SECOND SECTION

Application no. 4370/12 Kazım BARAN against Turkey lodged on 11 January 2012

STATEMENT OF FACTS

1. The applicant, Mr Kazım Baran , is a Turkish national, who was born in 1984 and lives in Batman . He is represented before the Court by Ms M. Nergiz and Ms S. Nergiz , lawyers practising in Diyarbakır.

A. The circumstances of the case

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

3 . On 21 May 2010 the applicant was arrested on suspicion of being a member of the PKK (the Kurdistan Workers ’ Party, an illegal organisation), involvement in the armed operations of the illegal organis ation and deserting the army.

4 . According to the arrest records drawn up by the gendarmerie officers who conducted the arrest, while searching a wheat field nearby, the officers noticed two khaki coloured backpacks and a Kalashnikov rifle, upon which they fired five warning shots in the air and called for anyone hiding to surrender. After having searched the field for more than one hour by occasionally firing warning shots, they heard someone moaning and noticed that he was trying to escape. The records stated that following the officers ’ warnings, the applicant dropped his rifle on the ground and surrendered. The officers then noticed several bleeding scars and scratches on his head and arms, which they indicated must have occurred while he was running and crawling in the field. The records noted that when the officers told him to stand up and turn his back, the applicant tried to reach his rifle and run away. The records finally stated that the applicant had been arrested by using force after he had struggled on the ground with one of the officers, who had tried to stop him.

5 . Following his arrest, the applicant was taken to the Beşiri Health Clinic. The doctor who examined the applicant noted bruises around his left eye, pythiosis in the same eye and swelling on the left side of his chin as well as several cuts and burns and some other injuries he had sustained before. He also stated that the applicant claimed that the injuries had occurred while he was running away from the gendarmerie officers. The doctor concluded that the injuries did not put the applicant ’ s life at risk and that he could be placed in custody.

6 . Subsequently, the applicant was taken to the Batman Gendarmerie Command.

7 . The next day, on 22 May 2010 the applicant was examined once again. This time, the doctor noted ecchymoses and pythiosis on his left eye, swelling on the left side of his chin and cuts and other ecchymoses on various parts of his body.

8 . On 23 May 2010 the applicant underwent a third examination at the same Clinic. The report drawn up that time noted that he had a 2 x 3 cm ecchymosis around his left eye, light bleeding in the same eye, light swelling on his jaw bone, ecchymoses on the right side of his chest and several other bruises and scratches on various parts of his body. The report concluded that the injuries on the applicant ’ s body did not put his life at risk and could be treated with simple medical attention.

9 . The following day, on 24 May 2010 a fourth report was issued at the Beşiri Health Clinic. It indicated an ecchymosis and bleeding in the applicant ’ s left eye, bruises on his torso and left arm and numerous scars on his right arm.

10 . On 25 May 2010, the fifth and last report was drawn up at the same Clinic. It noted an ecchymosis of 5 x 3 cm on the applicant ’ s upper right arm and a 0.2 x 0.2 cm scabbed cut on the left side of his chest. It also maintained that the applicant had sensitivity on his chest and difficulty in breathing, which could not be evaluated well due to the lack of x-ray equipment at the Clinic.

11 . On the same day, the applicant was examined at the Batman District State Hospital, where the doctor noted no sign of physical violence on his body.

12 . Again the same day, the applicant was placed in detention on remand at the Batman Prison, where he underwent another medical examination upon his arrival. The report issued following that examination indicated an ecchymosis around his left eye, a 3 x 13 cm ecchymosis on his upper right arm, difficulty with the movement of his right arm, a 1 x 1 cm scar on the left side of his chest, pain and sensitivity between his chest and the abdominal region and a 0.5 x 4 cm scar on the right side of his groin.

13 . On 27 May 2010 the applicant was examined by the prison doctor once again, who noted that there was no urgent pathology.

1. Investigation into the applicant ’ s allegations of ill-treatment

14 . On 28 May 2010 the applicant submitted a petition to the Batman public prosecutor ’ s office, claiming that he had actually been arrested on 20 May 2010 but had been taken to the Batman Gendarmerie Command the next day, after having been threatened and pulled along behind the gendarmerie vehicle for hours. He alleged that at the Gendarmerie Command he had had his head plunged in a water tank so as to leave him breathless, been subjected to electric shocks, stripped naked and left hungry for days. He maintained that the doctor at the Beşiri Health Clinic had told him that he deserved to die and had not taken into account his allegations of ill-treatment.

15 . Subsequently, the BeÅŸiri public prosecutor started an investigation into the matter.

16 . On an unspecified date the applicant was questioned by the public prosecutor. He reiterated the statements he had made in his petition and maintained that he would not be able to identify the persons who had inflicted physical violence on him as he had been unconscious during his ill ‑ treatment.

17 . During the course of the investigation, on 2 August 2010 the applicant underwent another medical examination at the Batman District State Hospital, as a result of which it was noted that there were numerous healed cigarette burns on his left arm, from the shoulder to the elbow and another burn of the same nature on his chest. The doctor who had drawn up the report noted that the applicant had also been examined by a neurologist as he had described numbness on the right side of his body; however, no pathology had been determined following that examination. The doctor concluded that the applicant ’ s injuries were not life-threatening.

18 . Upon the request of the Beşiri public prosecutor, on 13 September 2010 the Diyarbakır Directorate of the Forensic Medicine Institute forwarded all medical reports drawn up in respect of the applicant to the Istanbul Forensic Medicine Institute, for the latter to determine whether the injuries to the applicant could have resulted from his crawling in the wheat field and his subsequent struggle with a gendarmerie officer during his arrest.

19 . On 10 November 2010 the Istanbul Forensic Medicine Institute informed the public prosecutor that the applicant needed to be transferred there for further medical examination.

20 . On 13 December 2010, once again at the request of the Beşiri public prosecutor, three lieutenants at the Batman Gendarmerie Command drew up a list of the officers on duty from the applicant ’ s arrest until he had been taken before the public prosecutor. They listed the names of twelve officers: six of them had conducted the applicant ’ s arrest, two had taken his gendarmerie statements and the other four had registered his entry and exit from custody. The lieutenants finally maintained that although the public prosecutor had requested the video records of the Gendarmerie Command during the time the applicant was held there, there had been no video system at the Command at the time.

21 . On 21 and 22 December 2010 respectively, the Beşiri public prosecutor took witness statements from two of the listed gendarmerie officers. Both officers denied the applicant ’ s allegations of ill-treatment and maintained that he had not been subjected to any physical violence during his custody. They added that the injuries to the applicant had occurred before his arrest, while he ran away from the officers.

22 . On 18 February 2011 the Beşiri public prosecutor asked the Batman Directorate of Forensic Institute to issue a final report, analysing the findings of all previous reports with a view to establishing the reasons for the injuries on the applicant ’ s body.

23 . Subsequently, on 31 March 2011, a forensic expert at the Batman Directorate of Forensic Institute drew up a final report which noted the following:

“ 1) The reasons for the ecchymoses around the eye and on various parts of the body, the pythosis in the eye and the swelling on the chin could not be determined with certainty as they might have resulted either from external trauma such as a kick or a punch, or by Kazım Baran himself falling on the ground or hitting a rough surface during his forc ibl e arrest. With regard to the burns, which were not indicated in the reports issued between 21 and 25 May 2010, and the cuts around the body, it is not possible to establish how they were sustained as the medical reports did not specify their exact places and particularities.

2) The ecchymoses , which were not indicated at the first report but noted by the subsequent ones taken during Mr Baran ’ s custody, might have been sustained during his forc ibl e arrest and become visible a while after. However, they might as well have occurred due to external trauma he had been subjected to during his custody. Accordingly, it cannot be medically established whether they were caused intentionally.

3-4) The cuts on various parts of the body, including that on the crotch, might be those indicated in the initial report, which failed to describe them in detail.

5) As for the healed cigarette burns, which had not been noted in the reports obtained during Mr Baran ’ s custody but in the one issued at the Batman District State Hospital on 2 August 2010, it is not possible to establish how and when they occurred as they were not described in detail either. Consequently, it cannot be determined with certainty that they occurred during Mr Baran ’ s time in the custody of the gendarmerie.”

24 . On 4 April 2011 the BeÅŸiri public prosecutor issued a decision not to prosecute the officers on duty during the time the applicant was held at the Batman Gendarmerie Command. On the basis of the arrest records, the medical reports in respect of the applicant, in particular the final report analysing their findings, and the witness statements of two gendarmerie officers, the public prosecutor maintained that it was medically established that the injuries to the applicant could have occurred by his crawling in the wheat field while he escaped and during his forcible arrest, as corroborated by the witness statements. He submitted that there was no evidence to prove that the cigarette burns noted two and a half months after the applicant ’ s arrest had been sustained during his time in custody and that they might have occurred at the prison, due to various factors. The prosecutor concluded that despite the investigation conducted in line with the guidelines of the Ministry of Justice, the applicant ’ s allegations of ill ‑ treatment were not supported by sufficient evidence so as to instigate criminal proceedings against the gendarmerie officers. He further noted that the applicant ’ s allegations concerning the statements of the doctor at the BeÅŸiri Health Clinic were unsubstantiated.

25 . On 12 April 2011 the applicant objected to the decision not to prosecute.

26 . On 9 January 2012, after having been informed that his objection had not reached either the Beşiri public prosecutor ’ s office or the Midyat Assize Court, he filed a petition with the Batman public prosecutor ’ s office, arguing that his petition had been lost due to the negligence of the personnel. He requested the opening of an investigation into the matter.

27 . Subsequently, the Batman public prosecutor initiated an investigation against certain personnel working at its registry for negligence.

28 . On 31 May 2012 the applicant ’ s petition of objection was found and submitted to the Beşiri public prosecutor ’ s office.

29 . On the same day the Batman public prosecutor issued a decision not to prosecute the personnel concerned as the applicant ’ s objection had been delivered and he had not faced any disadvantage as a result of the impugned negligence.

30 . On 11 June 2012 the Midyat Assize Court rejected the objection to the decision not to prosecute the gendarmerie officers who the applicant alleged had ill-treated him.

31 . On 10 July 2012 the Assize Court rejected the applicant ’ s objection to the decision concerning the registry personnel of the Batman public prosecutor ’ s office.

2. Criminal proceedings against the applicant

32 . Following his arrest, on 21 May 2010 the applicant gave his statements at the Gendarmerie Command, in the presence of his lawyer.

33 . On 25 May 2010 he was questioned by the public prosecutor and the investigating judge, again with his lawyer being present.

34 . In all three statements, he admitted to being a member of the PKK but submitted that he had never been involved in any armed operation of the illegal organisation. He further maintained that he had entered Turkey from Iraq three days before his arrest and that only a part of the arms and grenades found on him belonged to him.

35 . On 20 October 2010 the Diyarbakır public prosecutor issued an indictment against the applicant, accusing him of disrupting the unity and integrity of the State, attempted homicide of members of the security forces and possessing and transferring hazardous ma terial, pursuant to Articles 82 (1), 302 (1) and 174 (1) and (2) of the Penal Code (Law no. 5237), respectively.

36 . During the proceedings before the Diyarbakır Assize Court, the applicant maintained that he had deserted the army during his military service and joined the illegal organisation PKK in 2006. He repeated that he had not been involved in any armed activity. Contrary to his previous statements, the applicant submitted that he did not have any knowledge of who the arms and grenades found in the wheat field belonged to. He finally stated that he wanted to benefit from the provisions governing effective remorse.

37 . On 28 December 2010 the Diyarbakır Assize Court sentenced the applicant to a total of nineteen years and two months ’ imprisonment (seven years and six months for being a member of an illegal armed organisation pursuant to Article 314 (2), another seven years and six months for being in possession of unlicensed arms and four years and two months for illegal possession of explosives). The court acquitted the applicant of attempted homicide of members of the security forces as it found that he had not been involved in the alleged armed conflicts.

38 . In rendering its judgment, the court relied on the applicant ’ s statements before the gendarmerie, the public prosecutor and the investigating judge, as well as the two Kalashnikov rifles, several hand grenades, dischargers and numerous bullets found on him and the expert reports establishing whether they belonged to him.

39 . The applicant appealed against the judgment, arguing, in particular that he should have benefited from Article 221 of the Penal Code (Law no. 5237) governing effective remorse, as he had voluntarily dissociated himself from the illegal organisation but had been arrested before he surrendered. He requested that the Court of Cassation hold a hearing in examining his appeal.

40 . On 4 July 2011 the Court of Cassation upheld the judgment of the Assize Court. The higher court rejected the applicant ’ s request for a hearing, stating that the conditions to hold a hearing had not been established in the case.

B. Relevant domestic law

41 . Article 299 of the Code on Criminal Procedure (Law no. 5271), which entered into force on 1 June 2005, reads as follows:

Review through a hearing

“(1) The Court of Cassation shall conduct its review of judgments concerning imprisonment of ten or more years by conducting a hearing, either pursuant to a request made by the accused or the intervening party in the notice of appeal or on its own motion if it so wishes. The accused, intervening party and defence lawyer shall be notified of the date of the hearing. The accused shall have the right to be present at the hearing or may be represented by a defence lawyer.

(2) If the accused is detained on remand, he may not request to be present at the hearing.”

COMPLAINTS

42 . The applicant complains under Article 3 of the Convention that he was subjected to physical violence by gendarmerie officers during his arrest and his time in the custody of the gendarmerie . He argues that he was pulled along behind a vehicle, threatened and beaten before he was taken to the Batman Gendarmerie Command, where he was subjected to further ill ‑ treatment such as electric shocks, having his head plunged in water and having cigarettes extinguished on his body.

43 . Relying upon Articles 6 and 13 of the Convention, the applicant argues that the domestic authorities failed to conduct an effective investigation into his allegations of ill-treatment in that the public prosecutor did not take account of the injuries on his body, did not question the doctors or the gendarmerie officers, except for two, who gave their statements as witnesses. He also maintains that the authorities delayed the examination of his objection to the public prosecutor ’ s decision by seven months.

44 . The applicant argues under Article 6 § 1 of the Convention that the refusal of the Court of Cassation to hold a hearing violated his right to a fair and public trial.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention , during his arrest, while he was in the custody of the gendarmerie as well as in detention on remand?

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 breach of Article 3 of the Convention?

3. W as the lack of an oral hearing before the Court of Cassation compatible with the applicant ’ s right to a public hearing as guaranteed by Article 6 § 1 of the Convention?