SECOND SECTION

Application no. 39573/11 Süleyman ARAÇ against Turkey lodged on 18 February 2011

STATEMENT OF FACTS

The applicant, Mr Süleyman Araç , is a Turkish national, who was born in 1982 and lives in Ankara .

The facts of the case, as submitted by the applicant and as appear from the case file, may be summarised as follows.

On 17 October 2008 the applicant, who was in pre-trial detention, was taken to the Karşıyaka Law Courts for a hearing. After the hearing, two non-commissioned officers of the gendarmerie who had escorted him to the court, B.P. and Y.K., allegedly kicked him and beat him up.

Later that day, the applicant was examined at the Ä°zmir Buca Closed Prison infirmary on his return. It was reported that he had a scrape on his right ankle (measuring 2 cm x 1 cm) and that he was suffering back pain in the middle of his left collarbone.

The applicant was subsequently referred to the Ä°zmir Forensic Medicine Institute for a medical examination. An expert report dated 22 October 2008 showed that he had a scrape on his right ankle (measuring 1 cm x 1 cm). It was also noted that he was still suffering from pain in the left of his chest. The report concluded that the soft tissue injury was not life-threatening and that it could be remedied through simple medical procedures.

The applicant lodged a criminal complaint against the officers involved.

On 6 November 2008 the Karşıyaka public prosecutor issued a decision not to prosecute on the ground that there was no evidence to suggest that the force used to restrain the applicant had been disproportionate in the circumstances. The prosecutor noted that the applicant ’ s injuries were of a trivial nature, that they could have resulted from his resistance to the officers, and that he had chanted slogans in favour of a terrorist organisation. He further pointed out that the applicant had resisted the officers in the performance of their duties.

On an appeal lodged by the applicant, the prosecutor ’ s decision not to prosecute was upheld by the İzmir Assize Court on 5 January 2009 on the basis of an incident report drawn up by the officers concerned and countersigned by two witnesses.

The applicant lodged a further complaint, but on 1 April 2009 this was also dismissed.

In the meantime, criminal proceedings were initiated against the applicant for having obstructed public officials in the execution of their duties by use of force. On 26 October 2009 the Karşıyaka Criminal Court of First Instance acquitted the applicant of the charges. It noted that no criminal prosecution had been pursued against him for slander or terrorist propaganda, that, contrary to the allegations of violent behaviour on the suspect ’ s part, the officers had not been injured, that one of the officers had not been examined as a witness in the investigation, and that in any event the claimants ’ statements had been contradictory.

On 5 January 2009 an objection filed against that decision was dismissed by the Ä°zmir 7 th Assize Court .

On 26 January 2010 the applicant lodged a further criminal complaint against the officers in question.

The public prosecutor reopened the investigation, having observed that the applicant had been acquitted of the charges and that two of the witnesses, who had been performing their compulsory military service at the material time, had been discharged from the army.

Further statements were taken from the two conscripts who had signed the incident report by a specially appointed public prosecutor and a police officer. The relevant parts read as follows:

First witness:

“The incident report is true and correct ... he chanted slogans in favour of the PKK [Worker ’ s Party of Kurdistan] ... I do not remember what he said exactly ... the soldiers intervened in order to calm him down ... nobody hurt him intentionally.”

Second witness:

“ ... The claimant was not beaten up by the soldiers ... the incident report stating that the applicant chanted illegal slogans is true and correct ... ”

The public prosecutor issued a decision not to prosecute on 5 August 2010 on the ground that there was insufficient evidence substantiating the allegations of assault or disproportionate use of force.

The applicant filed an objection against that decision on 27 August 2010.

On 8 November 2010 the İzmir 5 th Assize Court upheld the decision not to prosecute. It quoted extracts from the statement given by B.P., one of the officers involved, who stated that when they were chatting with the judge ’ s bodyguard about “the martyrs” (soldiers killed in the conflict with the PKK), the applicant had interrupted their conversation, saying that he was “in favour of the organisation” and that “you will have more fallen soldiers; unless you accept the existence of the PKK, the problem will never be resolved” and started chanting a slogan. In order to draw up a report on the incident, the applicant was taken out of the courtroom. When they attempted to handcuff him, he objected, saying: “Why is this needed? We are only going from over here to over there”. B.P. replied: “Do not tell me how to do my job” and handcuffed him. While they were going along a narrow corridor to the waiting room, the applicant started resisting the officers and struck Y.K. with his elbow. They then had to escort him to the waiting room by grabbing his arms. The Assize Court held that the applicant ’ s allegations were unsubstantiated. The relevant parts of the decision read as follows:

“The claimant Süleyman Araç is well known by our court. He was the sole claimant and witness in the criminal proceedings against eight police officers conducted by our court ... one of the police officers committed suicide pending the investigation because his reputation had been tarnished.

It is understood from the content of his complaint that the claimant Süleyman Araç , as in that case, subsequently lodged complaints against other officers and that investigations were being carried out.

Although the claimant alleges that the non-commissioned officer concerned knows him [from that case] and therefore ill-treated him, that case has nothing to do with the criminal proceedings referred to here.

Aside from this, the suspect is a repeat offender with a criminal record; he is therefore a criminal type of person; [he] knows very well how the police and justice system works and on what basis he should lodge a complaint in respect of law-enforcement officers to get results. As a matter of fact, following his acquittal, he lodged a complaint against the sergeant and non-commissioned officer who had arranged for criminal proceedings to be initiated against him. Although the decision not to prosecute refers to the suspect ’ s back pain and slightly rubbed off skin on the ankle, it is quite likely that these occurred when he was brought to the waiting room by force. It is known that some suspects who do not like the gendarmerie or the police, make allegations about the law-enforcement officers in these kinds of cases; they even threaten them by saying ‘ I ’ ll cut myself and put the blame on you ’ .

Besides, there is no evidence in the investigation file to substantiate the claimant ’ s allegations, except for the medical report. The circumstances that might have led to the findings of that report have been explained. Therefore, the claimant ’ s accusations ... solely based on his own assumptions, have been found to be unsubstantiated. There is no element in the case file which might warrant a strong suspicion requiring the criminal prosecution of B.C. and Y.K.”

COMPLAINTS

The applicant relies on Articles 3, 5, 6 and 14 of the Convention.

He alleges that he was ill-treated by the officers of the gendarmerie. It is the applicant ’ s view that, since he had played a major role in an operation against police corruption in 2003, he was subjected to such treatment for the sake of revenge.

He further maintains that the judges who heard his objections had adjudicated in the police corruption case in which he had been the sole claimant and witness; hence, they were not impartial towards him. The applicant further complains that the domestic authorities failed to conduct a proper investigation in that the incident report had been drawn up by the officers. He calls into question the results of his medical examination following the incident, pointing out that his request for an X-ray was refused. He further adds that the accused officers escorted him to see the doctor and were present in the room during his medical examination.

The applicant submits that he neither chanted slogans nor resisted the officers, and that he has never been a political activist; however, just because of his ethnic origin, it was easy to accuse him of terrorist propaganda to excuse his ill-treatment.

He argues that the domestic courts erred in the assessment of the facts and evidence.

QUESTION TO THE Government

Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Furthermore, h aving regard to the procedural protection from inhuman or deg rading 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 Article 3 of the Convention? In particular, are the doubts of the applicant as to the impartiality of the judges sitting in the Ä°zmir 5 th Assize Court justified in view of the terms of their decision dated 8 November 2010?