SECOND SECTION

Application no. 56234/11 Hasan IRMAK and Nesibe IRMAK against Turkey lodged on 22 July 2011

STATEMENT OF FACTS

1. The applicants, Mr Hasan Irmak and Ms Nesibe Irmak , are Turkish nationals, who were born in 1950 and 1957, respectively and live in Diyarbakır . They are represented before the Court by Mr S. Yurtdaş , a lawyer practising in Diyarbakır .

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

3. On 6 June 2000 the first applicant, Hasan Irmak, was arrested on suspicion of participating in an illegal demonstration. Following his arrest, the applicant was placed in police custody at the Anti-Terrorist Branch of the Diyarbakır Security Directorate, where he alleges that he was subjected to ill-treatment.

4. On 16 June 2000 the applicant underwent a medical examination at the BaÄŸlar Health Clinic. The report issued following that examination, which was drawn up in respect of several people including the applicant, stated that there was no indication of physical violence on his body except for sensitivity in his testicles.

5. On the same day, the applicant was released upon an order of the public prosecutor at the Diyarbakır State Security Court.

6. Following his release, on 19 June 2000 the applicant applied to the Human Rights Foundation of Turkey ( T ü rkiye İnsan Hakları Vakfı ), complaining that he had been subjected to ill-treatment. He argued that his testicles had been wrenched and that he had been threatened, beaten, hosed with cold water, forced to listen to other people being ill-treated, stripped naked and prevented from eating, sleeping and going to the toilet.

7. Upon his request to that effect, several doctors working in collaboration with the Human Rights Foundation examined the applicant. The report drawn up after those examinations indicated that there were oedema and pain in the applicant ’ s scrotum , which could be diagnosed as erectile dysfunction. It also noted collapse and vascularity in his left eardrum as well as a Eustachian tube dysfunction and concluded that the applicant suffered from inner ear concussion as a result of trauma. The report also noted that the applicant demonstrated the symptoms of acute stress disorder.

8. On 23 June 2000 the public prosecutor issued an indictment against the applicant, accusing him of aiding and abetting an illegal organisation, namely the PKK (the Kurdistan Workers ’ Party).

9. On 26 October 2000 the Diyarbakır State Security Court acquitted the applicant of the charges against him.

1. Criminal proceedings against the police officers concerned

10. On 18 January 2001 the applicant filed a complaint with the Diyarbakır public prosecutor ’ s office, arguing that he had been subjected to inhuman treatment during his police custody at the Anti-Terrorist Branch, in particular on 11 and 12 June 2000, when he had been questioned by the police. He alleged that on the first day of his questioning, his eyes had been covered and he had been stripped naked, hosed with cold water and handcuffed to a rod for about three hours before being taken back to his cell. The applicant maintained that on the following day, after having been blindfolded, stripped naked and hosed, he had been forced to lie down on a sponge mattress covered with a blanket and had his testicles squeezed by a police officer while the other officers held his arms and legs. He stated that he had lost consciousness afterwards. The applicant finally submitted that during the rest of his police custody he had not received any treatment for his swollen scrotum, except for an ointment given on the following day, and that the officers had threatened him not to mention the ill-treatment before he was taken to the doctor following his release.

11. On 20 February 2001 the applicant gave his statement before the public prosecutor. Reiterating his previous allegations, he added that he had become impotent. He also maintained that he had been slapped on his left ear while in police custody, which had resulted in loss of hearing. He submitted that he could not identify the police officers who had inflicted physical violence on him as his eyes had been covered, however he assumed that there had been six of them.

12. On the same day the public prosecutor transferred the applicant to the Diyarbakır Forensic Medicine Institute.

13. On 21 February 2001, upon the recommendation of the Forensic Medicine Institute, the prosecutor transferred the applicant to the departments of psychiatry, o tolaryngology and urology of the Dicle University Hospital with a view to establishing whether he showed the symptoms he alleged and if so, when they could have been caused.

14. On the same day the applicant was examined by a psychiatrist at the hospital, who noted in his report dated 23 February 2001 that the applicant suffered from major depression and post-traumatic stress disorder. The psychiatrist also indicated that the applicant ’ s complaints concerned the last seven to eight months and that he had not shown any symptoms of these conditions before his police custody.

15. The next day, on 22 February 2001 the applicant underwent an examination at the department of o tolaryngology . The doctors who performed the examination noted loss of hearing in the applicant ’ s left ear but maintained that there was no objective evidence to establish the reasons thereof.

16. In a medical report dated 26 February 2001, the head of the department of urology indicated that the applicant had extra-genital arterial discordance and a 30% penile diversion, which could be operated. The doctor noted that there was no vascular pathology and stated that he could not establish whether there was psychological and neurological erectile dysfunction in addition to the diversion.

17. On 6 April 2001 the public prosecutor took the statements of two police officers, M.Y. and K.Ó¦., from the Anti-Terrorist Department. Both officers denied the allegations of ill-treatment and maintained that they could not remember the applicant as they had questioned a number of people during that period. They added that in any case, they had only taken the statements of those placed in custody and not inflicted physical violence on anyone.

18. On 26 July 2001 the Diyarbakır Forensic Medicine Institute issued a report, analysing the findings of the three medical reports drawn up at the Dicle University Hospital. That final report concluded that it could not be established with certainty that the applicant had been subjected to ill ‑ treatment.

19. On 2 August 2001 the public prosecutor issued an indictment against officers M.Y. and K.Ó¦., accusing them of torture pursuant to Article 243 of the then applicable Criminal Code (Law no. 765).

20. During the course of the criminal proceedings against the two police officers, at the hearing on 18 March 2002, the doctor at the Bağlar Health Clinic, who had performed the applicant ’ s initial examination following his release from custody, gave her statement. The doctor maintained that a police officer had been present when she examined the applicant with several others and that the applicant had hesitated to explain his complaints but implicitly showed where he felt sensitivity. She stated that she had noted that sensitivity in her report but had not found any indication of physical violence.

21. On 16 April 2002 the Diyarbakır Assize Court stayed the proceedings as it found that criminal proceedings against officers on duty in the state of emergency region ( o lağanüstü hal bölgesi ) could only be initiated upon the authorisation of the governor of that region.

22. On 3 May 2002 the Governorship of Diyarbakır refused authorisation for the instigation of criminal proceedings against the two police officers concerned.

23. On 25 June 2002 the applicant objected to the decision of the Governorship.

24. On 31 March 2003 the Regional Administrative Court rejected the applicant ’ s objection.

2. Administrative proceedings brought by the first applicant, Hasan Irmak

25. On 12 January 2001 the applicant requested compensation from the Ministry of Interior. However, his request was rejected on 24 January 2001 .

26. Subsequently, on an unspecified date in 2001 the applicant brought proceedings against the Ministry of Interior, claiming pecuniary and non ‑ pecuniary compensation for his loss of hearing and sexual dysfunction, which he alleged had occurred as a result of the ill-treatment he had been subjected to in police custody.

27. On 19 December 2002 the Diyarbakır Administrative Court dismissed the case. The court stated that the final report issued by the Diyarbakır Forensic Medicine Institute noted the lack of evidence proving that the applicant ’ s symptoms had been caused by ill-treatment. It further maintained that the two reports drawn up in respect of the applicant before and immediately after his police custody indicated no sign of physical violence on his body. The court further relied on the decision of the Governorship of Diyarbakır, refusing the opening of criminal proceedings against the police officers concerned.

28. On 22 December 2006 the Supreme Administrative Court quashed the judgment of the first-instance court. Taking account of the findings of the reports drawn up by the doctors at the Dicle University Hospital and the witness statements of the doctor at the Bağlar Health Clinic, the higher court maintained that the final report of the Diyarbakır Forensic Medicine Institute was not sufficient to establish that the applicant had not been subjected to physical violence. It indicated that the Administrative Court should have obtained an additional expert report from the Forensic Medicine Institute.

29. On 24 June 2008 the Supreme Administrative Court rejected the rectification request of the Ministry of Interior.

30. Having received the file back, the Administrative Court requested an expert report from the Forensic Medicine Institute.

31. In response to that request, on 6 October 2010 the Forensic Medicine Institute requested the court to provide it with a copy of the initial medical report issued at the BaÄŸlar Health Clinic.

32. On 17 January 2011 the applicant filed a complaint with the Diyarbakır public prosecutor ’ s office, requesting the opening of criminal proceedings against the administrative personnel concerned in that the initial medical report, which had been kept in the case file of the criminal proceedings against him, had gone missing together with the case file as a result of negligence on their part.

33. Subsequently, on 20 May 2011 the Administrative Court requested the said case file from the Diyarbakır Assize Court.

34. The administrative proceedings appear to be pending as of October 2013.

3. Administrative proceedings brought by the second applicant, Nesibe Irmak

35. On an unspecified date the second applicant, the first applicant ’ s wife, brought proceedings against the Ministry of Interior, claiming non ‑ pecuniary compensation and arguing that she had been affected by the sexual dysfunction caused to her husband.

36. On 11 November 2003 the Diyarbakır Administrative Court dismissed the case, reiterating the reasoning in its judgment dated 19 December 2002 with regard to the case brought by the first applicant.

37. On 28 March 2007, having regard to its decision quashing the judgment of the first-instance court on the first applicant ’ s case, the Supreme Administrative Court quashed that judgment as well.

38. On 16 June 2008 the higher court rejected the administration ’ s rectification request.

39. On 19 March 2009 the Administrative Court stayed the proceedings pending the outcome of the proceedings concerning the first applicant, as the two were directly linked.

COMPLAINTS

40. The first applicant complain s under Article 3 of the Convention that he was subjected to ill-treatment during his time at police custody . He alleges in particular that he received slaps to his ear, was stripped naked, hosed with cold water and had his testicles wrenched, which resulted in his sexual dysfunction, loss of hearing and psychiatric disorders.

41. The first applicant further maintains under Article 3, 6 and 13 of the Convention that the domestic authorities failed to conduct an effective investigation into his allegations of ill-treatment. In this respect, he maintains that the perpetrators were not found and punished despite more than ten years that had passed following his police custody.

QUESTIONS TO THE PARTIES

1. Has the first applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?

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

The parties are requested to inform the Court of the current state of the administrative proceedings a gainst the Ministry of Interior and to submit all documents concerning both sets of proceedings.