Communicated on 16 March 2015

SECOND SECTION

Application no. 6591/06 Mehmet Ali GÜVEN and Yusuf GÜ VEN against Turkey lodged on 30 January 2006

STATEMENT OF FACTS

The applicants, Mr Mehmet Ali Güven and Mr Yusuf Güven , are Turkish nationals, who were born in 1986 and 1970 respectively and live in Tunceli . The applicants are siblings. They are represented before the Court by Mr A. Çetin , a lawyer practising in Tunceli .

A. Criminal proceedings against the applicants

The facts of the case, as submitted by the applicants, may be summarised as follows.

In the night of 7 November 2004, upon intelligence reports concerning the activities of an illegal organisation, namely PKK/KONGRA-GEL [1] , gendarmerie officers from the Tunceli Gendarmerie Command launched a security operation in order to carry out observation and on-site inspection in the Galvasan hamlet in Tunceli province.

On the same day at around 11 a.m. the applicants arrived in the area. According to the scene of incident report ( olay yeri tespit tutanağı ) , the applicants started approaching an armed group of six people who were allegedly members of the PKK. The gendarmerie officers observed that one of the applicants was in possession of a firearm. The applicants were then seen handing a package to the members of the armed group. Following a verbal warning, the gendarmerie officers started shooting, whereupon the PKK members responded by firing back. The second applicant, Mr Yusuf Güven , was shot in his right knee during the armed clash.

The PKK members fled the area following the clash; however, the applicants remained at the scene of the incident, where the second applicant ’ s knee was treated by a military doctor.

According to the applicants ’ account, they went to the area in order to collect firewood. They had a plastic bag which contained food for their own consumption. The applicants then observed a vehicle approaching and started walking towards it, assuming there were forest guards inside. According to the applicants, without any warning, the gendarmerie officers who got out of the vehicle opened fire in their direction. Following the shooting, the applicants were severely beaten for thirty minutes by six gendarmerie officers who also insulted them. In this respect they maintain that the following forms of ill-treatment were applied to them: they were punched and kicked in the head and body to the extent that Yusuf Güven sustained a broken tooth; they were threatened with a knife pressed against their throats as a result of which Yusuf Güven suffered an incision; they were held at gunpoint; they were held upside down ; Mehmet Ali Güven was dragged on the ground and he subsequently hit the back of his head on a rock when two gendarmerie officers picked him up by his armpits and his ankles and then threw him to the ground.

The applicants were initially taken to Geyiksuyu gendarmerie station for identification purposes.

Subsequently, at around 5.30 p.m., the applicants were transferred to Tunceli central gendarmerie station to be interrogated. In the presence of his lawyer, the first applicant denied all connection with the PKK and maintained that they had been in the area in order to collect firewood. He further claimed that both he and his brother had been severely beaten and insulted by the gendarmerie officers who effected their arrest. The second applicant, on the other hand, admitted having gone to the scene of the incident in order to meet members of the PKK and to provide aid to the organisation .

Following their interrogation at the gendarmerie station the applicants were taken to the Tunceli hospital where they were examined and treated by a doctor at 7 p.m. The report drawn up following the examination with respect to Mehmet Ali Güven indicated a two- centimetre long laceration on the scalp on the left parietal region, pain upon palpation on the outside of his right femur, pain in the left zygomatic region, oedema and ecchymosis along with slight laceration on the right side of his lower lip and pain at the base of his left thumb. The doctor further noted that the applicant had been subjected to “general body trauma” and battery. As for Yusuf Güven, the doctor who carried out the examination observed a bullet entry wound on the inner part of the back side of his right femur close to the knee pit and a bullet exit wound on the outer part of the back side of his right femur, pain in the last tooth on the upper left, a slight scratch on the left side of the front of his neck and slight hyperaemia over the left side of his upper chest. It was also stated in the report that the applicant had suffered from “general body trauma” and pain . He was hospitalized to treat his injuries.

On 9 November 2004 at 8.45 a.m. the first applicant was once again examined by a doctor, who noted a laceration measuring 2x2 cm on the applicant ’ s head, resulting from a blow by a blunt object.

On the same day the applicants were brought before the Tunceli public prosecutor. The reports of the applicants ’ questioning reveal that at this stage of the investigation both of the applicants were assigned a lawyer who represented them throughout the proceedings before the domestic courts. The first applicant repeated the statements he had made before the gendarmerie. However, in the presence of his lawyer, the second applicant denied his statements before the gendarmerie and claimed that the gendarmerie officers had inflicted ill-treatment on him in order to obtain a confession and that he had been coerced into making self-incriminating statements. In particular, he stated that both he and his brother had been severely beaten following the armed clash despite the applicant ’ s heavily bleeding wound. In this respect the applicant alleged that he had suffered a broken tooth because of the ill ‑ treatment inflicted on him. He further maintained that a gendarmerie officer had held a knife to his throat and another had held him at gunpoint.

Again on the same day, the applicants were questioned by a judge in the presence of their lawyer. The applicants repeated the statements they had made before the public prosecutor and maintained that they had been beaten by the gendarmerie officers following the armed clash. The judge decided to release the first applicant; however, he remanded the second applicant in custody having regard to the sentence foreseen for the offence of which he was suspected, namely aiding and abetting an illegal organisation .

On 31 December 2004 the Malatya public prosecutor filed a bill of indictment with the Malatya Assize Court against the applicants, charging them with aiding and abetting an illegal organisation under Article 169 of the former Criminal Code (Law no. 765) and Section 5 of the Prevention of Terrorism Act (Law no. 3713).

On 17 May 2005 the Malatya Assize Court acquitted the first applicant of the aforementioned offences. The court further found the second applicant guilty as charged and sentenced him to a total of three years and nine months ’ aggravated imprisonment. The second applicant appealed against this judgement .

On 5 June 2006 the Principal Public Prosecutor at the Court of Cassation decided that the case file should be remitted to the Malatya Assize Court for examination of whether the new Criminal Code which had entered into force on 1 June 2005 (Law no. 5237) provided more favourable provisions for the second applicant. The case was thus once again examined by the Malatya Assize Court in view of the recent legislative changes.

On 29 August 2006 the assize court held that under the new Criminal Code, the act of aiding and abetting an illegal organisation carried a higher sentence. It stated that the applicant was therefore being convicted pursuant to Article 169 of the former Criminal Code, which was more favourable to him than the corresponding provisions of the new Criminal Code. In delivering its judgment, the first ‑ instance court mainly relied on the scene of incident report ( olay yeri tespit tutanağı ) , the statements of the applicants and the gendarmerie officers who had effected their arrest and forensic reports. The applicant appealed.

On 18 March 2010 the Court of Cassation upheld the judgment of the Malatya Assize Court.

B. Investigation instigated into the alleged ill-treatment of the applicants

In the course of the criminal investigation conducted by the Malatya public prosecutor, the applicants expressed their allegations of ill ‑ treatment.

On 31 December 2004 the Malatya public prosecutor decided to separate the investigation concerning the allegations of ill-treatment from the investigation against the applicants. The Malatya public prosecutor subsequently declared that he did not have jurisdiction over the investigation into the allegations of ill-treatment and referred the investigation to the Tunceli public prosecutor.

On 7 February 2005 the Tunceli public prosecutor decided not to initiate criminal proceedings in respect of the applicants ’ allegations on the ground that the injuries sustained by the applicants had occurred as a result of being caught in crossfire between the PKK members and the security forces .

The applicants objected to the decision of the public prosecutor.

On 3 March 2005 the Erzincan Assize Court accepted the applicants ’ objection and ordered that the decision of 7 February 2005 be annulled on the ground that the suspects were military personnel and the act complained of had taken place in the course of their duty, and that therefore the case fell within the jurisdiction of the military public prosecutor.

On 23 May 2005 the applicants gave their statements before the military public prosecutor in which they repeated their allegations of ill-treatment inflicted upon them during their arrest. The second applicant further maintained that at the Tunceli central gendarmerie station an officer had hit his wounded leg with a bat and given him a head-butt in order to coerce him into signing false statements.

On 17 June 2005 the Elazığ Military public prosecutor , referring to the conflicting statements of the applicants at the initial investigation stage, concluded that the gendarmerie officers had acted in the execution of their duties and in accordance with Article 49 of the former Criminal Code (Law no. 765) and that the injuries sustained by the applicants had occurred when the applicants had thrown themselves on the ground in order to hide from the crossfire. The public prosecutor maintained in particular that the slight scratch on the second applicant ’ s neck as noted in the medical report could not have been caused by a knife and that there was no mention of a broken tooth in the report. He further held that the injuries of the first applicant had been sustained when the applicant had fallen back on to his head during the armed clash. The Elazığ Military public prosecutor accordingly issued a decision not to prosecute anyone in relation to the applicants ’ allegations of ill-treatment.

Subsequently, on 3 August 2005 the applicants ’ objection was dismissed by the final decision of the Malatya Military Court.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment immediately after their arrest by the gendarmerie officers from the Tunceli Gendarmerie Command .

Relying on Articles 6 and 13 of the Convention, the applicants allege that the investigation initiated into their allegations of ill-treatment was ineffective.

QUESTIONS TO THE PARTIES

1. Were the applicants subjected to ill-treatment, in breach of Article 3 of the Convention?

2. Having regard to the procedural aspect of protection from ill ‑ treatment, did the investigation in the present case discharge the domestic authorities ’ positive obligations under Article 3 of the Convention?

[1] . The Kurdistan Worker’s Party/ The Kurdistan People’s Congress.