SECOND SECTION

Application no. 35139/06 Mehmet Veysi ÖZEL against Turkey lodged on 10 July 2006

STATEMENT OF FACTS

The applicant, Mr Mehmet Veysi Özel , is a Turkish national, who was born in 1971 and lives in Izmir.

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

On 5 September 2001 the applicant was arrested and taken into police custody in Adana, on suspicion of being a member of an illegal organisation, namely the Hizbullah .

On the same day the applicant underwent a medical examination. The report drawn up afterwards noted two superficial scratches on his back and left wrist, which the applicant indicated had occurred before his arrest.

On 8 September 2001 the applicant was taken to the Anti-Terror Branch of the Diyarbakır Security Directorate.

Following the applicant ’ s examination at the Diyarbakır State Hospital on the same day, another medical report was drawn up, indicating no sign of ill-treatment on the applicant ’ s body except for a three-day-old scratch on the left wrist.

On 15 October 2001 the applicant was placed in detention on remand following a medical examination conducted by the in-house doctor at the Diyarbakır Prison. The report issued following that examination stated that there was no sign of physical violence on the applicant ’ s body. The applicant alleges that the report initially noted a loss of strength in his hand but was changed afterwards.

On an unspecified date in 2001 the applicant filed a complaint with the Diyarbakır public prosecutor ’ s office, arguing that he had been subjected to ill-treatment by certain police officers while in police custody.

On 12 November 2001, during his examination at the Diyarbakır Forensic Medicine Institute, the applicant stated that he was suffering from numbness in both hands.

Subsequently, on 7 December 2001, he underwent another medical examination at the department of neurology of the Fırat University Faculty of Medicine. The report drawn up following that examination indicated that there was hypoesthesia below the applicant ’ s wrists and a loss of strength of in the flexion, opposition and extension of his fingers. It noted that the applicant was to undergo an electromyography (EMG).

On 24 January 2002, following the applicant ’ s EMG, another report was drawn up, which noted lesions at the superficial sensory branch of the ulnar nerve, at the wrist level on both sides. The report also stated that there existed indications of chronic lesions at the deep branch of the C8 – T1 nerves (finger flexors and small finger abductors).

On 20 March 2002 the Diyarbakır public prosecutor sent a letter to the Diyarbakır Directorate of Security and requested authorisation to prosecute the police officers .

Subsequently, on 28 March 2002 the Diyarbakır Governorship assigned a chief officer to conduct an investigation into the allegations of ill-treatment.

On 26 April 2002, on the basis of the investigation conducted by the chief officer and pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials), the Governor decided not to permit the instigation of criminal proceedings against the police officers concerned. He noted that according to the officers ’ submissions, during his police custody the applicant had been taken out of the Anti-Terror Branch every ten days to have his statements taken and had been medically examined each time. According to the medical reports issued after those examinations, there was no sign of ill-treatment on the applicant ’ s body, save for a scratch on the left hand, which was noted in the initial report and which the applicant maintained had happened before his arrest.

On 2 November 2002 the applicant objected to the Governor ’ s decision. He argued that the loss of strength in his hands were proof that he had been subjected to Palestinian hanging, that the investigation conducted by the chief officer lacked impartiality and that the several medical reports drawn up when he was taken out of the Anti-Terror Branch were fraudulent.

On 3 June 2003 the Diyarbakır District Administrative Court rejected the applicant ’ s objection.

On 9 November 2005 the Diyarbakır public prosecutor issued a decision not to prosecute the police officers concerned for lack of sufficient evidence. He maintained that the first two medical reports drawn up in respect of the applicant indicated minor scratches, which according to the applicant had occurred before his arrest. The prosecutor also indicated that during his police custody, on 12 September, 14 September, 23 September, 3 October, 13 October and 15 October 2001 respectively, several other reports had been issued in respect of the applicant, all of which stated that there was no indication of physical violence on his body. He further noted that following the neurological examination at the Fırat University Faculty of Medicine, on 12 April 2002, the applicant ’ s file had been transferred to the Istanbul Institute of Forensic Medicine, which had conducted its own examinations and drawn up a final report demonstrating that the applicant had not been subjected to ill-treatment. That report dated 31 August 2005 concluded as follows:

“It is established that there existed superficial scratches when the applicant was taken into police custody. In the medical report dated 8 September 2001, those scratches were noted to have occurred two or three days before. It is not medically possible to determine the exact cause of those injuries as they might have been sustained by a trauma, a fall or merely by handcuffing between 5 and 8 September 2001.

As regards the findings following the EMG at the Fırat University, these findings appear to be at normal levels. This is so especially taking into account that there would have been lesions on the median and radial nerves as well as the ulnar nerve had the applicant been hung by the wrists. Likewise, the Palestinian hanging would have caused lesions on the brachial plexus, which did not appear in any of the EMG results”.

On 5 December 2005 the applicant filed an objection against the Diyarbakır public prosecutor ’ s decision. Alleging that he had never been examined by a doctor when he had been taken out of the Anti-Terror Branch, he maintained that his place of birth was indicated wrongly in one of the medical reports, which would not have happened had he been actually examined. He also stated the names of certain people, who according to him could corroborate his allegations. The applicant further complained of the delay in the medical examinations conducted by the Istanbul Institute of Forensic Medicine and indicated his wish to make his submissions before the public prosecutor in person.

On 5 April 2006 the Siverek Assize Court rejected the applicant ’ s objection to the decision not to prosecute.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment while in police custody between 5 September and 15 October 2001.

He further argues under Article 3 of the Convention that the investigation into his allegations of ill-treatment was not effective in that the domestic authorities failed to take notice of his submissions, in particular concerning the falsity of the medical reports issued during his police custody, and did not conduct prompt medical examinations.

Relying upon Article 5 of the Convention, the applicant complains about the excessive length of the time he was held in police custody.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention during his time in police custody between 5 September and 15 October 2001?

The Government are requested to provide the Court with all the medical reports drawn up in respect of the applicant, to which the Diyarbakır public prosecutor referred in his decision dated 9 November 2005.

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?