SECOND SECTION

Application no. 19139/12 Tahir CANAN against Turkey lodged on 23 December 2011

STATEMENT OF FACTS

The applicant, Mr Tahir Canan , is a Turkish national, who was born in 1953 and is currently serving a prison sentence in Bandırma . He is represented before the Court by Ms Y. İmrek , a lawyer practising in Istanbul .

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

On 12 August 2009, the applicant was transferred from Adana Prison, where he had been held until that date, to Bandırma Prison, approximately 1,000 km away from the former. Roughly halfway through the trip, the bus carrying the prisoners stopped off at the Gendarmerie Command in Ankara to break the journey and the applicant asked to be taken to the toilet. He also asked to have his handcuffs taken off. However, the gendarmerie lieutenant in charge of the group, Ü.G., refused that second request.

On 17 August 2009 the applicant filed a complaint with the Bandırma public prosecutor ’ s office, arguing that he had been subjected to degrading treatment by Ü.G. in that he had had to go to the toilet in handcuffs despite his repeated requests to have them unlocked and because he had continued the rest of the journey in an unsanitary state. He claimed that such treatment could not have been justified by security concerns, as he had been using the Gendarmerie Command ’ s toilet facilities, which had been guarded by gendarmerie officers.

On 5 February 2010 the Bandırma public prosecutor took a statement from the applicant. Repeating his initial submissions, the applicant maintained that the other inmates in the bus had witnessed the degrading treatment, as they had also been required to use the toilets under the same conditions.

On 6 September 2010 a colonel from the Adana Gendarmerie Command informed the applicant that lieutenant Ü.G. had given a statement before the Adana public prosecutor and that no other disciplinary or administrative measure had been taken against him, as he had acted in compliance with the relevant orders.

Subsequently, on 27 October 2010 the Adana Gendarmerie Command sent a second letter to the applicant, indicating that security measures during the transfer of prisoners were taken having regard to the security requirements at a given time. The letter added that the lieutenant in charge of the transferred group was the sole person authorised to determine whether the situation required the application of a security measure, namely the use of handcuffs in the applicant ’ s case.

On 8 December 2010, after having examined the case file and an investigation report from the Gendarmerie Command, the Governor of Adana decided not to permit the instigation of a criminal investigation against Ü.G . pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials) . The Governor referred to section 456 of the Directive on the Transfer of Prisoners ( Ceza İnfaz Kurumu ve Tututkevlerinin Dış Koruması ile Sevk ve Nakil Hizmetleri Yönergesi ), which stated that the Gendarmerie had the authority to handcuff prisoners in order to prevent their escape. He further relied on section 27 of the Gendarmerie Guidelines ( Jandarma Talimnamesi ), stating that prisoners would be allowed to go to the toilet if in the company of gendarmerie officers and that their handcuffs must not be unlocked during that time. The Governor found accordingly that lieutenant Ü.G. had acted in compliance with the relevant legislation in not permitting the applicant to go to the toilet without handcuffs.

Following the Governor ’ s decision, on 4 April 2011 the Ankara public prosecutor decided to strike the case out, stating that an investigation against Ü.G. could only be instigated by a permit of the Governor to that effect.

The applicant objected to the public prosecutor ’ s decision. However, on 30 September 2011 the Sincan Assize Court rejected that objection.

COMPLAINTS

The applicant alleges under Article 3 of the Convention that his being obliged to go to the toilet in handcuffs and having to travel in an unsanitary state constituted degrading treatment.

Relying upon Article 6 of the Conv ention, the applicant complains about the outcome of the investigation into the matter and the manner in which it was conducted.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention as a result of his having to use the toilet facilities in handcuffs and travelling in an unsanitary state ? The parties are requested to inform the Court about the manner of the handcuffing (i.e. the range between the applicant ’ s hands and whether his hands were tied in the front or back of his body).

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