Communicated on 14 January 2014
SECOND SECTION
Application no. 32738/11
Kadri KILICI against Turkey
lodged on 4 May 2011
STATEMENT OF FACTS
The applicant, Mr Kadri Kılıcı, is a Turkish national, who was born in 1962 and lives in Istanbul. He is represented before the Court by Ms Şehnaz Turan Dündar, a lawyer practising in Istanbul.
The circumstances of the case
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.
The applicant is a member of the Workers’ Union of Municipality and Local Authority Services (Tüm Belediye ve Yerel Yönetim Hizmetleri Emekçileri Sendikası; TÜM BEL SEN).
On 16 March 2009 the applicant, together with approximately 200 fellow members of his Union, gathered in Beyoğlu district of Istanbul. They wanted to walk to nearby Haliç neighbourhood, where the 5th World Water Forum was being held and where they wanted to read out a press release in order to protest against the Forum. They wanted to express their disagreement with the attempts to commercialise and privatise water resources.
Before the applicant and his fellow Union members started their walk and while they were still in Beyoğlu district, police officers asked them not to walk to Haliç as doing so would disrupt the flow of traffic. Police officers told them, however, that they could hold a press meeting at their present location in Beyoğlu.
The applicant and the other Union members present there considered that their democratic rights were being curtailed, but agreed with the police officers’ proposal and issued a press release in Beyoğlu. While they were in the process of dispersing, however, the police officers suddenly attacked them with their truncheons, sprayed them with tear gas and opened fire at them with plastic bullets. A number of them were beaten up and some were arrested.
The applicant was shot in the back with a plastic bullet which did not penetrate his body but caused injury and pain. He was also affected by the tear gas sprayed by the police officers and another plastic bullet skimmed his arm. He was not arrested.
The following day the applicant made an official complaint to the Beyoğlu prosecutor and asked for the police officers who had fired at him with plastic bullets and sprayed him with tear gas to be prosecuted. The same day the Beyoğlu prosecutor questioned him and referred him to the Forensic Medicine Institute. In his referral letter the prosecutor asked the Forensic Medicine Institute to clarify whether the applicant’s injury fitted the description of injuries set out in section 87 of the Criminal Code, or whether it was so insignificant that it “could be treated with a simple medical intervention”, as explained in “section 88 [sic.] of the Criminal Code”.
The same day the applicant was examined by a doctor at the Beyoğlu branch of the Forensic Medicine Institute. The doctor who examined the applicant stated in his report that “on the upper back of the [applicant] there is an ecchymosed area, measuring approximately 3x2 centimeters. This injury does not endanger his life. It is of a nature that could be treated with a simple medical procedure”. The report was forwarded to the Beyoğlu prosecutor.
On 26 August 2010 the Beyoğlu prosecutor decided not to prosecute any of the police officers. The prosecutor stated in his decision that, according to the medical report, the injury on the applicant’s body was “of a nature that could be treated with a simple medical procedure”. According to the prosecutor, the injury was caused when the police officers used their statutory right to resort to the use of force and used plastic bullets in order to arrest the applicant who had been taking part in an unlawful gathering.
The applicant lodged an objection to the prosecutor’s decision and argued that the prosecutor’s conclusion was devoid of any basis because no attempts had been made by the police to arrest him and there had thus been no cause for the police to resort to the use of force. Furthermore, no proceedings had been brought against him for having taken part in the allegedly unlawful demonstration. In his objection the applicant also alleged that his rights under Articles 3 and 11 of the Convention had been breached.
The objection lodged by the applicant was rejected by the Bakırköy Assize Court on 22 November 2010.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was shot and injured with a plastic bullet. He submits that no attempts were made to arrest him and there was therefore no reason for him to put up any resistance to the police officers. Indeed, no criminal proceedings were ever brought against him for having attended an unlawful demonstration.
Relying on Article 11 of the Convention, the applicant complains that on account of the police officers’ use of force, he was unable to enjoy his right to freedom of assembly.
Finally, the applicant complains that the national authorities did not investigate his complaints adequately and they thus deprived him of an effective remedy within the meaning of Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to ill-treatment, in breach of Article 3 of the Convention? In this connection:
i) On what information did the Beyoğlu prosecutor base his conclusion that the demonstration had been unlawful and that the police officers had been trying to arrest the applicant? The Government are requested to provide the Court with a copy of the reports drawn up by the police officers on the day in question, and a copy of any reports showing that the applicant was arrested.
ii) What was the reason for the police officers to disperse the demonstration and to resort to the use of force in doing so? In this connection, what attempts were made by the authorities to assess the responsibility of the superiors of the police officers who ordered the use of force against the demonstrators (see İzci v. Turkey, no. 42606/05, § 98, 23 July 2013)?
iii) Was the police officers’ resort to the use of tear gas and plastic bullets in accordance with the applicable legislation, rules and regulations? In particular, did any national authority verify the compliance or otherwise of the actions of the police officers with those rules and regulations? The Government are requested to supplement their response with reference to the applicable domestic statutory and regulatory provisions and reports drawn up by the national authorities.
iv) Does the wording employed by the Beyoğlu prosecutor in his letter of 17 March 2009 reflect the established practice in Turkey when alleged victims of ill-treatment are referred to the Forensic Medicine Institute by prosecutors?
v) Were the applicant’s medical examination and the report pertaining to that examination by the Forensic Medicine Authorities’ Beyoğlu branch compatible with the applicable national standards, the standards recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), and the guidelines set out in the Istanbul Protocol (see Ballıktaş v. Turkey, no. 7070/03, § 28, 20 October 2009)?
vi) Was the closing of the investigation by the Beyoğlu prosecutor by relying on, inter alia, the allegedly “insignificant” nature of the applicant’s injury compatible with the absolute nature of the prohibition of ill-treatment foreseen in Article 3 of the Convention?
2. Having regard to 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? In this connection, the Government are requested to submit to the Court a copy of the statements taken from the police officers in the course of the investigation into the applicant’s allegations of ill-treatment.
3. Having regard to the police intervention at the gathering on 16 March 2009, do the facts of the case disclose an unjustified interference with the applicant’s right to freedom of assembly under Article 11 of the Convention?
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