PROCEDURE

The case was referred to the Court by the Government of the Republic of Turkey (“the Government”) on 18 September 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 21890/93) against Turkey lodged with the European Commission of Human Rights (“the Commission”) under Article 25 by a Turkish national, Mr Mehmet Erdagöz, on 1 May 1993. The Government’s application referred to Article 48 (d) of the Convention. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 § 1 of the Convention.

On 28 October 1996 the Delegate of the Commission filed observations on the Government’s application referring the case to the Court.

In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 29 October 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr F. Matscher, Mr L.-E. Pettiti, Mr B. Walsh, Mr J. De Meyer, Mr A.N. Loizou, Mr B. Repik and Mr J. Casadevall (Article 43 in fine of the Convention and Rule 21 § 5).

As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 24 and 27 March 1997 respectively. The Delegate of the Commission did not submit any observations.

On 10 June 1997 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions.

In accordance with the decision of the President, who had given one of the applicant’s lawyers leave to use the Turkish language (Rule 27 § 3), the hearing took place in public in the Human Rights Building, Strasbourg, on 26 June 1997. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Mrs D. Akçay, Acting Agent, Mrs I. Boivin, Adviser; (b) for the Commission Mr F. Martínez, Delegate; (c) for the applicant Mr H. Kaplan, avukat (lawyer), of the Istanbul Bar, Mr S. Yılmaz, avukat (lawyer), of the Diyarbakır Bar, Counsel. The Court heard addresses by Mr Martínez, Mr Kaplan, Mr Yılmaz and Mrs Akçay.

As Mr Walsh was unable to take part in the deliberations on 22 September 1997, Sir John Freeland, substitute judge, replaced him as a member of the Chamber (Rules 22 § 1 and 24 § 1).

AS TO THE FACTS

I. circumstances of the case

Mr Mehmet Erdagöz, a Turkish national, was, at the material time, the owner of a shop in Adana. He now lives in Kars.

On 3 June 1992 a brawl broke out between the applicant and members of his family on one side and a Mr H.A. and his friends on the other. After the fight each of the protagonists lodged a complaint accusing the other, and on 16 June 1992 the public prosecutor’s office charged H.A. and the others with armed assault, attempted murder and offences under the Firearms Act. The outcome of these proceedings is not known.

On 16 September 1992, at about 2 a.m., the police were informed by an anonymous telephone call to Bağlar police station that stones had been thrown against the applicant’s shop and had smashed the windows. The police arrived on the scene half an hour later – before the applicant, who was not on the premises, had even been informed – noted that the windows had been broken and made out a damage assessment report. Later that night, at 5.30 a.m., Mr Erdagöz, having been informed of the incident, unsuccessfully requested Deputy Inspector S.K., of Bağlar police station, to have the premises searched again before he opened the shop. He also named the persons he suspected of the attack, including H.A., but decided against lodging a complaint and left the police station.

At 10.45 a.m. on the same day, after consulting the security police, and on their advice, the applicant returned to the police station and handed over two spent cartridge cases which he claimed to have found inside his shop. He also lodged a complaint and demanded the arrest of H.A., who had allegedly organised the attack out of animosity towards the applicant. A police squad conducted a fresh search of the scene of the crime. According to the report drawn up at the time, at 11.30 a.m., no bullet marks were found.

On 16 March 1993, on account of the events of 16 September 1992, the Adana public prosecutor committed H.A. for trial in the Adana Criminal Court for threatening use of a firearm, criminal damage and an offence under the Firearms Act. In a judgment of 28 June 1993 the Criminal Court acquitted him for lack of sufficient evidence. The Court of Cassation upheld this judgment on 28 February 1994.

A. Deprivation of the applicant’s liberty

Shortly after 11.30 a.m. on 16 September 1992, as a result of the events of the previous night and on account of the conduct of the applicant, who was suspected of fabricating evidence (see paragraphs 11–12 above), Chief Inspector Enver Tunç ordered him to be transferred, together with H.A., who had been arrested in the meantime, to the security police headquarters. In the covering letter which he sent with the file to the public order branch of the security police, Mr Tunç wrote as follows: “In view of the fact that Mehmet Erdagöz has frequently lodged ill-founded complaints against the station personnel, that there is animosity between him and [H.A.], that he has previously abused the police and the judicial authorities, that the version of the events put forward by Mr Erdagöz, namely an armed attack, is probably an invention, that he possesses a registered firearm and may well have another unregistered one and that he has already made several contradictory statements, Mr Erdagöz and [H.A.] have both been transferred to security police headquarters for detailed questioning. I therefore request you to check whether these persons are wanted in connection with an offence, to inform the public order branch and our station of the result and to send a copy of the document to the criminal investigation branch.”

In an order of 17 September 1992 the chief inspector referred H.A. and the applicant, who was suspected of falsely reporting a criminal offence, to the public prosecutor’s office.

On the same day, accompanied by summaries of their interviews prepared by Mr Tunç, the applicant and H.A. appeared before the Adana public prosecutor. Mr Erdagöz was released the same day, at a time which has not been specified.

B. The applicant’s complaints against the police

1. The first complaint

On 17 September 1992 the applicant lodged a criminal complaint against the chief inspector and Deputy Inspector S.K. with the public prosecutor. He alleged that during the inquiries into the altercation of 3 June 1992 (see paragraph 10 above) the former had abused his authority by drawing up a biased report of the incident. He accused S.K. of inflicting ill-treatment on him when he first went to the police station, at 5.30 a.m., following the events of the night of 15 to 16 September.

The next day, at the request of the police, Mr Erdagöz had a medical examination at the social security hospital in Adana. The provisional report, drawn up on the same day, mentions the following injuries: superficial grazing on the left side of the back and bruises and swelling below both knees. On 24 December 1992 a doctor from the Adana Institute of Forensic Medicine drew up a new report confirming the findings of the report of 18 September.

On 29 December 1992 the Adana public prosecutor, after conducting an investigation, discontinued the proceedings. He concluded that the allegation of abusing authority was unfounded and decided not to pursue the investigation concerning the chief inspector. With regard to the complaint of ill-treatment, he noted: “Following the telephone message to Bağlar police station reporting the fact that on 16 September 1992 the windows of the shop situated at 62B 677th Street had been smashed, Deputy Inspector [S.K.] sent a police squad to the scene. This squad made out a report at 3.30 a.m. At 7 a.m on the same day the complainant went to the police station to complain of the incident. While his complaints were being taken down he decided not to lodge a formal complaint and left the police station. He returned soon after and asserted that he had found two [bullets] inside his shop. Thereupon Mr Enver Tunç, the senior officer at the station, ordered the complainant’s first statement to be altered and sent a squad to the premises. At 11.30 a.m. on the same day this squad made out a report noting that there were no bullet marks whatsoever in his shop. There being no such marks, the inference was drawn that the complainant had falsely produced the bullets in question for the sole purpose of ensuring that [H.A.], the person he had accused, would be arrested. Chief Inspector Tunç accordingly referred him to the criminal investigation branch for questioning. By an order of 17 September 1992 the applicant and [H.A.] were referred to the public prosecutor’s office, the former on suspicion of falsely reporting a criminal offence. Although traces of blows and injuries on Mr Mehmet Erdagöz’s body are mentioned in the medical report of 18 September 1992, drawn up two days after the incident by the social security hospital to which he had been sent by Chief Inspector Tunç, there is no conclusive evidence that the lesions noted in the report were the result of blows inflicted by the deputy inspector; there is therefore insufficient evidence to prosecute him.”

On 27 January 1993 the applicant appealed against the above discontinuation order to the President of the Tarsus Assize Court, who dismissed the appeal on 23 February 1993.

On 8 March 1993 the applicant petitioned the Minister of Justice to lodge an appeal in the interests of the law. On 29 March 1993 the Minister of Justice refused.

2. The second complaint

During the investigation Mr Erdagöz lodged a complaint against the chief inspector and another policeman, A.K., alleging that they had insulted him and taken him into police custody for forty-eight hours even though he was the complainant.

On 6 December 1993 the Adana public prosecutor made an order discontinuing the proceedings against these two officers in the following terms: “However, the investigation file (case no. 1992/22569) and the preliminary inquiry conducted in the case show that on 16 September 1992 ... the complainant went to the police station, where he made an oral statement to the effect that the windows of his shop had been smashed and that he wished to lodge a complaint against the person responsible; he was then asked to produce evidence or name a witness; he left the police station and came back two hours later bringing two [bullets] as evidence; police officers accordingly went to the scene to verify Mr Erdagöz’s allegations and found that the windows were broken but that there were no marks which might suggest that they had been smashed by bullets. In the light of the applicant’s history, he was suspected of falsely reporting a criminal offence and the object of the inquiry was therefore modified and an investigation in two branches conducted. However, as the police had not found any pertinent evidence that the offence had been committed, the complainant was referred to the public prosecutor’s office by an order of 17 September 1992. Contrary to his allegations, he was not taken into police custody for forty-eight hours but necessarily held for twenty-four hours so that the inquiry could be completed. Moreover, there is no evidence to support the allegations of defamation.”

On 15 February 1994 the applicant appealed against the above discontinuation order to the President of the Assize Court. He alleged in particular that his detention in police custody had lasted for two days and had been due to the resentment the police felt towards him on account of his previous complaints to the European Commission of Human Rights and the domestic courts. On 7 March 1994 the President of the Tarsus Assize Court dismissed the appeal and on 24 June 1994 the Minister of Justice refused a petition in which Mr Erdagöz had asked him to lodge an appeal in the interests of the law.