CASE OF SEYFETTİN GÜNEŞ v. TURKEY
Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
4. The applicant was born in 1970 and is serving a sentence in Batman prison. 5. In April 2000 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. He claimed to have been arrested on 4 April 2000, whereas according to the arrest report he was taken into custody on 7 April 2000. His first medical examination upon his arrest was, however, carried out on 6 April 2000. 6. The examination was carried out by a doctor at the request of the police. According to the medical report issued in respect of the applicant, it was conducted prior to his detention in police custody. The report stated that there was old scar tissue measuring 3 cm on his upper right wrist. The doctor also noted that there were no signs of violence on the applicant’s body. 7. On 9 April 2000 a second medical report was drafted, according to which the scar tissue mentioned in the medical report of 6 April 2000 was 2.5 cm long. 8. On 10 April 2000 the applicant was questioned by the police without a lawyer being present. According to the document containing his statements to the police, he acknowledged being a member of Hizbullah. 9. On 11 April 2000, at the end of his detention in police custody, the applicant was once again examined by a doctor. According to the report, there were no signs of violence on his body. 10. On the same date the applicant was brought before the public prosecutor and, subsequently, a judge, who questioned him and recorded his statements. On both occasions he denied the veracity of his statements to the police, claiming that he had signed them under duress. The judge remanded him in custody. 11. On 3 May 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant and a number of other individuals. They were charged with being members of Hizbullah under Article 168 of the former Criminal Code. 12. On 27 June 2000 the Diyarbakır State Security Court held the first hearing on the merits of the case, at which the applicant gave evidence. He maintained, inter alia, that while in police custody, he had been beaten and given electric shocks to his genitals. He also told the court that he had been taken into police custody on 6 April 2000. 13. On 2 July 2001 the applicant once again maintained before the firstinstance court that his statements to the police had been obtained under torture. 14. In 2004 State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court. 15. On 11 October 2004 the applicant was released pending trial. 16. On 25 October 2005 the case against the applicant and his coaccused was joined with another case brought against a number of other people charged with being members of Hizbullah. 17. Between 11 October 2004 and 13 February 2008 the applicant did not attend court, although during this period his lawyers attended some hearings on his behalf. 18. On 13 February 2008, during the final hearing in the case, the applicant’s lawyer contended that the court should not base its judgment on the applicant’s statements to the police, as they had been made under duress. 19. On the same day the Diyarbakır Assize Court convicted the applicant of being a member of an illegal organisation and sentenced him to ten years’ imprisonment. The court noted that he had alleged that he had been tortured in police custody. It nevertheless based its judgment on the statements the applicant and a number of the other accused had made to the police, and documents found in the applicant’s house at the time of his arrest. 20. On 24 June 2009 the applicant’s lawyer lodged an appeal against the judgment of 13 February 2008, which did not refer to any of the applicant’s allegations of ill-treatment while in police custody. 21. On 30 September 2009 the Court of Cassation upheld the judgment. 22. On 1 December 2009 the applicant began serving his sentence. 23. On 25 October 2010 he filed a petition with the Batman public prosecutor’s office, requesting that an investigation be initiated into his illtreatment while in police custody in April 2000. 24. On 1 December 2010 the applicant gave statements to the Batman public prosecutor. He maintained that he had not been taken into police custody on 6 April but on 4 April 2000, and that he had been subjected to torture while detained. He requested that both the police officers on duty at the relevant time and the doctors who had issued the medical reports be prosecuted. 25. On an unspecified date the Batman public prosecutor requested the Diyarbakır branch of the Forensic Medical Institute to examine the applicant and provide an opinion as to whether his allegations of torture were wellfounded. 26. On 2 December 2010 a doctor from the Diyarbakır branch of the Forensic Medical Institute conducted the examination. The applicant told the medical expert that he had been hung by his wrists in police custody, and that they had been bruised at the material time. The doctor drafted a detailed report comparing the results of the three medical reports issued in April 2000 and containing his opinion. He considered that the term “old scar tissue” should not have been used in the reports issued in 2000, since such scars did not fade for a long time. In this connection, the doctor noted that he could not see any such scar when he examined the applicant in 2010. In sum, the doctor considered that had the scar observed during the medical examinations in 2000 been an “old scar”, it would still have been observed during the examination of 2010. He also noted that the reports issued in April 2000 had not described the type, colour or any other features of the scar. Lastly, he recommended that the applicant undergo an examination at the Forensic Medical Institute in Istanbul with a view to establishing whether he had been suffering any psychiatric problems as a result of the alleged torture. 27. On 28 November 2011 the Batman public prosecutor decided not to prosecute the officers on duty at the Batman police station at the relevant time or the three doctors who had issued the medical reports on 6, 9 and 11 April 2000. The public prosecutor noted that the statutory time-limit provided in Article 102 of the former Criminal Code (which had been in force in 2000 for prosecutions for torture) was ten years, and that the applicant had lodged his complaint after this time-limit had expired. It was accordingly concluded that the investigation was timebarred. 28. On 19 December 2011 the applicant objected to that decision. 29. On 23 January 2012 the Midyat Assize Court dismissed his objection and the decision was upheld. 30. On 8 January 2001, while the applicant was in custody, his hip was broken while he was playing volleyball. He had surgery twice. 31. In medical reports dated 16 April, 24 May and 26 September 2002, doctors from the Dicle University Faculty of Medicine concluded that for him to make a full recovery, he would need to have a hip replacement. 32. On 23 December 2002 and 13 January 2003 the applicant filed petitions with the Batman public prosecutor, requesting immediate surgery and complaining of a delay in treatment. 33. On 6 February 2003 the applicant’s father submitted another petition to the Ministry of Justice requesting immediate intervention. 34. A prosthetic hip was implanted after four consecutive operations carried out on unspecified dates in 2003 or 2004. On 22 October 2004 the applicant was declared unfit for military service because of the prosthesis.