CASE OF VOLKAN ÖZDEMİR v. TURKEY
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
Alvina Gyulumyan;Elisabet Fura;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1986 and lives in İzmir. 5. On 30 March 2002 the applicant, together with Mr Z.K., was arrested by police officers at the Buca District Security Directorate Security Office and taken into police custody on suspicion of committing robbery. 6. According to the record of the arrest, drafted by three police officers on the same day at 7.10 p.m. and signed by the applicant and Mr Z.K., the police had received information that at about 1 p.m. two persons had been seen trying to break into three different houses in Buca Egekent. A unit was dispatched and at 7 p.m. arrested the suspects, who corresponded to the description given by eyewitnesses; in the course of the arrest, the applicant had sustained various injuries to his knees, back and forehead since he had fallen on stony ground while he was running. 7. On the same day (30 March 2002) at 7.30 p.m. an eyewitness identified the applicant and Mr Z.K. in the course of an identification parade. 8. According to a verbatim report, the applicant was not questioned since he was a minor. 9. In the application form the applicant submitted, in great detail, that he had been subjected to various forms of ill-treatment while he was held in police custody. In particular, he submitted that he had been taken to an interrogation room where one part of the wall was covered with sponge and that the officers had hit his head against this wall. He claimed that, in this room, he had been beaten and threatened, for example with electric shocks, by four plain-clothed police officers. He stated that, although he was blindfolded, he was able to see at one point and recognised them from their voices. The applicant further stated that the officers had later made him take a cold shower, stripped him naked and tied his hands. He claimed that all this had taken place at Buca central police station and not at the Ş. Çoşkun Erçin police station, where he had been taken for certain procedures before being brought before the court. 10. At 7.45 p.m. the applicant was examined by a doctor at the Buca medical clinic, Mr O.T., who found that he had a 1.5 cm slight skin lesion and oedema on his head, an elliptical area of redness of around 8 cm in the middle of his back resulting from rubbing or hitting, a slight bruise on the back towards the right shoulder and a slight abrasion on the right knee due to rubbing. 11. On 31 March 2002, at 2.35 p.m., the applicant was examined by a doctor, Mr B.G., at the Buca medical clinic, who found that he had an old bruise of 6 cm by 7 cm in the middle of his back. The doctor considered it to be around seven to eight days old. 12. According to the undated rights of suspects and accused form signed by the applicant and a police officer at the Ş. Çoşkun Erçin police station, the latter was arrested at 7 p.m. However, according to the transfer/release form, dated 31 March 2002, the applicant was arrested by the İzmir Buca Juvenile Service on 30 March 2002 at 1.30 p.m. and released on 31 March 2002 at 4 p.m. According to a report (fezleke) prepared by the police, on 31 March 2002, the applicant and Mr Z.K. were arrested at 7.10 p.m. by police officers from Buca Security Office (Asayiş Bürosu). In this report it is stated that at 2.56 p.m. on 30 March 2002 Ms E.C. arrived at the police station to complain about the theft. 13. It appears that on 31 March 2002 the police attempted to bring the applicant before the prosecutor and a judge. However, since it was too late, the prosecutor ordered the applicant to be brought before him early the next day. The applicant was transferred to the İzmir Buca Juvenile Service to be detained. 14. On 1 April 2002 the applicant was first brought before the İzmir public prosecutor’s office and later before the İzmir Magistrates’ Court, where he denied the accusations against him. The applicant was represented by a lawyer appointed by the Bar. The court remanded him in custody. 15. On 8 April 2002 the İzmir public prosecutor filed a bill of indictment with the İzmir Criminal Court of First Instance, accusing the applicant and Mr Z.K. of theft on 6 February 2002 and of attempted theft on 30 March 2002 in three different houses. The charges were brought under Articles 493 and 522 of the Criminal Code. 16. Criminal proceedings were instigated against the applicant and Mr Z.K. before the İzmir Criminal Court of First Instance. At the hearing held on 29 April 2002 the applicant stated that he did not know what Mr Z.K. had been doing during the first attempted theft and had only understood during the second attempted theft. The applicant, who was represented by a lawyer, maintained that he had never entered anyone’s house or stolen anything and that at the time of the events, once he had understood what his friend was doing during the second attempted theft, on being told to run he had done so. The court ordered the release of Mr Z.K. and the applicant pending trial. 17. On 20 May 2002 the applicant filed an official complaint with the İzmir public prosecutor’s office against eight police officers, whom he believed to be working at the Ş. Çoşkun Erçin police station. In his complaint, the applicant submitted that at that police station he had received punches and kicks to his stomach, his head had been hit against a wall and he had been stripped naked, hosed with cold water, threatened with electric shocks and made to wait in the cold. He further complained that he had been unlawfully deprived of his liberty, since he had been arrested at 1.30 p.m. on 30 March 2002 but brought before a judge only on 1 April 2002. 18. On 23 August 2002 the İzmir public prosecutor Mr C.Ç. decided not to prosecute three police officers from the Ş. Çoşkun Erçin police station, two police officers from the Buca Juvenile Service and three police officers from the Buca Security Office on the ground that there was no evidence to substantiate the applicant’s allegations of ill-treatment. In particular, the prosecutor, referring to the record of the arrest, considered that the findings of the medical report were consistent with the injuries sustained by the applicant when he had fallen during his arrest. He further noted that the medical report had stated that these bruises were old. 19. On 23 December 2002 the applicant objected to the above decision. 20. On 6 January 2003 the Karşıyaka Assize Court dismissed the applicant’s objection concerning the alleged ill-treatment. In this connection, it held that, apart from the bruises sustained by the applicant while he had been running from the police and had fallen, there was no physical evidence of ill-treatment. On the other hand, it upheld the applicant’s objection regarding his deprivation of liberty on the ground that the applicant – a minor – had been brought before the prosecutor at 7.45 p.m. on 31 March 2002, whereas the prosecutor had asked at 1 p.m. that he be brought before him immediately. The court therefore decided that criminal proceedings should be instigated against the police officers for abuse of their position. That decision was served on the applicant’s lawyer on 21 January 2003. 21. In the meantime the Security Directorate initiated a disciplinary inquiry into the applicant’s allegations of wrongful deprivation of liberty as regards the length of his detention. On 10 September 2003 the Disciplinary Board, relying on the evidence in the case file, including the statements by the applicant and his mother, found that there was no need to impose a disciplinary penalty on the eight accused police officers from the İzmir Security Directorate. That decision was served on the applicant’s lawyer on 21 January 2003. 22. At a hearing held on 29 March 2004 the first-instance court heard evidence from the applicant. He submitted that he had been beaten at the police station by one dark-skinned police officer and that there had been others next to him. The applicant asserted that if he saw them he would be able to recognise them. He further stated that he had not lodged a complaint against the police officers. 23. In 2006 the first-instance court acquitted the police officers. The applicant appealed. The case is pending before the Court of Cassation. 24. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Okkalı v. Turkey (no. 52067/99, §§ 47-52, ECHR 2006-XII (extracts)), and Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-100, 2004IV (extracts)).