CASE OF ŞAKIR KAÇMAZ v. TURKEY
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The applicant was born in 1973 and is currently serving a prison sentence in Tokat Prison. 6. On 30 September 2001 the applicant was arrested on suspicion of membership of an illegal organisation, namely the Hizbullah. According to the arrest report, signed by four police officers, during his arrest the applicant attempted to swallow some pieces of papers and resisted the police officers who tried to take the papers out of his mouth. 7. On the same day, the applicant was examined by a doctor at the Diyarbakır State Hospital. The doctor noted, on a police document, that the applicant had a widespread bruised area under his left eye, oedema under his right eye, a scratch on his left wrist, red patches behind his left ear and bleeding on his right ear. 8. On 7 October 2001 the applicant was examined by a doctor who diagnosed him with pharyngitis and prescribed him medication. 9. On 8 October 2001 the applicant was questioned at the anti-terror branch of the Diyarbakır security directorate and confessed to his involvement in Hizbullah. 10. On 9 October 2001 at 2.45 p.m. the applicant was sent for a medical examination at the Diyarbakır Health Clinic. In a document of the police directorate in which the applicant’s name was put, the doctor who examined the applicant noted that he had a widespread bruised area under his left eye and small scratches on his left wrist. 11. On the same day, the applicant was questioned by both a public prosecutor and an investigating judge. Before the public prosecutor, the applicant responded to the questions by nodding. The public prosecutor noted that the applicant was unable to speak and therefore could not make statements. Before the investigating judge, the applicant wrote down on a piece of paper that his throat and internal organs hurt and that he was unable to speak. He further noted that he would examine his police statements and the evidence against him in detail and make his defence submissions before the trial court. 12. On the same day the investigating judge authorised the applicant’s detention at the anti-terror branch of the Diyarbakır security directorate for a further period of ten days on the basis of Legislative Decree no. 430 in force at the material time. 13. Later that day, at 9 p.m., the applicant was examined at the Diyarbakır State Hospital. The doctor who conducted the examination stated in a police document that the applicant had a bruise, measuring 2x3 cm, under the left orbital region and was suffering from tonsillitis. 14. On 10 October 2001 the applicant was referred to the emergency room of the state hospital in Diyarbakır, where the doctors considered that he should be examined by a doctor at the otolaryngology department of the hospital. The applicant was subsequently subjected to a number of auditory examinations and at 2.30 p.m. on the same day an otolaryngologist stated, in a letter sent to the hospital by the police, that the applicant suffered from otitis in his right ear and tympanic membrane perforation in his left ear which could have occurred as a result of trauma. The doctor further noted that the applicant suffered from hearing loss. 15. On 18 October 2001 the applicant made further statements to the police. According to the document containing his police statement, he had already made statements concerning his relations with the illegal organisation and he did not wish to make any further submissions as to the content of the documents that he had attempted to swallow during his arrest. 16. On the same day the applicant was once again examined by a doctor at the Diyarbakır Health Clinic. The doctor stated in a letter sent to the hospital by the Diyarbakır security directorate concerning the applicant that the latter looked weak but did not bear any signs of physical violence on his body. 17. On the same day the applicant was transferred to the Diyarbakır prison, where he was detained on remand. 18. On 2 November 2001 and 14 December 2001 the applicant was subjected to medical examinations at the Diyarbakır State Hospital and received treatment for breathing and indigestion problems while detained in the Diyarbakır prison. 19. On 12 October 2001 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant of membership of the Hizbullah under Article 168 of the former Criminal Code. 20. The proceedings commenced before the Diyarbakır State Security Court. On an unspecified date, the case against the applicant was joined with another case which was pending before the Van State Security Court and which had been brought against a number of other persons who were charged with membership of the Hizbullah. 21. On 6 May 2003 the Van State Security Court found the applicant guilty of attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code and sentenced him to life imprisonment. On 8 June 2004 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds. 22. In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Van Assize Court acquired jurisdiction over the case. 23. On 11 May 2006 the Van Assize Court sentenced the applicant to life imprisonment for membership of the Hizbullah and for his involvement in activities attempting to undermine the constitutional order by force 24. On 16 May 2006 the applicant’s lawyer lodged an appeal against the judgment of 11 May 2006. 25. On 15 March 2007 the Court of Cassation held a hearing during which the applicant’s lawyer was present and made defence submissions. On the same day, the Court of Cassation upheld the judgment of the firstinstance court in so far as it concerned the applicant’s criminal conviction. 26. On 21 March 2007 the Court of Cassation pronounced its decision. 27. Following the deposit of the decision of the Court of Cassation with the registry of the first-instance court, on 14 June 2007 the Bitlis public prosecutor issued a committal order concerning the execution of the sentence (müddetname). On 21 June 2007 the committal order was served on the applicant. 28. On 24 December 2001 the applicant lodged two petitions with the public prosecutor’s office at the Diyarbakır State Security Court and stated that he had been subjected to illtreatment before and during his detention in police custody. In this connection, he alleged that he had been beaten before he was taken to the hospital on the day of his arrest and that the injuries that he had sustained on his face were the result of those beatings. He further maintained that he had been stripped naked, blindfolded, insulted, threatened, strangled, subjected to electroshocks and suspended by his arms, hosed with pressurised cold water and had his testicles squeezed. The applicant further submitted that the police officers had put pressure on the injuries he had sustained under his eyes with a view to making him suffer. The applicant noted in his petition that he had suffered from tympanic membrane perforation as a result of his ill-treatment. He finally submitted that he had not made a statement before the public prosecutor and the investigating judge on 9 October 2001 as he had been unable to speak due to the ill-treatment that he had suffered at the hands of the police. 29. On 16 January 2002 the public prosecutor at the Diyarbakır State Security Court transferred the applicant’s petition to the Diyarbakır public prosecutor’s office, noting that he did not have jurisdiction to investigate the applicant’s allegations. 30. On 28 January 2002 the Diyarbakır public prosecutor sent letters to the public prosecutor at the Diyarbakır State Security Court and the anti-terror branch of the Diyarbakır security directorate requesting them to submit to him the medical reports issued in respect of the applicant and his police statements. 31. On the same day the public prosecutor also requested the Diyarbakır prison authorities to bring the applicant to his office for his statement to be taken. 32. On 4 February 2002 the Diyarbakır public prosecutor took a statement from the applicant regarding his complaint. The applicant contended that he had been tortured during the first phase of his detention in police custody, that is to say, between 30 September and 9 October 2001. He noted that he had been stripped naked, blindfolded, insulted, subjected to electroshocks and hosed with pressurised cold water on his testicles and his ears, which had resulted in the injury to his ears. He also reiterated his allegation that the officers had put pressure on the injuries that he had sustained to his face at the time of his arrest. He finally complained that between 9 and 18 October 2001 he had been subjected to psychological pressure by the police. 33. On the same day the applicant was examined at the Diyarbakır branch of the Forensic Medicine Institute upon the request of the Diyarbakır public prosecutor. According to the report issued as a result of this examination, there was no sign of physical violence on the applicant’s body. The medical expert however noted that as regards the applicant’s allegations of ill-treatment, he could draft a further report after obtaining the reports issued during and after the applicant’s detention in police custody. 34. On 6 February 2002 the applicant was subjected to a medical examination at the Diyarbakır state hospital as a result of which a report was issued. According to that report, the tympanic membrane of the applicant’s left ear was intact. 35. On 29 May 2002 the Diyarbakır branch of the Forensic Medicine Institute issued a report in respect of the applicant upon the request of the Diyarbakır public prosecutor for an opinion as to whether the applicant could have sustained the injuries noted in the medical reports as a result of ill-treatment. The report noted that there was a contradiction between the report of 6 February 2002, which stated that the tympanic membrane of the applicant’s left ear was intact, and that of 10 October 2001, according to which the applicant suffered from tympanic membrane perforation in his left ear. The medical expert who prepared the report opined that in order to issue a final report, the applicant should be subjected to a medical examination and an enquiry should be conducted. 36. Between 30 July and 26 November 2002 the Diyarbakır public prosecutor sent letters to the authorities of several prisons asking the latter to send the applicant for a medical examination. On each occasion, the prison directors informed the public prosecutor that the applicant had been transferred to another prison. 37. On 19 December 2002 the applicant was subjected to a medical examination of his ears at the Van University Research Hospital upon the request of the Diyarbakır public prosecutor. The report issued in respect of the applicant did not make any reference to a perforation in the applicant’s left ear. 38. On 7 March 2003 the Diyarbakır public prosecutor once again requested the Diyarbakır branch of the Forensic Medicine Institute to prepare a report containing an opinion as to whether the applicant could have sustained his injuries as a result of ill-treatment. 39. On 7 March 2003 a doctor from the Diyarbakır branch of the Forensic Medicine Institute sent a letter to the Diyarbakır public prosecutor informing him that a final opinion could be provided only following a detailed otolaryngological examination of the applicant. 40. On 1 July 2003 the applicant was examined by a doctor at the Van state hospital upon the request of the Diyarbakır public prosecutor. The medical expert who examined the applicant noted that the tympanic membrane of the applicant’s left ear was intact. 41. On 5 February and 22 April 2004 the Diyarbakır public prosecutor requested the Van State Security Court to submit to him a copy of the applicant’s police statements, the arrest and search reports and the medical reports issued in his respect which were in the file of the case brought against him. On 4 May 2004 the president of the Van State Security Court sent a letter to the public prosecutor informing him that the case file was at the Court of Cassation as the appeal proceedings were pending. On 22 August 2005 and 5 January and 20 September 2006 the public prosecutor reiterated his requests as he had not received the documents asked for. On 20 September 2006 the president of the first-instance court, which, in the meantime, had became the Van Assize Court, reiterated his previous reply. On an unspecified date in 2007 the Diyarbakır public prosecutor received a copy of the case file. 42. In the meantime, on 6 April 2004 the applicant sent a letter to the Diyarbakır public prosecutor and asked for information on the outcome of the investigation into his allegations of ill-treatment. Stating that he had not been informed of the progress of the investigation during the previous two years, he submitted that the investigation and his medical examinations focused only on the injury to his left ear, whereas he suffered from other injuries and illnesses as a result of his illtreatment in police custody. The applicant requested that he undergo a thorough examination at the Forensic Medicine Institute. He received no response to his petition. 43. 22 April 2004 the Diyarbakır public prosecutor requested the antiterror branch of the Diyarbakır security directorate to send him the documents pertaining to the applicant’s police custody and information as to the place of duty of the suspected police officers. On 20 May 2004 the antiterror branch of the Diyarbakır security directorate sent the documents and information requested. 44. On 19 October 2004 the applicant maintained before the Van Assize Court that he had lodged a petition complaining about ill-treatment that he had endured in police custody and asked to be informed of the outcome of the investigation initiated into his allegations. 45. On 18 December 2005 the applicant was once again subjected to an auditory examination at the Van University Research Hospital. The doctor who prepared the medical report noted that the applicant suffered from slight hearing loss. 46. On 11 May 2006 the applicant once again requested to be informed of the outcome of the investigation into his allegations of ill-treatment before the Van Assize Court. He received no response. 47. On 26 June 2007 the applicant submitted a petition to the prison administration to be sent to the Diyarbakır public prosecutor’s office. He received no reply. On 23 June 2009 the applicant was informed that his petition had been received and no response had been given. It should be noted that the content of the applicant’s petition is not available in the case file. 48. On 8 August 2007 the Diyarbakır public prosecutor asked the Diyarbakır branch of the Forensic Medicine Institute to provide a report on whether the applicant could have sustained the injuries observed on his body as a result of the use of force by the police. 49. By letters dated 2 October 2007 and 14 May 2008 the public prosecutor further asked the Diyarbakır branch of the Forensic Medicine Institute to provide a medical opinion as to whether the applicant could have sustained his injuries as a result of proportionate use of force and as to whether there had been a difference between the medical reports issued at the beginning and the end of the applicant’s detention in police custody. On 23 May 2008 an expert from the Diyarbakır branch of the Forensic Medicine Institute informed the public prosecutor that the documents in the case file should be sent to the 2nd Section of Expertise of the Forensic Medicine Institute in Istanbul. 50. Meanwhile, on 13 March 2008 the Diyarbakır public prosecutor requested the Dicle University Research Hospital to assign a medical expert to prepare a report containing an opinion on the veracity of the applicant’s allegations on the basis of the medical reports issued in respect of the applicant. 51. On 12 May 2008 a medical expert from the Dicle University Research Hospital sent a report to the public prosecutor’s office. According to the doctor, it was possible that the tympanic membrane perforation in the applicant’s left ear had recovered over time. He also considered that the perforation could have occurred as a result of trauma during the applicant’s arrest or when he had been in police custody. 52. On 26 May 2008 the applicant submitted a petition to the Diyarbakır public prosecutor’s office and requested to be informed of the outcome of the investigation. By a letter dated 3 June 2008 the Diyarbakır public prosecutor informed the applicant that the investigation file had been sent to the 2nd Section of Expertise of the Forensic Medicine Institute and the investigation was pending. 53. On 27 May 2008 the Diyarbakır public prosecutor requested that the applicant be examined by the 2nd Section of Expertise of the Forensic Medicine Institute. Between 15 July and 28 October 2008 the public prosecutor sent letters to the Diyarbakır prison, where the applicant had been transferred, and asked the prison authorities to send the applicant to Istanbul for a medical examination at the Forensic Medicine Institute. 54. On 12 November 2008 the applicant was examined at the Forensic Medicine Institute. During his examination, the applicant stated that he had been beaten at the time of his arrest. He also maintained that he had been illtreated while in police custody. 55. On 31 December 2008 the 2nd Section of Expertise of the Forensic Medicine Institute issued a report. In this report, reference was made to the arrest protocol, dated 30 September 2001, which stated that the police officers had had to use force to apprehend the applicant, since he had resisted arrest. The Forensic Medicine Institute also took into consideration the aforementioned medical reports dated 30 September 2001, 9, 10 and 18 October 2001, 4 and 6 February 2002, 7 March and 1 July 2003 and 12 May 2008. On the basis of these reports and the medical examination of the applicant carried out on 12 November 2008, the 2nd Section of Expertise of the Forensic Medicine Institute established that the injuries observed on the applicant’s body had not been life-threatening, but would have prevented him from continuing his daily activities for fifteen days. It was further indicated that the injuries on the applicant’s face and ear could have been caused by a blow with a blunt object during the applicant’s arrest. The report further stated the applicant had not been subjected to an examination of his ear between 30 September and 10 October 2001 and that the red patches behind the applicant’s left ear noted in the report of 30 September 2001 could have been caused by physical trauma which could have also led to the tympanic membrane perforation in his left ear. The 2nd Section of Expertise finally noted that there was no medical evidence demonstrating that the applicant had been subjected to physical trauma during his detention in police custody. 56. On 15 October 2009 the Diyarbakır public prosecutor decided to close the investigation into the applicant’s allegations of ill-treatment. In his decision, he relied on the report of the 2nd Section of Expertise of the Forensic Medicine Institute and held that the injuries observed on the applicant’s body had been sustained during the scuffle at the time of his arrest. The public prosecutor noted that the injuries observed on the applicant’s person had been caused by the force used to arrest the applicant, which had been in compliance with the Law on the Duties and Powers of the Police (Law no. 2559) and that there was no report or other evidence showing that the police officers had exceeded the limits of their powers on the use of force. The public prosecutor further considered that there was no evidence, such as medical reports or witness statements, demonstrating that the applicant had been ill-treated while detained in police custody. He also stated that the length of the applicant’s detention in police custody had been in accordance with the legislation at the material time. The public prosecutor thus concluded that there was no evidence to support the applicant’s allegation that he had been subjected to ill-treatment while in police custody. 57. On 4 November 2009 the applicant lodged an objection with the Siverek Assize Court against the decision of 15 October 2009. In his petition, the applicant submitted that his medical examination by the 2nd Section of Expertise of the Forensic Medicine Institute had been conducted too late. He also contended that his medical examinations had been superficial. For instance, no examination had been carried out in relation to his allegation of being subjected to electroshocks. The applicant finally submitted that he had had to be taken to the emergency service while in police custody due to his problems with his ear. 58. On 29 March 2010 the Siverek Assize Court rejected the applicant’s objection, holding that there was no evidence showing that the applicant had been subjected to ill-treatment. 59. On 22 May 2002 the applicant lodged an application with the Court alleging a violation of, inter alia, Article 3 of the Convention. The applicant alleged that he had been subjected to ill-treatment during his arrest and while in detention in police custody. 60. On 13 December 2005 the Court, sitting as a Committee of three judges, declared the applicant’s complaint under Article 3 inadmissible for non-exhaustion of domestic remedies.