KAHRAMANOĞLU v. TURKEY
Inadmissible
Nicolas Bratza
The applicant, Kenan Kahramanoğlu, is a Turkish national, who was born in 1972 and lives in Istanbul. He is represented before the Court by Mr Ö. Kılıç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 August 1996 police officers from the Beyoğlu Police Department in Istanbul arrested the applicant and transferred him to the Anti-Terrorism branch of the Istanbul Security Directorate. He was accused of membership of an illegal organisation called the Revolutionary Left (THKP-C Devrimci Sol). It was alleged that he had been involved in armed attacks organised by the said organisation in 1992. In particular, the applicant, whose code name was ‘Yusuf’ within the organisation, allegedly took part in the killing of a police superintendent. On 28 August 1996 the applicant was questioned by two police officers from the Anti-Terrorism branch in relation to his involvement in the organisation. He confessed to being a member of the THKP-C and to having taken part in the killing of the police superintendent. He claimed, however, that he had not been involved in the organisation since 1994. On 2 September 1996 the applicant was examined by a doctor from the Istanbul State Security Court Forensic Medicine Institute. The doctor, MD Cahit Alkış, reported that the applicant had described to him a sensation of pain in his right shoulder and testicles as well as numbness in his right arm. It was also noted in the report that the applicant had complained of pain when urinating. The doctor concluded that the applicant should be transferred to a State hospital for a further neurological and urological examination. Following his examination in the State Hospital, the applicant was again examined on 3 September 1996 by Dr Alkış from the Forensic Medicine Institute. Referring to the applicant’s examination by the urology department of the State hospital, Dr Alkış noted in his report that there was no pathological finding. However, the neurological examination had indicated that the applicant had felt weakness in the region of his shoulder and shoulder blade and in particular when squeezing his right hand. The applicant had also complained of pain in his right elbow and right shoulder when extending his arm. Dr Alkış thus requested the applicant to undergo an EMG (electromyogram) examination the next day. On 3 September 1996 the applicant was brought before the public prosecutor attached to the Istanbul State Security Court, where he denied the charges. He submitted that the incriminating police statements had been taken under torture and that he had not been able to read the statements before signing them. He further stated that he did not have any connections with the said organisation and that he had not been in Istanbul in 1992. On the same day, the applicant was taken before the Istanbul State Security Court. He denied the content of the police statements and maintained that he had been subjected to ill-treatment during his detention in police custody and had been forced to confess to crimes which he had not committed. The court ordered the applicant’s detention on remand. In an indictment dated 25 September 1996 the public prosecutor attached to the Istanbul State Security Court initiated criminal proceedings against the applicant, charging him with membership of a terrorist organisation and recommending the imposition of the death penalty under Article 146 § 1 of the Criminal Code (attempt to undermine the constitutional order). On 25 November 1996 the public prosecutor at the Istanbul State Security Court issued a decision of non-jurisdiction ratione materiae in relation to the alleged torture of the applicant during his detention in police custody between 27 August and 3 September 1996. Having completed his preliminary investigation, the Public Prosecutor transferred the investigation file containing medical reports and the applicant’s statements to the Chief Public Prosecutor’s office in Fatih district. In a letter of 4 December 1996 the Fatih public prosecutor requested the Sakarya Chief Public Prosecutor to instruct the authorities of the Sakarya Prison to take the applicant to a hospital and to have him undergo an EMG examination. On the same day, the public prosecutor wrote a letter to the Anti-Terrorism branch of the Istanbul Security Directorate in which he requested that the names of the police officers who had questioned and taken statements from the applicant be reported to him. He further asked for a copy of the last page of the statements taken from the applicant, the arrest protocols as well as all relevant reports. On 20 December 1996 the Sakarya Prison Administration transferred the applicant to the Sakarya State Hospital for an EMG examination. However, given that this hospital lacked EMG facilities, the Prison Administration decided to transfer the applicant to the Haydarpaşa Numune Hospital in Istanbul. In a letter of 8 January 1997 the Director of Prisons and Incarceration Facilities requested the Sakarya Chief Public Prosecutor to order the transfer of the applicant to a special prison in Istanbul with a view to his examination and treatment at the Haydarpaşa Numune Hospital. On 3 February 1997 the applicant submitted before the Istanbul State Security Court that he had been subjected to ill-treatment while in police custody. On 20 March 1997 the applicant underwent a urine analysis at the Haydarpaşa Numune Hospital. The laboratory doctor prescribed antiinflammatory medicine and antibiotics for the applicant. He was then examined by a doctor at the neurology department of the same hospital. The neurologist noted in his report that the applicant felt weakness in his right arm and thus advised an EMG examination. In a letter dated 2 September 1997 the Fatih Public Prosecutor repeated his earlier request to the Sakarya Chief Public Prosecutor that the applicant be taken to a hospital for an EMG examination. By a letter of 2 September 1997, the Fatih Public Prosecutor requested the authorities of the Anti-Terrorist Branch at the Istanbul Security Directorate to provide him with a copy of the last page of the applicant’s statements which were taken during his detention in police custody, the arrest protocols and reports as well as documents pertaining to the permission to hold him in custody. The public prosecutor also asked for the names of the police officers who had taken statements from the applicant or participated in his interrogation. He instructed that those police officers appear before the Fatih Chief Public Prosecutor’s office. On 12 September 1997 this letter was received by the police officers concerned, namely F.V., E.K., R.İ. and M.T. On 22 September and 1 October 1997 the Fatih Public Prosecutor took statements from E.K., R.İ. and M.T., who had all been involved in the interrogation of the applicant. Referring to the medical report dated 3 September 1996, which stated that there was no pathological finding on the applicant’s body, the police officers all denied that they had illtreated the applicant. They claimed that such allegations were a routine practice used by members of illegal organisations to deny the crimes which they had committed. According to a report dated 12 November 1997, which was drafted by the Sakarya Prison Director and signed by two prison officers, the applicant refused to leave his cell and to be brought to the Haydarpaşa Numune Hospital for an EMG examination. This report was sent to the Sakarya Chief Public Prosecutor’s office for information. On 5 March 1998 and 17 April 1998 the applicant, at the request of the Istanbul Assize Court, was summoned to give evidence before the Sakarya Assize Court in relation to his allegations of illtreatment. The applicant refused to appear before the court for health reasons. On 1 May 1998 the applicant gave evidence before the Sakarya Assize Court. He alleged that he had been subjected to Palestinian hanging following his arrest. He had seen through his blindfold the police officers who had hit him. He had also seen the same officers when they had removed his blindfold in order to confront him with H.K. The applicant had filed a complaint through his lawyer about these police officers. He reiterated his request for the prosecution of the police officers who had tortured him. On 28 January 1998 the Fatih Public Prosecutor initiated criminal proceedings before the Istanbul Assize Court against two police officers, F.V. and R.İ., charging them with ill-treatment of the applicant in violation of Article 243 § 1 of the Turkish Criminal Code. On 2 April 1998 the Istanbul Assize Court heard evidence from F.V. and R.İ. They both denied the charges and claimed that they had not been involved in the interrogation of the applicant. F.V. stated that he had only taken statements from the applicant in the course of his transfer to the State Security Court. R.İ. claimed that he had only acted as a clerk when taking statements from the applicant. In a petition dated 16 July 1998, filed with the Istanbul Assize Court, the applicant requested information on the state of the proceedings concerning the prosecution of the impugned police officers. In a letter dated 17 August 1998, which was served on the applicant on 7 September 1998 in the Sakarya E-type prison, the president of the Istanbul Assize Court informed him that the criminal proceedings were still pending and that a final hearing was scheduled for 23 September 1998. On 23 September 1998 the Istanbul Assize Court delivered its judgment. Referring to the applicant’s testimony dated 1 May 1998 before the Sakarya Assize Court in which he had claimed that he had been ill-treated before his statements had been taken, and in view of the police officers’ defence submissions, the court found that the two accused police officers had merely taken statements from the applicant. However, it was undisputed that the alleged ill-treatment inflicted on the applicant occurred prior to that stage - either during his arrest or at the time of his interrogation. The court further took into consideration the medical report dated 2 September 1996 which did not indicate any signs of bodily injury. Accordingly, the court concluded that there existed no evidence to substantiate that the applicant had been ill-treated by the accused police officers and therefore acquitted them of the charges. The court’s decision was not served on the applicant since he had not intervened in the criminal proceedings against the accused police officers. As there was no appeal, the decision became final on 21 November 1998. On 8 May 2000 the Istanbul State Security Court ordered the applicant’s release pending trial. On 23 June 2000 the applicant obtained a copy of the Istanbul Assize Court’s decision concerning the acquittal of the police officers. The lawyer representing the applicant in the Convention proceedings also represented him in the proceedings before the State Security Court. In the meantime, the applicant provided the Court with a copy of a document which indicated that R.İ, one of the accused police officers who had allegedly inflicted ill-treatment on the applicant, had been convicted of inflicting ill-treatment in the past. On 27 October 2004 the Istanbul Assize Court convicted the applicant of attempting to undermine the constitutional order of the State and sentenced him to life imprisonment. On 24 May 2005 the Deputy to the Istanbul Chief Public Prosecutor appealed to the Court of Cassation and requested that the conviction be quashed on the grounds that there was insufficient evidence against the applicant and that the judgment was contradictory. The public prosecutor noted that the only evidence available was the applicant’s statements to the police officers. On 18 July 2005 the Court of Cassation quashed the judgment of 27 October 2004. It reasoned that the Istanbul Assize Court had failed to carry out a sufficient examination of the case in that it had not inquired into the outcome of the criminal proceedings concerning the alleged ill-treatment of the applicant by the security forces and the medical report to that effect. “1. Whoever, being a president or member of a court or council or a public officer, tortures an accused person in order to obtain a confession, shall be punished by a prison sentence of up to five years and shall be disqualified from holding public office, temporarily or for life. The offender shall be punished even if he had acted under an order or encouragement from his superior.” “Any person who is injured as a result of a criminal act may, at any phase of the investigation, intervene in the public prosecution. Those so intervening may also submit their personal claims for adjudication.” The intervening party is entitled to request compensation for the prejudice arising from the offence. However, the exercise of this right is subject to procedural rules: the person who is injured as a result of a criminal act must intervene in the public prosecution and request explicitly the right to ask for compensation. The compensation request is not therefore automatic. It also has to be justified and an assessment of the amount must accompany the request. Section 366 provides that intervention should be made by means of the submission of a petition to the relevant authority or by a declaration made to the clerk of the court. Thereupon, the intervening party enjoys the same rights as a prosecutor of personal claims (section 367). Decisions rendered before the intervention remain valid and, if the public prosecutor does not appeal against the final decision within the requisite time-limit, the intervener loses the right to appeal (section 369). Furthermore, according to section 370, if the intervener or his/her representative does not attend the trial, the judgment is served on him/her. Section 371 empowers the intervening party to file a separate appeal against a judgment regardless of whether the public prosecutor chooses to appeal. If the intervening party succeeds in his/her appeal, the public prosecutor is required to institute criminal proceedings afresh.