CASE OF OSMAN KARADEMİR v. TURKEY
Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
5. The applicant was born in 1961 and lives in Istanbul. 6. On 25 May 2002 the applicant was taken into custody by police officers from the Çinili Police Station on suspicion of theft. Following a quarrel between the chief police officer and the applicant at the Çinili Police Station, the chief officer ordered his transfer to the Üsküdar Law and Order Department. 7. Prior to his transfer to the custody of the Law and Order Department, the applicant was taken to the Haydarpaşa Numune Hospital for a medical examination. According to the medical report dated 25 May 2002, there were no signs of ill-treatment on his body. 8. At the Üsküdar Law and Order Department, the applicant was allegedly insulted and threatened by the chief police officer, Remzi Akıncı, who later ordered other officers to torture him. The applicant was kept in a cell until the evening. After several hours he was handcuffed, blindfolded and taken to a cellar, where he was stripped naked and given electric shocks. Due to the pain caused by the shocks, the applicant hit his head on the floor and fainted. 9. On 26 May 2002 the applicant was taken back to the Çinili Police Station. 10. On 26 May 2002 the police officers brought the applicant back to Hayparpaşa Numune Hospital for a second medical examination. First the police officers went into the doctor’s room, and then the applicant was called in. Although the applicant claimed that he had described the type of ill-treatment to which he had been subjected to in police custody, the doctor did not note any of his complaints and concluded in his report that there were no signs of illtreatment on his body. Later, the applicant was brought before an investigating judge who ordered his release. 11. On the same day the applicant lodged a complaint with the District Governor’s office in Üsküdar against the five police officers who had allegedly illtreated him. He also lodged petitions with the offices of the Üsküdar District Governor, the Istanbul Governor and the Minister for Internal Affairs, describing in detail the treatment to which he had been subjected during his detention in police custody. 12. Upon the request of the District Governor, on 29 May 2002 the applicant was first examined by a doctor at the Üsküdar Clinic and then taken to the Haydarpaşa Numune Hospital for a further examination. Both medical reports noted that there was pain and sensitivity in the inguinal area, urinary problems and hyperaemia on the penis. In the light of these medical findings, a doctor at the Üsküdar branch of the Forensic Medicine Institute drafted a third report, concluding that the applicant was unfit to work for three days. 13. On 4 June 2002 the applicant lodged a complaint with the Üsküdar Chief Public Prosecutor’s Office against the police officers at the Üsküdar Law and Order Department who had inflicted ill-treatment on him. 14. On 5 June 2002 the applicant was questioned by the Disciplinary Bureau of the Üsküdar police headquarters following his complaint lodged with the Üsküdar District Governor’s office. 15. On 6 June 2002 two police officers, one of whom was acting as investigator, questioned Dr İbrahim Öner from the Haydarpaşa Hospital in relation to his examination of the applicant on 26 May 2002. He stated the following: “On 26 May 2002 police officers brought Osman Karademir to the Emergency Surgical Unit. He was taken into the examination room alone. The police officers on duty waited outside. He was stripped naked and his examination was carried out in the light of his allegations. No external lesions were identified following the examination. A report was drafted and the person in question was handed over to the police officers. I have just learned now that Osman Karademir, who was ill-treated by officers and complained about it, obtained another report three days after my report and that that report indicated the presence of bilateral inguinal pain, sensitivity and hyperaemia on the scrotum and penis. When I examined the patient I did not make such findings. The person in question was completely healthy. If I had found any sign of physical violence, I would have indicated it in my report.” 16. In a preliminary investigation report dated 17 June 2002, a police superintendent, acting as investigator, concluded that there was no need to bring charges against the police officers Remzi Akıncı, Muafak Çetin, Dündar Özel, Hakan Taş and Mesut Kök. Having heard the accused, the applicant and some witnesses, the investigator considered that the applicant’s allegations were unsubstantiated in view of the Haydarpaşa Numune Hospital’s report dated 26 May 2002 which stated that there were no lesions on the body of the applicant. He also found that the police officer Muafak Çetin had been on duty somewhere else and the police officer Dündar Özel on leave on the day of the alleged events. 17. On 19 June 2002 the Üsküdar District Governor decided that charges should not be brought against the police officers. The decision noted that the police officers whom the applicant had accused had not been present in the police station on the day of the alleged incident. The applicant applied to the Istanbul District Administrative Court for the annulment of the District Governor’s decision. His request was dismissed. 18. On 29 August 2002 the Provincial Police Discipline Committee attached to the Istanbul Governor’s office, composed of three police officers, the Governor, his deputy and a civil servant, decided that no punishment should be imposed on the police officers Mesut Kök, Muafak Çetin, Dündar Özel and Remzi Akıncı who had allegedly inflicted illtreatment on the applicant and insulted him during his detention. The disciplinary committee found that Muafak Çetin had been on duty at a meeting organised by a labour organisation and that Dündar Özel had been on leave on the date of the alleged events. Furthermore, considering that the medical reports did not indicate the presence of any signs of lesions on the body of the applicant, the disciplinary committee concluded that the applicant’s allegations were unsubstantiated. 19. On 25 December 2002 the Üsküdar Chief Public Prosecutor took statements from the police officers who had allegedly inflicted ill-treatment on the applicant. The police officers all denied the allegations. 20. On 6 January 2003 the Üsküdar Chief Public Prosecutor took statements from the applicant in relation to his allegations of ill-treatment. The applicant explained that on 25 May 2002 he had first been taken to the Çinili Police Station and then to the Haydarpaşa Numune Hospital. At the hospital he said that he did not have any bruises because he had not been beaten up at the police station. However, he had then been transferred to the Üsküdar Law and Order Department where he had been blindfolded, handcuffed and subjected to various forms of ill-treatment in the course of his interrogation. In particular, he claimed the following: “...All the officers at the Law and Order Department already knew me... In the afternoon Chief Superintendent Officer Remzi Akıncı arrived. He ordered the police officers to place me in custody... Then they took me out of custody. Ali Hakan Taş and another police officer, with the first name Adem, blindfolded me with a piece of cloth. They took me to a room. They questioned me while I was blindfolded. They slapped me only once in that room. I could not identify who slapped me since I was blindfolded. They removed my blindfold in that room. Remzi Akıncı was also there. He ordered them to take me to the custody room again. One hour later they took me out of the custody room again and the same police officers blindfolded me again. They handcuffed me. The police officer Hakan was on my right and Adem was on my left. We went along a corridor and down some stairs. I entered through an aluminium door. Two or three persons were punching and kicking me. I told them that I had not stolen anything and asked them to release me. They stripped me completely naked. The police officer named Hakan had told me earlier that he was sorry for me but that the orders had come from somewhere else. Hakan called on somebody as “Başkomiserim (my chief police superintendent) ...” I could not see anyone because I was blindfolded. They put a cable on my chest and stuck it down with tape. They connected another cable to my toes and sexual organ. They gave me electric shocks using something like a telephone. I fainted. When I opened my eyes I was outside the building. The police officers Hakan and Adem removed my blindfold. A police officer called Mesut was also there. Hakan dressed me... Then they put me in a car... They handed me over to the police officers at the Çinili Police Station who took me to Haydarpaşa Numune Hospital in the morning. When I entered the doctor’s office the civilian team of the Law and Order Department was already there. The doctor who examined me was a general surgeon. He asked me if I had a problem. I told him that I had been beaten up and given electric shocks. I took off my clothes. He concluded that I did not have any problem and sent me to the Çinili Police Station. The police officers then took me to the public prosecutor on duty. The public prosecutor on duty read some papers and called me in. He asked me whether I [had stolen] the [kombi heater]. I told him that I had been tortured but he did not listen to me... He noted my allegations of torture. Then he released me... I am coughing up blood as a result of the torture. I have also become impotent. A liquid is still coming out of my sexual organ. I have been unable to pursue my business activities as a result of the problems caused by the torture. I am unable to pay my electricity and water bills...” 21. On 4 April 2003 the Üsküdar Chief Public Prosecutor took new statements from the applicant. The applicant stated that he did not have any medical report apart from the one issued by Haydarpaşa Numune Hospital on 29 May 2002. He claimed that he could not undergo an examination at the Cerrahpaşa Medical Faculty’s Urology Department because he could not afford the fees and that he had informed the President of the Forensic Institute accordingly. 22. On 8 July 2003 the Üsküdar Public Prosecutor took further statements from the applicant regarding his inability to undergo a medical examination at the Cerrahpaşa Medical Faculty Hospital. 23. On 31 October 2003 the Üsküdar Criminal Court acquitted the applicant of the charges of theft, holding that his guilt had not been proven beyond doubt. 24. On 3 October 2003 the Üsküdar Chief Public Prosecutor took statements from Abdullah Danacı, a police officer at the Üsküdar Law and Order Department, who claimed that he had no information about the applicant’s allegations. 25. On 14 November 2003 the Üsküdar Chief Public Prosecutor filed an indictment with the Üsküdar Assize Court charging four police officers from the Üsküdar Law and Order Department, including Remzi Akıncı, under Article 243 § 1 of the Turkish Criminal Code, with inflicting illtreatment on the applicant. The Chief Public Prosecutor considered that the decision of the Üsküdar District Governor of 19 June 2002 had to be disregarded, since the alleged ill-treatment had taken place during the police officers’ exercise of their judicial functions. He also decided that, due to the lack of evidence, no prosecution should be brought against two other police officers or against Remzi Akıncı in respect of the allegation of threatening to kill the applicant. This latter decision was upheld by the Kadıköy Assize Court on 19 February 2004. 26. On 13 December 2004 a committee of experts at the Forensic Institute examined the applicant and concluded as follows: “Taking into account the report of the Cerrahpaşa Medical Faculty’s Urology Department, which stated that no erection malfunction could be identified following physical examination, psychiatric consultation and sex hormone, penile arthritis Doppler US and NPT tests, it is to be concluded unanimously that no there was no medical finding of sexual impotence.” 27. The applicant filed an objection against the decision of the Üsküdar Chief Public Prosecutor not to prosecute. 28. On 19 February 2004 the Kadıköy Assize Court dismissed the applicant’s objection. 29. On 13 April 2005 the Üsküdar Assize Court acquitted the accused police officers on the basis of lack of sufficient evidence and the principle in dubio pro reo. In acquitting the police officers, the court relied on the medical reports dated 25 and 26 May 2002 issued by Haydarpaşa Numune Hospital and the Forensic Institute’s medical report dated 13 December 2004. 30. On 11 May 2005 the applicant appealed against the judgment of the Üsküdar Assize Court. 31. On 25 February 2006 the Chief Public Prosecutor at the Court of Cassation submitted his written observations. He asked the Court of Cassation to quash the judgment of the Üsküdar Assize Court, arguing that it had erred in relying on the Forensic Institute’s medical report dated 13 December 2004 which stated that the applicant did not suffer from sexual impotence. He noted that the first-instance court should have inquired into the cause of the marks identified on the body of the applicant in the Üsküdar Forensic Institute’s medical report dated 29 May 2002. In his opinion, the court should have considered whether the marks were the result of the alleged ill-treatment inflicted upon the applicant. 32. On 17 October 2006 the Court of Cassation upheld the decision of the first-instance court. 33. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004).