PROCEDURE

The case originated in an application (no. 33086/04) 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 Mahfuz Türkan (“the applicant”), on 9 July 2004.

The applicant was represented by Ms K. Doğru, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

The applicant alleged that he had been subjected to ill-treatment while in police custody and that there were no effective remedies in domestic law in respect of his grievances under Articles 3, 6 and 13 of the Convention.

On 11 September 2007 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 1968 and lives in Batman.

At the material time he was working at a tea shop at the Esenler Bus Terminal in Istanbul. On 5 July 1998 he was arrested by police officers for his alleged involvement in a fight and causing a disturbance while drunk. He was then taken to the police station inside the terminal building.

The police officers allegedly covered the applicant’s head with his coat and started kicking, punching and beating him. They strangled him and banged his head against the wall. They also allegedly threatened the applicant and swore at him.

The applicant was released the next day without being brought before the public prosecutor.

On 8 July 1998 the applicant applied to the Human Rights Foundation of Turkey for the treatment of his injuries resulting from his ill-treatment in police custody. His symptoms included pain in the left side of the chest and back, and restricted movement of the left arm.

On 13 July 1998 the applicant underwent a full bone scintigraphy (scan) at the Marmara Nuclear Medicine Centre. The scintigraphy report concluded that there were hyperactive areas in the soft tissue of the sixth left rib, left shoulder, right knee, ankles and cranium (occipital0 and left temporo-parietal0 bones). The report noted that the symptoms were probably the result of physical trauma.

On 21 July 1998 the applicant filed a petition with the Eyüp Chief Public Prosecutor’s Office complaining about the ill‑treatment he had suffered at the hands of the police officers at the terminal building.

On 22 July 1998 a public prosecutor from the Eyüp Chief Public Prosecutor’s office took statements from the applicant. The applicant reiterated his complaints and described the police officers who had ill‑treated him. He then asked the public prosecutor to send him for a forensic medical examination and to bring the police officers to justice. At the request of the public prosecutor, the applicant was taken to the Forensic Medicine Institute where an expert examined the applicant and requested an X-ray as the applicant complained about pain in his skull and chest.

On 31 July 1998 the Eyüp Public Prosecutor took statements from the three police officers who had allegedly ill-treated the applicant. The police officers denied the allegations made by the applicant and claimed that the bruising found on his body could have been caused by other persons with whom he had fought.

On 7 August 1998 the Eyüp Public Prosecutor instituted criminal proceedings in the Eyüp Criminal Court pressing charges against the three police officers for inflicting ill-treatment on the applicant in violation of Article 245 of the former Criminal Code.

According to a report dated 13 October 1998 prepared by doctors from the Human Rights Foundation, the findings of the above-mentioned medical examinations were compatible with the applicant’s account of the use of physical violence against him.

At a hearing on 24 November 1998, the Eyüp Criminal Court heard evidence from the applicant and the accused police officers. Although the accused denied the allegations of ill-treatment, the applicant gave a detailed description of the treatment he had suffered while in their custody. The court then sent the applicant for a medical examination at the Eyüp Forensic Medicine Institute. After noting all the findings in the previous reports and radiological examinations, the institute referred the applicant to the Committee of Experts of the Forensic Medicine Institute for a complete report.

On the same day the applicant filed a petition with the Eyüp Criminal Court seeking leave to become a third-party intervener in the criminal proceedings against the police officers who had ill-treated him.

On 14 December 1998 the Batman Assize Court heard evidence from the applicant at the request of the Eyüp Criminal Court. The applicant reiterated his complaints and asked the judicial authorities to bring the police officers to justice.

Meanwhile, on 9 August 1999 the Istanbul Provincial Police Discipline Board, composed of the Governor of Istanbul, four senior police directors and a member of the legal service of the Governor’s office, decided not to impose any punishment on the three police officers on the ground that there was insufficient evidence that they had ill-treated the applicant.

In a report dated 22 November 2000, the Nuclear Medicine Department of the Cerrahpaşa Medical Faculty opined that the findings in the applicant’s scintigraphy reports were the result of physical trauma.

On 20 December 2000 the Committee of Experts of the Forensic Medicine Institute submitted their report, which confirmed the previous medical findings that the applicant’s body bore signs of soft tissue bruising caused by physical trauma. It further stated that the applicant’s medical condition at the relevant time was sufficient to render him unfit for work for five days.

In her petition dated 26 April 2001, the applicant’s legal representative asked the Eyüp Criminal Court to characterise the acts of the accused police officers as torture falling within the scope of Article 243 of the now defunct Criminal Code

On 21 December 2000 a law (Law no. 4616) on conditional release was enacted. This law provided for the suspension of the substantive proceedings or of the execution of sentences in respect of crimes committed before 23 April 1999 and for which the maximum penalty did not exceed ten years’ imprisonment. Section 5 (a) of Law no. 4616 stipulated that the execution of sentences in respect of the offence proscribed by, inter alia, Article 243 of the former Criminal Code could not be suspended.

On 9 October 2001 the Eyüp Criminal Court held that the criminal proceedings against the police officers should be suspended and subsequently discontinued if no offence of the same or a more serious kind was committed by the offenders within a five-year period, in accordance with that law. The applicant was notified of this decision on 29 December 2003.

On the same day the applicant challenged the decision before the Eyüp Assize Court, arguing that the proceedings should be continued and that the accused police officers’ acts should be characterised as torture within the meaning of Article 243 of the Criminal Code.

On 19 January 2004 the Eyüp Assize Court dismissed the applicant’s appeal and upheld the decision of the criminal court.