PROCEDURE

The case originated in an application (no. 44021/07) 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 Yunus Aysu (“the applicant”), on 20 September 2007.

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

On 7 September 2010 the President of the Second Section decided to give notice of the application 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 1975 and is serving a prison sentence in Diyarbakır Prison.

On 20 October 2000 the Diyarbakır Security Directorate conducted an operation to arrest the applicant, who was being searched for on suspicion of membership of an armed illegal organisation, namely the Hizbullah. According to the arrest report, the applicant resisted and opened fire, killing a police officer. The other officers used force to neutralise and arrest the applicant.

The applicant was then taken to the Diyarbakır State Hospital for a medical examination. The doctors ordered an x-ray of his arms and shoulders. According to the medical report, the applicant had no fractures, but had a 2 cm cut on the back of his head. It was further noted that the applicant had bruises on his forehead, neck, near his left ear and on his right arm, bruises and scratches on both of his hands and fingers, bruises on both elbows and scratches on his chest and knees.

Subsequently, the applicant was taken to the Diyarbakır Security Directorate for questioning. According to the applicant, during his detention in police custody he was subjected to ill-treatment. He was allegedly stripped naked and his testicles were squeezed. He was also hosed with water, beaten with the butt of a gun, subjected to electric shocks and hung by his arms. The applicant further stated that police officers had extinguished cigarettes on his hands. 8 On 28 October 2000 the applicant was taken to a hospital and diagnosed as suffering from a soft tissue infection.

Subsequently, on 30 October 2000 the applicant was further examined at a health clinic. It was reported that the applicant had a hyperaemia measuring 2 x 2 cm on his back, scabs on his knees, wounds on both shoulders, and a 1 x 2 cm stitched wound on his head.

On the same day, the applicant was heard by the public prosecutor and the investigating judge respectively. Before the investigating judge he complained that he had been beaten during his time in police custody. He also denied the contents of his police statement. Upon the order of the investigating judge, the applicant was placed in detention pending trial.

On 9 November 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant. Invoking Article 146 of the former Criminal Code, he accused the applicant of membership of an armed illegal organisation and of involvement in activities which undermined the constitutional order of the State.

On 30 November 2000, at the first hearing before the Diyarbakır State Security Court, the applicant, represented by a lawyer, stated that he had been subjected to ill‑treatment during his time in police custody. He alleged, in particular, that the police officers had extinguished cigarettes on his right hand. The judges noted in the minutes that the applicant had five purple bruises on his right hand. At the end of the hearing, the court decided that the Diyarbakır Public Prosecutor’s Office should be informed of the applicant’s allegations of ill-treatment. The court further stated that if the applicant’s lawyer wished to lodge a separate complaint with the public prosecutor, a certified copy of the minutes should be annexed to that application.

At the subsequent hearings, the court refused to release the applicant on account of the nature of the alleged offence and the state of the evidence. In his defence submissions, the applicant repeatedly stated that he had been ill-treated during his police custody.

By Law no. 5190, in June 2004 State Security Courts were abolished. Subsequently, the Diyarbakır Assize Court acquired jurisdiction over the case.

On 28 February 2008 the Diyarbakır Assize Court pronounced its judgment. It convicted the applicant as charged and sentenced him to life imprisonment.

The applicant appealed. On 27 May 2010 the Court of Cassation upheld the first-instance court’s judgment.

In the meantime, on 7 June 2007, the applicant filed a petition with the Diyarbakır Public Prosecutor and stated that he had been subjected to ill-treatment during his detention in police custody. He complained that the domestic authorities had not taken any action to investigate his allegations.

On 13 September 2007 the Diyarbakır Public Prosecutor took a statement from the applicant. The applicant explained that during his police custody he had been subjected to torture and forced to admit to the accusations against him. He requested that the prosecutor investigate the matter.

On 30 December 2008 the Public Prosecutor requested the Forensic Medicine Institute to prepare a report regarding the applicant’s allegations.

On 6 February 2009 the Forensic Medicine Institute experts examined the applicant. During his examination, the applicant stated that he had been hosed with pressurised water, hung by his arms and subjected to electric shocks. He also maintained that his testicles had been squeezed and cigarettes had been extinguished on his hand. The experts further examined the medical reports dated 20, 28 and 30 October 2000 respectively. They were also provided with the arrest report dated 20 October 2000, which indicated that the applicant had resisted the officers during his arrest.

On 6 March 2009 the Forensic Medicine Institute reported that the injuries on the applicant’s body, as indicated in the three medical reports, could have been sustained as a result of a fall, in the course of resisting the officers during his arrest, or resulted from a blow with a blunt object. As a result, the experts concluded that it was not possible to determine how these injuries had been sustained. Regarding the bruises observed by the judges during the hearing of 30 November 2000, the experts stated that it was not possible to give a medical opinion on the matter, as these signs had not been noted in any medical report.

In the course of his investigation, the Public Prosecutor further took statements from the accused police officers who had been involved in the applicant’s police questioning. They all denied that the applicant had been subjected to ill-treatment. According to them, the applicant was making false allegations for fear of reprimand from Hizbullah members for giving evidence about the activities of the illegal organisation.

On 7 April 2009 the Diyarbakır Public Prosecutor, finding the applicant’s allegations unsubstantiated, issued a decision not to prosecute. He concluded that the signs observed on the applicant’s body had been caused when he resisted the police officers during his arrest.

Subsequently, on 26 June 2009 the applicant’s appeal was dismissed by the Siverek Assize Court.