PROCEDURE

The case originated in an application (no. 67137/01) 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, Ms Türkan Yavuz (“the applicant”), on 8 February 2001.

The applicant was represented by Mr M. A. Kırdök and Ms M. Kırdök, lawyers practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 27 November 2001 the Court decided to communicate the application.

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

In a letter of 17 March 2005, the Court informed the parties that in accordance with Article 29 §§ 1 and 3 of the Convention it would decide on both the admissibility and merits of the application.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1973 and lives in İstanbul.

A. The detention in police custody and the medical certificate concerning the alleged ill-treatment of the applicant

On 17 May 1997 five police officers from the Anti-terror branch of the İstanbul Security Directorate searched the flat of the applicant. She and her husband were arrested and taken into custody on suspicion of their membership of an illegal organisation, namely the TKP/ML0. According to the search protocol drafted on the same day by the police officers and signed by the applicant, the police found a number of documents, guns, ammunition and dynamite. The report mentioned that the applicant and her husband resisted arrest.

On the same day, the police officers from the Anti-terror branch of İstanbul Security Directorate arrested other suspects, including Mr E.Y., on the same grounds as the applicant.

On 19 May 1997 the applicant was interrogated by two police officers. The applicant submitted that she was not involved with the TKP/ML and that she was not aware of the existence of the materials found during the search. She stated that she did not know when her husband had brought and hid those materials. The applicant signed her deposition.

On 21 May 1997 the applicant was examined by a doctor from the Forensic Medicine Department of the İstanbul State Security Court who noted the presence of a 2x8 cm hyperaemia below the applicant’s right shoulder blade, a swelling of 3 cm in the neck area and subjective pain in the neck. The report drafted by the doctor concluded that, apart from these findings, there were no other signs of injury attributable to ill-treatment.

B. Investigation instigated into the alleged ill-treatment and the criminal proceedings against police officers

On 21 May 1997 the applicant was brought before the public prosecutor at the İstanbul State Security Court. She acknowledged the contents of her police deposition. However, she stated that during her custody, four or five police officers had sexually harassed her by touching her breasts and buttocks. She claimed that she was also punched. She affirmed that she would be able to recognise them if she were to meet them again.

On the same day, the applicant was released and no criminal proceedings were brought against her.

On 22 May 1997 the public prosecutor at the İstanbul State Security Court considered that it lacked competence to examine the allegations of ill‑treatment brought by the applicant and Mr E.Y., and transferred the investigation file to the Fatih public prosecutor’s office.

On 30 May and 3 July 1997 the Fatih public prosecutor requested the Kartal and Tuzla Security Directorate to secure the applicant’s presence before him. On 21 August 1997 the Tuzla Security Directorate informed the prosecutor that the applicant had not been at the address indicated by the prosecutor and that they had discovered that the applicant was working at the SSK Hospital in the district of Kartal. On 27 August 1997 the public prosecutor reiterated his request to the Kartal Security Directorate. The applicant’s address was stated as the hospital where she was working.

Upon the request of the Fatih public prosecutor dated 30 May 1997, the İstanbul Security Directorate submitted, on 8 July 1997, documents pertaining to the arrest and detention of the applicant and Mr E.Y. and informed him of the identities of the police officers that had interrogated Mr E.Y. and the applicant.

In her testimony, on 26 September 1997, given to the Fatih public prosecutor, the applicant submitted, in particular, that when she was taken to the police station, she was separated from her husband and blindfolded. She claimed that she was attacked by police officers who pulled her hair and hit her, particularly between her shoulders. She maintained that they stripped her naked in front of her husband and that she was molested and sexually harassed. She claimed that, during her interrogation, one of the police officers threatened her with rape, while all the officers insulted her verbally and also threatened to accuse her of murder if she refused to co-operate. She maintained that she was also beaten following her appearance before the press. The applicant stated that it was impossible for her to provide witnesses since she was in custody, incommunicado, away from all eyewitnesses.

Mr E.Y.’s testimony was taken by the Fatih public prosecutor on 27 October 1997.

Between 23 July 1997 and 9 September 1997 the Fatih public prosecutor took the statements of the police officers Mr H.İ., Mr E.A., Mr A.K. and Mr Z.K. They all refuted the accusations against them, claiming that both the applicant and Mr E.Y. had resisted arrest and that, as a result, they could have sustained some injuries.

On 3 November 1997 the Fatih public prosecutor submitted a report to the İstanbul public prosecutor’s office in which he considered that criminal proceedings should be initiated against these police officers.

By an indictment dated 19 November 1997, the İstanbul public prosecutor instituted criminal proceedings in the İstanbul Assize Court against the officers, pursuant to Article 243 § 1 of the Criminal Code which prohibits ill-treatment.

On 25 November 1997 the criminal proceedings against the police officers commenced before the İstanbul Assize Court.

Between 25 November 1997 and 1 June 1999, the court held eight hearings. The court heard the applicant, her husband, Mr E.Y. and the accused police officers. The applicant’s request, to intervene as a third party, on 13 February 1998 was accepted by the court. In the hearing held on 13 October 1998 the applicant’s representative informed the court that they waived their right to have the applicant’s witness Mr Ş.T. heard. Accordingly, the court decided not to hear him.

During the proceedings before the Assize Court, the applicant repeated her allegations against the police officers. She further stated that two of the four police officers who had sexually harassed her, namely Mr H.İ and Mr Z.K., were present before the court. She further admitted that a struggle had taken place during her arrest.

At the hearing held on 1 December 1998, the applicant’s husband testified in favour of the applicant. He submitted that they were all subjected to systematic torture whilst in police custody. In this regard, he claimed that their clothes were ripped, their feet were squeezed, they were hosed with pressurised water and that their heads were pushed into a pool of water. He asserted that he was also shown his wife as she lay naked on the ground.

On 1 June 1999 the İstanbul Assize Court acquitted the police officers of the charges against them. The court concluded that, apart from the findings in the medical reports, there were no other signs of injury and that those mentioned in these reports could have been sustained during the arrest of the complainants. The court considered the testimony of the applicant’s husband unreliable on the ground that he was her husband, that he had been arrested and detained on same grounds and that his version did not match the events. The court therefore found that the evidence before it did not suffice to convict the accused police officers.

On 4 October 2000 the Court of Cassation upheld the judgment of the Assize Court.