Communicated on 22 September 2014
SECOND SECTION
Application no. 65471/12
Fırat GÜMÜŞ and Mehmet Sah GÜMÜŞ
against Turkey
lodged on 24 August 2012
STATEMENT OF FACTS
The applicants, Mr Fırat Gümüş (“the first applicant”) and Mr Mehmet Şah Gümüş (“the second applicant”), are Turkish nationals, who were born in 1971 and 1983 respectively and live in Diyarbakır. They are represented before the Court by Mr S. Akbaş, a lawyer practising in Diyarbakır.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 18 August 2010 a murder was committed in Ballıbaba village near Diyarbakır. An investigation was launched to apprehend the suspects. The police received information that the suspects might be hiding in a house at “number 64” of a certain street. As any delay would be detrimental to the investigation, the public prosecutor issued a search and seizure warrant for a number of addresses, including the house “number 64”.
On 10 June 2011 the police simultaneously carried out operation at those addresses.
The applicants and their families lived in the two flats in a building at “number 58” of the same street where the operation was carried out.
On 10 June 2011, while the two applicants were sitting in their doorway, two police vehicles stopped at their front door. Masked policemen, who got out of the cars, ran rapidly towards the applicants and forced them to lie face down on the ground with their arms behind their backs. The applicants were told that they would be shot if they moved.
While the applicants were immobilized, the wife and four children of the second applicant, who were in the garden at that moment, were forced to sit down on the ground at gunpoint. After the applicants objected to the way they were being treated, they were forced to sit in the police vehicle. The applicants were kept in the vehicle for approximately two hours in hot weather and a stuffy environment, as a result of which they almost fainted.
When the applicants were in the vehicle, police searched both homes and rummaged through the household goods inside the flats. The applicants were asked to sign the search reports after the search; however, they refused to do so.
Video footage of the applicants’ flats, recorded by journalists and made available to the Court by the applicants, shows the state of the flats and of the applicants after the search.
As a result of the incidents H.G., the eight-year-old daughter of the second applicant, suffered psychological trauma and underwent treatment.
Three days after the incident a number of policemen went to the applicants’ house and told them that their house had been searched by mistake; the actual house to be searched was some 400 metres away from their house.
On 15 June 2011 the applicants lodged a criminal complaint with the Diyarbakır Prosecution Office against the police officers who had conducted the search, and alleged that they had been insulted and that their family members had been threatened at gunpoint. They added that they had been locked in the police vehicle for two hours in hot weather and that their flats had been unlawfully searched and rummaged by the police for no reason.
Their complaint was assigned to the prosecutor B.K., who was also in charge of the operation carried out by the police officers in relation to the murder. The applicants’ statements were taken by B.K. and an investigation was opened into their complaints.
In the course of the investigation the Diyarbakır Police Department was asked to obtain the statements of the police officers concerned. Accordingly, some police officers’ statements were taken by other police officers who also worked in the same unit. Similarly, the statement of M.M., a police chief, was taken by a subordinate police officer working in his department. M.M. stated that after an order had been given they had gone to the applicants’ flats. Those present at the flats had been neutralised but not ill-treated. Their homes had not been searched and they had been released after having been taken to the police car, where it was established that they had nothing to do with the murder.
On 14 October 2011 the Diyarbakır Prosecution Office decided not to instigate criminal proceedings on the ground that no search had been carried out in the applicants’ flats.
On 26 December 2012 the applicants objected to the decision of the Diyarbakır Prosecution Office. On 22 February 2012 the Siverek Assize Court decided to reject applicants’ objections. On 9 March 2012 the decision was served on the applicants.
COMPLAINTS
The applicants complain under Article 3 of the Convention that they and their family members, including their four very young children, were forced to lie down at gunpoint for a period of two hours. They also complain that they were insulted in front of their family members and were locked in the police vehicle for approximately two hours in hot weather, as a result of which they almost fainted.
The applicants complain under Article 5 of the Convention that they were locked in the police car unlawfully and were thus deprived of their liberty.
They complain under Article 8 of the Convention that the search of their flats was unlawful, not only because it was carried out without the presence of the applicants or a witness, but also because during the search their flats were ransacked and damaged. The applicants further complain that the investigation carried out into the illegal search was not impartial since the implicated police officers’ testimonies were taken by other police officers working at the same department. Moreover, although some police officers admitted in their testimonies that the search had been carried out in applicants’ flats and that the photographs showing the state of their flats were submitted to the investigating authorities, criminal proceedings discontinued on the ground that no search had been carried out in their flats.
The applicants complain under Article 13 of the Convention that their complaints concerning Articles 3 and 8 of the Convention were not effectively examined by the national authorities. They complain, in particular, that the investigation into their complaints were carried out by the prosecutor who was also in charge of the search conducted in their home, and that there were a number of deficiencies in the investigation such as statements of the police officers having been taken by other police officers who also worked in the same unit.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to ill-treatment, in breach of Article 3 of the Convention?
Having regard to the procedural protection from ill-treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraphs (a), (b) or (c) of this provision?
3. Has there been an interference with the applicants’ right to respect for their private life, home or correspondence, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
Given the procedural protection of the right to respect for home (see H.M. v. Turkey, no. 34494/97, §§ 25-30, 8 August 2006), did the investigations carried out into the applicants’ claims meet the requirements of Article 8 of the Convention?
4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention?
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