PROCEDURE

The case originated in an application (no. 78027/01) 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 Emrullah Karagöz (“the applicant”), on 13 November 2001.

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

The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 5 and 13 of the Convention.

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 6 February 2003 the Chamber declared the application admissible and decided to join to the merits its examination of the Government's preliminary objections.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1978 and lives in Diyarbakır.

On 28 October 2001 he was arrested by gendarmes and taken into custody at the Diyarbakır gendarmerie command.

On 30 October 2001 the gendarmes took a statement from him. He was suspected of having assisted and supported the PKK (Workers' Party of Kurdistan), an illegal organisation under Turkish law. He allegedly signed his statement while blindfolded. At the end of his detention in the gendarmes' custody, he was examined by a forensic medical expert. No signs of ill-treatment were observed on his body.

On 1 November 2001, after being interviewed by the public prosecutor, the applicant was brought before a judge of the Diyarbakır National Security Court, who ordered his detention pending trial. Before both the prosecutor and the judge the applicant denied the accusations against him. He was subsequently taken to Diyarbakır Prison.

A. The applicant's periods of detention at the gendarmerie command

On 1 November 2001, ruling on applications by the governor of the state of emergency region and the public prosecutor, and on the basis of Article 3 (c) of Legislative Decree no. 430 on additional measures to be taken in connection with the state of emergency, the judge granted leave for the applicant to be sent back to the gendarmerie command for questioning for a period not exceeding ten days. The applicant was returned to the gendarmes' custody at 10.45 p.m. that day.

On 6 November 2001 the National Security Court dismissed an objection by the applicant's family, on the ground that the length of his detention was consistent with the limits laid down in domestic law.

On 10 November 2001 the judge extended the applicant's detention at the gendarmerie command by ten days, again on the basis of Legislative Decree no. 430.

On 15 November 2001 an objection by the applicant's representative was dismissed by the National Security Court.

On 20 November 2001 the applicant was taken back to prison.

On 20 and 21 November 2001 the governor of the state of emergency region and the public prosecutor, again on the basis of Legislative Decree no. 430, asked the judge to extend the applicant's detention at the gendarmerie command by a further ten days.

On 21 November 2001 the judge refused that request on the ground that the case file did not contain any evidence to substantiate it and that such an omission was attributable to the authorities.

The public prosecutor lodged an objection against that decision.

On 22 November 2001 the National Security Court allowed the objection and observed that the applicant was the subject of three other investigations. It granted a further ten-day extension and leave for the applicant to be taken from prison for questioning.

On the same day the applicant was handed over to the gendarmes.

On 1 December 2001 the judge extended the applicant's detention at the gendarmerie command by a further ten days.

On 12 December 2001 the applicant was taken back to Diyarbakır Prison.

Each time the applicant left and returned to the prison, he was examined by a doctor. The reports subsequently drawn up did not mention any signs of blows to the applicant's body.

B. The proceedings against the applicant

In an indictment of 6 April 2001, the public prosecutor brought criminal proceedings against the applicant under Article 168 of the Criminal Code, by which it is an offence to be a member of an armed gang.

At a hearing on 26 June 2001, the National Security Court ordered the applicant's provisional release.

On 27 August 2001 he was acquitted in the absence of any evidence other than his initial statement to the gendarmes.

On 20 September 2001 the judgment became final.

C. Investigation into the applicant's complaint

On 9 November 2001 the applicant's representative lodged a criminal complaint with the public prosecutor at the National Security Court against the gendarmes, alleging that they had ill-treated the applicant in order to obtain a confession from him. He asked for the applicant to be given a thorough medical examination. He further submitted that the applicant's recurring periods of detention at the gendarmerie command had breached both the provision of the Constitution governing the maximum length of detention in police custody and Article 5 of the Convention.

On 13 November 2001 the public prosecutor at the National Security Court ruled that he did not have jurisdiction and forwarded the file to the Diyarbakır public prosecutor's office.

On 13 December 2001 the applicant was interviewed by the Diyarbakır public prosecutor. He asserted that he had been sprayed with cold water, had been insulted, threatened and beaten, had had his testicles squeezed and had been placed naked in front of a fan blowing cold air. He lodged a criminal complaint against the gendarmes involved in questioning him. He also requested a medical examination and treatment.

In a letter of 21 December 2001 to the Diyarbakır public prosecutor, the applicant's representative reiterated his allegations of torture and asked for his client to be examined at a specialist medical department.

On 14 February 2002 the public prosecutor ordered thorough medical examinations to be carried out at the urology department and a testicular scintigram and pelvic ultrasound scan to be carried out at the nuclear medicine department of Dicle University in order to detect any signs of ill-treatment.

In a document of 27 March 2002, addressed to the Diyarbakır provincial governor, the public prosecutor sought leave to bring proceedings against the gendarmes in whose custody the applicant had been held.

A urological ultrasound scan of 18 April 2002 and a testicular scintigram of 13 May 2002 did not reveal any abnormalities.

A preliminary investigation was opened by the Diyarbakır Provincial Administrative Council in respect of the gendarmerie commander.

On 1 May 2002 the Administrative Council decided, in the absence of sufficient evidence, not to open an investigation with a view to prosecuting the official in question.

On 22 May 2002 the applicant lodged an objection against that decision with the Diyarbakır Administrative Court.

On 31 December 2002 the Diyarbakır Administrative Court upheld the decision. The Diyarbakır public prosecutor's office subsequently discontinued the proceedings.

On 7 February 2003 the applicant appealed to the Siverek Assize Court against the decision to discontinue the proceedings.

On 26 March 2003 the appeal was dismissed in view of the decision by the Diyarbakır provincial governor's office.