 1999 the Istanbul State Security Court held the first hearing on the merits. 23. Pursuant to Law no. 5190 of 16 June 2004 abolishing State Security Courts, published in the Official Gazette on 30 June 2004, the case against the applicant was transferred to the Istanbul Assize Court. 24. According to the information in the case file, the applicant was released from pre-trial detention on 4 January 2011. However, the case against the applicant is still pending before the Thirteenth Chamber of the Istanbul Assize Court. 25. A description of the relevant domestic law at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 9599, ECHR 2004-IV), and Barış v. Turkey, (no. 26170/03, § 14, 31 March 2009)