PROCEDURE

The case originated in an application (no. 22568/05) 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 a Turkish national, Mr Gürsel Coşar (“the applicant”), on 31 May 2005.

The applicant was represented by Mr M. A. Altın, a lawyer practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent.

On 11 May 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1961 and is currently serving his prison sentence in Muğla Prison.

A. The applicant’s detention in police custody and the medical reports issued in his respect

On 16 January 2004 at 6.30 p.m. the applicant was taken into police custody in connection with a murder investigation. At 6.35 p.m. he met a lawyer from the Muğla Bar Association at the Fethiye Security Directorate. The applicant was then taken to the doctor, who did not find any signs of physical ill-treatment on his body.

On 17 January 2004 the applicant was questioned by the police in the absence of a lawyer. According to a form signed by the applicant, he was reminded of his right to the assistance of a lawyer but he did not make such a request. In his statement to the police, the applicant confessed that he had been involved in the murder of a certain İ.G. He explained that on 11 October 2003, together with İ.G. and Y.A., he had gone to Katrancı Bay to have dinner in a picnic area. Subsequently, a fight broke out between İ.G. and Y.A., and, as a result, İ.G. fell and hit his head on some rocks. When they saw that he was dead, they panicked and tried to get rid of his body. They tied heavy iron bars to his legs and placed his body on a tyre inner tube that they had taken from the boot of Y.A.’s car. Then they swam far from the shore with the body, and dropped it into the sea. The applicant subsequently took part in a reconstruction of events with the police at the scene of the incident.

On the same day at about 5.30 p.m. the applicant was once again examined by a doctor, who did not find any signs of ill-treatment on his body.

The applicant was subsequently taken before the public prosecutor and the judge. Still waiving his right to legal assistance, the applicant repeated the statement he had given to the police. The judge ordered his pre-trial detention and the applicant was placed in Fethiye Prison.

On 19 January 2004, at 4.15 p.m., at his request, the applicant was examined by a doctor in Fethiye State Hospital. According to the medical report, the doctor found two bruises 5-6 cm wide and 30 cm long, and one bruise 5-6 cm wide and 10-15 cm long on the applicant’s back. The doctor noted that the bruises had been caused by a blunt object 24 to 48 hours prior to the examination. She considered that the injuries rendered the applicant unfit for work for three days. She finally noted that the applicant complained of pain in his left ear and that he should therefore be examined by an ear, nose and throat specialist.

B. Criminal proceedings against the applicant

On 20 January 2004 the other co-accused, Y.A., who had allegedly killed İ.G. according to the applicant’s statement, was arrested. In his statement to the police, made in the presence of his lawyer, Y.A. stated that on the day of the incident, before meeting İ.G. to go to Katrancı Bay, he and the applicant had bought a tyre inner tube and two large iron bars. The applicant had previously told him that he knew of a person who was harassing high-school girls and that the applicant was looking for someone to murder this person. Y.A. stated that he had no intention of killing İ.G. when he met him. According to his recollection, when they arrived at Katrancı Bay and the applicant and İ.G. got out of the car, he stayed inside as he wanted to listen to a football match. Some time later, Y.A. saw İ.G. lying on the ground, his head covered in blood. He alleged that the applicant had told him that “his job was over”. As the applicant threatened him, he was forced to help him dispose of the body. The applicant tied an iron bar to İ.G.’s leg and together they placed the body on the tyre inner tube that they had bought earlier. The applicant then swam 100 metres away from the shore with the tyre, dropped the body into the sea and then returned to the shore. On the day of his arrest, Y.A. participated in the reconstruction of events and showed the police the shops where they had bought the tyre and the iron bars as well as the place where İ.G. had been killed by the applicant. Subsequently, Y.A. was further questioned by the public prosecutor and the investigating judge in the presence of his lawyer. He repeated the statement he had given to the police and stated that he had not killed İ.G. but had only helped the applicant dispose of the body. Before the public prosecutor, Y.A. further stated that the applicant had been trading on the stock market on behalf of İ.G. and that they had had a dispute over a certain amount of money.

On 21 January 2004 the Fethiye public prosecutor filed a bill of indictment with the Fethiye Assize Court charging the applicant and Y.A. with homicide under Article 450 (4) of the former Criminal Code.

In his defence submissions, Y.A. retracted the statements he had made during the preliminary investigation stage. He stated that he had been severely tortured while in police custody and had given those statements under duress. Before the trial court, Y.A. denied all the charges against him and stated that he had not been involved in the murder of İ.G.

Before the trial court, the applicant denied being involved in a money-related dispute with İ.G. He said that he had never traded on the stock market on behalf of İ.G. He also denied killing İ.G. and claimed that on the night of the incident he had watched a football match with Y.A. and had not even met İ.G. When asked for the reason for his contradictory statements, the applicant stated that he had given his police statement under duress as he had been tortured.

On 30 June 2004 the Fethiye Assize Court convicted the applicant and Y.A. of homicide and sentenced them to life imprisonment commuted to sixteen years and eight months’ imprisonment. The court noted that neither a body nor a murder weapon had been found. Nevertheless, in view of Y.A.’s and the applicant’s statements to the police, the documentary evidence and the statements of witnesses, the court found that they had murdered İ.G as there had been a money-related conflict between him and the applicant. The court noted that, according to the police statements from the accused, they had hit the victim on the head with an iron bar and had thrown the body and the bar into the sea . In its judgment, the court noted that the applicant had complained on several occasions that he had been subjected to ill-treatment while in police custody and that his statements had been made under duress. However, the court found there was no proof of the applicant’s allegations. It further noted that, in his statements to the police and before the single judge on 17 January 2004, the applicant had made “qualified confessions” (suçlamayı tevil yolu ile kabul etmek).

The applicant appealed. In his appeal petition, he stated that the only evidence against him was the statement taken by the police during the investigative stage, which had been obtained under duress and should therefore not be accepted as evidence. He also pointed out that the police had not discovered a body or a murder weapon.

On 1 June 2005 the new Criminal Code entered into force.

On an unspecified date the public prosecutor at the Court of Cassation remitted the case file to the Fethiye Assize Court for reconsideration in the light of the provisions of the new Criminal Code.

On 13 July 2005 the Fethiye Assize Court again convicted the applicant and Y.A. of homicide and sentenced them each to twelve years and six months’ imprisonment.

On 18 October 2006 the Court of Cassation upheld the judgment of 13 July 2005.

C. The investigation into the applicant’s allegations of ill‑treatment

On 6 August 2004 the applicant filed a criminal complaint with the Fethiye public prosecutor’s office against the police officers who had questioned him on 16 and 17 January 2004, alleging that they had ill-treated him. In support of his allegations, the applicant submitted the medical report of 19 January 2004.

In the course of the investigation, on 3 September 2004, the Fethiye public prosecutor took a statement from the applicant. Before the public prosecutor, the applicant complained that he had been ill-treated while in police custody at the organised crime department of the Fethiye Security Directorate. He maintained that he had been punched, kicked and beaten with wooden sticks and that his head had been hit against the walls. The applicant alleged that he had made a confession as a result of this ill‑treatment. He also stated that one of the police officers who had ill-treated him was called Tarcan.

On 7 September 2004 the public prosecutor took the statement of the doctor who had examined the applicant on 19 January 2004. The doctor recalled that when he had come for examination, the applicant had been shouting that he had been ill-treated. She explained that she had recorded injuries that she had observed on his body. She also stated that the applicant could have sustained these injuries after his transfer to prison. According to her statement, it was also possible that he could have caused the injuries himself. It was medically impossible to specify what type of blunt object had caused the injuries as they could have been caused by the applicant having been beaten, or by him hitting himself with a belt or against the metal frame of the bed or the walls.

On 15 September 2004 the public prosecutor heard further statements from the doctors who had examined the applicant on 16 and 17 January 2004 respectively. The doctor who had examined the applicant on 16 January 2004 explained that he had not observed any injuries on the applicant’s body and the doctor who had carried out the examination on 17 January 2004, claimed that he did not remember the applicant in particular. However, he stated that if he had been faced with allegations of ill-treatment, he would have recorded them in the medical report. When asked about the medical report dated 19 January 2004, the doctor gave his opinion that the injuries noted on the applicant’s back could have been caused after he had left police custody.

On 5 October 2004 the Fethiye public prosecutor issued a decision not to prosecute anyone on the basis of the applicant’’s allegations. The public prosecutor noted that the medical reports issued at the beginning and the end of the applicant’s detention in police custody did not reveal any sign of ill-treatment on the applicant’s body. According to the public prosecutor, the applicant had sustained the injuries after his police custody had ended. Noting that the applicant had not complained of ill-treatment before the public prosecutor and the investigating judge on 17 January 2004 and that the bruises on the applicant’s body did not necessarily mean that he had been beaten, the public prosecutor considered that the applicant could have caused these injuries by hitting himself on the walls or his bed while in prison. In this connection, the public prosecutor relied on the statements of the doctor who had examined the applicant on 19 January 2004.

On 15 December 2004 an objection by the applicant was dismissed by the Muğla Assize Court.