Communicated on 16 March 2015
SECOND SECTION
Application no. 31714/10
Mazlum İŞİK and Others
against Turkey
lodged on 12 May 2010
STATEMENT OF FACTS
The applicants, Mr Mazlum İşik, Mr Muhammed Beyter and Mr Recep Ertunç, are Turkish nationals who were born in 1994, 1994 and 1993 respectively. They are represented before the Court by Mr Fahri Timur, a lawyer practising in İzmir.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
At the time of the events giving rise to the application the applicants were minors who lived with their parents in the city of Hakkari.
On 6 December 2009 protests took place in Hakkari to draw attention to the detention conditions of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers Party, an outlawed organisation).
During the protests a group of protesters blocked the traffic in the Bulak district of Hakkari. Upon the arrival of the police, some 15 to 20 protestors whose faces were covered with items of clothing started throwing stones at the police cars. Consequently the police intervened in the protests and gave chase to the protestors, including the applicants.
The applicants were arrested at 6.30 p.m. and ill-treated by the police very shortly after they were handcuffed. Subsequently they were taken to the anti-terrorism branch of the Hakkari police headquarters, where they were subjected to further ill-treatment.
According to the arrest reports drawn up by police officers, the applicant Muhammed Beyter resisted the police officers’ attempts to arrest him. Thus, necessary force had to be used by the police to arrest him. The applicant Recep Ertunç was injured by the stones thrown by other protestors.
On the same day the police officers who had arrested the applicants were questioned as witnesses. Two of them maintained that they had used measured force on the applicant Muhammed Beyter in order to arrest him.
At around 7.30 p.m. the same day the applicants were taken to the Hakkari State Hospital for medical examinations. According to the medical reports drawn up at that hospital, the front part of the applicant Recep Ertunç’s skull was fractured, and he had redness on his nose and the left side of his forehead. The applicant Muhammed Beyter had bleeding on the outer side of his right eye and there was pain in his right wrist. The report for the applicant Mazlum İşik states that there were no signs of ill-treatment on his body.
Subsequently the applicants were transferred to a special police station for minors. A lawyer was informed four hours after the applicants’ arrest and was asked to represent the applicants during their formal identification.
During the questioning the applicants Mazlum İşik and Recep Ertunç stated that they had been ill-treated by the police. The applicants’ lawyer who was present during the questioning submitted that the medical examinations carried out on the applicants did not comply with the requirements of domestic law or the Istanbul Protocol, and requested that the Forensic Medicine Institute to carry out another medical examination. In accordance with this request the public prosecutor referred the applicants to the Forensic Medicine Institute.
On the same day the applicants were examined at the Forensic Medicine Institute’s Hakkari branch. According to the report issued there, the applicant Recep Ertunç had a wound on the frontal area of his head, pain on the outer side of his wrist and on his hand, and bruises and pain on the back of his right arm. The applicant Muhammed Beyter had grazes on his left cheekbone and around his eye, a 2x2-centimetre swelling on the right side of the frontal area, grazes at the bottom of his spine (sacral region) and swelling and pain on his right wrist. No external sign of ill-treatment was observed on the applicant Mazlum İşik.
On 7 December 2009 the Hakkari Magistrates’ Court’s Criminal Division ordered the applicants’ pre-trial detention. On the same day the applicants were examined at the Hakkari State Hospital twice; at the end of their police custody and before they were taken to prison. The medical reports state that the applicant Recep Ertunç had an injury on his head (parietal lob) and on a finger of his right hand. The applicant Muhammed Beyter had abrasions around his right eye and swelling on his right wrist and he was in a depressed state. The applicant Mazlum İşik had a light oedema on his head.
On 8 December 2009 the applicants’ lawyer applied to the Hakkari prosecutor’s office and requested to see the documents relating to the investigation against the applicants. His request was rejected by the prosecutor on the ground that a court order restricting access to the documents had been requested from the Magistrates’ Court. On the same day the applicants’ lawyer applied to the Hakkari Magistrates’ Court requesting access to the documents. He maintained that the prosecutor’s refusal to give him access to the documents in the absence of a restriction order limited the applicants’ rights.
On 9 December 2009 the Hakkari Magistrates’ Court decided to restrict access to the contents of the investigation file except for the medical reports drawn up during the applicants’ arrest and detention. The applicants’ lawyer objected to the restriction order and argued that it limited the rights of the defence and that he had not, in any event, been given access to some of the medical reports. His request was rejected by the Hakkari Criminal Court of First Instance. Subsequently the medical reports were made available to the applicants’ lawyer.
In the course of the following days the applicants’ lawyer visited the applicants in the detention facility and recorded their statements. They told him the following:
Recep Ertunç:
“I was arrested by the police in Dağgöl district after I played a game of football with my friends. They beat me up from the moment I was apprehended. They pushed me to the ground, and stepped on me with their feet. They handcuffed my hands behind my back and started hitting my head with their helmets, fists and feet. They hit my head several times against the police car. (...) Mazlum was also inside the car. They covered my head with a piece of cloth, with my eyes tightly covered. They took us somewhere and threw us on the ground. Then they stepped on my foot in the position in which my ankles were touching the ground. It hurt a lot. They did this a couple of times. I could see where we were when I looked out of the window because they had [removed the cover from] our faces. (...) They were swearing at our mothers and sisters. (...) When they first took us to the doctor I told the doctor the things I had gone through. However, there were two other police officers inside. I did not tell the doctor who did it because I was scared. When they took us to a doctor another time, I told him everything. After they took us to the doctor we were taken to the minor’s branch [of the police]. We were not treated badly in the minor’s branch like we had been in the anti-terrorism branch. However, there was one officer who swore at us and treated us badly when we were left alone with him. I still cannot use my right thumb because of the ill-treatment I went through when I was apprehended and [while I was] in the anti-terrorism branch; it hurts a lot. My head had to be stitched (...) I fainted after the ill-treatment.”
Mazlum İşik:
“On Sunday the police arrested me in Dağgöl district. I was selling potatoes and my uncle sent me home (...) When they caught me, they handcuffed me and started hitting me. They hit me with their sticks, fists and helmets and they also kicked me. They had caught another boy and they were hitting him on the head. His head was bleeding (...) Then they took us to the police station and subsequently to the minor’s branch. They were swearing at us, hitting us and kicking us. They pulled my ears. When they took us to the doctor, there were police officers present. I was scared to mention the treatment I had gone through. (...) They generally treated us well in the minor’s branch except one officer who treated us badly, swore at us and kicked us.”
Muhammed Beyter:
“We were arrested on Sunday. (...) and were kept in the anti-terrorism branch office. (...) They covered my face with a cloth and photographed me. They started beating me from the moment I was caught. They also beat me up in the anti-terrorism branch. My right wrist was swollen and they injured my right eye. The upper part of my left hip was also injured. They hit my head with sticks and helmets and they kicked me. (...) We could not tell the doctor who hit us because we were scared. (...) We were generally well treated in the minor’s branch. However, an officer there constantly swore at us when he was alone there with us. (...) The other kids who were arrested together with me were handcuffed during the arrest.”
On 11 December 2009 the applicants’ lawyer lodged criminal complaints against the police officers for ill-treatment and against the doctors for failing to carry out the medical examinations in accordance with the procedure laid down in the Istanbul Protocol and in the domestic regulations. The applicants’ statements, summarised above, were also submitted to the prosecutor’s office together with the complaint petition.
On 9 February 2010 the Hakkari prosecutor decided not to instigate criminal proceedings against the police officers or the doctors. The prosecutor stated in his decision that the applicant Mazlum İşik did not have any injuries and that the injuries observed on the bodies of the remaining two applicants had been treated “with simple medical procedures”. The prosecutor considered that the injuries could have been caused either during the arrests or during the demonstrations. However, since the applicants were “persons who had been acting within the control of the PKK, it was only to be expected that they would make such allegations against the security forces who fight against that organisation”.
The prosecutor further stated that the police officers had the authority to use force on members of the organisation in the course of unlawful protests and since the applicants’ injuries needed only simple treatment, the police officers could not be accused of using excessive force on the applicants. The prosecutor was also of the opinion that the applicants’ complaints concerning the adequacy of the medical reports were abstract and had not been supported by any legal reasoning.
On 24 February 2010 the applicants filed an objection against the decision not to instigate criminal proceedings. They argued, inter alia, that an impartial and effective investigation had not been carried out and that the suspects had not been identified. They maintained that their statements had not been taken into account and that they had not been questioned by the prosecutor. According to the applicants, the only investigative step had been the consultation of the witness statements given by the police officers who had arrested them. They further argued that the medical examinations had been carried out in the presence of a police officer and that the medical reports had not been drawn up in accordance with the requirements of the domestic legislation.
On 8 March 2010 the Van Assize Court decided to reject the applicants’ objections on the grounds that no evidence had been provided by the applicants for the alleged ill-treatment. The Assize Court considered that the statements of the applicants drawn up by their lawyer could not be regarded as concrete evidence. In any event, the two applicants’ injuries had been treated with a simple medical procedure and the remaining applicant Mazlum İşik did not have any injuries.
COMPLAINTS
The applicants complain under Article 3 of the Convention that they were ill-treated shortly after they were caught by the police and also during their detention at the anti-terrorism branch and at the minors’ branch of the security directorate.
Under the same provision and relying also on Articles 6 and 13 of the Convention the applicants complain that the investigation carried out into their complaints was not effective. They argue, in particular, that the investigation was closed before any investigative steps were taken. They were not questioned by the prosecutor, the suspects and witnesses were not identified and no evidence was collected. The applicants further complain that the investigation was not impartial because the decision not to instigate criminal proceedings was based on the allegation that the applicants were acting on behalf of a terrorist organisation. They complain that the medical examinations were carried out in the presence of a police officer and that the medical reports issued were insufficient and did not comply with the requirements of the domestic law and the Istanbul Protocol.
Relying on Article 5 § 1 (c) and 5 § 3 of the Convention the applicants complain that they were arrested and detained on remand unlawfully.
QUESTIONS TO THE PARTIES
1. Were the applicants subjected to ill-treatment in breach of Article 3 of the Convention?
2. 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?
In replying to this question the Government are requested to deal with the allegations made by the applicants in this respect, namely that the investigation into their allegations of ill-treatment was closed before any investigative steps were taken; that their statements were not taken, the suspects and witnesses were not identified and questioned, necessary evidence was not collected, medical examinations were carried out in the presence of a police officer and the medical reports were insufficient and did not comply with the requirements of the domestic law or the Istanbul Protocol.
3. 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 paragraph (c) of this provision?
4. Were the length of the applicants’ pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
Appendix
No.
Firstname LASTNAME
Birth date
Nationality
Place of residence
Representative
Mazlum İŞİK
20/02/1944
Turkish
Hakkari
F. TİMUR
Muhammed BEYTER
01/08/1994
Turkish
Hakkari
F. TİMUR
Recep ERTUNÇ
28/03/1993
Turkish
Hakkari
F. TİMUR
Full & Egal Universal Law Academy