CASE OF ERGÜN  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;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque
3. The applicant, born in 1967, is a lawyer and lives in Istanbul. 4. At approximately 12 noon on 16 September 2000, while attempting to participate in a demonstration in the form of “a press conference” held in Taksim, Istanbul, by members of the Contemporary Lawyers’ Association, the applicant was arrested, with some fifty others. The applicant alleged that the large number of police officers on duty at the site of the demonstration, who were wearing special uniforms, had used disproportionate force to disperse the crowd and arrest the potential demonstrators. He claimed in particular that the police had kicked and punched him, beaten him with a stick, and sprayed tear gas in his face inside the police bus following his arrest. The Government, on the other hand, argued that the demonstrators had resisted the police and had refused to disperse despite numerous warnings. 5. The applicant was subsequently taken to the police station, along with the others who had been arrested, apparently for an identity check. 6. At 3.30 p.m. on the same day the applicant was taken to the Beyoğlu branch of the Forensic Medicine Institute for a medical examination. The doctor who examined the applicant reported bruising on his inner left knee, left ankle and inner left arm. He also noted that the injuries would render the applicant unfit for work for three days. 7. The applicant was released from police custody after the medical examination at the Forensic Medicine Institute. 8. On 18 September 2000 the applicant sought a medical examination at the Istanbul branch of the Human Rights Foundation of Turkey, in order to have the bruises which had developed on his body after his arrest recorded by an independent medical expert. The two doctors who examined the applicant noted the following on his body: a 4 x 6 cm yellowgreen bruise on the left part of the chest, a 2 x 1 cm yellow-green bruise on the left buttock, a spotted haemorrhage measuring 1.5 x 10 cm behind the left knee, a bleeding yellow-green bruise accompanied by a spotted haemorrhage measuring 3 x 3 cm on the left calf, a 4 x 0.5 cm graze on the left ankle, a 0.3 x 0.6 cm graze behind the left ankle, a scabbed wound 0.5 cm in diameter, with an area of hyperaemia 0.5 cm in width around the wound, on the right ankle. The applicant stated to the doctors that he had been kicked and punched and beaten with sticks by the police and had had tear gas sprayed in his face. He further stated that he had been coughing and had a burning sensation in his throat on account of the tear gas. The doctors reported that the injuries on the applicant’s body and his complaints regarding his throat matched his account of events, but they did not note any physical findings indicating if and how the applicant had been affected by the tear gas. 9. On 18 September 2000 twenty-seven members of the Contemporary Lawyers’ Association, including the applicant, lodged a criminal complaint with the Beyoğlu public prosecutor against the Istanbul governor, the deputy chief of police of Istanbul and the police officers on duty at the time of their demonstration. They alleged that they had all been illtreated by the police during their arrest, on the orders of the governor and the deputy chief of police. 10. It appears that on the same date the Beyoğlu public prosecutor took statements from only four of the complainants. The applicant was not summoned for a statement. 11. On 26 September 2000 the Beyoğlu public prosecutor requested the Ministry of the Interior to decide whether it would grant authorisation for prosecution of the governor and the deputy chief of police. There is no further information in the case file in relation to this request. 12. On an unspecified date the public prosecutor further requested the Istanbul governor to decide whether authorisation would be granted to prosecute the six police officers who had been identified from various photographs and video footage as having carried out the complainants’ arrests. Only five of the lawyers who had lodged the criminal complaint on 18 September 2000 were indicated as complainants, not including the applicant. 13. On 21 December 2000 the Istanbul governor decided not to grant authorisation for the prosecution of the six police officers, due to lack of sufficient evidence in support of the allegations of ill-treatment. The governor indicated in his decision that despite warnings by the police the demonstrators, who had gathered illegally without obtaining permission, had refused to disperse, and the police had therefore been obliged to use some degree of force to disperse them and restore public order. 14. On an unspecified date two of the complainants objected to the decision of 21 December 2000. 15. On 17 April 2001 the Istanbul Regional Administrative Court upheld the objection, holding that the evidence in the case file was sufficiently strong to require an investigation. It therefore decided to grant authorisation for the prosecution of the relevant police officers. 16. On 11 May 2001 the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Criminal Court against the six police officers in question, charging them with ill-treatment under Article 245 of the former Criminal Code. Only five of the twenty-seven lawyers who had filed the complaint of 18 September 2000 were indicated as complainants in the bill of indictment, and they did not include the applicant. 17. On 14 January 2003 the applicant lodged a petition with the Beyoğlu public prosecutor’s office requesting information as to the outcome of the investigation of his complaints. 18. The public prosecutor informed the applicant on the same date that criminal proceedings had been brought against four female and two male police officers (case no. 2001/1035 E.) following complaints by five lawyers from the Contemporary Lawyers’ Association. The public prosecutor did not give any information as to why no action had been taken on his complaints. 19. On 4 February 2003 the applicant made an application to the Beyoğlu Criminal Court, requesting leave to join the criminal proceedings which were pending against the six police officers as a civil party, in the absence of any separate proceedings in connection with his complaints. 20. Also on 4 February 2003 the Beyoğlu Criminal Court dismissed the applicant’s request to join the proceedings, as his name was not included in the bill of indictment as a victim. 21. On 6 March 2003 the Beyoğlu public prosecutor took a statement from the applicant for the first time, in relation to the complaints he had made on 18 September 2000. In his statement, the applicant complained that the relevant authorities had failed to take any action on his complaints for two and a half years, and requested the identification and punishment of the officers responsible for this delay. 22. On 10 March 2003 the Beyoğlu public prosecutor filed a further bill of indictment with the Beyoğlu Criminal Court against the same six police officers previously indicted under case no. 2001/1035 E., this time charging them with inflicting illtreatment on the applicant. The public prosecutor relied on the findings in the medical reports of 16 and 18 September 2000 as evidence of ill-treatment. 23. On an unspecified date the applicant’s case was joined to case no. 2001/1035 E. 24. At a hearing held on 1 July 2003 the applicant stated that he had not been given an opportunity by the public prosecutor to identify the police officers who had illtreated him. He stated that none of the four female officers charged in respect of his complaints had used any force against him. He was not 100% sure about the remaining two male officers, no confrontation procedure having taken place with the latter or with any witnesses. 25. At the next hearing, held on 23 October 2003, only one of the defendant male officers was present, namely G.F.K. The applicant stated that G.F.K. resembled one of the police officers who had kicked him during the demonstration, but he could not be 100% certain after so much time had passed. 26. On 28 September 2004 the Beyoğlu Criminal Court acquitted the police officers of the charges of ill-treatment of the applicant, as the applicant could not identify them as the perpetrators. The court held in relation to one of the male defendants, A.C., that he had been on leave on the date of the demonstration. 27. On 17 November 2004 the applicant appealed to the Court of Cassation. He stated that he had informed the first-instance court from the very beginning that the four female defendants had not used any force against him. Moreover, at the hearing held on 23 October 2003, he had been able to identify one of the male defendants, G.F.K., albeit with some doubts, which should nevertheless have been sufficient to convict G.F.K. when combined with other evidence. As regards the defendant A.C., he protested about how it could happen that a police officer initially identified by the authorities as having been on duty could later be found to have been on leave on the relevant day. Lastly, he complained that the public prosecutor had made no efforts to duly identify the officers who had illtreated him, or to collect the relevant evidence in a timely manner, in order to bring about their punishment. The additional indictment prepared in his respect three years after the incident was, therefore, no more than a mere formality. 28. On 6 November 2006 the Court of Cassation upheld the judgment of 28 September 2004 in so far as it concerned the applicant, without responding to any of his objections. 29. In the meantime, on 17 November 2000, the Beyoğlu public prosecutor had brought charges against demonstrators who had been arrested on 16 September 2000, including the applicant, for violation of the Meetings and Demonstration Marches Act (Law no. 2911). 30. In a judgment dated 28 March 2001, the Beyoğlu Criminal Court acquitted the applicant and his co-accused of the above-mentioned charges, finding that the demonstrators had exercised their democratic rights without committing any offences. The first-instance court also noted that the police had learned in advance that the press conference was being planned and had therefore taken the necessary security measures. 31. On 4 June 2001 the applicant brought a case before the Eyüp Assize Court seeking compensation under Law no. 466 on the payment of compensation to persons unlawfully arrested or detained, (“the Unlawful Detention (Compensation) Act”) in relation to his arrest and detention for approximately five hours on 16 September 2000. 32. On 21 October 2002 the Eyüp Assize Court rejected the applicant’s request. It held that the applicant had been taken to the police station merely to determine his identity, without being taken into detention, and that he had been released as soon as he had had a medical examination. He was therefore not entitled to seek compensation under Law no. 466. 33. On 25 February 2005 the Court of Cassation upheld the judgment of the Eyüp Assize Court. The Court of Cassation’s decision was served on the applicant on 11 April 2005.