Communicated on 27 May 2015
SECOND SECTION
Application no. 45385/09
Turan GÜNANA
against Turkey
lodged on 24 July 2009
STATEMENT OF FACTS
The applicant, Mr Turan Günana, is a Turkish national, who was born in 1981 and who was serving a prison sentence in Tekirdağ Prison at the time of the introduction of the application. He is represented before the Court by Mr Ercan Kanar, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows.
On 1 September 2005 the applicant was arrested by police officers from the anti-terrorism branch of the Istanbul Security Directorate.
On 5 September 2005 the applicant was taken into pre-trial detention at Tekirdağ F-Type Prison (“the Tekirdağ Prison”), pending the criminal proceedings against him.
On an unknown date, the applicant requested to be taken to the prison infirmary because he was feeling unwell.
On 18 May 2007 the applicant was taken to the prison infirmary where he complained about ear and nose problems. The doctor prescribed medication without examining him. The applicant insisted on being physically examined, explaining that another doctor had previously informed him that he might need to undergo nasal surgery. As the infirmary doctor allegedly refused to examine him properly, a verbal argument ensued between the two. Several prison guards then entered the infirmary to intervene and beat the applicant. After this incident, the applicant was taken back to his cell.
On 19 May 2007 the applicant’s brother and twenty-eight detainees at the Tekirdağ Prison submitted a petition to the Tekirdağ prosecutor complaining about the acts of ill-treatment against the applicant in the prison.
On 21 May 2007 the applicant’s lawyer lodged a complaint with the Tekirdağ public prosecutor (“the Tekirdağ prosecutor”) about the alleged ill‑treatment to which the applicant had been subjected during his visit to the infirmary. In his submission, the lawyer stated, inter alia, that the applicant whom he had met at 11.30 a.m. on 21 May 2007 had been experiencing pain in various parts of his body. He further requested that the applicant be examined by a forensic doctor, other than the infirmary doctor. He asked the Tekirdağ prosecutor to start proceedings against the infirmary doctor for failing to fulfil his duties and against the prison guards for ill‑treating the applicant.
On an unspecified date a criminal complaint was lodged against the applicant, who was suspected of having threatened the infirmary doctor.
On 11 June 2007 the applicant was summoned by the Tekirdağ prosecutor to make a statement in relation to the criminal investigation brought against him. He was informed, during the questioning, that he had been accused of having threatened the infirmary doctor. He denied the accusations and recounted the details of the incident. He added that, after having been beaten up he had been taken back to the prison infirmary, where the same doctor had drawn up a medical report without conducting a new examination. He further stated that, upon the request of the Tekirdağ prosecutor he had subsequently been taken to a State hospital where a doctor had issued a second medical report without physically examining him. Finally, the applicant reiterated his complaints against the infirmary doctor, who had allegedly insulted him and had failed to conduct a medical examination, and also against the prison guards who had ill-treated him.
On 16 October 2008 the Tekirdağ prosecutor’s office decided to join the criminal investigation brought against the applicant to the one against four of the prison guards. In his decision adopted the same day pertaining to both incidents, the prosecutor decided not to bring criminal proceedings against the applicant or the prison guards and transmitted the investigation file to the Tekirdağ governor’s office to obtain prior authorisation to be able to investigate the allegations against the doctor.
In his decision the Tekirdağ prosecutor first noted that no petition had been submitted by the applicant in relation to the ill-treatment to which he had been allegedly subjected in the prison. After recalling the content of the applicant’s statement made on 11 June 2007, the Tekirdağ prosecutor referred to an official report which had apparently been drawn up on 18 May 2007 immediately after the incident and which indicated, inter alia, that the prison guards had intervened to restrain the applicant, who had been walking towards the infirmary doctor in a threatening way. According to that report, during their questioning the prison guards had denied the allegations against them and stated that one of them had even been injured, while the infirmary doctor had stated that the applicant had threatened him after he had refused to transfer him to a hospital. The infirmary doctor had apparently added that the prison guards had prevented an attack on him by neutralising the applicant and had stressed that no act of ill-treatment had been committed. The doctor had also apparently stated that he had no complaints against the applicant.
The Tekirdağ prosecutor further referred to a medical report, drawn up after the incident on 18 May 2007, which apparently indicated the presence of a hyperaemia[1] measuring 3x2 cm in diameter in the right cervical region of the applicant, requiring minor medical intervention. The same report also noted that one of the guards had an ecchymosed area, measuring 1x2 cm in diameter, on his right elbow and another one measuring 1x2 cm in diameter on his left forearm, requiring minor medical intervention.
The Tekirdağ prosecutor indicated that on 22 May 2007 the applicant had been taken to the Tekirdağ State Hospital for a medical examination. The doctor there had apparently noted in a medical report that the applicant’s condition was not life-threatening and that he was allegedly suffering from pain in his neck and waist. The same report further stated that there were no signs of ill-treatment on the applicant’s body.
In the last part of the decision, the Tekirdağ prosecutor held that there was insufficient evidence to proceed with the prosecution of the four prison guards. In this regard the Tekirdağ prosecutor concluded that, despite the complaints made in connection with the ill-treatment of the applicant in the prison, the suspected guards had in fact attempted to prevent an attack on the doctor. The Tekirdağ prosecutor relied on the official account of events, the suspects’ defence statements, the absence of any petition submitted by the applicant after the incident, and the medical reports.
Regarding his decision not to prosecute the applicant, the Tekirdağ prosecutor stated that the offence of threatening behaviour allegedly committed by the applicant was of a simple nature and, in any event, no complaint had been made in this regard by the doctor.
An objection lodged by the applicant against the prosecutor’s decision was dismissed by Çorlu Assize Court on 24 December 2008. The decision was communicated to the applicant on 4 March 2009.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment during his visit to the prison infirmary. He adds that he was neither examined properly by the doctor nor received treatment for his problems.
Relying on Articles 3 and 13 of the Convention the applicant further maintains that the domestic authorities failed to conduct an effective investigation in respect of his allegations of ill-treatment.
Under Article 6 §§ 1 and 3 (c) and (d) of the Convention the applicant complains that the objection he lodged against the non-prosecution decision was rejected on the basis of the case file and without a hearing.
Relying on Articles 6 §§ 1 and 3 (c) and (d), and 13 of the Convention, he also alleges that the national courts disregarded the evidence in his favour and failed to hear witnesses.
Finally, relying on Article 13 of the Convention, the applicant complains that his request to obtain a medical report was systematically refused. He adds that the objection he filed against the non-prosecution decision was rejected without justification. He states that the national courts were not impartial and thus the enforcement of domestic remedies was rendered ineffective.
QUESTIONS TO THE Government
Having regard to the incident of 18 May 2007, was the applicant subjected to ill-treatment at the Tekirdağ F-Type Prison within the meaning of Article 3 of the Convention?
Has an effective investigation been carried out by the national authorities to establish whether or not the force used by the prison guards to restrain the applicant was excessive in the circumstances of the case (see, inter alia, Stepanov v. Russia, no. 33872/05, § 55, 25 September 2012, and the cases cited therein)?
The Government are requested to submit a copy of all documents from the investigation file, including, inter alia, the medical reports issued in relation to the applicant’s medical examinations as well as the incident report drawn up on 18 May 2007 immediately after the incident.
[1]. Increased blood in an organ or other body part.
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