PROCEDURE

The case originated in an application (no. 64447/01) 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, Mr Hikmettin Garbul (“the applicant”), on 28 July 1999.

The applicant, who had been granted legal aid, was represented by Mr A. Terece, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 20 October 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the alleged ill-treatment of the applicant during police custody and his right to a fair hearing by an independent and impartial tribunal. 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 1967 and was serving his sentence in Aydın prison at the time of his application to the Court.

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

On an unspecified date an arrest warrant was issued in respect of the applicant because of his alleged involvement with the PKK, an illegal armed organisation. After receiving an anonymous phone call, police officers arrested the applicant on 2 July 1997 at around 02.00 a.m. The police also searched the house where the applicant stayed. The search and seizure protocol drafted by the police officers and signed by the applicant indicates that he consented to the search.

The applicant alleged that he was arrested and taken into custody on 30 June 1997 from his house in the Eskiizmir district and that while he was in custody he was subjected to various forms of torture. In particular, he submitted that he was beaten, sworn at, threatened, blindfolded, given electric shocks and hosed with pressurized water. He further claimed that his mother fainted when the police officers started to beat him at his home at the time of his arrest.

According to the medical report drawn up on 2 July 1997 at around 11.40 a.m. the applicant complained of blows to his chest. The doctor found that the applicant had a 1 cm graze on the right side of his forehead and a hyperaemic region (redness) in the middle of his chest.

The applicant was interrogated by the police officers at the Anti-terror branch of the Izmir Security Directorate on 3 July 1997.

According to the medical report drafted on 3 July 1997 the applicant complained of blows to his chest. The doctor found that the applicant had a 1 cm graze on the right side of his forehead and a hyperaemic region (redness) in the middle of his chest and a graze of 1 cm on his right leg.

B. Criminal proceedings against the applicant

On 3 July 1997 the applicant was brought before the public prosecutor at the Izmir State Security Court. The applicant stated to the prosecutor, inter alia, that Agit (code name) threatened him and told him to collect money for the PKK while he was working as a musician at wedding ceremonies and that he had to give money from his own pocket. He further gave information about some people and denied knowing Mr M.K, Mr F.Ö, Mr S.T or Mr F.K. He stated that if he did some things it was because he was forced to do so and that he was a victim. When he was asked about his previous statements given to the police, he claimed that these statements were his true statements.

On the same day, the applicant was brought before the Izmir State Security Court. The applicant reiterated, inter alia, that he was threatened and forced by Agit and some other PKK militants to collect money and to conduct a one minute silence to Kurdistan martyrs during wedding ceremonies. He submitted that he was not a member of the organization. He acknowledged his previous statements given to the public prosecutor and denied his statements given to the police. He claimed that they were not his and that he had just signed them. The court ordered his remand in custody.

The applicant alleges that during his transfer to prison he was beaten and sworn at by the soldiers.

On an unspecified date, the public prosecutor at the Izmir State Security Court filed a bill of indictment accusing the applicant of aiding and abetting an illegal organisation. He requested that the applicant be convicted and sentenced under Article 169 of the Criminal Code.

On an unspecified date, the criminal proceedings against the applicant commenced before the Izmir State Security Court.

On 19 August 1997 the Izmir State Security Court decided that the case brought against the applicant be joined to the case brought against twenty‑five other suspects. In that hearing the applicant's representative submitted that the applicant's statements had been taken under duress and the applicant had only given money to Agit because he mistook him for the organiser of a wedding.

In a hearing held on 31 March 1998 the applicant stated that he did not accept the statements of some of the co-accused, claiming that they had given these statements under torture.

Following the decision of the court to join another case-file to the trial, the public prosecutor, on 12 March 1998, accused the applicant of membership of an illegal organisation and requested that he be convicted and charged under Article 168 § 2 and Article 5 of Law no. 3713.

On 21 May 1998 the Izmir State Security Court, referring to the statements of Mr A.P., a photo identification report, statements of Mr S.Ç. (“Agit”) and Mr S.T., the gun found buried in the applicant's garden and the findings of the ballistic report in this respect, held that it had been established that the applicant had entered into a permanent hierarchical and organic relationship with the organization. The court, referring to the aforementioned evidence, stated that it did not find the applicant's denials convincing. The applicant was convicted under Article 168 § 2 and Article 5 of Law no. 3713 and sentenced to twelve years and six months' imprisonment.

The applicant appealed. In his petition, he submitted, inter alia, that the court had taken into account, in his view, statements given under duress. He also suggested that the statements of those who accused him had been obtained through illegal methods, in violation of Article 135 (a) of the Criminal Code.

On 23 February 1999 the Court of Cassation upheld the judgment of the first-instance court.

C. Relevant Procedure before the Court

By a letter dated 28 July 1999 the applicant lodged an application with the Court. By letters dated 14 November 1999, 17 February 2000, 12 July 2000 and 29 September 2000 the Registry requested the applicant to submit supporting documents in respect of his complaint pertaining to his alleged ill-treatment.

D. Investigation instigated into the applicant's alleged ill-treatment

On 1 November 2000 the applicant filed a complaint with the İzmir public prosecutor (hereinafter: “the prosecutor”) against the police officers at the anti-terror branch of the Izmir Security Directorate (hereinafter: “the police”). The applicant submitted, inter alia, that while he was held in police custody between 30 June and 2 July 1997 he had been subjected to torture. He gave details of the alleged ill-treatment and claimed that when he was brought before the doctor for a medical examination, two police officers were in the room. He further submitted that the police were also next to him while he gave his statements to the public prosecutor and the court on 3 July 1997. Finally, he claimed that he had been beaten and sworn at during his arrest in the presence of his family members and that he was also beaten while he was transferred to remand in custody. He claimed that he did not know their names but would be able to recognise some of them if he saw them.

On an unspecified date the prosecutor heard the applicant who repeated that he had been ill-treated while he was held in detention.

On 11 December 2000 the prosecutor decided not to initiate criminal proceedings against the police on account of lack of evidence. In particular, the prosecutor noted that the findings of the medical report issued at the end of the applicant's stay in custody (3 July 1997) mirrored those in the medical report drawn up on the day of his arrest (2 July 1997). In this decision, the prosecutor noted that the applicant was caught while hiding in a house in theYamanlar district.

On 7 February 2001 the Karşıyaka Assize Court dismissed the applicant's objections.