SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39041/10
by Rahmi ŞAHİN and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 6 September 2011 as a Chamber composed of:
Françoise Tulkens, President,
Danutė Jočienė,
Dragoljub Popović,
Giorgio Malinverni,
Işıl Karakaş,
Guido Raimondi,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 7 May 2010,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Rahmi Şahin, Erbil Acar and Murat Aksu, are Turkish nationals who were born in 1985, 1986 and 1982 respectively and live in Hakkari. They are represented before the Court by Mr F. Timur, a lawyer practising in Hakkari.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 12 December 2009 the applicants were taken into police custody during a demonstration, on suspicion of being members of the PKK (Workers' Party of Kurdistan). The applicants refused to sign the records of arrest. According to the record of the arrest of the first applicant, R.Ş., he was running away from the police officers and suddenly he fell down and subsequently, after offering physical resistance to the police, he was arrested. R.Ş. was examined by a doctor from the Hakkari State Hospital, who noted the following injuries: haematoma on the left eye, slight swelling between the upper lip and the tooth (which was stated to have occurred as a result of a fall), and a bruised lesion with abrasions on the lumbar area. The expert recommended a dental examination.
On 13 December 2009 the first applicant was once again examined by the same doctor. She repeated the same findings.
On 14 December 2009 the applicants' lawyer was called to assist the applicants during questioning, which took place at the Anti-Terrorist Branch of the Hakkari Security Headquarters. The second applicant, E.A., stated that he wanted to exercise his right to remain silent; however, he gave some information about his presence at the scene of the incident. The other applicants exercised their right to remain silent and did not answer any questions.
On the same day the applicants were taken to the Hakkari public prosecutor's office, where they denied involvement in the demonstration. R.Ş. further stated that he had been subjected to violence, alleging that he had been hit on the ear with a plastic tube. He stated that he still had pain in several parts of his body, particularly around the heart. He complained to the public prosecutor that after he had been arrested the police officers had hit him on the back with the butt of a gun. After the questioning, the prosecutor ordered a medical examination of R.Ş. A forensic doctor, mentioning the findings of the previous medical reports, noted old bruising around the right eye, a mucosal tear of 0.5 cm on the right side of the upper lip and oedema in this region. It was also stated in the report that the applicant described pain in the hemithorax, femoral and lumbar areas, which was observed by the doctor as a slight sensitivity in this area. The doctor concluded that the injuries were not life-threatening and recovery would result from simple medical treatment.
Later the same day the applicants were questioned by the Hakkari investigating judge, when they pleaded innocent and requested to be released. R.Ş. submitted that he had been subjected to ill-treatment during arrest. After the questioning was over, the investigativeng judge remanded the applicants in custody.
On 15 December 2009 the applicants' lawyer requested the court to lift the confidentiality decision which had been taken. This request was refused by the Hakkari Assize Court the next day.
On 16 December 2009 the applicants' lawyer requested his clients' release pending trial. This request was dismissed on the same day by the Hakkari Criminal Court, mainly on the grounds that the investigation was still in progress and that the applicants could destroy the evidence or abscond.
On the same day, the applicants' lawyer asked for the documents which the applicants were entitled to obtain despite the confidentiality decision. He was provided with the medical reports issued in respect of the applicants.
On 28 December 2009 the applicants' lawyer filed an official complaint against the police officers who had taken part in the arrest. He alleged that R.Ş. had been beaten up by the police officers and that he had been taken to a hill and ordered to run towards the police officers, who had then hit him on the back while he was on the ground. He also claimed that the medical reports issued were not appropriate or in compliance with the regulations. It was further alleged in the petition that during their consultation in police custody, the lawyer had observed bruising around the applicant's eye and damage to his gums, which could have been a result of being hit in the teeth. The applicant further stated that he was suffering from constant pain around the heart and chest.
On 17 March 2010 the Hakkari public prosecutor issued a decision not to prosecute. Having regard to the simple nature of R.Ş.'s injuries, he concluded that the police officers' use of force had been proportionate and in line with section 16 of Law no. 2559 on the Duties and Powers of the Police (the Police (Duties and Powers) Act). The explanation given was that during a police intervention against a group of fifty to sixty people who were chanting slogans in support of an illegal organisation, the applicant was trying to escape from the police officers. Following a chase, the applicant fell down while running away and was immediately arrested by police. The public prosecutor further noted, referring to photographs and identification records, that the applicant had acted as part of a group which had been blocking the road, starting fires, chanting slogans and throwing Molotov cocktails during the incidents. He also considered that there was no evidence in the case file indicating any deficiency in the medical reports drafted by the doctors.
On 13 April 2010 the Van Assize Court rejected R.Ş.'s appeal request.
At the time of the application the criminal proceedings were pending and the applicants were still in detention.
COMPLAINTS
The first applicant, R.Ş., alleged under Article 3 of the Convention that he had been subjected to ill-treatment during arrest and that the national authorities had failed to investigate his allegations of ill-treatment properly and had issued a decision not to prosecute without thoroughly examining the case file. In particular, he claimed that neither his nor the police officers' statements had been taken as part of the investigation.
The applicants complained under Article 5 of the Convention that they had not been informed of their rights when they were arrested. They signed an information form, but these rights were not exercised. The applicants also complained that their continuing detention was unjustified and about the refusal of their request to be released by the national courts.
Citing Article 6 of the Convention, the applicants contended that they had been deprived of their defence rights, as they did not have access to a lawyer in the first two days after their arrest. Furthermore, they alleged that the applicant's lawyer had not been allowed to examine the case file on account of the confidentiality decision, thus they could not be informed about the allegations against them. In particular, R.Ş. further complained that he could not substantiate his allegations of ill-treatment before the public prosecutor, as he did not have access to the case file in the criminal proceedings brought against him.
The applicants also cited Articles 13, 14, 18 and Article 1 of Protocol No. 12, without giving an explanation.
THE LAW
1. The first applicant R.Ş. complained under Article 3 of the Convention that he had been subjected to ill-treatment during his arrest and that the authorities had failed to conduct an effective investigation into his allegations of ill-treatment.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
2. As regards the remaining complaints raised by the applicants under Articles 5 and 6 of the Convention, the Court has also examined them. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and the application in respect of Erbil Acar and Murat Aksu must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the first applicant's complaint under Article 3 of the Convention concerning the alleged ill-treatment inflicted on him during arrest and the alleged ineffectiveness of the investigation conducted into his allegations of ill-treatment;
Declares the remainder of the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy