KAYA v. TURKEY
Inadmissible
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
1. The applicant, Mr Hasan Kaya, is a Turkish national who was born in 1973 and lives in Istanbul. He was represented before the Court by Mr M. İriz and Mr R. Doğan, Mr Y. Aydın and Ms S. Turan, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. According to the applicant’s version of the events, on 10 February 2002, at around 6.00 to 6.30 p.m., the applicant was arrested by two plainclothes policemen and one uniformed police officer on a street in the Karadeniz district of Gaziosmanpaşa, Istanbul, on suspicion of having participated in an illegal demonstration. He was put in a commercial taxi and taken to the Karadeniz Police Station. There, the applicant was punched, kicked and beaten with truncheons by officers, who broke his nose, which started bleeding. The officers took him to the Karadeniz Clinic. The doctors applied a bandage to his nose. He was then taken to the Emergency Clinic of the Haseki Hospital and had a nose x-ray. On the same day, at around midnight, he was handed over to police officers from the anti-terrorism branch of the Istanbul Security Directorate. The applicant was subjected to further beatings at the anti-terrorism branch and was asked to become a police informer. 4. According to the Government, on 10 February 2002, the applicant took part in an illegal demonstration and was chanting slogans in favour of the PKK (Kurdistan Workers’ Party). When the security forces arrived at the scene of the demonstration to disperse the crowd, the applicant attempted to escape and fell on the ground. Thereafter, he was surrounded by a group of people living in the neighbourhood and beaten. The police officers rescued him and put him in a taxi and then took him to the Karadeniz police station. He was immediately taken to the Sultançiftliği L. Nuri Burat State Hospital for medical examination and treatment before placing him in custody. According to the medical report issued by a doctor, at 8.25 p.m., the applicant bore a number of injuries. The doctor noted the presence of scratches, oedema and lesions on the nose, an ecchymosis measuring 3x1 on the side of the left eye, an ecchymosis inside his lower lip as well as haematoma measuring 2x2 on the face. 5. Later that day the applicant was taken to the Haseki Hospital for further treatment. The medical report, issued at 10.35 p.m., stated that the applicant bore lesions and ecchymoses on his lower lip, nose and left knee. 6. On 11 February 2002, in his statements to the anti-terrorism police, the applicant stated that he had been beaten by the local people and had been rescued by the police officers. 7. On 12 February 2002 the applicant was taken to a branch of the Forensic Medicine Institute in Istanbul for medical examination. The medical report prepared by a forensic doctor stated that the ecchymoses, swelling and lesions observed on the applicant’s body as well as the broken nose were not life threatening but would prevent him to carry out his regular work for ten days. This medical report was signed by the applicant and also contained his hand written statement which read: “The bruises, swellings and scratches on my body as well as the broken bone in my nose had been caused by the assault of a 5-10 people at the exit of the local bazaar.” 8. On the same day, the applicant was brought before the Public Prosecutor, where he denied the charges against him. He was released the same day. 9. On 15 February 2002 the applicant filed two separate complaints with the Gaziosmanpasa and Fatih Public Prosecutor’s Offices against the police officers who had allegedly ill-treated him in custody at the Karadeniz Police Station and at the anti-terrorism branch, respectively. He also claimed that his statements dated 11 February 2002 had been obtained under duress and that he had been forced to sign those statements without reading. The Public Prosecutor then sent the applicant to the Fatih Forensic Institute for medical examination. 10. The preliminary medical report issued by the Forensic Institute on the same day indicated the presence of chest pain and an ecchymosis on the left leg, an ecchymosis of 3x2 cm under his left eye, an ecchymosis of 2x1 cm under his right eye, an ecchymosis inside his lower lip as well as an oedema. Given the applicant’s allegation that his nose could have been broken, the doctor recommended an x-ray examination. 11. On 19 February 2002 the Fatih Chief Public prosecutor took statements from the applicant in relation to his allegations of ill-treatment. The applicant claimed that following his arrest he had been beaten up by the police officers and that his nose had been broken. He asked the Public Prosecutor to initiate criminal proceedings against the police officers. 12. On 27 February 2002 the applicant was referred for a further medical examination by the Gaziosmanpasa Public Prosecutor. On 20 March 2002 the Forensic Medicine Institute issued a definitive report on his medical condition, which made reference to the findings of a report dated 15 February 2002 by the Haseki Hospital. In the latter, it was stated that the applicant had an ecchymosis of 1.5x1.5 cm under his left eye, estimated to be three or four days old, an ecchymosis of 1x1 cm under his right eye, an ecchymosis of 1x1 inside his lower lip as well as an oedema, estimated to be three or four days old, and pain in the nose. His injuries were not regarded as life threatening but were classified as sufficient to render him unfit for ten days. 13. On 9 May 2002 the Gaziosmanpasa public prosecutor filed an indictment with the Gaziosmanpasa Assize Court, charging twelve police officers from the Karadeniz Police Station with inflicting ill-treatment on the applicant, under Article 245 of the former Criminal Code. 14. On 15 May 2002 the Assize Court commenced the trial and scheduled the first hearing for 11 July 2002. 15. During the hearing of 11 July 2002, the Assize Court heard statements from the accused police officers and the applicant as the complainant. All defendants denied the allegations. The applicant identified a police officer, A.G., as being one of the officers who had arrested him and had beaten him at the Karadeniz Police Station. The same day, the public prosecutor submitted to the court that the offence in question fell within the scope of Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials). Accordingly, he requested that the case file be sent to the District Governor for leave to prosecute the police officers under that law. The court complied with this request, stopped the trial and sent the case file to the District Governor’s Office. The District Governor then appointed an investigator to conduct an investigation into the applicant’s allegations. 16. On 5 August 2002 the investigator also heard Mr E.S., the taxi driver who took the applicant to the Karadeniz police station. The latter stated that he had parked his car in the area and had been watching the applicant being beaten up by the local people. Two police officers arrived at scene and had rescued him from the assault of the crowd. They then put the applicant in his car and had asked him to drive to the police station. He submitted that the applicant’s face had been covered with blood when he had been put in his car. 17. On 6 September 2002 the investigator took statements from twelve police officers who were on duty that day at the aforementioned police stations. The accused police officers claimed that, contrary to the applicant’s allegations, they had rescued him from the angry crowd and had brought him to the police station. 18. On 10 September 2002, relying on the investigation report prepared by the investigator, the District Governor decided not to permit the prosecution of the officers. This decision stated that the police officers, who had been patrolling after an illegal demonstration in the Karadeniz district, had seen some local people beating the applicant. The officers had put the applicant into a taxi and had taken him to the police station, and later that night they had handed him over to the anti-terrorism branch. The District Governor concluded that, apart from the applicant’s allegations, there was no evidence to prosecute the accused. 19. The applicant challenged this decision before the Istanbul Regional Administrative Court. 20. On 25 February 2003 the Regional Administrative Court upheld the Governor’s decision. It noted that the taxi driver that day had testified that the applicant’s face had been covered in blood when the police officers had put him into his vehicle. Moreover, the applicant, in his statement to the anti-terrorism police, had admitted that he had been beaten by some locals who had caught him as he was running away. 21. On 6 June 2002 the Fatih Public Prosecutor issued a decision of nonprosecution concerning the applicant’s complaint against the police officers from the anti-terrorism branch. He noted that in his statement of 11 February 2002 to the anti-terrorism police, the applicant had maintained that he had been rescued by the officers from local people who had been beating him. On 12 February 2002 he had been examined by the Forensic Medicine Institute at the State Security Court. The applicant had written in the medical report of that day that the injuries on his body and the fracture to his nose had been inflicted by some local people, and had added his signature. 22. The applicant appealed against this decision before the Beyoğlu Assize Court, which on 20 March 2003 upheld the decision. 23. A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004IV).