CASE OF AKTÜRK v. TURKEY
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)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
4. The applicant was born in 1982 and is currently detained in the Tekirdağ F-type Prison. 5. According to the arrest report, signed by thirteen police officers, on 18 March 2009 at 2.15 p.m. the applicant was stopped by police officers for an identity check. He resisted and opened fire, killing a police officer. The other police officers used force to neutralise and arrest him. Several fake identity cards were found in the applicant’s bag. 6. At 5.15 p.m. the applicant was sent to the Bursa Şevket Yılmaz State Hospital for a medical examination. The medical report indicated that there were superficial grazes on the applicant’s back and bruises to the frontal region of his head, caused by blunt instrument trauma. It further specified that the abrasions on the applicant’s wrists could have been caused by handcuffs. The report concluded that the injuries on the applicant’s body were not life-threatening. 7. The applicant was then taken to the Kestel District Police Station. According to the form explaining the rights of arrested persons, the applicant was reminded of his rights, including his right to have the assistance of a lawyer, to remain silent, and to inform his family members of his arrest. According to a report signed by seven police officers, the police tried to conduct a fingerprint examination in order to identify the applicant, but he resisted, shouted slogans, tried hitting his head on the machine and kicked the nearby furniture. The applicant alleged that he had been beaten at the police station. 8. The applicant was subsequently transferred to the anti-terrorism branch of the Bursa Security Headquarters, where he was allegedly subjected to ill-treatment. According to the applicant, in the basement of the Bursa Security Headquarters, his testicles were squeezed and he was beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket. 9. According to a police report, on 19 March 2009 at about 7 p.m. the applicant was taken by four police officers to Istanbul, where he had offered to show the officers a house used as a cell by the MLKP (Marxist-Leninist Communist Party), an illegal organisation. It was reported that, as the applicant could not find the house, they returned to the Bursa Security Headquarters on 20 March 2009 at 4.15 a.m. This report was signed by four police officers, but the applicant declined to sign it. 10. On 20 March 2009 the applicant was questioned in the presence of his lawyer at the Bursa Security Headquarters in connection with the killing of a police officer and his alleged involvement in the MLKP. The applicant exercised his right to remain silent. 11. On the same day, the applicant was taken to the Bursa Forensic Medicine Institute. During his examination, the applicant complained that he had been ill-treated whilst in custody. He stated that he had been beaten, hung by his arms and hosed with cold water and alleged that ice cubes had been placed over his body. The medical examination revealed that the applicant had a haematoma under his left eyelid, a red-coloured bruise measuring 5 x 10 cm and swellings in his occipital region, and purplecoloured bruises on his right eye and periorbital region. It was also noted that the applicant had several bruises on his left eyebrow, on the zygoma, on both sides of his mouth, between his eyebrows, on his left arm and both wrists, and also on his penis. The doctor noted that the bruises on the applicant’s wrists could have been sustained as a result of the use of handcuffs. It was further noted that the applicant had complained about shortness of breath, headaches and pain in his ribs. The doctor requested consultations from the thoracic surgery, neurosurgery and internal medicine departments. 12. Later on the same day, the applicant was interrogated, in the presence of his lawyer, by both the Kestel Public Prosecutor and the investigating judge at the Kestel Magistrates’ Court and exercised his right to remain silent. On the basis of the evidence in the case file, the judge ordered his detention on remand. 13. On 21 March 2009 at about 1.40 a.m. the applicant was taken to the emergency department of the Bursa Uludağ University Hospital. In the hospital he was examined by several doctors, specifically from the neurosurgery, general surgery, thoracic surgery and radiology departments. The radiology examinations did not reveal any abnormality in the bones, lungs or heart. The general surgeon indicated that there was no need for surgery. Finally, the thoracic surgeon noted in his report that the applicant had no respiratory problems but that he had several bruises on his body, specifically on his back. He also stated that no fractured ribs had been observed. According to the information in the file, the applicant left the emergency department at about 4 a.m. 14. Later on 21 March 2009 the applicant was also taken to the emergency service of the Bursa State Hospital as he had complained of a pain in his chest. Following consultation of doctors from general surgery, neurosurgery and radiology departments, a doctor from the emergency service issued a report concluding that the applicant’s eighth and ninth ribs had been fractured and that he was suffering from post-traumatic injury. He was accordingly admitted to the emergency department for monitoring and observation. 15. On 30 March 2009 the applicant filed a complaint with the Bursa Public Prosecutor and alleged that he had been ill-treated in custody. In his petition, the applicant maintained that he had been beaten at the Kestel Police Station. He also maintained that following his transfer to the AntiTerrorism Branch of the Bursa Security Headquarters, his testicles had been squeezed, he had been beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket. The applicant further stated that he could identify the police officers who had ill-treated him if he met them face to face. 16. Upon receiving the applicant’s complaint, the Bursa Public Prosecutor initiated an investigation into his ill-treatment allegations. In this connection, the applicant gave a statement on 31 March 2009, and claimed in a detailed account that he had been ill-treated during his custody. The applicant further maintained that he would be able to identify the police officers who had ill-treated him. 17. The public prosecutor interviewed seven police officers who had been on duty at the time of the applicant’s arrest and during his custody at the Kestel Police Station and the Anti-Terrorism Branch of the Bursa Security Headquarters. They all denied the accusations against them. The police officers who had arrested the applicant stated that they had used proportionate force to neutralise him. 18. At the request of the public prosecutor, on 8 April 2009 the applicant was once again taken to the Bursa Uludağ University Hospital for a medical examination. As the gendarme officer refused to leave the consultation room, the doctor did not perform the examination. The gendarme officer issued a report stating that the doctor had not complied with the Protocol for Prisons signed by the Ministries of Justice, Health and Interior, dated 6 January 2000 ‒ according to which a gendarme officer is obliged to stay in the consultation room during the medical examination in a hospital of a person who has been remanded in connection with terrorismrelated crimes and the examination was then carried out in the absence of the gendarme officer. The doctor prepared a detailed report stating that there were several bruises on the front of his left arm which appeared to be self-inflicted. Similar marks were also noticed on his abdomen. Healed scars were observed on both wrists. Bruises on the fingers and right knee were also noted. 19. The doctor further ordered certain medical tests but according to the information in the case file, the prison authorities did not allow the applicant to go to the hospital on the appointment dates and transferred him to the Tekirdağ Ftype Prison. 20. On 15 April 2009 the Forensic Medicine Institute issued a medical report about the applicant based on the medical reports dated 20 March 2009 and 21 March 2009 issued by the Uludağ University Hospital. It was concluded that his injuries were not life-threatening and would heal with simple medical care. It was also noted that no fractured ribs had been observed. No reference was made to the medical report dated 21 March 2009 issued by the Bursa State Hospital. 21. In the course of the investigation, the public prosecutor also requested the video camera recordings taken during the applicant’s periods in custody in Kestel Police Station and the Bursa Security Headquarters. The Bursa Security Directorate informed the public prosecutor’s office that the camera recordings were only kept for eight days. 22. On 3 November 2009 the public prosecutor issued a non-prosecution decision. In his decision the prosecutor held that the injuries observed on the applicant’s body had been sustained during the scuffle at the time of his arrest. The prosecutor also concluded that the force used to neutralise the applicant had been in compliance with Article 16 of Law no. 2559 on the Duties and Powers of the Police. 23. On 1 December 2009 the applicant filed an objection against the public prosecutor’s decision. He repeated that he would be able to identify the police officers who had ill-treated him. On 23 March 2010 the Yalova Assize Court rejected the objection. 24. In the meantime, criminal proceedings were initiated against the applicant for killing a police officer. By a judgment delivered on 20 January 2012 the applicant was found guilty as charged and sentenced to life imprisonment. The case file contains no information regarding the current status of these proceedings.