CASE OF DUR v. TURKEY
Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
4. The applicant was born in 1973 and lives in Cologne, Germany. 5. On 27 October 1998 at 1 p.m. a group of 43 women belonging to “Mothers for Peace”, including the applicant, arrived at the provincial branch of the Motherland Party (Anavatan Partisi (ANAP)) in Istanbul in order to meet that party’s provincial leaders. Two women who received them at the entrance of the building stated that there was a press conference in progress, asked them to wait in the waiting room, which was on the third floor of the building, and left. 6. Five to ten minutes later, police officers arrived in the waiting room, threw a smoke bomb inside and entered. A police officer hit the applicant on the back of her head with a truncheon, grabbed her hair and dragged her down the stairs. She was then put in a police vehicle and taken to the Beyoğlu police headquarters. 7. On the same day at 3.50 p.m. the applicant, along with the other 42 women, was examined by a doctor at the Beyoğlu branch of the Forensic Medicine Institute. According to the medical report, the applicant had oedemas on her neck and scalp. The doctor considered that the injuries rendered the applicant unfit to work for three days. 8. The applicant spent the night in a cell with 10 other women at the police headquarters. Police officers came to the cell two or three times and insulted and beat the detainees each time. 9. On 28 October 1998 the applicant was examined by the same doctor at the Beyoğlu branch of the Forensic Medicine Institute, who noted no new injuries on the applicant’s body. 10. On the same day, the applicant and the other 42 women were brought before the Beyoğlu Magistrates’ Court. They were questioned about whether they had deprived Y.U., the person who was in charge of the coffee bar in the waiting room, of his liberty and whether they had resisted the police officers who had arrested them. They all contended that they had neither deprived Y.U. of his liberty nor resisted the police officers. The court remanded five women in custody and ordered the release of the others, including the applicant. 11. On 27 October 1998 a group of 43 women, including the applicant, entered the premises of the provincial branch of the Motherland Party in Istanbul after a press conference had been held by the party’s Vice-President. They occupied the premises with the aim of protesting against a meeting which would be held there and attended by the party members. The security forces attempted to lead the women out of the building in order to prevent possible clashes between them and the party members. Three of the women, including the applicant, resisted the police and used physical violence. All 43 women were then arrested and taken to the Beyoğlu branch of the Forensic Medicine Institute for a medical examination. Subsequently, they were taken to the Beyoğlu police headquarters. 12. The police took statements from Y.U., who maintained that the women who had occupied the premises had beaten four party members and deprived him of his liberty. He further stated that they had resisted the police officers during the arrest. 13. On 2 November 1998 the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Assize Court, charging all 43 women with resisting the police and depriving Y.U. of his liberty for ideological reasons. 14. On 4 November 1999 the Beyoğlu Assize Court acquitted the applicant and the other accused. In its judgment, the trial court noted that the accused women were members of “Mothers for Peace” and that they had visited the Motherland Party in order to hold a meeting with the members of that party with a view to informing them of their problems. The court further noted that there was no evidence in the case file demonstrating that the members of “Mothers for Peace” had committed an offence. In particular, they had not deprived Y.U. of his liberty or damaged the building. Nor had they had any objects on their person which could have been used to commit offences. Furthermore, no complaint had been lodged against them by the party members who had allegedly been beaten by them. The court further observed that there was no evidence that the accused had resisted the police as no officer had been injured in the course of the arrest. On the contrary, some of the women, including the applicant, had sustained injuries. 15. According to the information in the case file, no appeal was lodged against the judgment of 4 November 1999. 16. On 19 March 1999 the applicant lodged a complaint with the Beyoğlu public prosecutor’s office, alleging that physical force had been used by the police officers during her arrest and requesting that an investigation be initiated. 17. On an unspecified date the Beyoğlu public prosecutor initiated an investigation. Within the context of this investigation, on 26 May 1999 the applicant made statements to the public prosecutor and reiterated her allegations. On the same day, she was examined by a doctor, who noted that there were no injuries on her body. On 30 September 1999 the public prosecutor took statements from a police officer, F.M.S., who denied the allegation of having ill-treated the applicant. 18. On 8 October 1999 the Beyoğlu public prosecutor issued a decision not to prosecute F.M.S. in respect of the applicant’s allegation. In his decision, the prosecutor noted that there was insufficient evidence to suggest that F.M.S. had ill-treated the applicant, who had participated in an illegal meeting and resisted the police. The public prosecutor considered that the force employed by the police had not been excessive and that they had acted within the scope of their duties. 19. The decision of 8 October 1999 was not served on the applicant or her representatives. One of the applicant’s representatives obtained a copy of the decision from the Fatih public prosecutor’s office in October 2002. 20. On 31 October 2002 the applicant filed an objection against the decision of 8 October 1999. 21. On 31 March 2003 the Istanbul Assize Court dismissed the applicant’s objection, holding that the decision of 8 October 1999 was in accordance with the law. 22. A description of the relevant domestic law in force at the material time can be found in Balçık and Others v. Turkey (no. 25/02, § 19, 29 November 2007), Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-99, ECHR 2004IV), Elci and Others v. Turkey (nos. 23145/93 and 25091/94, § 577, 13 November 2003) and Altay v. Turkey (no. 22279/93, § 31, 22 May 2001).