SECOND SECTION

Application no. 27011/08 Metin SEVÄ°NDÄ°K against Turkey lodged on 30 May 2008

STATEMENT OF FACTS

The applicant, Mr Metin Sevindik , is a Turkish national, who was born in 1963 and lives in Samsun. He is represented before the Court by Mr M. R. Toprak , a lawyer practising in Samsun.

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

On 27 March 2000 the applicant was arrested on suspicion of being a member of an illegal organisation, namely the IBDA-C ( Great Eastern Islamic Raiders ’ Front - İslami Büyükdoğu Akıncılar Cephesi ).

Subsequently, he was taken to the Çarşamba Gendarmerie Command, where he alleges that he was subjected to physical violence .

The next day, 28 March 2000, the applicant was transferred to the Anti-Terror Branch of the Samsun Security Directorate and was examined by a doctor, who noted that there was no sign of physical violence on his body. The applicant claims that his examination was carried out in the presence of police officers.

On 30 March 2000 he was brought before the investigating judge, who held that he should be placed in detention on remand.

On the same day the applicant underwent a medical examination once again. The report drawn up following that examination by doctor A.M.K. indicated that there was no sign of ill-treatment on the applicant ’ s body.

According to the applicant ’ s submissions, he saw the prison doctor twice, on 3 and 4 April 2000 respectively, to show the lesions on his body and to indicate that he was urinating blood. The applicant claims that the doctor failed to take notice of his complaints and maintained that he could not draw up a report about the injuries.

On 6 April 2000 the applicant ’ s lawyer filed a complaint with the Samsun public prosecutor ’ s office, arguing that the applicant had been subjected to ill-treatment, which was proven by more than thirty grave injuries from his neck down. The lawyer maintained that the applicant had been subjected to electroshocks, doused with pressurised cold water, burned with a heated object, beaten, had his genitals squeezed and been threatened. He requested accordingly that the applicant underwent a medical examination.

On the same day the Samsun public prosecutor took the applicant ’ s statements. The applicant submitted that on the first day of his custody, at the Çarşamba Gendarmerie Command, he had been gravely beaten, threatened and coerced into signing some documents with his eyes covered. According to his statements, he had then been taken to the Anti-Terror Branch, where he had been subjected to severe beating, hosed with water and had had his body rasped by a metal object. There, he had once again been forced to sign certain documents with covered eyes.

Subsequently, the same day, the applicant was medically examined. The report issued the day after his examination, on 7 April 2000, noted numerous yellowish ecchymoses on his body (two horizontal bruises measuring 17 x 1.5 cm on the back of his shoulders; two of 11 x 6 and 6 x 3 cm on the right lumbar region; two of 5 x 3 and 4 x 2 cm on the left lumbar region; one measuring 9 x 2 cm on the left chest; two of 7 x 2 and 5 x 2 cm above the left nipple; one measuring 8 x 2 cm above the right nipple; several including two of 18 x 2 and 8 x 3 cm on the right shoulder and right arm; three measuring 7 x 5, 10 x 2 and 10 x 3 cm on the left shoulder; one of 6 x 1.5 cm on the right femur; two of 16 x 1.5 on the left femur). The report also indicated a purplish ecchymosis of 8 x 5 cm on the left wrist as well as a number of scabs (three of 7 x 1, 2 x 1 and 4 x 1 cm on the left shoulder; one measuring 5 x 1 cm on the left chest; several with the biggest measuring 19 x 1 cm on the left arm; several on the right arm including one as big as 12 x 1 cm; several including two of 18 x 1 and 9 x 1 cm on the right femur; one measuring 4 x 1 cm on the left femur). After stating the applicant ’ s complaints, the report concluded that the lesions found might have occurred as a result of trauma as claimed by the applicant and that they did not put the applicant ’ s life at risk but would prevent him from performing routine activities for ten days.

On 4 December 2000 the Samsun public prosecutor filed an indictment with the Samsun Assize Court, accusing two police officers from the Anti ‑ Terror Branch of ill-treatment and doctor A.M.K. of omission of duty pursuant to Sections 243 and 250, respectively, of the Criminal Code then in force (Law no. 765).

In the meantime, criminal proceedings were brought against the applicant for membership of an illegal organisation.

On 29 January 2001 the Ankara State Security Court suspended the proceedings against the applicant pursuant to Law no. 4616, which governed the conditional release, suspension of proceedings and execution of sentences in respect of certain offences committed before 23 April 1999. The applicant appears to have been released following that decision.

During the proceedings against the police officers and the doctor, at the hearing on 7 May 2001 the applicant made his submissions, changing his version of the events. He stated before the Samsun Assize Court that he had been treated well the first day of his custody but had been beaten and threatened the following day at the Çarşamba Gendarmerie Command. He maintained that he was taken to the Anti-Terror Branch after that, however; he had not been subjected to physical violence there. The applicant added that he had given his statements before the Samsun public prosecutor under the shock of the events, following which he had had to undergo psychiatric treatment. He finally maintained that he did not wish to complain against doctor A.M.K.

On the same day, taking no note of the applicant ’ s latter statements and on the basis of the medical report dated 7 April 2000, the Samsun Assize Court found the accused guilty as charged and sentenced the two police officers to ten months ’ imprisonment each and the doctor to a fine. The court finally deferred the execution of the sentences pursuant to Section 6 of the now repealed Law No. 647 on the basis that the officers and the doctor did not show any likelihood of reoffending .

In the meantime, the issue was covered by a newspaper and was brought to the attention of the Ministry of Interior by one of the persons representing Samsun in the Parliament.

On 8 February 2002 the Court of Cassation quashed the judgment of the first-instance court as it found that the court should have heard the other doctors who had examined the applicant in order to determine the time of the injuries found on the applicant ’ s body.

On 25 December 2002, noting that the injuries had been sustained within the three weeks before the applicant ’ s medical examination on 6 April 2000, the Samsun Assize Court sentenced the two police officers to ten months ’ imprisonment and the doctor to the same amount of fine. The court deferred the execution of the sentences once again.

On 23 July 2003 the chief public prosecutor at the Court of Cassation submitted his written opinions, arguing that the judgment should be quashed in that there was not sufficient evidence to convict the accused.

Subsequently, on 23 January 2004 the Court of Cassation quashed the judgment of the first-instance court once more as it found that the latter had failed to fully evaluate the information on the criminal proceedings against the applicant.

On 27 June 2005 the Samsun Assize Court acquitted the police officers and the doctor. The court indicated that the applicant had not complained of any ill-treatment during the preliminary investigation stage of the proceedings against him but had invoked that complaint only at the first hearing before the Ankara State Security Court. It added that the prison doctor, who had examined the applicant during his detention on remand, had stated that he had noticed no sign of physical violence on the applicant ’ s body but had transferred him to the Samsun State Hospital for a urological examination in any case. The court concluded therefore that the applicant might have induced the injuries on himself during his time in detention on remand, in order to corroborate his statements before the Ankara State Security Court.

On 5 December 2007 the Court of Cassation upheld the judgment in so far as it concerned the two police officers. The higher court discontinued the case against doctor A.M.K., finding that it was time-barred pursuant to Sections 102 and 104 of the former Criminal Code (Law no. 765) and Section 223 of the Code on Criminal Procedure (Law no. 5271).

COMPLAINTS

The applicant alleges under Article 3 of the Convention that he was subjected to ill-treatment during his time in custody at the Çarşamba Gendarmerie Command and the Anti-Terror Branch of the Samsun Security Directorate.

He further complains under Article 3 of the Convention about the outcome of the criminal proceedings against the police officers and the doctor concerned.

Relying upon Articles 5 § 1 and 7 of the Convention, the applicant maintains that he was arrested and placed in detention on remand without any legal basis.

He submits under Article 6 of the Convention that he did not benefit from legal assistance while in custody and that his lawyer was not permitted to attend the hearings before the Ankara State Security Court.

Finally, the applicant complains under Article 8 of the Convention that his house was searched unlawfully during his arrest.

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 the custody at the Gendarmerie and at the Anti-Terror Branch of the Samsun Security Directorate?

2. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV), were the criminal proceedings against the accused police officers and doctor in the present case in compliance with the requirements of Article 3 of the Convention?