CASE OF GÜMÜŞSOY v. TURKEY
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
4. The applicant was born in 1968 and lives in İstanbul. 5. The applicant is the editor and owner of Devrimci Mücadele Birliği (Revolutionary Struggle Union), a monthly political magazine. At about 12.30 p.m. on 29 November 2001, with a search warrant issued by the Istanbul State Security Court, police officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters conducted a search of the journal’s office. An identity check was carried out and the police arrested four persons, including the applicant, who were present in the office at the time. According to the search and arrest report signed by seven police officers, the applicant resisted the officers. He was subsequently handcuffed and put in a minibus to be taken to the Security Headquarters building. The applicant alleged that he had been beaten and insulted in the car by three police officers. In particular, he stated that one officer, A.Ç., had head-butted him and broken his nose. 6. At 7 p.m. the same day the applicant was taken to Haseki Hospital where he was examined by a doctor. In his report, the doctor noted bruises under the applicant’s eyes and swelling on the bridge of his nose. The applicant was transferred to the Ear, Nose and Throat Service for consultation. The doctor examined the applicant at 9 p.m. the same day, noted the injury to the applicant’s nose and requested an X-ray. 7. On 30 November 2001 the X-ray of the applicant’s nose revealed that it was broken. 8. On 3 December 2001 the applicant was examined once again at the State Security Court branch of the Forensic Medicine Institute. The doctor who examined him explained in his report that the applicant had complained that he had been subjected to ill-treatment in police custody. It was reported that the applicant had stated that he was beaten up in the minibus while he was being taken to the Security Headquarters, and that he had been under psychological pressure while he was in police custody. Referring to the Xray of 30 November 2001, which showed that the applicant’s nose had been broken, the doctor concluded that he was unfit to work for ten days. 9. On the same day the applicant was released by order of the public prosecutor. 10. On an unspecified date, the applicant lodged a criminal complaint with the Beyoğlu Public Prosecutor, alleging that he had been ill-treated while in police custody. 11. On 5 December 2001 the applicant was examined once again at the Beyoğlu branch of the Forensic Medicine Institute. It was noted that he had bruising under his eyes and swelling on his nose. In a final report of 14 December 2001, the Beyoğlu branch of the Forensic Medicine Institute, with reference to the X-ray of 30 November 2001, concluded that the applicant’s nose had been broken, and stated that he was unfit to work for fifteen days. 12. On 21 December 2001 the Beyoğlu Public Prosecutor declared lack of jurisdiction and transferred the case file to the Fatih Public Prosecutor’s Office. The Fatih Public Prosecutor conducted two separate investigations into the applicant’s complaints. In file no. 2001/28563, an investigation was commenced in respect of two police officers who had been on duty at the Anti-Terrorist Branch of the Istanbul Security Headquarters on the day of the applicant’s arrest. In connection with this investigation, the public prosecutor gave a decision on 17 January 2002 that he would not prosecute these two officers, for lack of evidence. 13. In file no. 2002/1953, the Fatih Public Prosecutor conducted an investigation into the events which took place during the applicant’s arrest and his transfer to the Security Headquarters building. On 17 January 2002 the Fatih Public Prosecutor decided to transfer the case back to the Beyoğlu Public Prosecutor’s Office. Accordingly, on 15 February 2002, the Beyoğlu Public Prosecutor filed an indictment with the Beyoğlu Criminal Court against seven police officers, accusing them of ill-treating the applicant under Article 245 of the former Criminal Code. The applicant joined the proceedings as a civil party. 14. During the proceedings, the applicant lodged an objection, stating that the case should be dealt with by the Beyoğlu Assize Court, as the police officers’ actions had amounted to torture. On 17 March 2002 the Beyoğlu Criminal Court declared that it did not have jurisdiction and transferred the case to the Beyoğlu Assize Court. In a hearing held on 17 September 2002, the applicant identified police officer A.Ç. as the person who had broken his nose. 15. On 6 April 2007, on the basis of medical reports and witness statements, the Beyoğlu Assize Court found it established that Officer A.Ç. had broken the applicant’s nose by head-butting him. Considering that the use of force had not been proportionate, the court found the police officer guilty of ill-treating the applicant under Article 245 of the former Criminal Code. Having regard to the duration of the treatment, the court decided that the act did not amount to torture, since it had not been systematic. In conclusion, A.Ç. was sentenced to six months’ imprisonment and banned from public service for three months. The court then converted his sentence to a fine, having had regard to the fact that he did not have a criminal record. Furthermore, the court decided to suspend his sentence under Law no. 647, considering that he was unlikely to break the law again. The other six police officers were acquitted of the charges against them. 16. The applicant appealed against this decision. 17. On 24 February 2010 the Court of Cassation, noting that the statutory time-limit for the offence had expired, decided to drop the criminal proceedings against the accused police officer. 18. A description of the relevant domestic law and practice in force at the material time can be found in Okkalı v. Turkey (no. 52067/99, §§ 4749, ECHR 2006XII (extracts)), and Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004IV (extracts)).