SECOND SECTION

Application no. 40314/08 Sinan TEKPETEK against Turkey lodged on 13 August 2008

STATEMENT OF FACTS

The applicant, Mr Sinan Tekpetek, is a Turkish national, who was born in 1980 and lives in Istanbul. He is represented before the Court by Mr M. Kaya, a lawyer practising in Istanbul.

The circumstances of the case

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

On 26 July 2007, at approximately 11.15 p.m., the applicant was stopped by the police for a routine identity check in Taksim Square, Istanbul. After examining his identity card and running his information in the police database, the police let the applicant go. However, as the applicant was heading off Taksim Square, a police car approached him from behind and a number of police officers grabbed him and shoved him into the police car. Once inside the car, three police officers sprayed him with pepper gas and beat him, while also swearing at him. The applicant ’ s pleas to find out the reason for this treatment were left unanswered.

Following a fifteen-minute drive, during which he continued to be assaulted, the applicant was taken out of the car, to find himself in a secluded area by the old city walls which he identified as the Yedikule or Yenikapı district of Istanbul , where two more police cars were awaiting. There, the applicant was once again insulted, threatened at gunpoint, kicked, punched and beaten with a truncheon and subjected to pepper gas by a total of ten to twelve police officers for over one hour. He was eventually put back in the car, where the beatings continued until he was thrown out of the moving car somewhere near Karak ö y around 1.45 a.m. that same night. The applicant was subsequently taken to the Haydarpa ş a Numune Hospital by some friends whom he contacted for help.

After preliminary examinations at the Emergency Room at the Haydarpa ş a Numune Hospital, the applicant was referred to the Siyami Ersek Thoracic and Cardiovascular Surgery Training and Research Hospital (“the Siyami Ersek Hospital”) with suspected chest trauma. At an unspecified time on 27 July 2007 the applicant was examined by a specialist at the Siyami Ersek Hospital, who noted the following injuries on the applicant ’ s body: an ecchymosis of 20 x 3 cm on the left arm; an ecchymosis of 10 x 3 cm on the left cervical area behind the left ear; haematoma on the left ear; an ecchymosis of 3 x 1 cm on the left scapula, at the level of the spine of the scapula; a number of ecchymotic patches on the back measuring between 1-5 x 0.5 cm; an ecchymosis of 5 x 2 cm at the level of the right spine of the scapula; an ecchymosis of 2 x 2 cm on the right arm joint, at the posterior side; an ecchymosis of 10 x 3 cm on the right lateral arm starting from the shoulder level; ecchymotic patches spread over an area of 10 x 5 cm on the corpus sternum; two lesions of 5 cm, located 10 cm below the right patella; and a fracture of the sixth and seventh ribs on the right side.

On 30 July 2007 the applicant lodged a criminal complaint with the Beyo ÄŸ lu Public Prosecutor against the police officers who had assaulted him. The applicant stated in his complaint that he did not remember all the details of the ill-treatment he had received at the hands of the police officers, as he had passed out a number of times on account of the physical trauma and pepper gas he was subjected to, but he believed that the police car in which he was kidnapped was a Renault Clio. He added that the police might have targeted him upon finding out during his identity check that he was standing trial for assaulting several police officers, and/or that he was the managing editor of a number of well-known opposition publications. The applicant asked the public prosecutor to summon the police officers on duty at the place of incident on the night of 26 July 2007 for an identification parade, and to examine images from the security cameras of the banks and other buildings in the area.

On the same day, the BeyoÄŸlu Public Prosecutor filed an urgent request with the Haydarpa ÅŸ a Numune and the Siyami Ersek Hospitals for the submission of the medical reports documenting the injuries sustained by the applicant as a result of the alleged incident.

On 31 July 2007 the Beyoğlu Public Prosecutor took the applicant ’ s statement in relation to his complaints, where the applicant reiterated his previous allegations. He added that the police officers involved in the incident were between the ages of 20-25, that he clearly remembered the face of one of the officers and could identify another one by his distinct accent. The public prosecutor subsequently referred the applicant to the Beyoğlu Branch of the Forensic Medicine Institute for further examinations.

In its report dated 31 July 2007 the Forensic Medicine Institute made the following findings: bruising and ecchymosis of 3 x 3 cm, 1 x 1 cm and 2 x 1 cm on the left scapula; scabbed scratches of 1 x 1 cm and 3 x 1 cm on the waist; scabbed scratches of 1 x 1 cm and 2 x 1 cm on the right elbow; ecchymosis on the right and left arms; ecchymosis around the left eye and ear; scabbed scratch on the front side of the right leg; a wide-spread yellow-purple ecchymosis of 15 x 15 x 20 cm at the centre on the left gluteal region; an ecchymosis of 3 x 1 cm on the right gluteal region; and ecchymosis and pain on the right side of the chest. The report noted that the injuries sustained by the applicant could not be treated by simple medical intervention and recommended that a radiologist examine his head and chest scans. There is no information in the case-file as to any further examinations of the head or the chest as suggested.

In the meantime, the applicant ’ s alleged ill-treatment by the police was covered in a number of national newspapers. In the issue of 29 July 2007 of the daily Radikal , the police authorities were reported as stating that they had no knowledge of the incident but that they would investigate the allegations.

O n 29 November 2007, approximately four months after the applicant had lodged his criminal complaint, the BeyoÄŸlu Public Prosecutor requested the BeyoÄŸlu Security Directorate to make available any CCTV footage of the place of the alleged incident from 11.30 p . m . to midnight on the relevant night.

On the same day the BeyoÄŸlu Public Prosecutor also requested from the BeyoÄŸlu Security Directorate the list of police officers on duty at Taksim Square on 26 and 27 July 2007 between 11.15 p . m . and 1.45 a . m . , along with their respective photographs .

Upon the public prosecutor ’ s request, three police officers, namely S. Ç ., M.K. and S.C., were identified as being on duty at Taksim Square at the indicated time. On 5 December 2007 the Beyoğlu Security Directorate informed the Beyoğlu Public Prosecutor that while the officer S.Ç. had been instructed to report to the prosecutor ’ s office with a photo, the remaining two officers had changed departments and could not be notified at their new places of duty.

On 4 January 2008 the Istanbul Security Directorate advised the BeyoÄŸlu Public Prosecutor that although a CCTV camera was in place at the place of incident, there was no recording available from the relevant night as CCTV footage was preserved for only ten days.

On 10 January 2008 the two remaining police officers, namely M.K. and S.C., were successfully notified of the instruction to present themselves at the Beyoğlu Public Prosecutor ’ s office.

On 15 February 2008, upon his failure to report, the Beyoğlu Public Prosecutor summoned S.Ç. once again to take his statement.

On 14 May 2008 the Beyoğlu Public Prosecutor requested the Bayrampa ş a Branch of the Rapid Response Force to arrange for the applicant to review the photographs of all the officers and superiors on duty at the Rapid Response Force for identification of the suspects who had carried out the assault. A copy of this request was given to the applicant ’ s lawyer in person.

In the absence of a response to the letter of 14 May 2008, the Beyoğlu Public Prosecutor reiterated his request on 10 October 2008. On the same day, the prosecutor also reissued a summons in relation to S.Ç. , M.K. and S.C., none of whom had reported to give a statement as ordered.

On 15 December 2008 the Istanbul Security Directorate informed the BeyoÄŸlu Public Prosecutor that it had no record of a letter dated 14 May 2008 in its archives.

On 8 February 2009 the Beyoğlu Public Prosecutor sent a second reminder in relation to his letter of 14 May 2008, and also summoned S.Ç. , M.K. and S.C. once again for statements.

On 12 February 2009 the Beyoğlu Security Directorate informed the Beyoğlu Public Prosecutor that the summons of 8 February 2009 could not be notified to S.Ç. as he had since been appointed to the Sar ı yer Security Directorate (in Istanbul).

On 24 March 2009 the Istanbul Security Directorate advised the BeyoÄŸlu Public Prosecutor once again that the letter of 14 May 2008 had not reached i t.

On 24 April 2009 the Beyoğlu Security Directorate notified the Beyoğlu Public Prosecutor that the officer M.K. had been instructed to report to the prosecutor ’ s office as requested, but S.C. could not be reached as he had been appointed to the Esenler Security Directorate (in Istanbul). Accordingly, on 28 May 2009, the public prosecutor forwarded the summons in relation to S.C. to the Esenler Security Directorate. On the same day, he reiterated his request regarding M.K. before the Beyoğlu Security Directorate.

On 9 November 2009 the Beyoğlu Public Prosecutor issued an order for the forcible bringing of S.Ç. , M.K. and S.C. to give statements.

On 25 December 2009 the Sar ı yer Security Directorate advised the Beyoğlu Public Prosecutor that S.Ç. could not be forcibly brought to the prosecutor ’ s office as he had been assigned to another city, to the Van Security Directorate, as of 18 June 2009. Accordingly, on 13 January 2010 the Beyoğlu Public Prosecutor contacted the Van Public Prosecutor to arrange the questioning of S.Ç.

In the meantime, on 29 December 2009 the Esenler Security Directorate similarly informed the Beyoğlu Public Prosecutor that S.C. had been appointed to the Tunceli Security Directorate in the east of Turkey. Accordingly, on 13 January 2010 the Beyoğlu Public Prosecutor contacted the Tunceli Public Prosecutor to take S.C. ’ s statement in the light of the interrogation documents appended in the annex.

On 9 February 2010 the Tunceli Public Prosecutor notified the BeyoÄŸlu Public Prosecutor that the instruction could not be carried out as the relevant interrogation documents had not been appended as indicated. In the absence of a reply, the Tunceli Public Prosecutor rei terated this request on 3 March 2010.

On 30 April 2010 the BeyoÄŸlu Public Prosecutor dispatched the requested documents to the Tunceli Public Prosecutor for the questioning of S.C. On the same date, he also reissued a summons for M.K.

On 12 May 2010 the BeyoÄŸlu Public Prosecutor took the statement of M.K., who briefly denied all the allegations against him. He said that as a stationary unit, they could only leave their posts at Taksim Square in response to a call. He also asserted that the police car in their service at the relevant time was a Mercedes Vito.

On 13 May 2010 the Beyoğlu Public Prosecutor repeated his previous request to the Van Public Prosecutor for the summoning and questioning of S. Ç . Whereas, according to the documents in the case-file, S.Ç. ’ s statement had already been taken by the Van Public Prosecutor on 16 February 2010 as instructed, and the official statement form had been served on the Beyoğlu Public Prosecutor on 26 March 2010. According to his statement, S.Ç. was not given information about the incident in relation to which he was being questioned. He said that he had no recollection of an incident from the indicated date and that he could possibly remember more if he were given the incident report or other records from the relevant night.

On 21 May 2010 S.C. reported to the Tunceli Public Prosecutor ’ s office to give his statement in connection with the applicant ’ s complaints. He noted at the outset the considerable amount of time that had lapsed since the alleged incident. He then stated that he had not taken part in any such incident and added that his unit, stationed constantly at Taksim Square, rarely used any vehicles.

On 10 June 2010 the Beyoğlu Public Prosecutor decided not to bring an “ additional ” prosecution against the police officers S.Ç. , M.K. and S.C. in connection with the applicant ’ s ill-treatment on the night of 26 July 2007. Relying solely on the statements made by the three officers, the public prosecutor held that there was insufficient evidence or suspicion to proceed with the prosecution of these officers. It appears that the applicant did not object to the public prosecutor ’ s decision.

On the same date the Beyoğlu Public Prosecutor i ssued a permanent search warrant, in effect until 26 July 2022, which instructed the Beyoğlu Security Directorate to continue its search for the perpetrators and to report to the prosecutor ’ s office every three months with an update on the investigation . The Beyoğlu Public Prose cutor repeated this order on 26 November 2012.

It appears that the investigation , which is still open, has not yielded any results thus far.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was severely beaten, insulted and threatened by police officers who abducted him in the street in Istanbul on the night of 26 July 2007 . He moreover contends under Articles 3 and 6 § 1 of the Convention that not only did the domestic authorities fail to conduct an effective investigation into his allegations of ill-treatment, but they also hindered the collection of evidence, such as CCTV or other camera footage from the area, by failing to take any investigative action for four months after his criminal complaint. He adds that the passage of time has made it increasingly difficult for him to identify the police officers who assaulted him.

QUESTION S TO THE PARTIES

1. Was the applicant subjected to ill-treatment by the police within the meaning of Article 3 of the Convention as alleged?

2. Did the authorities carry out an effective official investigation into the applicants ’ complaints of ill-treatment in compliance with the requirements of Article 3 of the Convention? Did the applicant sufficiently cooperate with the State authorities for the identification of the suspects?

3. Did the applicant object to the decision of the Beyoğlu Public Prosecutor, dated 10 June 2010, not to bring an “ additional ” prosecution against the police officers S.Ç., M.K. and S. C . ? If not, could this be considered as a failure to exhaust all domestic remedies as required under Article 35 § 1 of the Convention?

4. Did the BeyoÄŸlu Public Prosecutor deliver any other decisions before or after the above-mentioned decision of 10 June 2010?

The Government are kindly requested to submit a copy of the entire investigation file, including the t h r ee- monthly reports submitted by the police to the BeyoÄŸlu Public Prosecutor on the status of the investigation .

QUESTION TO THE APPLICANT

Did the applicant identify any one of the police officers S.Ç., M.K. or S. C . , who were the initial suspects in the investigation, as one of the perpetrators?

The applicant is also kindly requested to submit a copy of the medical report issued by the Emergency Department at the Haydarpa ÅŸ a Numune Hospital on 27 July 2007 .