PROCEDURE

The case originated in an application (no. 26803/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Süleyman Erkan (“the applicant”), on 15 March 2002.

The applicant, who had been granted legal aid, was represented by Mr A. Talipoğlu, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 19 September 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1969 and lives in İstanbul.

On 8 September 1999 at 5.15 a.m. the applicant was arrested by police officers from the anti-terror branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation, the PKK (the Kurdistan Workers' Party). According to the arrest protocol, the police officers had to use force to apprehend the applicant since he resisted the arrest. The applicant refrained from signing this document. The applicant alleged that, contrary to what was indicated in the arrest protocol, he had been arrested on 5 September 1999.

Following his arrest, the applicant was blindfolded, put in a car and threats were uttered against him. After being driven around for some time, still blindfolded, he was taken to the anti-terror branch of the Istanbul Security Directorate. There, the applicant was allegedly punched, kicked, beaten on the head and the back with a truncheon and threatened with death. He also alleged that his testicles were squeezed.

On 8 September 1999 at 7.10 a.m. the applicant was examined by a doctor in the Haseki State Hospital who noted an ecchymosis of 9 x 3 cm on the left of the lower part of his abdominal region. The doctor concluded that there were marks of physical violence on the applicant's body and considered that he should be examined by an urologist. On the same day at 7.25 a.m. the applicant was examined by an urologist who found, by using the technique of palpation, that the applicant's testicles were painful and sensitive.

On 9 September 1999 the applicant was again examined by a general practitioner in the Haseki State Hospital who considered that the applicant should be taken to an internist. According to the report drawn up by the doctor, the applicant was brought to him as he was on a hunger strike in police custody. The applicant was then taken back to the Security Directorate.

On 11 September 1999 the applicant was again examined by a general practitioner in the Haseki State Hospital who noted that the applicant was brought before him because of hunger strike. The doctor considered that the applicant should be examined by an internist. On the same day, the applicant underwent a blood test.

On 12 September 1999 the applicant was examined by a doctor in the Haseki State Hospital who noted that there was no sign of physical violence on his body.

On the same day, the applicant was brought before the public prosecutor at the Istanbul State Security Court. In his statement, he maintained that he had been subjected to ill-treatment while in police custody and that, therefore, he had started a hunger strike. Subsequently, on the same day, the applicant was brought before the investigating judge at the Istanbul State Security Court. Before the judge, the applicant maintained that he had been kept in police custody for about one week and that he had been subjected to ill-treatment during custody. He further denied the accusations against him. The judge ordered the applicant's release as there was no strong evidence demonstrating that he had committed the offences of which he was accused.

On 14 September 1999 the applicant filed a complaint with the Büyükçekmece public prosecutor's office against the police officers from the anti-terror branch of the Security Directorate, who had allegedly ill-treated him. In his petition, the applicant maintained that he had been arbitrarily deprived of his liberty between 5 and 8 September 1999 and that he had been subjected to ill-treatment while in police custody. He further contended that on the fourth or fifth day of his detention in police custody he had fainted due to ill-treatment and that he awoke in the Haseki State Hospital. He finally maintained that on 12 September 1999 the doctor had drawn up the medical report without examining him.

Upon receipt of the applicant's petition, on the same day the Büyükçekmece public prosecutor took a statement from the applicant who reiterated his complaints and requested that the police officers who had ill‑treated him be punished. The public prosecutor then requested the doctor at the Büyükçekmece Health Centre to examine the applicant and submit a medical report.

Still on the same day, the applicant was examined by a medical expert from the Büyükçekmece Health Centre, who observed two scarred incisions of 0.5 cm each on his nose and on his left heel, a scarred incision of 2-3 cm on his left elbow and an ecchymosis of 2 cm on his abdominal region.

On 15 September 1999 the applicant was examined by two medical experts from the Human Rights Foundation who noted the following marks and considered that the applicant's account of events was consistent with the marks observed on his body: “...a scabbed wound of 2 x 1 cm on the left elbow, a scabbed wound of 0.5 x 1 cm on the right side of the lower lip, an old wound of 0.5 cm in diameter on the forehead, a scabbed wound on the left heel, a dark brown ecchymosis of 3 x 1 cm on the left lower part of the sternum, haemorrhage on the upper part of the external part of the outer ear....”

On 20 September 1999 the Büyükçekmece public prosecutor issued a decision of lack of territorial jurisdiction and sent the investigation file to the Fatih public prosecutor's office.

On 23 and 26 November 1999 respectively the Fatih public prosecutor took statements from two police officers who were on duty at the anti-terror branch of the Istanbul Security Directorate at the time of the applicant's detention in police custody. The first officer R.D. contended that he had signed the document containing the applicant's statements but had not participated in the questioning. He denied the allegations against him. He further maintained that there had been no need to torture the applicant as the security forces had already found several organisational documents of the PKK in his house. The second officer, İ.K., denied the accusation and claimed that members of illegal organisations generally made this kind of false accusation. He further contended that the minor marks mentioned in the medical report of 14 September 1999 did not result from torture. He alleged that they might have been the marks resulting from handcuffing.

On 19 February 2001 the Fatih public prosecutor took a statement from the applicant, who reiterated his allegations and emphasised that he had been arrested on 5 September 1999, although the date on the arrest protocol was 8 September 1999.

On 20 February 2001 the Fatih public prosecutor issued a decision not to prosecute in respect of the police officers. He found that there was no evidence other than the applicant's allegations on which to initiate criminal proceedings against the police officers.

On 15 May 2001 the applicant filed an objection against the decision of 20 February 2001.

On 29 August 2001 the Beyoğlu Assize Court dismissed the applicant's objection. This decision was served on the applicant's lawyer on 9 October 2001.