PROCEDURE

The case originated in an application (no. 31300/05) 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 two Turkish nationals, Mr Abdulvahap Terzi and Mr Recahi Erkmen (“the applicants”), on 23 August 2005.

The applicants were represented by Mr S. Ulufer, a lawyer practising in Adana. The Turkish Government (“the Government”) were represented by their Agent.

The applicants alleged that they had been subjected to torture during their detention in the custody of security forces and that the national authorities had failed to establish the criminal and administrative responsibilities of the accused police officers. This had consequently allowed the police officers to enjoy impunity. The applicants relied on Articles 3, 5, 6 and 13 of the Convention.

On 15 May 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1969 and 1971 and live in Malatya and Sivas respectively.

On 21 May 1997, at about midnight, the applicants were taken into police custody at the Mersin Security Headquarters for car theft. They were allegedly ill-treated by police officers, who stripped them naked, beat them and subjected them to electric shocks.

On 23 May 1997, at about 9.35 a.m., the applicants were brought before a forensic doctor (S.T.) who reported that there were no traces of ill‑treatment on their bodies.

The applicants were released the same day (23 May), following which they lodged a complaint with the public prosecutor against the police officers (S.D. and I.A.) who had interrogated them and against the doctor (S.T.) who had drawn up their medical report.

The public prosecutor referred the applicants to a forensic doctor who reported the same day (23 May) that the first applicant had red marks of various sizes on both the scapula and the thorax, a 2‑cm‑wide bruise on the lower right lip and an 0.5‑cm‑wide ecchymosis on his right eye. Moreover, it was noted that the second applicant had a red 1 x 1 cm skin wound on his groin. The report stated that the marks and bruises on their bodies did not render the applicants unfit for work.

By an indictment filed on 27 November 1997, the public prosecutor instituted criminal proceedings against S.D. and I.A. for having insulted and tortured the applicants, and against S.T. for professional misconduct.

On 13 December 1999 the Mersin Assize Court delivered its judgment. Referring to the second medical report, which noted the presence of marks on the applicants’ bodies, the court found S.D. and I.A. guilty of ill-treatment during the performance of their duties under Article 245 of the former Criminal Code, and sentenced them to imprisonment, which was converted to a fine. The court added that for treatment to be qualified as torture under domestic law, the victims needed to have been charged with a particular crime, whereas in the present case the applicants had only been suspects and were later released without charge. Therefore the officers’ acts could not be qualified as torture under Article 243 of the Criminal Code, but as ill-treatment under Article 245. The court acquitted S.T., however. It noted that, although S.T. had not examined the applicants, he had simply written down what they had said and had therefore had no criminal intention.

On 31 January 2001 the Court of Cassation quashed the judgment on the ground that the provisions applicable to the police officers and the doctor were contained in Articles 243 and 230 of the Criminal Code which concerned the offences of torture and negligence in the performance of public duties respectively. The Court of Cassation added that S.D. had previously been convicted of the same offence; therefore the prison sentence should not have been converted to a fine.

On 30 January 2002 the Mersin Assize Court persisted in its earlier judgment on the same grounds.

By a decision of 15 November 2002, the Joint Criminal Chambers of the Plenary Court of Cassation (Criminal Divisions) (Yargıtay Ceza Genel Kurulu) quashed the Mersin Assize Court’s judgment and held that the evidence in the case file showed that the applicants had been subjected to torture by S.D. and I.A., who had intentionally inflicted ill-treatment in order to extract confessions; their acts therefore fell under Article 243 of the Criminal Code. As for S.T., he had drawn up the applicants’ medical report in the presence of police officers without examining the applicants, and had thus committed an offence under Article 230 of the Criminal Code.

On 16 January 2004 the Mersin Assize Court held that the prosecution was time-barred in respect of S.T. However, it convicted and sentenced S.D. to two years and two days’ imprisonment and I.A. to two years’ imprisonment. S.D. and I.A. were further prohibited from holding public office for a period of six months. S.D. and I.A. appealed.

On 24 June and 15 October 2004 the applicants’ representatives asked the Court of Cassation to expedite the proceedings, as there was a danger that the prosecution of the offences would also become time-barred in respect of the accused police officers.

On 15 December 2004 the Court of Cassation held that the prosecution was indeed time-barred and dismissed the criminal proceedings under the statute of limitations. The decision was deposited with the first-instance court’s registry on 24 February 2005.

On 11 August 2005 the applicants requested the Ministry of Justice to identify the judges involved in the proceedings and to hold them responsible for not having shown due diligence and for ultimately having allowed the proceedings to become time-barred.

On 16 December 2005 the Court of Cassation, and on 13 March 2006 the Ministry of Justice, replied in respect of the judges who had sat on the bench of the Court of Cassation and the Mersin Assize Court respectively. It notified the applicants that no proceedings or investigations were to be instituted against the judges since the complaint concerned the use of judicial power.

S.D. was still on duty at the Organised Crime and Trafficking Branch of the Muğla Security Headquarters at the time the application was lodged with the Court.