PROCEDURE

The case originated in an application (no. 42234/02) 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 Mehmet Ümit Erdem (“the applicant”), on 7 October 2002.

The applicant was represented by Mr A.T. Ocak, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 2 May 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 1976 and lives in Istanbul where he practises as a lawyer.

A. The events of 14 October 2001

According to the official documents, including transcription of data from the police camera, a number of political parties and non‑governmental organisations wanted to hold an anti-war gathering in Istanbul’s Şişli Square on 14 October 2001. However, the Istanbul Governor did not permit it. On that day, at around 11.30 a.m., a group of about 500 people carrying the flags of these parties started to walk towards the ferry boat station at the Kadıköy Square. The organisers were warned, with megaphones, that the gathering was unlawful, that they could not make press statements at that place and that if they did not disperse the police would have to resort to force. The crowd were shouting out slogans like “Yankee go home”, “No to imperialist and colonial war”, “Terrorist America”, “Money for education and health and not for war”, “the Middle East will be the grave of imperialism”. As Mr L.T., head of the EMEP party, despite warnings, continued to make an oral press statement, the Rapid Response Force (Çevik Kuvvet) intervened and arrested forty-six persons who had resisted dispersing.

In the application form, the applicant claimed that he was in the crowd that day when police officers from the Rapid Response Force used excessive force on them. He submitted that, although he did not resist, the police, without any prior warning, sprayed pepper gas in his face, hit him with their truncheons and kicked him. As a result of having been sprayed with pepper gas, the applicant had a burning sensation in his eyes and face and had difficulty breathing. After having been kicked and beaten up with truncheons, he felt pain in his arms, legs, chest and ribs. Afterwards, the applicant stayed in the Kadıköy area in order to assist the injured and to note the names of persons who were being taken into custody. He then witnessed a high-ranking police officer beating up a person and taking him into custody. The same officer then started swearing at the applicant and pushed him about. A number of police officers then sent the applicant away from the area.

B. The criminal investigation of the applicant’s complaint of ill‑treatment

Approximately two hours after the incident, the applicant went to the office of the Kadıköy prosecutor and made an official complaint about the treatment to which he had been subjected by police officers and asked to be referred to a hospital. In particular, he stated that while the press release was being read, the rapid response forces had, without prior warning, started spraying pepper gas and hitting them. He submitted that he had received blows to his back and had been kicked. The applicant claimed that since the police officers had masks it was not possible for him to identify the perpetrators.

The same day the applicant was examined by a doctor at the Numune hospital who found 3 x 15 cm of hyperaemia (increases of blood flow in tissue) in an area on the right side of the applicant’s back, sensitivity in the right femur and pain in his right shoulder. He was transferred to an orthopaedist who noted ecchymotic regions on the applicant’s right arm and back. The applicant was also examined by another doctor at another hospital who found hyperaemic regions on the right arm and costal-vertebral region. It appears that a number of X-rays were also taken on this day.

The following day the applicant was examined by the Kadıköy branch of the Forensic Medicine Directorate. The doctor found no trauma apart from pain in the applicant’s right shoulder.

On 22 October 2001 a doctor who examined the applicant’s X‑rays noted that he had a closed fracture on the right eleventh costal cartilage.

On 5 November 2001 the Kadıköy public prosecutor requested authorisation from the Istanbul governor in order to be able to prosecute the police officers allegedly responsible for the applicant’s ill-treatment. This request was made pursuant to Law No. 4483 on the Trial of State Employees and other Public Servants.

On 19 November 2001 the applicant was examined by a doctor who found that the applicant was suffering from lumbago and recommended ten days’ rest.

On 11 December 2001 an Istanbul deputy police chief was appointed to carry out a preliminary investigation on behalf of the governor of the applicant’s allegations of ill-treatment.

On the same day the deputy police chief prepared his report and submitted it to the governor’s office. It recommended that authorisation for prosecution should be declined. It appears from the report that, in the course of its preparation, the police chief had regard to an incident report of 14 October 2001, drawn up by the police officers who had taken part in dispersing the crowd, as well as verbatim records of video footage of the incident. According to the police chief’s report, police officers had had to use force to disperse the demonstrators as the demonstrators had failed to comply with an order to disperse. The applicant was not “one of the persons who had been taken into custody after the incidents”. The report further stated that the police officers who had taken part in the incident had since been reminded about how to perform their functions during a demonstration.

On 24 December 2001 the Istanbul governor, on the basis of the information contained in the deputy police chief’s report and statements, declined to grant the necessary authorisation for their prosecution.

On 18 January 2002, and within the relevant time limit, the applicant lodged an objection to the governor’s decision with the Regional Administrative Court. The applicant submitted, inter alia, that one of the chiefs of the Rapid Response Force had sworn at him before he was forcefully removed from the area by police officers and that he would be able to recognise this man if he ever saw him again. Referring to his medical reports, the applicant claimed that he was still under treatment.

In the meantime, on 8 January 2002, the Kadıköy prosecutor decided, on the basis of the governor’s decision of 21 November 2001, not to bring any criminal proceedings against the security forces at the Rapid Force Department of the Istanbul Security Headquarters. An objection by the applicant to this decision was dismissed by the Üsküdar Assize Court on 15 March 2002.

On 2 May 2002 the Istanbul Regional Administrative Court upheld the Istanbul Governor’s decision.