PROCEDURE

The case originated in an application (no. 17730/07) 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 Mehmet Fidancı (“the applicant”), on 10 April 2007.

The applicant, who had been granted legal aid, was represented by Mr N. Özdemir, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

On 26 April 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 1972 and lives in Diyarbakır.

A. The arrest and alleged ill-treatment of the applicant in police custody

The applicant alleges that he was taken into police custody on 24 March 2001. However, the arrest report signed by the applicant and the police custody records show that the applicant was arrested on 13 April 2001 on suspicion of membership of an illegal armed organisation, namely Hizbullah. When he was arrested, the applicant was in possession of a fake identity card.

Following his arrest, on 13 April 2001 the applicant was taken to the Diyarbakır State Hospital for medical examination. The doctor who examined the applicant reported that there were no signs of physical violence on his body. However, he noted the presence of certain old wounds under his armpits and old lesions under his left kneecap.

On 22 April 2001 the applicant was interrogated by the police in the absence of a lawyer. He gave a lengthy statement about his involvement in the armed wing of Hizbullah and admitted to being involved in several murders.

On 23 April 2001 the applicant was examined by a doctor at the Diyarbakır State Hospital, who noted that he had scabbed lesions between fifteen and twenty days old under his armpits and around his wrists.

Again on 23 April 2001, the applicant was further interrogated by the public prosecutor and the investigating judge, still in the absence of a lawyer. He was then remanded in custody on the order of the investigating judge.

On the same date, at the request of the Governor of the State of Emergency Region and the public prosecutor, pursuant to Article 3 (c) of Decree no. 430, which allowed them to take further measures in the context of the ongoing state of emergency, a single judge at the State Security Court authorised the applicant’s relocation from prison to the anti-terrorism branch of the Diyarbakır Security Directorate for further interrogation for a period of ten days. This period was extended by the same court for an additional ten days on each of 3 May 2001, 9 May 2001, 19 May 2001 and 28 May 2001.

This procedure was repeated again on 2 July 2001, when, at the request of the Governor of the State of Emergency Region and the public prosecutor, pursuant to Article 3 (c) of Decree no. 430, a single judge at the State Security Court once again authorised the applicant’s relocation from prison to the anti-terrorism branch of the Diyarbakır Security Directorate for interrogation for another period of ten days. This period was extended by the same court for an additional ten days on each of 12 July 2001, 22 July 2001 and 1 August 2001.

On 10 May, 28 May, 2 July, 12 July, 22 July, 1 August and 10 August 2001, the applicant was again examined by doctors who noted that there were no new findings, except for the medical report of 1 August 2001 where the doctor noted two old wounds on the applicant’s right leg.

On 28 January 2002 the applicant filed a complaint with the Diyarbakır Public Prosecutor and alleged that he had been ill-treated during his unacknowledged detention between 24 March and 13 April 2001.

On 6 February 2004 the Diyarbakır public prosecutor decided not to prosecute six police officers who had been involved in the applicant’s arrest and detention on the grounds that there was insufficient evidence to support the applicant’s allegations of ill-treatment. In his decision, the public prosecutor referred to the medical reports, which noted no signs of physical violence on the applicant’s body. The public prosecutor further stated that the applicant’s allegation regarding his unacknowledged detention between 24 March and 13 April 2001 was unsubstantiated.

On 31 March 2004 the Siverek Assize Court dismissed an objection filed by the applicant against this decision. Its decision was served on the applicant on 22 April 2004.

Subsequently, on 6 August 2007 the applicant lodged another complaint with the public prosecutor’s office as regards the same allegations. On 23 August 2007 the Diyarbakır public prosecutor dismissed the applicant’s complaint. On 17 October 2007 the Siverek Assize Court, noting its earlier decision of 31 March 2004 and the absence of any new evidence, dismissed the objection filed by the applicant against this decision.

A further complaint of ill-treatment made by the applicant regarding the same allegations was also dismissed by the Diyarbakır public prosecutor on an unspecified date in 2009 and by the Siverek Assize Court on 8 June 2009. In delivering a non-prosecution decision, the authorities stated that the complaint had already been examined in 2004 and that there was no new evidence in the file.

B. The criminal proceedings concerning the applicant

In 2001, the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant accusing him of undermining the constitutional order of the State in breach of Article 146 of the Criminal Code. On 15 January 2002, 23 October 2003 and 12 May 2005 the public prosecutor filed additional indictments against the applicant, accusing him of taking part in the killing of seventeen people and of injuring eight others on behalf of Hizbullah.

On 13 January 2005 the Diyarbakır Assize Court convicted the applicant as charged. This decision was quashed by the Court of Cassation on 7 June 2005.

On 28 February 2008 the Diyarbakır Assize Court, after having examined the evidence in the case file, held that it had been established that the applicant had taken part in the killings of Abdullah Ay, Ihsan Güneşli, Halis Güneşli, Hamit Fidancı, Kemal Türk, Mehmet Şah Tekalp, Müfit Ek and the wounding of Mehmet Elçi and Mesut Kadınan and convicted the applicant as charged. In its decision, the court, noting the absence of signs of ill-treatment in the applicant’s medical reports, decided to take into account the statements made by the applicant to the police, which were, in its opinion, corroborated by the evidence in the case file.

On 7 July 2009 the Court of Cassation upheld the judgment of the first-instance court.

C. Investigation instigated into the applicant’s complaint concerning the destruction of his medical reports

In the meantime, in 2008 the applicant asked the Diyarbakır State Hospital for a copy of his medical reports. He was informed, inter alia, that the hospital’s archives had been flooded and that all medical reports dated between 1990 and 2004, including those of the applicant, had been destroyed. The applicant was advised to obtain copies of his medical reports from the relevant Security Directorate.

On 20 March 2009, following a complaint by the applicant, the Diyarbakır Provincial Administrative Council refused to open an investigation against six staff members of the Diyarbakır State Hospital on the ground that there was no indication of intent to destroy the applicant’s medical records or of negligence on the part of the staff. On 29 April 2009 the Diyarbakır Regional Administrative Court dismissed an objection filed by the applicant and upheld this decision.