PROCEDURE

The case originated in three applications (nos. 14352/05, 38484/05 and 38513/05) 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 three Turkish nationals, Ms Gönül Karagöz, Mr Haydar Ballıkaya and Mr Bekir Çadirci (“the applicants”), on 4 April, 12 October and 7 October 2005.

The applicants, who had been granted legal aid, were represented by Mr E. Kanar, Ms F. Karakaş Doğan, Mr and Ms Kırdök and Ms M. Hanbayat, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

The applicants alleged in particular that they had been subjected to torture during their detention in police custody and that ensuing criminal proceedings against the police officers involved had been ineffective. The applicants relied on Articles 3, 6 and 13 of the Convention.

On 22 May and 24 June 2009 respectively the President of the Second Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASES

A. Gönül Karagöz v Turkey (14352/05)

The applicant was born in 1974 and lives in Istanbul.

On 21 and 22 February 1997 the applicant and a number of other suspects were taken into police custody by officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters, where they were kept until 6 March 1997 and allegedly ill-treated by police officers. The applicant stated in particular that she had been beaten, and subjected to sexual harassment and Palestinian hanging.

On 26 February 1997 the applicant was taken to a State hospital for a medical examination. The report drawn up by a doctor indicated that the applicant did not bear any signs of ill-treatment.

On 4 March 1997 the applicant was taken to a forensic doctor who reported a lightly bruised area on her left shoulder, old scabs of various sizes on the lower parts of her legs, sensitivity in her thumbs and index fingers on both hands and pain in her arms. During the subsequent domestic proceedings, on 15 October 1999 the Istanbul Forensic Medicine Institute established that the injuries noted on the applicant's body had rendered her unfit to work for three days.

On 6 March 1997 the applicant was brought before the Istanbul Public Prosecutor. She denied all accusations against her and mentioned the ill-treatment she had been subjected to. She was subsequently detained pending trial.

Following the complaints of ill-treatment lodged by the applicant and fourteen other detainees, an investigation concerning eight police officers on duty at the time was initiated. On 8 May 1997 the Fatih Public Prosecutor took statements from the police officers concerned and, on 23 June 1997, prepared a summary of the case (fezleke) proposing that the eight police officers who had questioned the fifteen complainants at the Istanbul Security Headquarters be charged with inflicting torture under Article 243 of the former Criminal Code.

On 4 July 1997 the Istanbul Public Prosecutor filed a bill of indictment, charging the police officers as proposed.

On 17 July 1998 the Disciplinary Board of the Istanbul Police (İl Polis Disiplin Kurulu) decided not to impose any disciplinary measures on the police officers owing to a lack of evidence establishing that they had committed the acts complained of.

On an unspecified date the applicant intervened in the criminal proceedings as a civil party. During a hearing held on 29 April 1999, the applicant identified one of the police officers in the hearing room as another one of those who had allegedly been among the perpetrators of her ill-treatment. On 25 October 2000 an additional bill of indictment was issued in respect of that officer.

In his opinion delivered on 8 July 2002, the public prosecutor recommended that the police officers be convicted as charged.

On 2 December 2002 the Istanbul Assize Court acquitted five of the police officers for lack of evidence. The remaining four officers were sentenced to eleven months and twenty days' imprisonment and disbarred from public service for two months and twenty-seven days. This sentence was suspended at the discretion of the trial court judges, who noted that the police officers did not have criminal records and were not likely to perpetrate any crimes if their sentence was suspended. One of the judges expressed a dissenting opinion.

The applicant appealed. On 1 April 2004 the Court of Cassation upheld the acquittal decision regarding the police officer who had been identified by the applicant during the proceedings. In addition, the Court of Cassation quashed the judgment in respect of the other acquitted police officers on the ground that the prosecution had been time-barred. It subsequently dismissed the criminal proceedings. Finally, the Court of Cassation quashed the judgment in respect of the four convicted police officers on procedural grounds, stating, in particular, that the sentence given did not take into account the existence of several victims, and remitted the case to the Istanbul Assize Court.

On 11 November 2004 the Istanbul Assize Court discontinued the criminal proceedings in respect of the remaining four officers on the ground that the prosecution was time-barred.

The applicant appealed. On 29 November 2006 the Court of Cassation upheld the judgment.

B. Haydar Ballıkaya v. Turkey (38484/05) and Bekir Çadirci v. Turkey (38513/05)

The applicants were born in 1965 and 1974 respectively and live in Istanbul.

On 25 November 1997 the applicants were taken into police custody at the Istanbul Security Headquarters, where they were held until 2 December 1997 and questioned regarding their alleged involvement in a terrorist organisation.

In his statements made before the State Security Court and before the Fatih Public Prosecutor on 2 December 1997, the first applicant complained that he had been subjected to torture by police officers while in custody.

On 2 December 1997 the applicants and eight other detainees were examined by a forensic doctor who noted, in respect of the first applicant, 1- 3 cm crusted scars on various parts of both hands, particularly around his wrists, a 2 cm healing lesion under his left armpit and a haematoma and yellow marks on and around his right toenail. As to the second applicant, it was reported that he had had a 1 x 6 cm hyperaemia and abrasion which had started under the left armpit and extended towards the outside of his armpit.

Both applicants, who were interviewed by the Fatih Public Prosecutor on 10 March 1998, mainly said that they had been blindfolded and beaten, that their testicles had been squeezed, and that they had been hung by the arms and put under psychological pressure throughout the whole interrogation. The second applicant also claimed to have been sprayed with hot and cold pressurised water.

On 17 April 1998 the Istanbul Public Prosecutor filed a bill of indictment in which he charged four police officers (S.A., M.C., E.M. and N.C.) with ill‑treating the applicants and two other detainees.

On 25 June 1998 the second applicant joined the proceedings as a civil party.

During hearings held on 26 April 1999 the second applicant, and on 24 June 1999 the first applicant, reiterated their complaints before the court. The first applicant also identified E.M. and S.A. as two of the police officers who had ill-treated him and, reiterating his previous complaints, said that he had been sprayed with pressurised water.

Throughout the proceedings, the accused police officers claimed that the applicants had shown resistance at the time of their arrest which explained the marks found on their body. Consequently, at the hearing held on 29 June 2000, the applicants requested that the Forensic Medicine Institute be consulted in order to determine the exact cause of the marks on their bodies.

The Forensic Medicine Institute issued its report on 19 December 2001. As the report contained no findings relating to the first applicant, on 3 October 2002, the court asked the Forensic Medicine Institute to issue its report in respect of the first applicant.

In its report issued on 19 February 2003 the Forensic Medicine Institute concluded that the crusted scars on the first applicant's hands and wrists could have been about seven days old at the time of his examination by the forensic doctor on 2 December 1997, whereas the lesion under his left armpit and the yellow mark around the right toe could have occurred five to seven days previously. As for the haematoma on his right toenail, the report stated that it was two to three weeks old. Finally the report stated that the lesions under his armpit and the yellow mark on his toenail could have been caused by the application of a solid object directly to the area or by someone hitting those parts of his body or having them forced against a solid and dented surface. The report added that it was not medically possible to identify which one of these three reasons had been the exact cause of each finding.

On 20 June 2003, on the basis of the evidence in the case file, the Istanbul Assize Court held that all three complainants had been subjected to ill‑treatment which fell under Article 243 of the Criminal Code. Accordingly, the police officers had inflicted this treatment intentionally in order to extract confessions. The first applicant had been able to identify M.C. and S.A. at one of the hearings. Referring, inter alia, to the findings in the medical reports, the court found M.C. and S.A. guilty as charged and sentenced them to one year's imprisonment, further prohibiting them from holding public office for a period of three months. For lack of evidence, the court acquitted N.C. in respect of the accusations made by the first applicant and S.A. and E.M. in respect of the accusations made by the second applicant. In reaching this conclusion the court took into account the fact that the second applicant could not identify the perpetrators.

Both parties appealed. On 29 March 2005 the Court of Cassation quashed the judgment in respect of N.C., M.C. and S.A. on the ground that the investigation had been insufficient. The court noted in particular that the medical reports on the complainants, issued when they were taken into police custody, and their statements taken there, were missing from the case file. As to the judgment acquitting S.A. and E.M. in respect of the complaints lodged by the second applicant, the court initially quashed it and then dismissed the proceedings on the ground that the prosecution had become time-barred.

The case was remitted to the Istanbul Assize Court, which, on 24 June 2005, decided to discontinue the proceedings in respect of M.C. and S.A. because the prosecution had ultimately become time-barred.

On 26 July 2005 the second applicant appealed. On 18 April 2007 the Court of Cassation upheld the Istanbul Assize Court's judgment with simple reference to the hearings, evidence, the trial court's discretion and the case file in general.