Communicated on 5 September 2014

SECOND SECTION

Application no. 63192/12 A.T.Ö . against Turkey lodged on 9 August 2012

STATEMENT OF FACTS

The applicant, Mr A.T.Ö. , is a Turkish national, who was born in 1980 and lives in İzmir. He is represented before the Court by Mr H.C. Akbulut and Mr S. Cengiz, lawyers practising in İzmir.

A. The circumstances of the case

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

On 13 March 2011 at 5.20 a.m. the applicant and a friend were arrested in the street by two police officers who were patrolling the neighbourhood of Konak in the province of Ä°zmir. The police officers asked them to submit their identity cards.

According to the applicant ’ s version of events, as understood from his written statement at the police station and at the İzmir Public Prosecutor ’ s office on 13 March 2011, the applicant told the police officers that he was a lawyer registered with the İzmir Bar Association but he did not have his national identity card on him and that he was living nearby. One of the police officers hit the applicant ’ s arm telling him to take his hands out of his pockets. Subsequently the other police officer twisted the applicant ’ s arm behind his back, which forced him to bend over, and put handcuffs on him. The police officers insulted the applicant, told him that they believed he was lying when he stated that he was a lawyer, used pepper spray aimed at his face and slapped him once. The applicant and his friend were put into the police car. The applicant ’ s friend declared that he had not been ill-treated as he had not resisted arrest.

In the police car, the applicant gave the police officers his national identity number so that they could carry out a control. The police officer who checked the identification details via a mobile terminal saw that the applicant had a previous criminal record for the use of drugs. Subsequently the police officer threatened the applicant, saying that he would have a serious problem, and insulted him. The applicant and his friend were not subjected to physical assault in the police car as it was understood that the former was indeed a lawyer.

When the applicant arrived at the police station, he was charged with using force and threatening behaviour against public officers to prevent them from performing their duty and also with use of drugs. Subsequently the applicant underwent a medical examination at İzmir Ataturk Education and Research Hospital. The medical report concluded that no lesions had been found on the applicant ’ s body but that he had claimed to have a pain in his left arm. No trace of drugs had been found in the applicant ’ s blood.

According to the police officers ’ version of events, as indicated in their written statement dated 13 March 2011, they saw the applicant and his friend at 5.30 a.m. The latter were drunk and were yelling in the street. When the applicant saw the police car, he threw an object under a car parked in the street and began to run away. The police officers ran after the applicant for 200 metres and arrested him. The applicant told them that he was a lawyer and that he would not show them his identity card. The applicant also tried to punch and kick the police officers, who got him under control by using pepper spray. The applicant also insulted the police officers and did not comply with instructions. The applicant ’ s friend got into the police car without any resistance and therefore there was no need to use force against him. The police officers then searched for the object that the applicant had thrown on the street and found that it was hashish rolled in paper and that, in view of the quantity, it would have been for a single use. On the same date, the police officers filed a criminal complaint against the applicant for using force and threatening them. They stated that they had no complaint against the applicant ’ s friend.

The applicant was released on 13 March 2011 after making his statement before the public prosecutor. On the same day he filed a criminal complaint against the police officers for defamation, physical assault, misconduct in office and counterfeiting official documents.

On 8 September 2011 the İzmir Chief Public Prosecutor ’ s Office filed an indictment with the İzmir 20 th Magistrates ’ Court charging the police officers with defamation in public and intentional physical assault by a police officer against a person by using excessive force in breach of police powers, and rendered a decision not to prosecute for the remaining complaints. Criminal proceedings against the police officers for intentional physical assault by using excessive force in breach of their powers are ongoing before the İzmir 20 th Magistrates ’ Court.

On 20 September 2011 the applicant filed an objection with the Karşıyaka Assize Court against the decision not to prosecute with regard to the allegations of misconduct in office and counterfeiting official documents. The objections of the applicant were rejected on 19 October 2011 and the applicant was informed on 7 August 2012, following his request.

In view of the official report drafted by the police officers and submitted to İzmir Chief Public Prosecutor ’ s office, two sets of criminal proceedings were conducted against the applicant. The applicant was charged with defamation, physical assault on police officers and using drugs.

On 27 September 2011 the Ä°zmir 19 th Criminal Court of General Jurisdiction acquitted the applicant of defamation and physical assault.

The other set of proceedings on the charge of the use of drugs was conducted before the İzmir 15 th Magistrates ’ Court. The court requested two expert reports from the Department of Criminal Police Laboratories and from the Department of Crime Scene Investigation and Identification of the General Security Directorate. The first report concluded that the object allegedly thrown by the applicant on the road and collected by the police officers was a cannabis-based narcotic substance of 1 gram and contained some traces of hashish. The second report concluded that there were no fingerprints on the paper in which the substance was rolled.

On 12 January 2012, the İzmir 15th Magistrates ’ Court convicted the applicant and imposed a treatment and supervision order ( tedavi ve denetimli serbestlik ). The first instance court stated in its judgment that the applicant had been previously convicted in 2008 and in 2009 by the İzmir 5 th Magistrates Court and by the İzmir 10 th Magistrates ’ Court for the use of drugs and had subsequently been subjected to a treatment and supervision order. The same court noted that in view of the applicant ’ s recidivism, the report drafted by the police officers should be given priority in the assessment of the facts. The court stated that it suspended the execution of the punishment imposed on the applicant provided that he acted in conformity with the requirements of the treatment and supervision order during one year.

The applicant filed an objection with the competent Ä°zmir 13 th Criminal Court of General Jurisdiction, which rejected the claim on 3 February 2012.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the force used during his arrest was excessive and disproportionate and therefore amounted to ill-treatment. Invoking Article 3 and 13, the applicant contends that the national authorities failed to conduct an effective investigation into his allegations.

The applicant complains under Article 6 of the Convention that his prior conviction was taken into account in finding him guilty and the assessment of the facts and evidences was marred by a presupposition that he is a regular drug user. The applicant maintains that his right to the presumption of innocence was violated.

The applicant contended that the national authorities failed to institute criminal proceedings against the police officers for misconduct in office and counterfeiting official documents and that this had violated his rights under Article 6 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust domestic remedies in respect of his complaints under Article 3 of the Convention?

2. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?

Having regard to the procedural protection from ill-treatment (see paragraph 131 of Labita v. Italy [GC] , no. 26772/95, ECHR 2000-IV), was the investigation by the domestic authorities, in the present case, in breach of Article 3 of the Convention?

The Government are requested to provide a copy of the complete file of the investigation into the applicant ’ s allegations and a copy of the file of the case brought against the police officers (file no. 2011/1754)

3. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?

In particular, was the reference made by the competent tribunal to the applicant ’ s prior conviction in the assessment of the facts and the interpretation of evidence in compliance with Article 6 § 2 of the Convention?