CASE OF GÖK AND GÜLER v. TURKEY
Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza
4. The applicants were born in 1972 and 1975 respectively and live in Istanbul. 5. On 18 November 1995 the second applicant was arrested and taken into police custody on suspicion of membership of an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan). The first applicant was arrested and detained, on 23 November 1995, on the same grounds. 6. On 24 November 1995 the applicants and two other suspects were identified as those responsible by Mr G.T. and Mr O.T., eyewitnesses to the killing of their father, Mr M.S.T., by the PKK. 7. On 26 November 1995 the applicants were interrogated by two police officers, in the absence of a lawyer, and they both gave detailed statements regarding their participation in, inter alia, the killing of Mr M.S.T and kidnapping of G.T., on 2 August 1995, on behalf of the PKK. 8. On 27 November 1995 the applicants, in the absence of a lawyer, were first asked to identify from photos a deceased suspect and later confronted with other suspects. During this procedure both applicants gave details about the other detainees, such as their code names and acts undertaken by them. 9. On 28 November 1995, at 10.25 a.m., the applicants were examined by a doctor who noted that the first applicant had a bruise of 1x1 cm on his lower lip and that the second applicant had two scratches of 2 cm on his lower right knee and pain in his back and lower back. 10. In their application form the applicants submitted that they had been subjected to ill-treatment while in police custody. In this connection, they claimed that they had received electric shocks, falaka (beating of the soles of the feet) and Palestinian hanging. 11. In a letter to the Court dated 5 October 2004 the first applicant submitted, inter alia, that during his arrest he and his family had been sworn at and threatened and that when they had arrived at the police station he had been blindfolded. Subsequently, he had been interrogated by five or six police officers who had kicked and punched him and hit him with sticks. One of them had hit him in the stomach and another had stood on his head. When he had denied the accusations, they had subjected him to hanging and to electric shocks on his penis and feet. Later, when he had refused to sign a statement written by the police, two police officers had punched him in the face and squeezed his penis. Because of the pain he had signed the statement. The applicant further stated that the doctor who had examined him had seen the swelling on his lips and penis and had decided to transfer him to hospital but that the relevant paper had been ripped up by the police. 12. On the same day the applicants were brought before the public prosecutor at the Istanbul State Security Court where they refused to give any statements. 13. Later that same day the applicants were brought before a judge at the State Security Court where they refuted the contents of their statements to the police. The second applicant claimed that some of these submissions had been written by the police and that he had made others under duress. The first applicant submitted that the police had made him sign the statement without reading it. The judge remanded them in custody. 14. On 5 December 1995 the public prosecutor at the Istanbul State Security Court indicted the applicants under Article 125 of the Criminal Code for engaging in activities for the purpose of bringing about the secession of part of the national territory. In particular, they were accused of participating in the killing of Mr M.S.T and kidnapping of G.T. on 2 August 1995. 17. Between 5 March 1996 and 2 July 1999 the court held hearings on a regular basis during which it examined the accused and a number of witnesses, including those appearing for the defence. In particular, testimony was taken from the wife and sons of Mr M.S.T., including Mr G.T. All of them claimed that they would not be able to identify the perpetrators, in particular because they had been wearing masks. They further submitted that they knew the applicants because they were from the same village and were relatives but that they had never stated, during the identification procedure, that the applicants were responsible for the killing of Mr M.S.T. The court also took testimony from the police officers who had conducted the identification procedure and who stood by the content of the verbatim reports drawn up in that connection. On 12 December 1997 one of the judges, acting as rapporteur, examined the video footage of the re-enactment of events and submitted his report to the court. The applicants contested the report. On numerous occasions the applicants’ lawyer requested their release stating, in particular, that, apart from statements obtained under duress and torture, there was no evidence to convict the applicants. At a hearing on 27 March 1998 the prosecutor submitted his observations on the merits in which he requested the applicants’ conviction under Article 168 of the Criminal Code. The accused were granted time to submit their additional observations. 19. At a hearing on 2 July 1999 the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. At this hearing the court heard the additional defence submissions of three of the accused, including the second applicant. The next hearing was held on 10 September 1999, when the court heard the submissions of the applicants’ representative, the second applicant and some of the other accused. 20. In the meantime, on 2 July 1999, the applicants submitted their final written defence submissions in which they claimed that they had been subjected to torture, as shown by their medical reports, and that instead of opening an inquiry, the prosecution and the court had relied on their statements obtained under duress. 21. On the same day the first applicant wrote a letter to the court proclaiming his innocence. He reiterated that the police had made him sign some documents under torture. 22. On 17 November 1999 the court held a hearing. On the same day it decided to convict the applicants under, inter alia, Article 168 of the Criminal Code and sentenced them to twelve years and six months’ imprisonment. In its decision, the court held that the applicants, in their police statements, had acknowledged their relationship to and activities within the organisation and that although they had later retracted those statements, the court, having regard to the evidence in the case file, did not find their later submissions credible. 23. In the meantime, on 20 June 2000, the first applicant wrote to Ms Pişkinsüt, the chair of the Human Rights Commission of the Turkish Grand National Assembly, complaining about his alleged illtreatment. On 12 June 2001 the Fatih public prosecutor’s office decided not to commit any police officer for trial on the ground that the statutory time-limit for prosecution of the offence had expired. On 22 October 2004 the applicant filed a second petition with the Human Rights Commission of the Turkish Grand National Assembly. Once again, on 11 March 2005, the prosecutor decided that, despite recent amendments to the relevant provisions, the statutory timelimit in respect of the applicant’s complaint remained the same. 24. On 20 December 2000 the applicants appealed. In their petition they submitted, inter alia, that the first-instance court had based its conviction on their statements in police custody which had been obtained under duress. In this connection, they referred to their medical reports. 25. On 1 February 2001 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in so far as it concerned the applicants’ conviction and sentence. 26. On 9 November 2004 the applicants were released from prison.