SECOND SECTION

Application no. 18357/11 Gülseren KUTLU and others against Turkey lodged on 6 December 2010

STATEMENT OF FACTS

The applicants, Mrs Gülseren Kutlu , Mrs Berivan Kutlu ( ç elik ), Mr Fırat Kutlu and Mr Muhammed Kutlu are Turkish nationals, who were born in 1961, 1981, 1983 and 1986 respectively and live in Diyarbakır. They are represented before the Court by Mr Abdullah ç ağer , a lawyer practising in Diyarbakır .

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

The first applicant ’ s husband and the remaining three applicants ’ father Miktat Kutlu (“M.K.”), was a resident of the Bismil district of Diyarbakır, where he worked as a public official in Halkbank . On 18 April 1992 demonstrations took place in Bismil while the funeral ceremony of members of an illegal organisation was taking place. In order to restrain and control the demonstrations, the Diyarbakır Police Department assigned a reinforcement force of 52 police officers composed of specialised units of the police force. At around 16h30 M.K., who was sitting outside his house, was taken into custody together with 14 other suspects.

M.K. was subjected to ill-treatment during his custody at the police station. According to the testimony of the other suspects, all detainees were taken to the police station by special police teams, where they were forced to lie face down and kicked while in this position by police officers.

While in custody M.K became ill and was taken by police officers to the accident and emergency department of the Diyarbakır State Hospital . Despite the doctors ’ attempts he died at the hospital on 19 April 1992.

There is no official report or document as regards the applicant being accompanied to the hospital during his custody, and also regarding the names of the police officers or health officers who accompanied him.

According to the autopsy report, M.K. ’ s death was caused by head trauma. His skull was fractured, he had intracranial bleeding and there were lesions and ecchymosed areas on his body.

On 17 March 1993 the Diyarbakır Public Prosecutor ’ s Office filed a bill of indictment against 52 police officers who had been assigned to the duty of controlling the demonstrations on the day of the incident.

Before the judicial authorities could go ahead with the criminal proceedings, permission had to be obtained from the administrative authorities. An administrative investigation was then carried out by the Diyarbakır Police Department and on 16 June 1995 the investigator appointed by the administrative authorities concluded that the police officers were not responsible from the death of M.K. Subsequently, permission to prosecute the police officers was denied. On 7 May 1997 the Supreme Administrative Court examined, ex officio , the administrative authorities ’ denial of permission and annulled it.

In 1997 a criminal case was filed before the First Chamber of the Diyarbakır Assize Court against the police officers. After having questioned a number of defendants who maintained that M.K. ’ s injuries had been caused during the demonstrations and not in the course of his police custody, on 26 June 2008 the Assize Court decided to exhume M.K. ’ s body.

On 3 December 2008, after having examined the remains recovered from M.K. ’ s grave, the Forensic Medicine Institute concluded that the injuries observed on M.K. ’ s body could have been caused by a blunt object, by falling and hitting his head against a hard surface or by squeezing the head between two hard surfaces.

On 4 October 2011, the Diyarbakır Assize Court decided to acquit all defendants on account of its inability to determine the cause of the death.

The appeal lodged by the applicants against the Assize Court ’ s decision is still pending before the Court of Cassation.

COMPLAINTS

The applicants complain under Articles 2 and 3 of the Convention that M.K. was killed as a result of the ill-treatment to which he was subjected in police custody.

Relying on the same provisions in conjunction with Article 13 of the Convention the applicants also complain that the investigation into the death was not effective.

Without elaborating in what respect , the applicants also complained that there had been breaches of Articles 5 , 6 , 8 , 14 , 15 and 18 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ relative ’ s right to life , ensured by Article 2 of the Convention , been violated in the present case?

2. Has the applicants ’ relative been subjected to ill-treatment in the police station , in breach of Article 3 of the Convention?

3. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC] , no. 21986/93 , ECHR 2000-VII) and from ill-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 breach of Articles 2 and 3 of the Convention? In this connection:

(i) do the results of the investigation constitute a plausible explanation for the death of the applicants ’ relative and for the injuries on his body observed post-mortem (see Peker v. Turkey (no. 2) , no. 42136/06 , § 59 , 12 April 2011); and,

(ii) have the judicial authorities shown due diligence in expediting the criminal proceedings against the police officers?